Provisions of interest to victims of crime
Victim impact Statement
The Criminal Code requires the court to consider a victim impact statement at the time of sentencing an offender where such a statement has been prepared. The victim impact statement describes the harm done to or loss suffered by the victim of the offence. The form of the statement may be in accordance with procedures established by a victim impact statement program designated by the Lieutenant Governor in Council of the Province. Courts have accepted a variety of forms of victim impact statements regardless of whether there is a designated program. (See section 722 of the Criminal Code for details.)
Recent amendments to the Criminal Code provide that the victim may read their victim impact statement aloud at sentencing, where they wish to do so. Information from the surviving victims may also be considered in proceedings pursuant to s. 745.6, where an offender sentenced to life for murder, may apply for a reduction in the number of years before being eligible to apply for parole.
A victim surcharge is imposed in addition to any other punishment for an offender convicted or discharged of a Criminal Code offence or an offence under the Controlled Drugs and Substances Act. The revenue raised by the victim surcharge remains in the province or territory where it is imposed. The Criminal Code requires that victim fine surcharge revenue shall be used to provide assistance to victims of offences as the Lieutenant Governor in Council of the province directs. (See section 737 of the Criminal Code for details.)
The victim surcharge is 30% of any fine imposed and where no fine is imposed, the surcharge is $100 for summary conviction offences and $200 for indictable offence convictions. The judge can increase the amount of the victim surcharge where the circumstances warrant and the offender has the ability to pay.
In cases where offenders are unable to pay the surcharge, they may be able to participate in a provincial fine option program, where such programs exist. This would allow an offender to satisfy a financial penalty ordered as part of a sentence by earning credits for work performed in the province or territory where the crime was committed.
The majority of provincial/territorial victim services and programs are financed in part by surcharge revenue. The majority of provinces/territories have also enacted legislation imposing a surcharge on provincial offences, the revenue from which is used for victim programs and services.
A court sentencing an offender may order, in addition to any other sentence imposed, that the offender pay restitution to the victim of the offence. The court may impose the restitution order based on an application by the prosecutor or on its own motion.
Restitution, as an additional sentence, may be ordered for readily ascertainable loss of or damage to property suffered as a result of the commission of the offence and readily ascertainable pecuniary (monetary) damages, including loss of income or support, incurred as a result of bodily harm suffered as a result of the commission of the offence. In addition, in the case of an offence causing bodily harm to the offender's spouse or child (family violence), restitution may be ordered for readily ascertainable expenses incurred by the victim as a result of moving out of the offender's household, for temporary housing, child care, food and transportation.
Where restitution is ordered as an additional sentence and the restitution is not paid within the time period specified by the court, the person to whom the restitution is to be paid (i.e. the victim/the beneficiary of the order) may file the order in any civil court in Canada. The restitution order made in the criminal proceedings will then have the same effect as a civil judgment for damages made by a civil court. The victim can enforce the order against the offender in the same manner as a civil judgment (e.g. direct the Sheriff to seize bank accounts, place liens on property, etc.). (See sections 738-741.2 of the Criminal Code.)
Restitution may also be a condition of an offender's probation order, where probation is the appropriate sentence.
Publication Bans, Exclusion Orders and Facilitating Testimony
In criminal proceedings, while the general rule is that all proceedings against an accused shall be held in open court, the Criminal Code sets out exceptions, including those which are intended to protect the privacy of victims, for example:
- subsection 486(1) which permits the exclusion of the public in certain circumstances.
- subsections 486(3) and 486(4) which provide for an order prohibiting publication of the identity of sexual offence victims and young witnesses in sexual offence proceedings.
- subsection 486(4.1) which provides that a judge may make an order prohibiting the publication of the identity of a victim or witness of any offence, on application, where it is established that the order is necessary for the proper administration of justice.
- subsections 276.2 and 276.3 which restrict publication of proceedings to determine the admissibility of evidence regarding a sexual assault complainant's sexual history.
Other provisions are intended to facilitate the participation of witnesses, including:
- subsection 486(1.2) which permits a support person to be present in court with a witness under the age of 14 years, or who has a mental or physical disability, in sexual offence proceedings.
- subsection 486(2.1) which permits a witness who is under the age of 18 years or who has difficulty communicating, to provide their testimony from behind a screen or by closed circuit TV, where the judge is of the opinion that this is necessary to obtain a full and candid account. This provision applies in proceedings for sexual offences and other specified offences.
- subsection 486(2.3) which provides that, in sexual offence proceedings, generally, a self-represented accused shall not personally cross-examine a witness under 18 years of age. The court may appoint counsel for the accused to conduct the cross-examination.
- subsection 715.1 which permits, in proceedings relating to sexual offences, that where the victim or witness was under the age of 18 at the time the alleged offence occurred, a videotape, describing the acts complained of and made within a reasonable time after the offence, is admissible in evidence, if the victim or witness, while testifying, adopts the contents of the videotape.
- subsection 715.2 which permits, in proceedings relating to sexual offences, that where the victim or witness has difficulty communicating due to a disability, a videotape describing the acts complained of and made within a reasonable time after the offence, is admissible in evidence, if the victim or witness, while testifying, adopts the contents of the videotape.
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