Victims of Crime Research Digest, Issue No. 2, 2009

Understanding Restitution

By Susan McDonald, A/Principal Researcher, Research and Statistics Division

If you were to ask a member of the public about restitution, chances are that you would be met with a blank stare or the question “what is restitution?” Those who work with, or are affected by, the criminal justice system are aware of this discretionary sentence that is made in addition to another sentence and is paid to the victim, by the offender, to cover quantifiable losses. Yet, there are many gaps in our overall understanding of how restitution is working, and in particular, how it is working for victims of crime.

This short article provides a description of the restitution provisions in the Criminal Code and what we know about restitution from social science research, caselaw, and statistics. There is very little empirical research on the issue in Canada, and as such, there are many questions that remain to be answered in order to fully understand how the provisions are implemented and what that means for both victims and offenders. This article will conclude by highlighting some of those questions.

What is Restitution?

As noted above, restitution is a sentence made after a finding of guilt. It is different from compensation, which is a payment made by the state to a victim to compensate for pecuniary and non-pecuniary losses such as pain and suffering.

Restitution orders may be “stand-alone” orders imposed as an additional sentence (s. 738 of the Criminal Code) or ordered as a condition of probation (s. 732.1(3.1)(a)) or as a condition of a conditional sentence (s. 742.3(2)(f)). The sentencing judge will only make a restitution order in appropriate cases, taking into account the sentencing principles and the facts of the individual case.

History of the Criminal Code Restitution provisions

As modern criminal law evolved in common law jurisdictions from the Middle Ages onward, crimes were redefined as acts against the state; addressing the losses of individual victims was no longer a primary goal, and “the victim was transformed from prosecutor to mere witness” (see Young 2001, 5-7; Young 2008, 2). Prior to 1857, in Ontario, the Attorney General was the Crown's chief prosecutor and frequently appeared in court in serious criminal cases. The vast majority of cases, however, were prosecuted by what was called a “private informant” – the victim or another interested party. The onus fell on the victim to investigate, take into custody, and prosecute (or pay a barrister to prosecute) the accused. The victim was also the sole recipient of any payment (Karmen 1995). Hillenbrand (1990) notes that “private prosecution” was intended to be a means by which restitution could be provided to the victims of property crimes.

In 1857, the Attorney General for Canada West, John A. MacDonald, introduced the Upper Canada County Attorneys Act, establishing a network of criminal prosecutors to appear on his behalf, which was on behalf of the Crown or Queen Victoria. The new law was proclaimed in force on January 1, 1858. Nineteen prosecutors were appointed by the Governor General to represent the Crown, as Canada was still a British Colony (Ministry of the Attorney General 2007). 

In the United Kingdom, the right of a victim's family to compensation in any case of wrongful death was re-instated in legislation in 1846,[1] and in the United States, restitution re-emerged in the early 1900s when new sentencing laws allowed the courts to impose alternatives to incarceration (Frank 1992). In Canada, since its inception in 1892, the Criminal Code has permitted a sentencing court to order “compensation” for property lost as a result of the commission of an offence.

The Canadian provisions governing compensation were mostly unchanged until amendments in 1996 repealed the compensation order provisions, replacing them with restitution order provisions. The terminology was changed to reflect that “restitution” refers to payments the offender should make while “compensation” generally refers to payments from the state. While the original compensation provisions were only available for loss, destruction, or damage to property, restitution is also available for pecuniary damages including loss of income or support incurred as a result of bodily harm arising from the commission of an offence, or to cover expenses associated with moving out of the household shared with an offender in cases of bodily harm or its threat. The sentencing court may now order restitution on its own, whereas previously it could only be initiated by an aggrieved person.

In 1988, Bill C-89, which would have created a criminal enforcement scheme for restitution orders, was passed by Parliament but was never enacted due to concerns raised by the provinces after the Bill's passage regarding the prohibitive costs of creating and operating such a scheme. After much study on the costs and operational implications, it was determined that there would be support for the existing civil enforcement scheme but not for a criminal enforcement scheme due to the costs to the provinces associated with implementation. It was determined that the annual operating costs would far exceed the financial benefits realized by victims.

In 2004, s. 741 of the Criminal Code was amended to expand a victim's ability to receive a civil order for an unpaid restitution order to restitution orders made as a condition of probation or as part of a conditional sentence. Previously this option was only available for stand-alone orders. In 2005, s. 738(1)(b) was expanded so that readily ascertainable pecuniary damages, such as loss of income caused by the commission of an offence, became possible in the case of “psychological harm” resulting from the commission of an offence. Previously, this restitution order was only available in cases of “bodily harm” resulting from an offence.

Caselaw

The published caselaw provides a valuable, albeit limited, source of understanding about what the judiciary consider in their sentencing decisions. A QuickLaw search was conducted using the relevant Criminal Code provisions going back three decades. The search was limited to criminal cases.

There have been two Supreme Court of Canada cases on restitution in the past thirty years, several appellate court cases, and many cases where the provisions were considered in the lower courts. A review of these cases shows that many issues are covered. The Supreme Court decisions in R. v. Zelensky[2] and R. v. Fitzgibbon[3] established parameters that have been followed without challenge over the past three decades.

In R. v. Zelensky, the Supreme Court of Canada made it clear that restitution orders fall under the federal government's criminal law power only because they are part of the sentencing process and that restitution orders are only appropriate when the amount of the loss is easy to calculate and is not in great dispute. The Supreme Court reiterated in R. v. Fitzgibbon that while the offender's ability to pay the restitution order should be considered, it is not the determining factor in every case.[4] Criminal courts are not an appropriate forum for awarding damages for pain and suffering or for determining complicated issues regarding the assessment of damages. These matters must be settled in civil courts. Additionally, the offender's ability to pay, although not determinative, is a factor which is considered by the judge when determining whether a restitution order is appropriate.[5]  When the court orders restitution as a term of probation, it must first ensure that the offender may reasonably make the payment during the term of probation as non-payment will result in a breach of the probation order. If the offender fails to pay the full amount of the restitution order, the victim must use civil enforcement methods to collect the money.

Another factor considered by judges when determining whether a restitution order is appropriate is the need for the court to consider the impact on the chances for rehabilitation. In R. v. Siemens,[6] the court noted that the impact of a restitution order upon the chances of rehabilitation of the accused, either pro or con, is a factor to be considered. Ruining an accused financially would impair his chances of rehabilitation, for example. In R. v. Bullen,[7] the court determined that the timing and amount of restitution must not significantly undermine an offender's will or ability to pursue restitution, and those considerations act as an important constraint at sentencing.

In the case of Bullen, Chief Judge Stuart of the Yukon Territorial Court provided extensive comments on restitution, highlighting the challenges inherent in the application and implementation of the provisions.

To engage a victim as a witness to secure a conviction in the interest of the state and then leave the victim to their own means to pursue their injuries in another process, in another court, raises questions of fairness and practicality. In many respects, victims' interests have been unduly subrogated to state interests in the evolution of criminal courts from their beginnings in civil courts. [8]

Chief Judge Stuart examines restitution from a victim's perspective and finds the criminal justice system lacking. Much of the research that is cited in the decision, however, is from other jurisdictions. To understand restitution in Canada and to make improvements to the process for victims, our own body of empirical research would clearly be beneficial.

Social Science Research

Not only is there very little empirical research on restitution in Canada, there is likewise very little published work on the subject in academic journals. The academic articles that were found span decades and were predominantly from the United States. The writing in the last fifteen years has focused on evaluation research of restitution programs, in particular examining what factors lead to successful payment to the victims. This section will provide an overview of the articles that dealt with the application of restitution legislation.

Sims (2000) provides an overview of victim restitution programs, noting that they are part of the “restorative justice” paradigm wherein the critical component is the victim. The article examines both adult and youth restitution, looking at the history of victim restitution in the U.S., problems with restitution programs, and components of successful restitution programs. The author articulates four components of successful programs: (1) a consideration of offenders' ability and willingness to pay; (2) a formal program for the administering of restitution orders; (3) communication among all agencies involved in the ordering and collecting of restitution; and (4) an effective means of ensuring compliance with restitution orders, usually accomplished by strict attention to enforcement procedures and process.

Three examples of evaluation research were identified. First, Lurigio and Davis (1990) examine the use of a notification procedure (follow-up letter technique) to ensure compliance of restitution orders in Cook County, Illinois, in the U.S. According to the authors, victims' satisfaction with the restitution process can be undermined by the lack of follow-up done regarding offender compliance with restitution orders. The authors hypothesized that the procedure would have a greater effect on offenders with paying jobs and with fewer prior charges. The results of the study show that those with less criminal system experience and with jobs were more likely to respond to and complete restitution orders. Based on their findings, the authors concluded that judges should take into account the socio-economic factors related to offenders when making decisions regarding victim restitution.

Second, in a study undertaken in Pennsylvania, Ruback and Shaffer (2005) examined the extent to which victim-related factors influenced judges' decisions regarding restitution. To attain this information, the authors conducted a state-wide survey of judges regarding the victim-related, offender-related, and system-related factors that judges believed influenced restitution decisions. The survey was followed by a statistical analysis of restitution decisions from 55,119 cases. Based on the survey, the authors found that judges believed that the compensation of victims was the primary rationale for restitution. The authors attribute this finding to the changes in the Pennsylvania statute[s] which made restitution orders mandatory in certain cases. Of significance in the research is the finding that victims' services delivery mechanisms also influence judges' decisions regarding restitution. Specifically, the authors found that the location and accessibility of victim services offices, as well as their link to court systems was highly influential in restitution decisions. Issues related to victims' ability to get to offices outside of the courts and their accessibility to other resources necessary for the restitution process were shown to have the greatest implication for victim restitution orders. Among the authors' suggestions is that victims services may be most useful when directly linked to the court system.

And third, an evaluation was undertaken of a project in New Jersey whereby probationers were assigned to a program designed to increase payment of fine and restitution sanctions through a combination of intensive probation, community service, and threats of probation revocation and incarceration. The authors (Weisburd et al. 2008) found that these probationers were more likely to fulfill their obligations than those assigned to regular probation. The outcomes of one treatment group indicate the main cause of fine payment was the deterrent effect of possible incarceration.

As noted, the above three examples are evaluation research and were guided by the goal of determining whether a particular program or policy has been effective. In Canada, restitution has not been studied to any great extent, either within the context of a restorative justice program or as part of probation. The Multi-Site Study (Prairie Research Associates 2004) was a large, five-site Canadian study wherein all criminal justice stakeholders (judges, Crown, defence, parole, probations, police, victims, victim services, and victim advocacy groups) were interviewed on their awareness and perceptions of the Criminal Code provisions relating to victims. For example, to determine views on when restitution should be requested, judges[9] were asked when, in their view, restitution is appropriate. Surveyed judges responded that damages must be quantifiable (87%) and the offender must be able to pay (61%). They placed less emphasis on the victim's desire for restitution (32%).Table 1 illustrates the responses from victim services and advocacy groups when asked “What are the obstacles to the use of restitution?”

Table 1: Obstacles to the use of restitution, as reported by victim services and advocacy groups, 2004
Obstacles Victim Services Groups[10] (n=94, 30% of total respondents) Advocacy Groups (n=19, 40% of total respondents)
Accused usually poor or unable to pay 34% 32%
Victims lack information about restitution or unaware of option 31% --
Victim must pay the cost of enforcement 16% --
No enforcement 14% 21%
Cumbersome application process 10% --
Judicial or Crown Attorney reluctance to order or request 9% --
Eligibility criteria too restrictive 7% 11%
Does not compensate victim adequately -- 21%
Other 11% 26%

Source: Multi-Site Study (PRA 2004)

A study in Nova Scotia (Martell Consulting Services 2002), which included interviews with all criminal justice professionals, found that, despite the 1996 amendments to the Criminal Code and despite the apparent support for restitution as a condition of sentencing, restitution could only be found on the periphery of the criminal justice system and that there was, overall, low awareness amongst victims about restitution. The Canadian study concluded that three main barriers exist with respect to accessibility of restitution orders for victims: (1) the lack of enforcement by the criminal justice system; (2) the costs for victims; and (3) the requirement for victims to gather information about the offender, which is needed to register a restitution order as a civil judgment.

At the time of writing this article, the Department of Justice Canada had begun a study on the use of restitution orders in Saskatchewan. Saskatchewan is unique in that there is a restitution coordinator whose role is to work with both offenders and victims to ensure compliance with a restitution order.

There are some Canadian data available on restitution orders, and it is to these data that we now turn.

Statistics

Statistics on restitution are available from the Adult Criminal Court Survey, which is administered by the Canadian Centre for Justice Statistics of Statistics Canada. These data are limited, however, to the number of orders each year by offence type and by jurisdiction. No data are collected on a national scale on the value of the orders or on the amount collected. Individual jurisdictions maintain some information on number of orders and payment details; however, the detail and quality of these data vary considerably across the country.

We know that in 1994-1995, a total of 11,017 restitution orders were made, which represented 4.6% of the total 242,011 guilty cases. In 2006-2007, a total of 7,490 orders were made, which represented 3.1% of the total 242,988 guilty cases. Chart 1 below shows that the number of the orders made as a percentage of total cases has fluctuated but has overall moved downwards over the past decade.

Chart 1: Percentage of Guilty Cases Receiving Restitution Orders, 1994-1995 to 2006-2007

This horizontal bar chart illustrates the percentage of guilty cases receiving restitution orders, 1994-1995 to 2006-2007

[ Description of Chart 1 ]

Source: Canadian Centre for Justice Statistics, 1994-2007

The majority of restitution orders are made for property crimes. In 2006-2007, 80% of all orders were made in cases of property crimes. The downward trend for restitution orders appears to be mirroring the overall downward trend in property crimes as shown in Chart 2 below. The rate of break-ins has been steadily declining since peaking in 1991, reaching its lowest level in over 40 years. For example, in 2007, police reported just over 230,000 break-ins, of which about 6 in 10 were residential. The rate of residential break-ins fell 9% in 2007, and break-ins at businesses dropped 8% from the previous year. The rate of motor vehicle theft has also been declining since its peak in 1996, including a 9% drop in 2007 from the previous year (Statistics Canada 2008).

Chart 2: Restitution Orders and Property Crime Rates, 1994-1995 to 2006-2007

This line chart illustrates the trends for restitution order made for property crimes

[ Description of Chart 2 ]

Source: Canadian Centre for Justice Statistics, 1994-2007

Research Gaps and Questions

As each province is responsible for the administration of justice, the processing of restitution orders varies depending on the jurisdiction. As well, each jurisdiction tracks information using its own system. While basic information is provided to the Canadian Centre for Justice Statistics, there is a great deal of detail lacking on a nation-wide basis.

Restitution orders constitute another monetary penalty and, along with fines and the federal and provincial victim surcharge, create challenges in imposition and enforcement. Weisbard et al. (2008) looked at all monetary penalties when it examined the factors that were likely to impact full compliance. Unlike fines and surcharge, however, stand-alone restitution orders are made to the victim rather than the state, and as such, there are additional challenges for enforcement; and as noted by Chief Judge Stuart of the Yukon Territorial Court, “…leave the victim to their own means to pursue their injuries in another process, in another court, rais(ing) [added by you or in the original?] questions of fairness and practicality.”

The research that does exist in Canada (Prairie Research Associates 2004; Martell Consulting Services 2002) suggests that there are policies and programs that may assist victims with restitution. Raising awareness through targeted information and education, providing more assistance with making an application for restitution, and more assistance with collection are three key areas which could assist victims. If such programming efforts are implemented, they should be accompanied by rigorous evaluation. New practical insights about minimizing further harm for victims of crime from thoughtful evaluations of theoretically and empirically informed programs are most needed.

Key questions that remain to be answered include: What are the demographics of the victims and the offenders? What are the factors that are related to the payment of restitution orders? Where there is victim assistance in place, how does this work to help victims? It is hoped that further research and understanding of promising practices will ultimately assist victims in the area of restitution.

References