Victims of Crime Research Digest No. 3

“Explain Please!” Working with Victims and Restitution

By Susan McDonald, Principal Researcher in the Research and Statistics Division, Department of Justice Canada

“Explain please!” is a quotation from a victim who was interviewed for a research study undertaken by the Research and Statistics Division, Department of Justice Canada, on restitution in Saskatchewan.[1]It aptly summarizes the overall tone of the comments from victims when asked about how well they understood restitution. This article draws upon the findings and discussion of this research and will focus on the information and assistance needs of victims dealing with restitution orders. It begins with a brief overview of the Criminal Code restitution provisions and the Adult Restitution Program in Saskatchewan. A description of the research study follows with a focus on the findings on victims’ information needs. Discussion and concluding remarks complete the article.

Background

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. These provisions remained unchanged until 1996 when amendments repealed the compensation order provisions, replacing them with restitution order provisions.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. [2]

The Adult Restitution Program in Saskatchewan

The mandate of the Adult Restitution Program is to monitor cases where restitution has been ordered. [3] The Program started in 1975 with the provincial ministry for corrections. It is unique in Canada and, as such, provides an important context within which to undertake research on restitution. The Program is currently located with the Ministry of Justice and Attorney General, Victims Services Branch, and consists of one full-time restitution coordinator and one full-time administrative support staff. There is a toll-free telephone number for offenders who are required to report to the restitution coordinator and for victims who have inquiries about restitution. Two plain language information pamphlets have been developed about the Program: one for offenders and one for victims. Applications and information on the Restitution Program are available from police agencies, police-based victims services programs, Crown prosecutors’ offices, or by contacting the Victims Services head office in Regina.

Under the Program, payments continue to be paid to Courts and certified copies of restitution orders continue to be provided to victims by the courts. Once breach action is initiated, an offender may be brought back before the Court for failure to pay restitution. If restitution is not paid, the victim can register the order with the Court of Queen’s Bench and initiate civil action against the offender.  The restitution coordinator assists with inquiries from victims regarding the process of registering their orders and the enforcement measures that are available.

A restitution order can be, and often is, given in conjunction with other sentencing options such as probation or a conditional sentence. If the Probation or Conditional Sentence Order containing a restitution condition has expired, or a “stand alone” restitution order was originally imposed, the victim can file his/her restitution order as a civil judgment through the Court of Queen’s Bench.  This allows the victim to use the mechanisms available under provincial judgment enforcement law to force compliance of the order. These mechanisms are all debtor-driven and rely on the victim to take steps to enforce the restitution order.

Just as with any other civil monetary judgment, the victim’s ability to collect on a restitution order depends on a number of factors, including the resources the offender has and the type of enforcement tools they have available to access those resources. This civil enforcement system is a self-help system, and the onus is on the victim to attempt to identify the assets or income of the accused which can be garnished or seized.  The victim’s ability to recover on the judgment will depend on whether the offender has any resources at his/her disposal.

Research on Restitution in Saskatchewan

The purpose of the research study was to gain a greater understanding of how restitution is working in Saskatchewan and to better understand the application of restitution orders as part of the sentencing process, including their impact on the system, victims, and offenders. Among the specific research questions asked were: How do victims experience the restitution program/process? What are the benefits and challenges for them?

Methodology

For the purposes of this article, I will be drawing on the findings from the following two data sources:[4]

  1. A mail-out/electronic questionnaire was also sent to all private citizen victims of offenders in four court locations (Regina, Saskatoon, Yorkton and Meadow Lake) who had received a letter from the court indicating that the offender in their cases had received a restitution order in 2007/08 (n=50/295).
  2. Interviews were conducted with 67 criminal justice stakeholders, including 23 victims as well as offenders, court staff, probation officers, defence, Crown prosecutors, and Ministry of Justice and Attorney General programs/policy officials, between August and October 2008 in the four court locations noted above. 

Research Findings

Demographics

A total of 50 victims responded to the questionnaire, out of a possible 295, for a response rate of 22%. To obtain richer, more detailed information about their experiences a total of 23 victims[5] were also interviewed and were able to tell their story in more depth. Half of those who responded to the questionnaire were men (52%) and correspondingly, the other half were women (48%). More than four fifths (86%) were over the age of 30; 43% were between the ages of 31 and 50, and another 43% were over the age of 51. Three quarters of the victims (76%) did not identify an ethno-cultural background.  Only 6% self-identified as a member of a visible minority group; 6% identified as First Nations, and 2% identified as Métis. The demographic information about the victims described above is quite consistent with the general demographic composition of the province of Saskatchewan in 2006.[6]  

In terms of offences for which a restitution order was imposed, mischief was the most common (38%), followed by theft (22%) and fraud (20%). Assault and break and enter were each reported by respondents in 8% of cases, and other property offences made up the remaining cases. The sample contains a large number of fraud cases. In fraud cases where the amount of money lost and the amounts ordered were often quite large, respondents may have had very strong opinions that they wanted to express by returning the questionnaire.[7]

Information and Assistance

Those who responded to the questionnaire indicated that they had received an explanation of the restitution process from different criminal justice professionals such as police, Crown, Victim Services, the Restitution Coordinator, court staff, their own lawyer, as well as family and friends. More than one third (36%) of victims indicated that police services provided an oral explanation of restitution, and three fifths (61%) of these respondents indicated that the police were very helpful.

Questionnaire respondents were then asked about receiving a written explanation of restitution and the process. Victims responded that court staff provided a written explanation in one fifth of cases (n=10). Four fifths (80%) of victims found this written explanation very or somewhat helpful. In cases where Victims Services provided written explanations, four fifths (80%) of victims found the explanation very or somewhat helpful.

There were a few comments on the written information received:

Full write out of procedure sent to victims… stating their right to follow up, and the actions they may take.

It should be put in easier to understand with less legal jargon that your average person does not understand.

The comments illustrate how important it can be to pre-test all public legal information with the intended audience.

Police were definitely an important source of information, and the information was rated as very helpful in a majority of instances. This may be because the police are often the first responders to a crime incident and are aware, particularly for property crimes, of the importance of documenting the financial costs of the crime.

This research clearly revealed that more than half the victims interviewed and surveyed received little, if any, assistance from the criminal justice system. It must be noted, however, that as the majority of cases are property crimes or fraud, these individuals would often not receive assistance from victim services. This is because victim services are generally prioritized for personal injury and sexual offences. Due to insufficient resources, the Restitution Coordinator’s role is limited to providing information when contacted by victims and helping them to help themselves.

All victims interviewed noted that they had received a letter from the court with the restitution order. Some individuals only became aware of the restitution order when they received a letter from Saskatchewan Justice about this study.

No one told me anything about getting evidence until the case was over. No one ever told me about the restitution order. I found out about it when I got a letter from you guys.  Otherwise before that I never heard about it, I never went to court, nothing. …Well, OK, I guess the police asked me how much I paid. I gave them a bill of sale and everything.  

There were three individuals who, upon receiving the questionnaire and explanatory letter, called either the Department of Justice Canada or Saskatchewan Justice. They claimed they knew nothing at all about a restitution order and had never received anything from the court. In at least one instance, it was determined that a letter had not been sent out when the order was imposed.

No, I didn’t know when the court cases were or anything. I got something in the mail from Susan McDonald and phoned her up to ask what the survey was all about and she said I was supposed to have received a restitution order and I said I’ve never received one. Then I phoned the court house and they said they had the original copy and that they never mailed me one. So, I never knew nothing about nothing. They said they’d send me a copy and that was about it. The order was for $8,500.

It is important to bear in mind that it is possible that victims did receive letters and the information pamphlets about restitution with the 1-800 number for the Restitution Coordinator and do not remember.

Research has shown that trauma has an impact on memory and cognitive functioning (see McDonald 2000; Hill 2007; Miller 2007). Information processing and cognitive impairment have been highlighted as concerns when working with traumatized individuals (Brandes et al. 2002).

Herman (1992, 33) defines traumatic events in this way:

Traumatic events overwhelm the ordinary systems of care that give people a sense of control, connection and meaning. Traumatic events are extraordinary, not because they occur rarely, but because they overwhelm the ordinary human adaptations to life . . . They confront human beings with the extremities of helplessness and terror and evoke the responses of catastrophe.

We generally tend to associate trauma with violence and several personal injury or sexual offences. Depending on an individual’s situation, property offences such as vandalism or fraud could be very traumatic. For one individual who was defrauded $100,000, this poignant comment stresses the painful impact that can be inflicted through crimes such as fraud.

It really hurt, and most of all I felt I was really stupid in this.

Feeling “really stupid” is something that is difficult to measure, but it can drain self-confidence in a debilitating way. This victim also talked about “falling into a depression” that she felt was a direct result of the humiliation she felt and the loss of such significant savings.[8] Limitations to cognitive functioning, such as short term memory loss and difficulty processing information, must be considered when designing restitution information materials for victims and when interacting with victims.

Another source of information for victims is a toll-free number that is used for three programs: Victims Services, Compensation, and the Adult Restitution Program. Callers are prompted to select if they are calling for Restitution, Compensation, or the Victims Services general office. Compensation is distinct from restitution although this may be lost on a distraught victim. The comment below demonstrates the need for all programs involved to communicate.

When it comes to help, where do you turn to in a small town? All I had was a 1-800 number where they had no clue who I was or when I was gonna get my money.

This victim found out about restitution just because he happened to be in court to watch the case unfold.

I heard about it in court. I was only going to watch and nothing else. I do that you know. I go down and watch the cases. There’s nothing else to do in town.

How information is presented appears to be very important as well. Even when police, as the first responders, provided some information, many of those who were interviewed noted that they did not clearly understand the process. There is no way of knowing whether the information presented was confusing or whether it was due to the individual not understanding, perhaps because of their level of education or literacy or the impact of the trauma or, most likely, a combination of all of these factors.

I didn’t get any information at all, no. The police mentioned it early on and said he should pay it. I didn’t understand it all that well and just kind of ignored it. They didn’t say that he’d pay me but that the court would pay me. I didn’t really understand what restitution was. I took it as the government would pay me and go after him, but that’s obviously not the case. I don’t know all the details of it.

The confusion expressed above over who would pay – the offender or the government – is understandable. There is a victims compensation program in Saskatchewan, but personal property damage is not eligible for compensation.[9] Furthermore, to a victim, it does not really matter who pays, just that he or she is paid, particularly when the court has made an order.

The police didn’t tell me much. All they said was something about a surcharge and that I could get money from that because I was a victim. The court told me about restitution at court. During the case, they said he was supposed to pay for my deductible because he smashed my car.

There were many victims who did get information and often some additional assistance.

Yes, I got help from the police; they were very helpful. And also the prosecuting attorney was very good to me. There wasn’t too much trouble; the money is starting to be paid on time.

In a few cases of personal injury or violent crime, victims reported that they had received really good, useful help from Victims Services. The tone of these experiences was quite positive.

Victims were asked, on both the questionnaire and in the interview, about how, when, and from whom they learned about restitution. The results show that more could be done to provide victims with appropriate and timely information and assistance at different points of entry in the criminal justice system.

For example, victims repeatedly noted problems that resulted in them not understanding what was happening, particularly around the payment of the order. The following quotations from victims aptly illustrate some of their frustrations and present some ideas:

Better communication with the victims. I feel extremely ripped off.

Explain please! I didn’t understand the impact of filing an insurance claim.

To talk with someone that knows it ….

 I believe I should be informed of what is going on with the process, like who was caught and charged. The Justice Department should give me a password to a computer system where I can take a look at what’s going on. I don’t think they need to spend the money mailing me information on every single court date he has; but if I had a way to look myself as a victim that would be better.

It is important to underscore that victims who received specific help from Victims Services or the Restitution Coordinator were very positive about this help and the difference that it made. The police have a key role to play in terms of raising awareness of restitution, but other players such as Crown prosecutors, court staff, and Victims Services (when involved) also have roles to play. Enhanced materials and resources need to be developed for victims, keeping in mind the impact of trauma on learning as well as the potential for unrealistic expectations in terms of the length of time receiving restitution involves.

Discussion

The research findings clearly identified the need for enhanced information and assistance for victims. While seemingly simple, appropriate information and assistance for victims can be quite complex given the different demographics (literacy, language, access to the Internet, etc.) and the different needs of victims.  Due to the nature of the offences, victims who receive a restitution order are frequently not proactively offered personal assistance from Victim Services in the province.[10] This is also true in many parts of Canada. Given that, it would be worth the effort to provide well-tested and thorough materials and assess what levels of assistance could be made available.

Victims indicated that they need information at different stages in the justice system—at the time of the offence, at sentencing, during the term of the sentence (probation, custody, conditional sentence if applicable), and afterwards for civil enforcement. They need information about their personal case, but they also need information about restitution in general to really be able to understand the legislation and what restitution can and cannot achieve. While restitution may improve feelings in citizens about the quality of the justice system in their country (Geiss 1977, 162), the reverse could also be said to be true. It was quite evident from the research findings that if they were not paid in full, within the promised timeframe, many victims held quite negative perceptions of the justice system overall. Empirical research in the United States found that delayed and partial payments are not of sufficient value to victims to justify restitution programs (Sims 2000, 256). As such, it is absolutely critical that victims have a full understanding of restitution and that their expectations are realistic. Appropriate information and assistance can go a long way towards achieving these objectives.

An example of one simple strategy to improve victims’ experiences with the justice system would be providing access to a person by telephone after regular work hours. Other ideas that would have broader resource implications could include having a victim-dedicated restitution coordinator or working with law schools to set up a restitution assistance program as part of a student legal clinic. One victim asked for an on-line resource similar to that which is currently being tested in British Columbia (www.victimsinfo.ca) where a victim can access updated information about his or her case with a secure password provided by the Crown. 

The Saskatchewan Ministry of Justice and Attorney General is exploring the feasibility of establishing a Restitution Civil Enforcement Program (RCEP). This program would assist victims in collecting restitution in cases where the restitution order does not include any supervision requirement or when the offender has failed to pay restitution within the timeframe of a community-based sentence. This program would be established within the Fine Collection Branch.

Summary

It is important to recognize that information and assistance both play important roles in ensuring that victim expectations are realistic and that those victims who wish to are able to participate fully in the justice system.Four key areas can be identified from the research findings where greater information and assistance would make a difference for victims:

  1. Raising awareness to foster understanding of restitution at different stages of the criminal justice system through targeted information and education;
  2. Providing more assistance with making an application for restitution;
  3. Timely up-dates and information on payment status; and
  4. More assistance with collection through the civil courts.

Chief Judge Stuart of the Territorial Court summarized the situation very nicely in the case of R. v. Bullen:[11]

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 practicability. In many respects, victim interests have been unduly subrogated to state interests in the evolution of criminal courts from their beginnings in civil courts.

By undertaking this research study to gain a better understanding of how the restitution process is working in the province, Saskatchewan has taken a positive step towards better assisting victims in the restitution process. The development of a Restitution Civil Enforcement Program (RCEP), as well as enhanced materials on restitution will further demonstrate the province’s commitment to victims of crime.

References