Victim Participation in the Plea Negotiation Process in canada

2. Victims' Rights and the Prosecution of Criminal Cases (continued)

2.2 Canadian Initiatives

2.2.1 Provincial and Territorial Legislation

Following the international and national trends towards placing a greater degree of emphasis on the recognition of victims' rights in the criminal justice process, the various provinces and territories of Canada have also enacted legislation that addresses this issue (see Table 2, below). In very general terms, these statutes enshrine the right of victims to receive information about the status of their cases within the criminal justice process and establish a legislative framework for the provision of various support services to victims. For example, the preamble to the Ontario Victims' Bill of Rights, 1995 (S.O. 1995, c.6) states that:

The people of Ontario believe that victims of crime, who have suffered harm and whose rights and security have been violated by crime, should be treated with compassion and fairness. The people of Ontario further believe that the justice system should operate in a manner that does not increase the suffering of victims of crime and does not discourage victims of crime from participating in the justice process.

The Ontario statute is fairly typical of its counterparts in other territories and provinces in terms of its provisions concerning victims' rights of access to information about the prosecution of their cases. For example, section 2 of the Act states that "victims should have access to information about," inter alia, " the progress of investigations that relate to the crime;" "the charges laid with respect to the crime and, if no charges are laid, the reasons why no charges are laid;" "the victim's role in the prosecution;" "court procedures that relate to the prosecution;" "the outcome of all significant proceedings, including any proceedings on appeal:" "the interim release and, in the event of conviction, the sentencing of an accused;" and the right to submit a "victim impact statement to the court." Significantly, for the purposes of the present report, the Ontario Act is only one of two provincial statutes (the other being the Manitoba Act) that specifically addresses the right of a victim to receive information about plea negotiations – namely, details concerning "any pretrial arrangements that are made that relate to a plea that may be entered by the accused at trial" (section 2(1)(x)).

The province of Manitoba has recently implemented part of a new Victims' Bill of Rights. [5] Section 11 of the Act requires that the police respond to a request by the victim for the "name, address, and telephone number of the office responsible for prosecuting the offence." Section 12 then provides that, when victims so request, they must be given certain information about the prosecution of "their" cases. Section 12 covers, for example, details concerning victim impact statements and – most significantly, for the purposes of this report – information about "the process for entering a plea of guilty or not guilty, including the possibility of discussions between the Crown attorney and an accused person, or his or her legal counsel, on a resolution of the charge." Unlike any other jurisdiction in Canada,

Manitoba has enacted a right of victims to be consulted about various aspects of the prosecution of "their" cases. More specifically, section 14 of the Act states that:

At the victim's request, the Director of Prosecutions must ensure that the victim is consulted on the following, if reasonably possible to do so without unreasonably delaying or prejudicing an investigation or prosecution:

  1. a decision on whether to lay a charge;
  2. the use of alternative measures to deal with a person who is alleged to have committed the offence, or the accused person;
  3. staying the charge against the accused person;
  4. if the accused person is in custody, an application for release by the person;
  5. any agreement relating to a disposition of the charge;
  6. any position taken by the Crown in respect of sentencing, if the accused person is found guilty;
  7. a decision whether to appeal, or the position of the Crown respecting any appeal by the accused person. (Emphasis added).

The new legislation in Manitoba undoubtedly represents a most noteworthy expansion of victims' rights in relation to their involvement in the prosecution of "their" cases. In particular, the explicit, statutory recognition of the right to be consulted about potential plea agreements between the Crown and the defence constitutes one of the most far–reaching enhancements of victims' rights that have occurred in any Canadian jurisdiction, during recent years. However, there are, nevertheless, certain constraints that have been placed around the rights to information and consultation. First, the Manitoba legislation unequivocally places the burden upon the victim to request the necessary information or consultation. Therefore, if victims do not actually request such information or consultation, then the prosecutor is under no obligation to provide it. Second, the rights to information and consultation are hedged around with qualifying clauses: for example, the right to consultation, established by section 14 is only to be implemented, "where it is reasonably possible to do so without unreasonably delaying or prejudicing an investigation or prosecution."

In general, most of the victims' rights legislation in Canada merely exhorts criminal justice officials to make information available to victims or to consult with victims. [6] Thus, victims' rights are frequently circumscribed by language that suggests these rights are far more discretionary than absolute in nature. As Sullivan (1998, p. 7) has noted, a careful examination of the statutory words and terms employed in this body of legislation – such as " should have", " subject to limits", "in appropriate circumstances", "promote" –reveals an underlying reluctance on the part of legislators to require officials to provide critical information to the victims of crime. [7]

As a consequence of the lack of mandatory language in most of the provincial and territorial statutes, critics have noted that, in certain jurisdictions, there has been a failure to furnish a significant number of victims with basic information about such fundamental issues as their right to submit a victim impact statement to the court (Sullivan, 1998, p. 22). Furthermore, the various provincial and territorial statutes do not contain any specific mechanism for enforcement of victims' rights to receive information. Significantly, the British Columbia Victims of Crimes Act (R.S.B.C. 1996, c. 478) departs from the general model of such legislation by stipulating that certain information must be given to the victims of crime (sections 5 to 7): however, it also states explicitly that, while the Ombudsman Act, applies to the legislation, the Ombudsman is precluded from investigating any aspect of the exercise of prosecutorial discretion (section 12). The new Victims' Bill of Rights in Manitoba establishes a complaints procedure for victims who apply to the Director of Victims' Support Services and it is also possible for victims to complain to the provincial Ombudsman, who must appoint a "Crime Victim Investigator" to deal with such complaints (sections 27 to 31).

On the whole, it appears that victims of crime in most Canadian jurisdictions are still treated as the passive consumers of criminal justice services rather than active participants in the decision–making process Kent Roach (1999). This situation is neatly illustrated in the following statement:

Police and prosecutors could treat the new consumer politely and give them information about what was happening. Nevertheless, victims would likely remain frustrated by the lack of control over the end product and by their involuntary status as consumers of criminal justice (Roach, 1999, p. 287).

Sullivan (1998, p. 10) suggests that, at the very least, the applicable provincial and territorial legislation should specify who is responsible for ensuring that victims are informed of their rights. In particular, it is essential that police and prosecutors are made aware of the specific forms of information that they should be providing to the victims of crime. [8] Finally, there needs to be more effective coordination of the various agencies that provide victim services in order to ensure that critical information is routinely made available to victims.

Table 2: Provincial and Territorial Legislation Relating to Victims' Rights During Court Proceedings

  • ALBERTA

    Victims of Crime Act, S.A. 1996, c. V–3.3

    • Principles
      • S. 2(1)(c) information should be made available to victims about their participation in criminal proceedings and scheduling, progress and ultimate disposition of the proceedings;
      • (d) where appropriate, the views and concerns of victims should be considered and appropriate assistance provided throughout the criminal process;
      • (e) if the personal interests of victims are affected, the views or concerns of the victims should be brought to the attention of the court, where appropriate and consistent with criminal law and procedure.
    • Information
      • S. 4(1)(a) status of police investigation and prosecution (if it will not harm investigation);
      • (b) the role of the victim and of the other persons involved in the prosecution of the offence;
      • (c) court procedures;
      • (d) any opportunity for the victims to make representations to the court on the impact of the offence on the victims.
  • BRITISH COLUMBIA

    Victims of Crime Act, S.B.C. 1995, c. 47.

    • Principles

      S. 4Presentation of the Victim's Perception of the impact of the Offence Crown counsel must ensure that a victim is given a reasonable opportunity to have admissible evidence concerning the impact of the offence, as perceived by the victim, presented to the court before a sentence is imposed for the offence.

    • Information that must be Offered
      • S. 5(a)the structure and operation of the justice system,
      • (b)victims services,
      • (c)the Freedoms and Information and Protection of Privacy Act,
      • (d)the Criminal Injury Compensation Act, and
      • (e)this Act.
    • Information that Must be Given on Request
      • S. 6(c) the reasons why a decision was made respecting charges;
      • (f) the outcome of each court appearance that is likely to affect the final disposition, sentence or bail status of the accused.
  • MANITOBA

    The Victims' Bill of Rights (Bill 32), 49 Eliz. II, 2000

    Part I

    • General Rights to Information

      S. 3: The police must provide information about rights and remedies under the Victims' Bill of Rights – including information about victim impact statements.

    • Right to Information and Consultation
      • S. 4: The police must consult victims about the use of alternative measures and bail conditions.
      • S. 7: Upon request, the police must give victims information about the investigation of an offence.
      • S. 12: Upon request, the Director of Prosecutions must ensure that information is provided to victims about various aspects of a prosecution (including information about plea negotiations and how to obtain help to file victim impact statements).
      • S. 13: Upon request, the Director of Prosecutions must ensure that information is provided to victims about the status of a particular prosecution.
      • S. 14: Upon request, the Director of Prosecutions must ensure that victims are consulted about such matters as the laying of a charge; the use of alternative measures, the staying of a charge, any proposed plea agreement, sentencing, and appeals.
    • Right to Complain

      The Act establishes an "Accountability and Complaint Process" (ss. 27–31).

  • NEW BRUNSICK

    Victims Services Act, S.N.B. 1987, c. v–21, as amended by S.N.B. 1996, c.34

    • Principles
      • S. 4(1): The views and concerns of victims should be ascertained and appropriate assistance should be provided to them throughout the criminal process.
      • (2) Where the personal interests of the victims are affected, the views or concerns of the victims should be brought to the attention of the court where appropriate and consistent with criminal law and procedure.
    • Information

      S. 3(2): Information should be made available to victims about their participation in criminal proceedings and about the scheduling procedure and ultimate disposition of criminal proceedings.

  • NEWFOUNDLAND

    Victims of Crime Services Act, R.S.N. 1990, c. V–5

    Part I

    • Principles

      S. 9(2): The views and concerns of victims should be ascertained and appropriate help should be provided to them throughout the criminal process.

    • Information
      • S. 7(2): Information should be made available to the victim about
        • (a) the scope, nature, timing, and progress of the prosecution of the offence of which he or she was the victim;
        • (b) the role of the victim and of other persons involved in the prosecution of the offence;
        • (c) court procedures.
  • NORTHWEST TERRITORIES

    Victims of Crime Act, R.S.N.W.T. 1988, c. 9

    • Information
      • S. 5(c): A Victim Assistance Committee is responsible for promoting the availability of information to a victim about
        • (i) the scope, nature, timing and progress of the prosecution of the offence in which he or she was a victim;
        • (ii) the role of the victim in the court proceeding;
        • (iii) the remedies and the social, legal, medical and mental health services available to the victim and the mechanisms to obtain access to them.
      • S. 5(e): The Committee shall promote assistance to victims in bringing their views and concerns to the attention of the court where their personal interests are affected, and where it is consistent with criminal law and procedure.
  • NUNAVUT

    Victims of Crime Act, R.S.N.W.T. 1988, c. 9 (Supp).

    As amended under s. 76. 5 of the Nunavut Act, S.N.W.T. 1998, c. 34

    Same provisions as the North West Territories.

  • ONTARIO

    Victims' Bill of Rights, S.O. 1995, c. 6

    • Information
      • S. 2 (1): 2. Victims should have access to information about,
        • i. the services and remedies available to victims of crime.
        • iv. the progress of investigations that relate to the crime.
        • v. the specific charges laid or, if no charges are laid, the reasons why they have not been laid.
        • vi. the victim's role in the prosecution
        • vii. court procedures that relate to the prosecution
        • viii. the dates and places of all significant proceedings that relate to the prosecution,
        • ix. the outcome of all significant proceedings, including any proceedings on appeal,
        • x. any pretrial arrangements that are made that relate to a plea that may be entered by the accused at trial.
  • PRINCE EDWARD ISLAND

    Victims of Crime Act, R.S.P.E.I. 1988, c. V–3.1

    • Principles
      • 2(d): victims should be informed about the progress of the investigation and prosecution of the offence, court procedures, the role of the victim in court proceedings and the ultimate disposition of the proceedings;
      • (e):victims are entitled, where their personal interests are affected, to have their views and concerns brought to the attention of the court where consistent with criminal law and procedure;
      • (h): victims are entitled to prepare a victim impact statement and have it considered by the court at sentencing.
  • QUEBEC

    Act Respecting Assistance for Victims of Crime, R.S.Q. c. A–13.2.1 (not yet in force)

    • Information
      • S. 4: Victims have a right to be informed of: (2) their role in the criminal justice process, their participation in criminal proceedings and, on request, of the progress and final disposition of the case.
      • S. 5: On request, Victims have the right to be informed of the progress and outcome of the police investigation. ("if not inconsistent with the public interest").
  • SASKATCHEWAN

    Victims of Crime Act, S.S. 1995, c. V– 6. 11, as amended by S.S. 1997, c. 24 & S.S. 2000, c. 51.

    • Information
      • S. 4: The Act establishes a victims' fund that is to be used to support, inter alia, the following principle:
      • (c) The views and concerns of victims should be taken into account and appropriate assistance and information should be provided to them throughout the criminal process.
  • YUKON

    Victim Services Act, S.Y. 1992, c. 15

    Community Victim Services provide general information about the justice system and assists victims in the preparation of victim–impact statements.

2.2.2 Federal Legislation

In recent years, the Parliament of Canada has enacted a number of critical provisions that grant the victims of crime a greater degree of participation in the decision–making processes of the criminal justice system (Young, 2001). None of these provisions have addressed the question of plea bargaining but they undoubtedly reflect the general international trend towards enhancing the status of victims as major stakeholders in the criminal justice process. As early as 1988, the Criminal Code was amended in order to permit the introduction, during the sentencing process, of a written victim–impact statement: however, whether or not the information was actually considered was a matter left to the discretion of the trial judge. In 1995, the Criminal Code was amended (S.C. 1995, c. 22, s. 6) so as to require sentencing courts to consider written victim–impact statements (s. 722(1)). However, this amendment still assigned victims a relatively passive role in the sentencing process and, in order to remedy this unsatisfactory situation, the Criminal Code was further amended (s. 722(2.1)) in order to accord victims the right to personally read a victim–impact statement in open court or to "present the statement in any other manner that the court considers appropriate" (S.C. 1999, c. 25, s.17). [9] Furthermore, at the same time, a new provision was added to the Criminal Code (s. 722.2), which requires a sentencing judge to inquire whether the victim or victims have been duly informed of their right to submit a victim–impact statement and gives the judge the power to grant an adjournment so that a victim–impact statement may be prepared or an opportunity made available for the victim to present evidence in court (S.C. 1999, c. 25, s. 18).

Similar legislative initiatives have been enacted by Parliament in relation to other stages of the criminal justice system that fall within federal jurisdiction. For example, under the Corrections and Conditional Release Act, provision has been made to "recognize victims formally as an important part of the criminal justice system" (Solicitor General Canada, 1998, p. 5). The Correctional Service of Canada and the National Parole Board are obligated to provide certain information about an offender when victims request it (CCRA, sections 26 and 142). In addition, available victim information must be obtained by CSC case managers and incorporated into the decision–making processes of the NPB and the CSC when they are required to determine and manage the level of risk posed by an offender. An evaluation of these provisions (Solicitor General Canada, 1998, p. 30) concluded that,

Victims are increasingly being recognized, both formally and informally, as an important part of the criminal justice system. Decision–makers in the National Parole Board are using victim–related information to assist in determining risk, and are responding to requests from victims by imposition of additional conditions when the Board members believe they will increase the safety of the victim or other members of the public, and assist management of any risk posed by the offender.

Significantly, a victim satisfaction survey indicated that there was a "fairly high level of victim satisfaction" with the implementation of these victims' rights (Solicitor General Canada, 1998, p. 30).

In July 2001, the federal policy of permitting victims to participate directly in certain decision–making processes within the criminal justice system was further strengthened by the announcement that victims would now be permitted to submit oral statements at National Parole Board Hearings (Solicitor General Canada, 2001, p. 1).

In recent years, it is clear that the Parliament of Canada has strengthened victims' rights to the point where victims are now being granted the opportunity to make their voices heard in a number of critical decision–making points in the criminal justice process – particularly, sentencing and parole. Plea bargaining remains an area where the victims are excluded from the process and where their voices are barely heard – if at all. As McGillivray (1997–98, para. 20) aptly points out,

While some prosecutors consult with complainants in plea bargaining, there is no ethical or policy requirement that they do so. Plea bargaining is a closed–door and often hasty process, unmediated by the judiciary.


  • [5] Bill 32, The Victims' Rights Amendment Act, 49 Elizabeth II, 2000. The first phase of the Act was implemented on August 30th, 2001 (the expansion of victims' rights and services is initially limited to offences involving death or serious personal injury): Manitoba Government News Release, August 30th, 2001.
  • [6] It is important to note that provincial and territorial legislation does not place the right of veto into the victim's hands.
  • [7] The British Columbia legislation represents an exception to this general model insofar as it employs mandatory, as opposed to permissive, language in dealing with the provision of information to victims. The Victims of Crime Act (R.S.B.C. 1996, c. 478) contains three categories of information:
    • (i) information that must be given to all victims automatically;
    • (ii) information that must be given on the request of a victim; and
    • (iii) information that must be given "in appropriate circumstances."
  • [8] The British Columbia legislation does specify that Crown counsel must ensure that a victim is given a reasonable opportunity to present a victim impact to the court (section 4) and identifies specific authorities who are responsible for providing information to the victim about the release of an offender (section 7).
  • [9] The rationale for this amendment was provided by the Minister of Justice in her response to the Fourteenth Report of the Standing Committee on Justice and Human Rights (Department of Justice Canada, 1998).
Date modified: