Multi-Site Survey of Victims of Crime and Criminal Justice Professionals across Canada : Summary of Victim Services Providers and Victim Advocacy Group Respondents

3. Findings from Victim Services Providers and Victim Advocacy Group Respondents (continued)

3. Findings from Victim Services Providers and Victim Advocacy Group Respondents (continued)

3.12 Restitution

Restitution requires the offender to compensate the victim for any monetary loss or any quantifiable damage to, or loss, of property. The court can order restitution as a condition of probation, where probation is the appropriate sentence, or as an additional sentence (a stand-alone restitution order), which allows the victim to file the order in civil court and enforce it civilly if not paid. The following discussion of restitution considers the obstacles to requesting restitution from the perspective of victim services respondents and victim advocacy respondents.

Obstacles to Requesting Restitution

Victim services providers surveyed were split on the issue of whether victims usually request restitution. One-fifth believes that eligible victims usually request restitution (20%), and one-third disagree (33%). The remaining respondents did not have enough direct experience to comment (47%). In interviews, victim services providers stated that it depended on the offence. Several victim services providers indicated that restitution was not applicable to certain cases such as domestic violence and was more often requested in cases involving property crimes.

About one-third (30%) of victim services providers and 40% of advocacy groups surveyed said that obstacles exist to the use of restitution. As shown in Table 19, the most common obstacle mentioned by these victim services providers and advocacy groups was the offender's inability to pay (34% and 32%, respectively). However, unlike Crown Attorneys or defence counsel, victim services providers mentioned lack of awareness and knowledge of restitution as an important obstacle (31%). In interviews, victim services providers noted that if victims do not request restitution, Crown Attorneys and judges do not take the initiative and raise the possibility of restitution.

In addition, 16% of victim services providers surveyed believe that the process is too complex and costly for the victim. Both victim services providers (14%) and advocacy groups (21%) noted that the onus of collecting the payment is on the victims, who must enter into civil proceedings to have the order enforced. One-tenth of victim services respondents indicated that the complexity of collecting payment from a restitution order results in many victims giving up or not even requesting restitution.

As well, about one-tenth of victim services providers surveyed believe that Crown Attorney or court reluctance creates an obstacle to the use of restitution. In interviews, a few indicated that Crown Attorneys do not recommend restitution in cases of sexual assault, [4] and indicated the need to educate criminal justice professionals on restitution and the financial consequences to victims of all types of crimes.

Table 19 lists the obstacles to restitution described by respondents.

Obstacles: Victim Services (n=94) Advocacy Groups (n=19)
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%

Note: Respondents could provide more than one response; totals sum to more than 100%.

In interviews, when asked how to address the obstacles to requesting restitution, several victim services providers offered suggestions. Most commonly, they suggested measures such as garnishing offenders' wages or removing certain privileges as a means of enforcement. Several others suggested that victims should receive support from the criminal courts for enforcing the orders, and a few believe that restitution should not be used as a stand-alone order but that it should be part of a probation order that allows the criminal court to maintain jurisdiction over its enforcement.

3.13 Victim Surcharge

The victim surcharge is a penalty of 15% where a fine is imposed or a fixed amount of $50 or $100 for summary or indictable offences, respectively, and can be increased by the judge. It is imposed on the offender at sentencing and used by provincial and territorial governments to fund services for victims of crime. The 1999 amendments to the Criminal Code made the surcharge automatic in all cases except where the offender has requested a waiver and demonstrated that paying the surcharge would cause undue hardship.

The following discussion considers the issue of waiving the surcharge both the frequency of waiver and whether waivers generally occur without an application by the defence.

Frequency of Waiver

Victim services providers who were surveyed have a wide range of experience, but many could not answer the question on the victim surcharge. Those who did not respond are excluded from the results in order to give a more accurate depiction of whether victim services providers think that the surcharge is waived too often. Of those who provided an answer, approximately two-thirds of victim services providers reported that the victim surcharge is waived more often than it should be. Table 20 provides the results for those who could respond to this question.

  Victim Services (n=82) Crown Attorneys (n=161) Defence Counsel (n=170) Advocacy Groups (n=15)
Yes 66% 70% 11% 47%
No 34% 30% 89% 53%

Those interviewed (Crown Attorneys, victim services providers, and defence counsel) attributed the frequent waiver of the surcharge to judicial attitudes. Victim services providers believe that virtually any reason appears to constitute a sufficient ground to waive the surcharge, even though the surcharge amount is so small that only in extraordinary circumstances should the offender be considered unable to pay it. Several victim services providers said that judges often accept defence counsel requests to waive the surcharge without requiring evidence of the offender's financial situation. They believe that judges do not understand the importance and usefulness of the surcharge and that it is rarely imposed in certain kinds of cases, such as sexual assault and domestic violence.

3.14 Conditional Sentences

The Criminal Code permits judges to order that sentences of less than two years' imprisonment be served in the community instead of in jail. Conditional sentences may be imposed only when the court is convinced that the offender poses no threat to public safety. They are accompanied by restrictive conditions that govern the behaviour of the offender and strictly curtail his or her freedom. The following sections describe the perspectives of criminal justice professionals on the appropriateness and use of conditional sentences.

Perceptions on Cases Appropriate for Conditional Sentences

Across all respondent categories, there is widespread agreement that conditional sentences are appropriate in non-violent offences. See Table 21 for the details.

  Victim Services (N=318) Crown Attorneys (N=188) Defence Counsel (N=185) Advocacy Groups (N=47)
All offences 6% 4% 29% --
Non-violent offences 65% 62% 44% 2%
Family violence offences 5% 16% 32% 17%
Offences against the person 6% 15% 34% 15%
Where offender is eligible -- 11% 12% --
Depends on case or circumstances 3% 11% 13% 9%
Minor offences 4% 6% -- 6%
No prior record or good rehabilitation prospects 6% 6% 4% --
All offences except most serious -- -- 11% --
Less serious violent offences -- -- 2% --
If victim is comfortable with sentence 3% -- -- --
Never or rarely 2% 7% -- 6%
Other 3% 3% 3% 11%
No response 12% 3% 1% 9%

Note: Respondents could provide more than one response; totals sum to more than 100%.

It was also suggested by several victim services providers that conditional sentences are appropriate where the risk of recidivism is zero and where there is good reason to believe that the offender is able and motivated to rehabilitate. Several victim services providers stated in interviews that in order for a conditional sentence to be appropriate, the accused must take full responsibility for the offence, demonstrate remorse, and show that he or she can respect the conditions imposed. A few victim services providers believe that the decision to impose a conditional sentence should take into account the consequences of the crime on the victim, and emphasized that the victim should have input into the decision.

Consideration of Victim Safety in Conditional Sentences

Just over one-quarter of victim services providers and victim advocacy organizations surveyed (29% and 26%, respectively) believe that the victim's safety is generally considered in the decision to impose a conditional sentence. Perceived obstacles to the consideration of victim safety in conditional sentences are shown in Table 22 below. Many of these obstacles are similar to those identified as prevailing at bail decisions, including inadequate consultation with victims, difficulties assessing risk, the protection of the rights of the accused, and lack of knowledge about domestic violence and the dynamics of abuse on the part of prosecutors and judges.

Reason: Victim Services (n=117) Advocacy Groups (n=29)
Victim not adequately consulted 19% 7%
Difficulties assessing risk 16% --
Rights of accused take precedence over victim's rights 13% 17%
Lack of knowledge about domestic violence and dynamics of abuse 12% 35%
Poor enforcement or conditions breached 8% --
Proximity of accused and victim not considered 6% --
Judge or Crown Attorney attitudes 4% --
Other factors given more weight in sentencing 4% 3%
Other 7% 17%
No response 24% 31%

Note: Respondents could provide more than one response; totals sum to more than 100%.

In interviews, several victim services providers (as well as Crown Attorneys) remarked that there is a lack of resources for supervision and enforcement of conditional sentences and that, consequently, offenders are not being adequately punished for breaches. Concern was expressed that unless conditional sentences are accompanied by rigorously enforced restrictions on freedom, they do not serve as a deterrent but rather as positive reinforcement for criminal behaviour. Thus, although most victim services providers acknowledged that there is a place for conditional sentences, they think that they should be used with caution, and a few think that they should be eliminated altogether.

In interviews, several victim services providers also suggested that the conditions imposed on offenders serving a conditional sentence are generally too lenient and do not sufficiently restrict offenders' freedom; they believe that conditional sentences need to be accompanied by significant restrictions on the offender's liberty.

In general, victim services providers who were interviewed believe that conditional sentences should involve maximum confinement and supervision. A few victim services providers believe that conditional sentences are misunderstood by the public and by victims and thereby contribute to the erosion of public confidence in the criminal justice system. According to these respondents, too many offenders receive conditional sentences and, as a result, many victims feel as though the criminal justice system does not take them seriously.

[4] Restitution is only applicable for damages that are easily quantifiable by the criminal court.