Multi-Site Survey of Victims of Crime and Criminal Justice Professionals across Canada: Summary of Crown Attorney Respondents
Findings from Crown Attorney Respondents (continued)
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
Of those Crown Attorneys who provided an answer to the survey question regarding frequency of waiver, more than two-thirds Crown Attorneys agreed that the victim surcharge is waived more often than it should be. (See table 19.)
|Victim Services (n=82)||Crown Attorneys (n=161)||Defence Counsel (n=170)||Advocacy Groups (n=15)|
Crown Attorneys attributed the frequent waiver of the surcharge to judicial attitudes. According to several Crown Attorneys interviewed, the surcharge is not seen as an integral part of the criminal justice system, and, therefore, judges are quite prepared to waive it.  They 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.
Application for Waiver
Section 737(5) of the Criminal Code requires an application from the offender to waive the surcharge. Six percent of surveyed Crown Attorneys generally challenge defence counsel applications to waive the surcharge. In interviews, Crown Attorneys explained that contesting defence counsel applications is very difficult. There is usually no time to challenge the application because things move very quickly at that stage of the proceedings. More importantly, Crown Attorneys said that they rarely have any information or proof to contest the reasons presented by defence counsel as grounds for the waiver.
In addition, Crown Attorneys who were interviewed noted that there is frequently no application to challenge because the judge has waived the surcharge on his or her own initiative. Survey results support this, with a majority of Crown Attorneys (54%) reporting that judges generally waive the surcharge without a defence counsel request.
|Crown Attorneys (N=188)||Defence Counsel (N=185)|
Note: One column does not sum to 100% due to rounding.
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 Crown Attorneys on the appropriateness and use of conditional sentences.
Cases Appropriate for Conditional Sentences
Crown Attorneys explained in interviews that conditional sentences are appropriate in eligible cases, that is, in all cases except those where the minimum sentence is more than two years, and where it has been established that the offender is not a threat to public safety. However, several Crown Attorneys believe that conditional sentences are not appropriate for violent or repeat offences, since these do not meet the basic criterion of no danger to the public. Moreover, a few Crown Attorneys believe that this criterion should be interpreted more broadly to encompass certain white-collar crimes (such as breach of trust thefts where the offender has stolen a substantial amount of money) and crimes where the safety of a single individual, namely, the victim of the original crime, might be at risk if a conditional sentence were imposed. It was also suggested by several Crown Attorneys 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.
|Victim Services (N=318)||Crown Attorneys (N=188)||Defence Counsel (N=185)||Advocacy Groups (N=47)|
|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%|
|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%|
Note: Respondents could provide more than one response; totals sum to more than 100%.
Consideration of Victim Safety in Conditional Sentences
As Table 22 shows, the vast majority (93%) of Crown Attorneys surveyed usually request conditions for the victim's safety in conditional sentences.
|Crown Attorneys (N=188)||Defence Counsel (N=185)||Judiciary (N=110)|
|Do you generally request conditions for the victim's safety?||Do you generally agree to conditions for the victim's safety?||Do you generally grant conditions for the victim's safety?|
Note: Totals may not sum t 100% due to rounding.
In interviews, several 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 Crown Attorneys 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 Crown Attorneys also suggested that the conditions imposed on offenders serving a conditional sentence are generally too lenient and do not sufficiently restrict offenders' freedom. Crown Attorneys believe that conditional sentences need to be accompanied by significant restrictions on the offender's liberty. A few Crown Attorneys argued, for example, that rather than simply being required to abide by a curfew, offenders should be under house arrest 24 hours a day, seven days a week, except to go to work. It was also suggested that it should be mandatory for offenders serving conditional sentences to have a landline and not just a cellular telephone, to facilitate monitoring of their whereabouts and enforcement of conditions.
In general, Crown Attorneys who were interviewed believe that conditional sentences should involve maximum confinement and supervision.
In recent years, restorative justice approaches have become more widely used at all stages of criminal proceedings. Restorative justice considers the wrong done the person as well as the wrong done to the community. Restorative justice programs involve the victim(s) or a representative, the offender(s), and community representatives. The offender is required to accept responsibility for the crime and take steps to repair the harm he or she has caused. In this way restorative approaches can restore peace and equilibrium within a community and can afford victims of crime greater opportunities to participate actively in decision-making. However, concerns have been raised about victim participation and voluntary consent, and support to victims in a restorative process. This study included several exploratory questions to discover the extent to which Crown Attorneys have participated in restorative justice approaches and their views on the appropriateness and effectiveness of these approaches.
Participation in Restorative Justice Approaches
Forty-three percent of Crown Attorneys surveyed had participated in a restorative justice approach.
As Table 24 below shows, 61% of Crown Attorneys have participated in a restorative justice process at the sentencing stage (61%). A significant proportion of Crown Attorneys who have participated also indicated having taken part in restorative processes after charges had been laid but before sentencing.
|Victim Services (n=38)||Crown Attorney (n=81)||Defence Counsel (n=107)||Police (n=118)||Advocacy Groups (n=17)|
Note: Respondents could provide more than one response; totals sum to more than 100%.
Table 25 below shows that the most common explanation for Crown Attorneys' lack of involvement in restorative justice is that restorative approaches are not available or not yet widely used in their province. Several Crown Attorneys pointed out in interviews that restorative justice tends to be used primarily in rural, northern, or remote Aboriginal communities. Other explanations for respondents' non-participation in restorative justice were that such approaches do not protect the victim adequately, that such approaches do not act as a deterrent, and that restorative justice had never come up as an option or that they had never had a case suitable for restorative justice.
Victim Involvement in Restorative Justice
About half of Crown Attorneys surveyed believed that victims are involved in the decision to use restorative justice approaches.
|Victim Services (n=38)||Crown Attorneys (n=81)||Defence Counsel (n=107)||Police (n=118)||Advocacy Groups (n=17)|
|Victim is always involved||32%||52%||44%||80%||59%|
|Victim is sometimes involved||45%||38%||43%||14%||24%|
|Victim is seldom involved||8%||5%||9%||6%||12%|
Note: Some columns do not sum to 100% due to rounding.
A few Crown Attorneys who were interviewed reported that cases do not proceed through restorative justice unless the victim approves it. Others said that restorative approaches are sometimes used even without the victim's consent simply because these cases are not worth going to court (in these instances, however, the victim is always informed of the decisions). A few Crown Attorneys added that victims always have the opportunity to participate in restorative justice beyond the initial decision to use the approach but that many victims do not wish to participate.
Cases where Restorative Justice would be most Effective
Crown Attorneys were asked to comment in interviews on when they believe that restorative justice approaches would be most effective. They indicated that such processes would be particularly effective in cases involving young offenders, first offenders, and minor property offences. Generally speaking, although Crown respondents agreed that restorative approaches should not be used for sexual assaults, child abuse, and other violent offences, several think that some minor assault cases could potentially qualify. There was some disagreement over whether restorative justice is a suitable way of dealing with spousal violence, given the family and power dynamics involved in these cases.
 Crown Attorneys at one large site, where the surcharge is reportedly never applied, said that judges are offended if the Crown even mentions it.
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