Multi-Site Survey of Victims of Crime and Criminal Justice Professionals across Canada: Summary of Defence Counsel Respondents: Summary of Defence Counsel Respondents
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 current use of restitution from the perspective defence counsel, difficulties with enforcement, and obstacles to requesting restitution.
Use of Restitution
In interviews, defence counsel said that requests for restitution are rarely contentious when they are reasonable (i.e., the amount of loss is determinable, and the offender caused the loss and has the means to pay). Over three-quarters of defence counsel surveyed reported that they agree to reasonable requests for restitution (78%) and that judges also generally grant them (80%). In interviews, those defence counsel who generally object to requests for restitution listed the following reasons: the role of the criminal justice system is not to compensate victims; restitution is easily abused; offenders often do not have the ability to pay; and it is difficult to assess the value of claimed damages. When asked if they generally offer restitution to mitigate the sentence, three-quarters (76%) of defence counsel surveyed said that they do, with 15% reporting that they do not usually make this offer.
The use of restitution among Crown Attorneys and defence counsel is shown in Table 15.
|Crown Attorneys (N=188)||Defence Counsel (N=185)|
|Do you generally request, when appropriate, that restitution be paid?||Do you generally agree to requests for restitution?|
Problems with Enforcement
Probation officers, defence counsel and Crown Attorneys were asked if they think that restitution enforcement is a concern or a problem. One-third (34%) of defence counsel reported that they do. A sizeable proportion of defence counsel (30%) could not comment because they are not involved in enforcement of restitution orders.
The survey asked respondents to explain why they consider restitution enforcement to be a concern or a problem. The results are presented in Table 16 below. Defence counsel gave several reasons for the difficulties with enforcement. The most common reason given by one-half of defence counsel is that restitution orders are made in cases where the accused is not able to pay.
About 15% of defence counsel also pointed to insufficient resources for enforcement, although no probation officers noted a lack of resources. This was further commented on in interviews. Defence counsel said that when restitution is part of probation orders, enforcement is not given priority because it is simply not worth it; enforcement requires a significant expenditure of resources to collect relatively small amounts of money.
The option of using a stand-alone restitution order, where the victim has recourse to the civil courts to enforce payment was also discussed. A small number of defence counsel (8%) noted that the problem with this method of enforcement is that it requires the victim to engage in a difficult legal process and bear all the costs of enforcement.
|Reasons:||Crown Attorneys (n=100)||Defence Counsel (n=62)||Probation (n=128)|
|Accused are unable to pay||22%||47%||30%|
|Insufficient resources for enforcement||20%||16%||--|
|Civil enforcement difficult or victim responsibility||19%||8%||4%|
|Difficult to convict on breach of order||13%||--||18%|
|No penalty for failure to payr||6%||--||9%|
|Restitution usually not made unless paid at sentencing||--||13%||--|
|Probation is not involved||--||--||26%|
Note: Respondents could provide more than one response; totals sum to more than 100%.
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
While over half (58%) of judges surveyed reported that they generally apply the victim surcharge, over a third do not (37%). 
When asked if the victim surcharge was waived more often than it should be, 11% of defence counsel believe that the surcharge is waived too often. Table 17 provides the results for those who could respond to this issue. Respondents who did not answer were excluded from the results for reasons of consistency in handling the data.
|Victim Services (n=82)||Crown Attorneys (n=161)||Defence Counsel (n=170)||Advocacy Groups (n=15)|
Defence counsel who were interviewed attributed the frequent waiver of the surcharge to a judicial reluctance to place too high a monetary penalty on offenders. 
In contrast, those interviewed who believe that judges waive the surcharge appropriately said that waivers occur when its imposition would cause the offender undue hardship, such as when the offender has no independent means of financial support, when the victim and the offender are in the same family unit, or when the offender is going to be incarcerated. They believe that judges appropriately consider the circumstances of the offender in their decision to waive the surcharge, and they do not see judicial attitudes or judicial dislike of the surcharge as an issue.
Application for Waiver
Section 737(5) of the Criminal Code requires an application from the offender to waive the surcharge. Most defence counsel surveyed (59%) reported that they do not generally request a waiver, while about one-third (35%) said that they do. In interviews, those who request waivers said that they do so when the offender has no ability to pay (e.g., does not have a job, is on social assistance, is being incarcerated for a long period of time). A majority of defence counsel surveyed (59%) reported that most of the time, judges grant their requests for a waiver.
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. However, only one-quarter of defence counsel (24%) believe that judges waive the surcharge without a request. In interviews, they commented that judges diligently inquire about whether the surcharge should be imposed and generally impose the surcharge automatically unless there is a legitimate request to waive it. A few did note that when judicial waivers occur without explicit defence counsel requests, the judge has already received information about the accused's financial situation and other relevant personal circumstances.
Table 18 provides the survey results on whether 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 remaining 5% did not respond to the question.
-  A few noted that when a fine is imposed, the victim surcharge is more likely to be waived.
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