Backgrounder

FEDERAL LEGISLATION STRENGTHENING THE
VOICE OF VICTIMS OF CRIME

On December 16, 1998, the Minister of Justice and Attorney General of Canada, Anne McLellan, announced a number of new proposals to respond to the needs of victims of crime and to strengthen their participation in the criminal justice system. Today, the Minister is following through on the Government's commitment by tabling legislation that will enhance the role of victims in the criminal justice system, expand their opportunity to describe the impact of crime on their lives, and ensure their privacy and safety are considered in decisions affecting them.

Criminal Code amendments tabled today respond to recommendations of the report of the House of Commons Standing Committee on Justice and Human Rights, Victims' Rights – A Voice, Not a Veto. They are part of an overall Government strategy to respond to the needs of victims of crime. The creation of a Policy Centre for Victims of Crime announced in December is also a key element of that strategy. The Policy Centre will ensure that all federal policies and legislation take into consideration the views of victims of crime. For example, the Youth Criminal Justice Act, tabled by the Minister of Justice last month, recognizes in its principles the important role of victims in the youth justice system and their need for information. In addition, the new Victims' Policy Centre will also manage, coordinate and enhance all federal initiatives relating to victims and become a centre of expertise on emerging national and international issues and trends in victim advocacy, legislation and services.

Preamble

The preamble to the Act to amend the Criminal Code (victims of crime) gives concrete expression to Parliament's commitment to respond to the concerns of victims of crime. It highlights the need to reconcile the rights of victims and witnesses with the rights of the accused and to ensure that victims and witnesses are treated with courtesy, compassion and respect. The preamble also underscores that the views and concerns of victims of crime should be taken into account, particularly with respect to decisions that have an impact on their safety, security and privacy.

Victim Surcharge on Offenders

A victim surcharge is an additional penalty imposed on offenders at the time of sentencing. It is collected by the provincial and territorial governments, and used to provide programs, services and assistance to victims of crime within their jurisdiction.

Proposed amendments would:

• make the victim surcharge automatic to ensure it is applied consistently to all offenders, except where the offender demonstrates undue hardship;
  
  
• change the amounts of the surcharge to provide mandatory, minimum amounts. Currently, the surcharge is an amount up to 15% of a fine, where a fine is imposed, and up to $35 for other dispositions. Under the proposed legislation, the surcharge amounts will be:
  
  
• 15% of any fine imposed on the offender;
  
  
• if no fine is imposed, $50 in the case of an offence punishable by summary conviction and $100 in the case of an offence punishable by indictment; or
  
  
• an increased surcharge, at the discretion of the judge, in appropriate circumstances.

The victim surcharge revenue will continue to remain in the jurisdiction within which it is collected and will continue to be used for victim services, programs and assistance provided by provincial and territorial governments. These amendments should significantly increase the revenue available for victim programs and services in all provinces and territories.

Victim Impact Statements

A victim impact statement is a written statement prepared by the victim and considered by the court at the time of sentencing of an offender. It allows victims to participate in the proceedings by describing the impact of the crime on them and their families.

Proposed amendments would:

• ensure that the victim is permitted to read an impact statement at the time of sentencing if he or she wishes to do so. At present, a judge is required to consider the written statement but allowing the victim to read it is discretionary;
  
  
• require the judge to ask, before imposing sentence, whether the victim has been informed of the opportunity to prepare a victim impact statement;
  
  
• authorize adjournments to permit a victim to prepare a statement or to submit other evidence to the court about the impact of the crime;
  
  
• require that victim impact statements be considered by courts and Review Boards following a verdict of not criminally responsible on account of mental disorder; and
  
  
• clarify that at proceedings to determine whether an offender sentenced to life in prison should have his or her parole eligibility reduced (s. 745.6 hearings), the information provided by the victim may be oral or written. At present, the Criminal Code provides that any information provided by the victim will be considered; however, in practice, some victims have been discouraged from making an oral statement.

Consideration of Victim's Safety in Bail Decisions

The Standing Committee noted that there are several provisions in the Criminal Code intended to enhance the safety of the public and, in particular, those who have been victims of crime. However, it also noted gaps in the Code with respect to provisions that permit a police officer or other judicial officers to release a suspect or an accused pending the first appearance in court or trial.

Proposed amendments would:

• ensure that the responsible judicial officer (officer in charge, justice of the peace or judge) considers the safety and security of the victim in any decision about an accused's bail;
  
  
• where an accused is released pending trial, require the judge to consider including as a condition to bail that the accused abstain from any direct or indirect communication with the victim and any other condition necessary to ensure the safety and security of the victim; and
  
  
• ensure that the particular concerns of the victim are considered and highlighted in decisions on the imposition of special bail conditions, including in firearms prohibitions and in criminal harassment offences.

Facilitating Testimony

The Standing Committee, as well as provincial and territorial governments, and victims organizations have expressed concern with difficulties faced by certain witnesses during their testimony because of their age, disability or the nature of their victimization.

Proposed amendments would:

• extend to victims of sexual or violent crime up to 18 years of age protections which restrict personal cross-examination by self-represented accused persons by providing for the appointment of counsel to conduct the cross-examination;
  
  
• permit a victim or witness with a mental or physical disability to have a support person present while giving testimony;
  
  
• clarify that s. 486(3), which provides for a publication ban on the identity of sexual offence complainants, will protect their identity as victims of sexual offences as well as any other offences perpetrated on them by the accused; and
  
  
• permit a judge to restrict publication of the identity of a wider range of victims or witnesses where the victim has established a need for such an amendment and where the judge considers it necessary for the proper administration of justice. This provision will codify prevailing common law as established by the Supreme Court of Canada in the 1994 Dagenais decision.

Information About Life Sentences

Provincial and territorial governments and victims organizations have expressed concern with respect to information provided to victims about life sentences. The Standing Committee noted that victims lack information in general about the criminal justice system.

Proposed amendments would:

• require a judge to state for the record and for the benefit of surviving victims that an offender convicted of murder who has received a life sentence may apply for a reduction in the number of years before he or she is eligible to apply to a court for parole after serving at least 15 years of the sentence; and
  
  
• as noted under "Victim Impact Statements", clarify that at proceedings to determine whether an offender should have his or her parole eligibility reduced (s. 745.6 hearings), the information provided by the victim may be oral or written, at the option of the victim. At present, the Criminal Code provides that any information provided by the victim will be considered; however, in practice, some victims have been discouraged from making an oral statement.

Department of Justice
April 15, 1999