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Victims of Crime Initiative: Activities Report April 2000 - October 2004
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Appendix 1: Criminal Code of Canada Reforms Enacted in the 1980s and 1990s to Benefit Victims of Crime
The federal Minister of Justice is responsible for enacting the criminal law that is found in the Criminal Code and applies throughout Canada. The Criminal Code includes many provisions that facilitate the participation of victims of crime. These provisions are described below.
The Solicitor General of Canada is responsible for, among other things, the Corrections and Conditional Release Act . This Act also includes provisions specifying the information that is available to crime victims about federally incarcerated inmates.
The provinces and territories have also enacted victim legislation governing services and assistance and, in some jurisdictions, compensation to victims of crime.
Criminal Code Provisions
Victim Impact Statement
The Criminal Code requires the court to consider a victim impact statement at the time of sentencing an offender where such a statement has been prepared. The victim impact statement describes the harm done to or loss suffered by the victim of the offence. The form of the statement may be in accordance with procedures established by a victim impact statement program designated by the Lieutenant Governor in Council of the Province. Courts have accepted a variety of forms of victim impact statements regardless of whether there is a designated program. (See section 722 of the Criminal Code for details.)
Recent amendments to the Criminal Code provide that the victim may read their victim impact statement aloud at sentencing, where they wish to do so. Information from the surviving victims may also be considered in proceedings pursuant to s. 745.6, where an offender sentenced to life for murder, may apply for a reduction in the number of years before being eligible to apply for parole.
Victim Surcharge
A victim surcharge is imposed in addition to any other punishment for an offender convicted or discharged of a Criminal Code offence or an offence under the Controlled Drugs and Substances Act . The revenue raised by the victim surcharge remains in the province or territory where it is imposed. The Criminal Code requires that victim fine surcharge revenue shall be used to provide assistance to victims of offences as the Lieutenant Governor in Council of the Province directs. (See section 737 of the Criminal Code for details.)
The victim surcharge is 15% of any fine imposed and where no fine is imposed, the surcharge is $50 for summary conviction offences and $100 for indictable offence convictions. Where imposition of the surcharge would cause undue hardship, the offender may request that the sentencing judge waive the victim fine surcharge.
The majority of provincial/territorial victim services and programs are financed by surcharge revenue. Most of the provinces/territories have also enacted legislation imposing a surcharge on provincial offences, the revenue from which is used for victim programs and services. (See section 737.)
Restitution
A court sentencing an offender may order, in addition to any other sentence imposed, that the offender pay restitution to the victim of the offence. The court may impose the restitution order based on an application by the prosecutor or on its own motion.
Restitution, as an additional sentence, may be ordered for readily ascertainable loss of or damage to property suffered as a result of the commission of the offence and readily ascertainable pecuniary (monetary) damages, including loss of income or support, incurred as a result of bodily harm suffered as a result of the commission of the offence. In addition, in the case of an offence causing bodily harm to the offender's spouse or child (family violence), restitution may be ordered for readily ascertainable expenses incurred by the victim as a result of moving out of the offender's household, for temporary housing, child care, food and transportation.
Where restitution is ordered as an additional sentence and the restitution is not paid within the time period specified by the court, the person to whom the restitution is to be paid (i.e. the victim/the beneficiary of the order) may file the order in any civil court in Canada. The restitution order made in the criminal proceedings will then have the same effect as a civil judgment for damages made by a civil court. The victim can enforce the order against the offender in the same manner as a civil judgment (e.g. direct the Sheriff to seize bank accounts, place liens on property, etc.). (See sections 738-741.2 of the Criminal Code.)
Restitution may also be a condition of an offender's probation order, where probation is the appropriate sentence.
Publication Bans, Exclusion Orders and Facilitating Testimony
In criminal proceedings, while the general rule is that all proceedings against an accused shall be held in open court, the Criminal Code sets out exceptions, including those which are intended to protect the privacy of victims. For example:
- subsection 486(1) which permits the exclusion of the public in certain circumstances.
- subsections 486(3) and 486(4) which provide for an order prohibiting publication of the identity of sexual offence victims and certain witnesses.
- subsection 486(4.1) which provides that a judge may make an order prohibiting the publication of the identity of a victim or witness of any offence, on application, where it is established that the order is necessary for the proper administration of justice.
- subsections 276.2 and 276.3 which provide for the exclusion of the public and which restrict publication of proceedings to determine the admissibility of evidence regarding a sexual assault complainant's sexual history.
Other provisions are intended to facilitate the participation of witnesses, including:
- subsection 486(1.2) which permits a support person to be present in court with a witness under the age of 14 years, or who has a mental or physical disability, in sexual offence proceedings.
- subsection 486(2.1) which permits a witness who is under the age of 18 years or who has difficulty communicating, to provide their testimony from behind a screen or by closed circuit TV, where the judge is of the opinion that this is necessary to obtain a full and candid account. This provision applies in proceedings for sexual offences and other specified offences.
- subsection 486(2.3) which provides that, in sexual and personal violence offence proceedings, generally, a self-represented accused shall not personally cross-examine a witness under 18 years of age. The court may appoint counsel for the accused to conduct the cross-examination.
- subsection 715.1 which permits, in proceedings relating to sexual offences, that where the victim or witness was under the age of 18 at the time the alleged offence occurred, a videotape, describing the acts complained of and made within a reasonable time after the offence, is admissible in evidence, if the victim or witness, while testifying, adopts the contents of the videotape.
- subsection 715.2 which permits, in proceedings relating to sexual offences, that where the victim or witness has difficulty communicating due to a disability, a videotape describing the acts complained of and made within a reasonable time after the offence, is admissible in evidence, if the victim or witness, while testifying, adopts the contents of the videotape.
Provisions for Sexual Offence Victims
As a result of criminal law reform initiatives, the Criminal Code currently includes many provisions to address the concerns of child and adult victims of sexual offences including:
- A Definition of Consent to Sexual Activity
Section 273.1 provides a definition of consent for the purposes of the sexual assault offences and for greater certainty, sets out specific situations that do not constitute consent at law.
Subsection 273.1(1) defines consent as the voluntary agreement of the complainant to engage in the sexual activity in question. Conduct short of a voluntary agreement to engage in sexual activity does not constitute consent as a matter of law. For greater certainty, subsection 273.1(2) sets out specific situations where there is no consent in law. No consent is obtained:
- where the agreement is expressed by the words or conduct of a person other than the complainant;
- where the complainant is incapable of consenting to the activity;
- where the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
- where the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
- where the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.
- Restricting the Defence of Honest Belief in Consent
Section 273.2 limits the scope of the defence of honest belief in consent to sexual activity by providing that the defence is not available where the accused's belief arose from the accused's self-induced intoxication, or where the accused's belief arose from the accused's recklessness or willful blindness, or where the accused failed to take reasonable steps to ascertain whether the complainant was consenting.
- Evidence of Other Sexual Activity
Sections 276 to 276.5 of the Criminal Code govern the admission of evidence regarding a sexual assault complainant's other sexual activity. The Code makes it clear that evidence that a complainant has engaged in sexual activity is not admissible to suggest that the victim was more likely to have consented to the sexual activity which is the subject matter of the charge or that he/she is less worthy of belief. The provisions restrict the admissibility of evidence to specific instances of sexual activity, relevant to an issue at trial and to evidence that has "significant probative value which is not substantially outweighed by the danger of prejudice to the administration of justice". The judge is required to consider a range of factors set out in the Code in making this determination. The Code also sets out the procedure to be followed and includes provisions to safeguard the victim's privacy including provisions for an in camera (closed) hearing, non-compellability of the victim and a publication ban on the proceedings. These provisions are sometimes referred to as the "rape shield" laws.
- Protecting the Personal Records of Sexual Offence Victims
Sections 278.1-278.9 of the Code govern the production of personal records about victims and witnesses in sexual offence proceedings. The provisions place the onus on the accused to establish that the records sought are likely relevant to an issue at trial and require the trial judge to carefully scrutinize applications and determine production in accordance with a two-part process involving a consideration of both the accused's rights to full answer and defence and the victim's rights to privacy and equality. The procedure to be followed is also set out in the Code and includes safeguards for the victim's privacy including an in camera (closed) hearing, non-compellability of the victim at the hearing, a publication ban on the proceedings and the contents of the application, editing of the records (where ordered to be produced) to delete irrelevant personal information and the imposition of other appropriate conditions on production.
Other Code Provisions of Interest to Victims of Crime
- Section 161 - permits the court to make an order prohibiting an offender convicted of a sexual offence involving a young person (under 14) from attending at or near certain public places where children may be present or seeking, obtaining or continuing employment that involves being in a position of trust or authority towards a young person.
- Section 810.1 - allows a person to seek a peace bond, lasting up to 12 months, if he or she fears that another person will commit a sexual offence against a child. A hearing may be held and the judge will determine whether a peace bond (recognizance) should be entered into. If the defendant fails or refuses to enter into the recognizance, the judge may sentence the defendant to jail for up to 12 months.
- Section 264 - provides for the offence of criminal harassment (stalking). It is an offence to engage in harassing conduct, including repeatedly following a person, watching a dwelling house or place where the other person lives or carries on business or happens to be or engaging in threatening conduct knowing that this causes the person to reasonably fear for their safety or the safety of anyone known to them.
- Section 718 - sets out the purpose of sentencing. It provides that the fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
Section 497 (1.1) a(iv) and Section 518 (1) (c.2) – requires the police and judges to consider the safety and security of victims and witnesses to an offence when a judicial interim release order is made.
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