United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power

In 1985, the General Assembly of the United Nations adopted the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. Brought forward by the World Society of Victimology, the declaration provided a blueprint for member states to develop their own national legislation on victims’ rights, recommending measures to provide access to information, participation, protection, assistance, restitution, and compensation. While the Universal Declaration of Human Rights is not a legally binding document, it has sparked legislative reform in many countries around the world.

Victim Rights in Canada

In Canada, because of the federalist system, the majority of victim rights are legislated and administered through provincial and territorial governments. Saskatchewan was the first province to enact a victim compensation program in 1967, and many other provinces and territories quickly followed suit, building momentum for victim rights in Canada. The UN Declaration was passed in 1985, and in 1986, Manitoba enacted a provincial Justice for Victims of Crime Act. During the following two years, New Brunswick, Newfoundland, Northwest Territories, Prince Edward Island, and Quebec all passed similar legislation. In 1988, to further guide legislative and administrative initiatives, federal, provincial, and territorial governments adopted the Statement of Basic Principles of Justice for Victims of Crime, which was revised and affirmed again in 2003. By the time the federal government tabled federal victim rights legislation in 2014, all the provinces and territories had adopted their own legislation. In 2015, the Canadian Victims Bill of Rights (CVBR) came into effect. The law has quasi-constitutional status, which means it is subject to the Canadian Charter of Rights and Freedoms (1982) but should be higher in status than other legislation. The CVBR includes the right to information, protection, participation, and the right to request restitution. While these rights are important, they are not enforceable through the courts, and the only form of recourse when a survivor’s rights are not respected is to file a complaint.

The following provides a comprehensive overview of the various types of compensation and assistance available to victims of crime in Canada.  The discussion of restitution, compensation, and victim impact statements will highlight the complexities of seeking support while navigating the criminal justice system as a victim and/or survivor.

Victim Restitution and Compensation

If a crime victim suffers a financial loss as a result of the crime, they have the right to seek financial redress in the form of restitution from the offender. Restitution occurs when the offender repays the victim for the financial losses they have incurred as a result of the crime (Canadian Resource Centre for Victims of Crime [CRCVC], 2009b). This can include losses such as the amount of an insurance deductible, lost income, medical, counseling or treatment expenses not covered by insurance, the cost of property damaged and/or destroyed, and expenses for moving (Province of British Columbia, 2021a).  Restitution excludes pain and suffering, emotional distress, or other types of damages; these losses can only be assessed in civil court (Scott, 2016). Restitution can be ordered by the criminal court as a stand-alone order (given as an additional sentence), a condition of probation, or as a conditional sentence, only after an offender has pleaded guilty or has been found guilty (CRCVC, 2009b; Province of British Columbia, 2021a). Research has found that as little as 3% of those found guilty in criminal court are ordered to pay restitution (CRCVC, 2009b). Restitution can be difficult to obtain as the accused may be unable to pay the amount ordered by the court; furthermore, many provinces lack enforcement measures to ensure payment has been made to the victim(s) (Wemmers, 2020).

Whether or not a judge orders the accused to pay restitution, this decision does not affect a victim’s right to seek compensation through a civil lawsuit or to apply for compensation. Compensation occurs when the state^[1] pays financial compensation to victims of violent or personal crimes. Financial compensation is administered by each province and/or territory^[2] to victims of crime, according to their own rules and standards. For example, in British Columbia, the Crime Victim Assistance Program provides financial benefits to help offset monetary losses and assist in recovery for victims, immediate family members, and some witnesses of a violent crime (Province of British Columbia, 2021b). Benefits for victims of crime may include medical and dental services, prescription drug expenses, counselling, protective measures, income support or lost earning capacity, transportation expenses, crime scene cleaning, and much more (Province of British Columbia, 2021b).

Victim Impact Statement

A victim impact statement is a written or oral statement made to the court by direct or indirect victims to discuss the impact of criminal victimisation (Scott, 2016). The statement may include a description of the physical, financial, and/or emotional effects of the crime. The statement may be prepared by the victim themselves, by someone on behalf of the victim (e.g., a parent, a spouse, a child), or by the survivors of deceased victims (Scott, 2016). Victims have the right to prepare and submit a victim impact statement according to Section 722 of the Criminal Code of Canada and the Right to Participation under the Canadian Victims Bill of Rights (Scott, 2016). The decision to submit a victim impact statement is voluntary. A community impact statement may also be submitted if the victim was part of a specific community, such as a school or sports team, and a representative of the community would like to present a collective statement on their behalf.

Victim impact statements can be introduced at various stages of the legal process, including sentencing, bail hearings, plea bargaining sessions, and parole hearings. In Canada, victim impact statements are used only after an offender is found or has pleaded guilty (Scott, 2016). Victim impact statements have been found to be therapeutic for victims of crime. They allow the victim and/or survivor to be acknowledged by the criminal justice system and to express their pain and experience while providing valuable information to the court. Victim impact statements can help the judge give a sentence more reflective of the true harm caused to the victim and can help induce feelings of remorse in the offender (Scott, 2016). Although judges can take victim impact statements into account, they are not required to use the statements as a basis for a harsher sentence. Some victims of crime may choose not to prepare a victim impact statement as they may feel uncomfortable describing their feelings in a public setting, may fear retaliation from the offender, may find recalling the crime traumatic, and may feel dissatisfied if their recommendations are not followed by the judge (Scott, 2016).

Balancing the Rights of the Accused with Victim Rights

The criminal justice system treats crime as an offence against the state, not the victim, and most of the legally-binding rights in the process belong to the accused, who are guaranteed the right to a fair trial, to legal counsel, and to be provided with information on the case against them. If these rights are not respected, a mistrial may be called because there has been a miscarriage of justice. When it comes to victims of crime, however, the legal onus is reversed. The CVBR states that victims may receive information upon request. And there is no recourse or legal consequence prescribed when the victim is not provided with information, beyond filing a complaint. Survivors in Canada miss the opportunity to participate in hearings, to be consulted about decisions that affect their lives, or even the chance to share concerns about their personal safety—because they have not been provided with information and no one is responsible for telling them. They may not know what information to request. In a progress report on the CVBR, the Office of the Federal Ombudsman for Victims of Crime (Office of the Federal Ombudsman for Victims of Crime [FOVC], 2020) argued that information is a gateway right, meaning that other victims’ rights cannot be accessed if the victim is not proactively informed. The OFOVC has called for a full parliamentary review of the CVBR to strengthen the legislation and to ensure that victims have more consistent access to their rights.