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3. Chapter 29

The Federal Prosecution Service DESKBOOK

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Part VI
POLICY IN CERTAIN TYPES OF LITIGATION
Chapter 29

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29 VICTIMS OF CRIME

29.1 Introduction

In 1999, Parliament enacted amendments to the Criminal Code that addressed the situation of victims within the criminal justice system¹. These amendments were the result of a comprehensive review by the Standing Committee on Justice and Human Rights, and built upon previous protections added to the Criminal Code in 1988 (e.g., victim impact statements), and 1993 and 1997 (in relation to child victims). The amendment also sought to further implement the commitment to protection of victims made by Federal, Provincial and Territorial Ministers of Justice in their 1988 Canadian Statement of Basic Principles of Justice for Victims of Crime².

The preamble to that legislation noted that:

Elsewhere, the preamble noted that Parliament wished to:

• encourage and facilitate the participation of victims in the criminal justice system
• ensure the protection of victims’ rights
• minimize the inconvenience to victims
• ensure that victims’ concerns are considered in decision-making that affects them
• ensure that victims are adequately informed.

This policy is intended to outline the ways in which Crown counsel can help achieve Parliament’s goals, and underscore the importance of such efforts.

29.2 Application of the Policy

As a result of the 1999 amendments, “victim” is now defined in s. 2 of the Criminal Code as “includ[ing] the victim of an alleged offence”³. While any definition of victim would embrace not only a person experiencing direct harm, but also friends, family and society at large, this policy is intended to deal primarily with those who have been directly affected by criminal conduct.

29.3 Statement of Policy

Crown counsel shall carry out their duties in a manner that gives victims opportunity for meaningful participation in the criminal justice process. Crown counsel must, however, ensure early in the process that any victim has a clear understanding of the proper role of Crown counsel, particularly:

1. that Crown counsel does not represent him or her as their legal advisor in the proceedings; and
2. that Crown counsel must be scrupulously fair in presenting the case, which may include, for example, presenting evidence that is favourable to the accused.

Crown counsel must take every reasonable opportunity to invoke the mechanisms and procedures provided by law to attempt to ensure that justice is seen to be done in the eyes of victims in the proceedings⁴. No formula can prescribe the manner in which this goal can be achieved; the principles enunciated in this policy will provide guidance for application in a wide variety of specific circumstances.

29.4 Operation of the Policy

29.4.1 The Special Needs of Victims

While the needs and circumstances of each victim will be as unique as each individual and case, there are some general considerations Crown counsel should bear in mind in certain kinds of cases.

Where the victim of a crime is a child⁵, communication and protection take on special importance. Crown counsel must consider what measures ought to be invoked to ensure the victim appreciates any information that is conveyed. For example, Crown counsel should seek to use language appropriate to the maturity of the child, and may want to conduct interviews of the child in a place and manner more likely to achieve the victim’s comfort and security. Children tend to be more dependant than adults and, accordingly, they tend to be more vulnerable. Crown counsel should always adopt practices that maximize not only the safety of a child victim but also the child’s perception of safety.

Where the crime is a spousal violence offence⁶ Crown counsel should be aware of the dynamics commonly at play in respect of victims of these offences. The needs of spousal violence victims are discussed in Part VI, Chapter 28, “Spousal Violence.”

Chapter should also be read in conjunction with Part VI, Chapter 28, “Spousal Violence.”

Where the crime violates the victim’s sexual integrity (for example, an offence contrary to ss. 271 to 273.3 or Part V of the Criminal Code) Crown counsel should expect that the victims will find their involvement in the proceedings to be particularly difficult, and that the impact of the crime on the victim may be severe and pervasive. Crown counsel should attempt to ascertain victims’ needs and respond accordingly.

In all crimes of violence victims often harbour a legitimate sense of violation, one that is more pronounced than is commonly found in cases of property crime. Crown counsel should be sensitive to a victim’s sense of vulnerability in these cases, and should consider appropriate measures to enhance security and comfort. Among such measures should include steps to ensure that victims are kept well-informed about the progress of the case, and about the types of issues that may arise that will be of particular interest to them: for example, applications to introduce evidence of prior sexual activity, or for access to their personal medical or other records⁷.

Crown counsel will often deal with victims who have special physical needs.⁸ Similarly, in some cases the first language of a victim is not the same as that of Crown counsel or the language in which proceedings are conducted. These situations require special consideration and planning by Crown counsel to eliminate barriers that might impede involvement of victims in criminal proceedings.

Many victims may view court proceedings with suspicion because they feel people of their race, ethnic origin, gender, or sexual orientation are less likely to be treated fairly. Crown counsel should be aware of such concerns and seek to address them in an appropriate manner.

29.4.2 Alternative Measures

Not all criminal offences require criminal proceedings. In some cases, the interests of both victim and offender might be properly addressed through the use of alternative measures programs⁹. However, in cases involving physical violence, the severity of the offence or its impact upon the victim may be such that prosecution is required. Crown counsel must consider the position of the victim and, where appropriate, consult with the victim in deciding whether an alternative to prosecution is appropriate¹⁰. Where an alternative to prosecution is appropriate, care must be taken to ensure that the decision is explained to the victim, particularly how the disposition will protect the victim’s interests.

29.4.3 Bail Hearings

The 1999 amendments contain a number of provisions relevant to bail hearings with which Crown counsel should be familiar. These include provisions concerning:

• obligations imposed on peace officers and others to protect victim safety¹¹;
• the conditions of a bail order relating to non-communication with the victim¹², general powers to ensure the victim’s security¹³, and possession of weapons¹⁴; and
• the test to be employed by the presiding judge in deciding whether to grant bail, which now explicitly requires consideration of the victim’s safety¹⁵.

29.5 Safety Measures

The role of Crown counsel in respect of protecting and considering victims goes beyond the conduct of criminal prosecutions. Crown counsel should consider Criminal Code measures designed to prevent offences and to maximize the security of persons. Sections 810, 810.01, 810.1 and 810.2 of the Criminal Code are designed to assist victims by, for example, seeking to prevent contact between potential victims and persons who may commit violent acts. Crown counsel should also consider in a criminal proceeding measures provided by law to protect potential victims as yet unknown: see, for example, s. 161 of the Criminal Code, which provides for the imposition of prohibition orders against offenders. By these and similar measures, Crown counsel should seek to secure greater safety for victims generally where circumstances warrant.

29.5.1 Aids to Trial Testimony

In many criminal cases victims are obliged to testify at court as part of the Crown’s case. Often it is in this context that a victim first comes into contact with Crown counsel.

Prior to speaking to Crown counsel, victims often speak to a Victim Witness Assistant, a person employed by the Department of Justice who can provide information to victims about the court proceedings and their role. Victims should be told about the availability of a Victim Witness Assistant, or any other victims’ services provided by the province or territory, the police or the community (where available), as early in the process as possible. Where possible, Crown counsel should speak with any victim of crime prior to his or her courtroom testimony, in order to:

• explain relevant prosecution policies (for example, in cases of spousal violence);
• explain the role of Crown, defence counsel, the judge, and the jury in such proceedings;
• explain the role of a witness in court;
• assess the victim's reliability as a witness;
• encourage the victim to testify truthfully to what occurred;
• ensure that the victim has been given the opportunity to review his or her statement, if any, before testifying;
• inform the victim of any release conditions imposed on the accused, and determine if the victim has any concerns with the accused’s compliance with those conditions – if the victim has concerns, counsel should make sure the victim knows what to do and who to call if there is a breach;
• ensure that the victim has been made aware of available community services, including the services of a victim witness assistant, where one is available;
• attempt to answer any questions the victim might have; and
• advise the victim that if the offender is convicted, the victim may prepare and submit a victim impact statement to describe the harm.

The Criminal Code provides a number of measures that can be invoked in particular cases to increase the comfort and security of victims obliged to testify in a criminal proceeding. It is the responsibility of Crown counsel to consider if any of these measures are available and appropriate in a given case, and to seek to rely on them accordingly. These measures include:

• the use of a screen or closed circuit television¹⁶;
• the services of a support person¹⁷;
• the use of pre-recorded video evidence¹⁸;
• the use of affidavit evidence¹⁹;
• in camera proceedings²⁰;
• an order banning publication that might identify the victim²¹;
• opposing production to the accused of the victim’s personal records²²;
• opposing the admissibility of evidence of the victim’s prior sexual conduct²³; and
• preventing abusive cross-examination by self-represented accused²⁴.

29.6 Participation in Court Processes

There are ways other than testimony whereby a victim can participate in criminal proceedings. Crown counsel shall consider the victim in respect of the following:

• at any time that an accused is released from custody pending the completion of proceedings, Crown counsel shall take reasonable steps to ensure the victim is aware of the release, the terms of release, and any amendment to terms of release;
• where Crown counsel proposes to make a significant amendment to the charges, or discontinue a prosecution, he or she should ensure that victims of offences alleged are consulted, where appropriate;
• where Crown counsel discloses to defence materials of a sensitive nature pertaining to the victim, he or she shall consider such steps as might be prudent to protect against inappropriate use or dissemination of the materials²⁵;
• the right of the victim to independent representation at proceedings (for example, where an application is brought pursuant to s. 278.2 of the Criminal Code to access personal records pertaining to the victim);
• timely information pertaining to plea and sentence negotiations;
• the possibility of restitution orders²⁶ or access to proceeds of crime that have been forfeited²⁷;
• participation of the victim in sentencing hearings, by means of viva voce testimony, a Victim Impact Statement²⁸ (which the victim should be advised can be read aloud if the victim so desires or presented by other means, e.g. by videotape)²⁹ or otherwise; and
• the right of the victim to notice of and participation in various post-conviction processes such as parole hearings, Criminal Code Review Board hearings and parole eligibility hearings.

29.7 Victim Surcharges

Under the 1999 amendments, victim surcharges are automatic where persons are convicted under the Criminal Code or the Controlled Drugs and Substances Act³⁰. In addition, Crown counsel may request a greater amount than those fixed by s.737(2) of the Criminal Code. The surcharge may be waived on application of the offender pursuant to s. 737(5) (for example, where it would cause undue hardship), but the waiver must be sought before the sentence is imposed.

29.8 Appeals

It is important that Crown counsel bear in mind that their duties with respect to victims do not end at trial. Since convictions/acquittals and/or sentences may be appealed, the duty to inform victims includes explaining appeal processes, including, inter alia, the possibility of bail pending appeal and of a new trial being ordered.

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Date Modified:

2008-12-24