Victims of Crime Research Digest No. 13

Twenty Years and More of Victims Research: Learning from the Past – Part I

By Susan McDonald

1.0 Introduction

The Department of Justice Canada (Justice Canada) celebrated its 150th anniversary in 2018, one year after Canada celebrated its own 150th anniversary. However, while Justice Canada can boast a long history, it was not until the 1970s that policy research became an established activity within Justice Canada. The topic of victims of crime has been included in Justice Canada’s policy research agenda since then, primarily because Justice Canada is responsible for the Criminal Code of Canada. This article will review research done at Justice Canada before the start of the Victims of Crime Initiative / Federal Victims StrategyFootnote 4 in 2000. Part II of this article (also included in this edition of the Digest) covers research under the Federal Victims Strategy. The areas of research that continue, as well as newer areas that demand attention, reflect the growth and changes in victims’ rights, technology, social context, and policy and program development.

2.0 Key Research Areas in the 1980s and 1990s – Before the Federal Victims Strategy

This review of victim research will focus on work done in the 1980s and 1990s. It is divided into three key areas:

  1. the introduction in the 1980s of provisions in the Criminal Code to help victims – the victim fine surcharge, victim impact statements (VIS), and restitution. Research was done to assess how the provisions were working.
  2. access to justice – a series of research studies were done on victim services programs and public legal education and information (PLEI) for victims of crime.
  3. the impact of substantive changes to legislation, such as new definitions of sexual offences in the Criminal Code, and the introduction of the offence of criminal harassment.

In addition to the research on victims issues that will be presented, there is additional research under the two following initiatives:

  1. Family Violence Initiative
    The Family Violence Initiative (FVI) has been the federal government's main collaborative forum for addressing family violence since 1988. The FVI is led by the Public Health Agency of Canada, which coordinates 15 partner departments and agencies, including Justice Canada, to prevent and respond to family violence. Research has always played a part in the Family Violence Initiative. At Justice Canada, it has examined how the criminal justice system responds for both victims and perpetrators of family violence. This article, and Part II, does not include family violence research, or research from other specific initiatives from before or after 2000, such as elder abuse.
  2. The National Justice Statistics Initiative - Statistics Canada
    The National Justice Statistics Initiative (NJSI) began in 1981. It involves Public Safety Canada and Justice Canada, as well as each province and territory, and it partners with the Canadian Centre for Justice and Community Safety Statistics (CCJCSS). Collecting data on victims of crime has not always been a focus of the NJSI, but it has gathered data through the General Social Survey – Victimization, which is carried out every five years. It also carried out a one-time survey in 1994 entitled the Violence Against Women Survey (VAWS). This article will not go into detail about the resulting articles and data published by Statistics Canada about criminal victimization.Footnote 5

2.1 Research on Victim-related Criminal Code Provisions

Victim Impact Statements

Victim Impact Statements first appeared in the United States in the 1970s. Since then, their use has grown in in both common-and civil-law countries. In Canada, the 1983 report of the Federal-Provincial-Territorial (FPT) Task Force on Justice for Victims of Crime recommended introducing VIS when offenders were sentenced. A few years later, in 1986, Justice Canada funded a number of pilot projects to test the use of VIS in six jurisdictions. Consultants carried out evaluations of the six pilot projects and the Research and Statistics Division prepared a summary report.Footnote 6 The summary focused on three main areas:

  1. how the program operated;
  2. how victims who completed the VIS were affected; and,
  3. what effect introducing victim impact statements into the criminal justice system had at sentencing.

Overall, the findings showed that:

  1. VISs were more likely to be used when victims had personal contact with and assistance from lawyers, or that option;
  2. a VIS on its own would not necessarily affect a victim’s confidence in the criminal justice system; and
  3. victims should be cautious in their expectations of VIS.

The VIS provisions in the Criminal Code came into effect in October 1988. More research was conducted to assess the VIS Program in BC (Focus Consultants 1992), and more amendments were made to the Criminal Code based on recommendations from the Report of the Standing Committee on Justice and Human Rights in 1998. These amendments came into force in December 1999 and included several changes to the VIS provisions.Footnote 7

Federal Victim Surcharge

The Federal Victim Surcharge, then known as the Victim Fine Surcharge, also came into effect in October 1988, as s. 727.9 of the Criminal Code. The purpose of this legislation was primarily to generate revenue for victim services and programs and to provide a way for offenders to make some effort to compensate the victims of their crime.

Justice Canadainitiated two studies to review the impact of the new provisions, one in British Columbia and one in Ontario. Three themes emerged from the BC report, An Assessment of Victim Fine Surcharge in British Columbia written by Tim Roberts (1992):

  1. the surcharge was imposed inconsistently;
  2. judges resisted imposing the victim surcharge; and
  3. surcharges were not consistently collected on sentences that did not include a fine.

The Ontario report, Helping Victims through Fine Surcharges, by Lee Axon and Bob Hann (1994), examined Ontario’s experience with the surcharge as well as practices in other parts of the country and found the following:

  1. In Ontario, after being introduced in 1989, the revenue generated by the surcharge declined dramatically because it was being applied less often.
  2. Only about 15 percent of the potential surcharges (allowing for undue hardship at 33 percent and default at 45 percent) were imposed in 1992 and only 2.7 percent of the revenue was actually collected.
  3. More than 80 percent of all surcharges were imposed on “victimless” crimes (impaired driving, morals offences, and willful damage).
  4. The major reason the surcharge was imposed at such low rates in Ontario was judges’ concern that the revenue was not being used to provide services for crime victims.
  5. In other parts of the country, the study found that:
    1. little attention had been given to informing offenders about the purpose of the surcharge;
    2. judges were more likely to impose the surcharge on fines than on non-fine dispositions;
    3. the surcharge was most successful in jurisdictions that kept judges informed about how the revenue was being used; and
    4. most jurisdictions had developed a designated fund for the revenue.

Research studies on the federal victim surcharge have continued to take place since 2000 to document these challenges and how to address them. Part II will discuss these implementation issues further.

Restitution

Since it was drawn up in 1892, Canada’s Criminal Code has permitted a sentencing court to order “compensation” for property lost as a result of an offence. These provisions remained mostly unchanged until amendments in 1996 repealed them and replaced them with restitution orders. “Restitution” refers to payments the offender should make, “compensation” to payments the state makes.

Parliament passed Criminal Code provisions that would require judges to enforce restitution orders in 1988, but they were never enacted because the provinces raised concerns that such a scheme would cost too much. After Justice Canada studied the costs and the challenges of operating the scheme, it concluded that there would be support for the existing civil enforcement scheme, but not for a criminal enforcement scheme because it would cost the provinces too much to implement; the annual operating costs would far exceed the financial benefits realized by victims.Footnote 8

Justice Canada policy research played a role in better understanding all three of these victim-related Criminal Code provisions. In the case of VIS and the federal victim surcharge, research before and after the provisions came into force helped decision makers understand how to implement the program. In the case of restitution, costing work on the proposed enforcement scheme showed that such a scheme would not be financially viable. As a result, the provisions never came into force.

2.2 Research on Access to Justice for Victims and Public Legal Education and Information (PLEI)

Victim/Witness Needs and Services

Services for victims of crime have grown exponentially in the last decade or so. Thirty-five years ago, however, victim services – as a program run and supported by government – was a relatively new idea. Yet they are fundamental to the goal of access to justice for victims. Justice Canada has done needs assessments and evaluation-type research at different sites across the country, often where it had invested funding into the start-up of the program itself. A brief review of these assessments follows.

The Evaluation of the Ottawa Witness Co-ordinator Project (Colin Meredith 1984) found that the program was effective in providing information to witnesses, reducing their court appearances, and playing an intermediary role between Crown attorneys and other social services personnel. The study also calculated how much money the program saved.

Review of Court-Based Victim/ Witness Projects (Abt Associates of Canada 1985). The objective of this study was to identify and describe all such projects (a total of eight were reviewed) in Canada and to discuss practical concerns about how to carry out and operate these projects. Five evaluation reports were reviewed for this larger study, including Winnipeg (1983) and Ottawa (1984). Three other evaluations were completed in 1984 for a program in London, programs in Saint John and Campbellton in New Brunswick, and one in Edmonton.

Justice Canada continued to review victim and witness programs over the next decade: The Review of the Yukon Victim-Witness Administration Program by E.B. Lane Consulting (1989), for example, measured whether the program met its three main objectives, which it did, to some extent. These objectives included:

  1. providing assistance to victims and witnesses before, during, and after court;
  2. providing information on the trial – dates, court procedures, and available community resources that provide long-term counselling for crime victims; and
  3. arranging travel and accommodation/reservations for witnesses living in a place other than where the trial was held.

Justice Canada, with the former department of Health and Welfare Canada, provided funding over three years for the Child Victim-Witness Support Project, operated by the (then) Metro Toronto Special Committee on Child Abuse. This project arguably represented the first specific program for child victims and the criminal justice system. The Program Review of the Child Victim-Witness Support Project by Campbell Research Associates (1992) found that:

  1. not all children who were eligible were being referred to the program, and
  2. often children less than eight years of age were being referred because there were no other resources for them.

The report, Evaluation of the Women’s Advocacy Program (Winnipeg), was produced byFocus Consultants and C/S RESORS Consulting (1991).The study showed that participants found the program most valuable for the information it provided on charges and cases. They found the program weakest in referrals to other social services and long-term planning assistance. The program was highly valued by the Office of the Crown Attorney, police, and judges in domestic courts because it encouraged victims to come forward with information.

Victims’ Needs and Services in Nova Scotia Research Project, Christopher Murphy (1992)
This report documents a needs assessment in Nova Scotia to support the Victim Services Division, which was created by legislation passed in Nova Scotia in 1989. The goals of the assessment were to identify service needs, establish what services existed, distinguish funding priorities, and describe alternative strategies for funding and services.

These evaluations found that, overall, public legal education and information (PLEI) and access to legal services for victims were deemed extremely important for victims and their families.

Public Legal Education and Information (PLEI)

PLEI provides legal information and education for the general public. Education and information are important tools in raising awareness for victims and others about their rights, as well as resources that are available to meet their needs. In the early eighties, the Research and Statistics Division (RSD) carried out the Victims’ Legal Information Needs Survey (1984) to see if victims of crime had relevant information available to them. The report recommends providing ongoing information to victims, led by the provinces and territories, including: victim-related services; matters specific to victims’ case; and the criminal justice system in general, with updates throughout the process.

Justice Canada undertook a unique study, summarized in the final report Ask Me No Questions: A Project Evaluation by Stephen P. Norris and M. Jane Burnham (1992). The report focused on the role of PLEI in changing attitudes of victims. In a Newfoundland high school, students read the novel, Ask Me No Questions, the story of a 15-year-old young woman who is sexually abused by her father. The novel contained a significant amount of factual information and expressions of attitudes about sexual abuse and the role of the law in helping address it. After reading the novel, the students' knowledge of the factual information, together with their attitudes, "shifted a noticeable amount towards the position of the novel, compared to a control group who had not read the novel."

Inventory of Public Legal Education and Information Materials and Programs Related to Crime Prevention and Victims –Alderson-Gill and Associates (1994)
This report presents an inventory of PLEI materials, programs, and projects about crime prevention and victims. A total of 108 items were organized into five groups; the first four were related to crime prevention and the final was PLEI for victims. Along with providing basic information on the various PLEI materials, the report also made some recommendations and a list of gaps in the materials then available, including PLEI for hard-to-reach members of society.

2.3 Research on Substantive Offences

The third key area of research for Justice Canada during the eighties was on violent offences in the Criminal Code, primarily significant changes to sexual assault legislation and the introduction of the new offence of criminal harassment, through the lens of the victim/witness/survivor.

Sexual Assault – the 1980s

The crimes of rape, attempted rape, sexual intercourse with the feeble-minded, and indecent assault were repealed in 1983, and replaced with three degrees of sexual assault. The sexual assault provisions of the legislation made fundamental amendments to the Criminal Code.

The legislation was the result of a decade of consultations and lobbying efforts by equality-seeking women’s groups to redress problems in the Criminal Code’s treatment of the crime of rape. The overall objectives of the amendments were:

  1. to reduce or prevent the “secondary victimization” of the complainant resulting from her/his involvement in the criminal justice system (in particular during the trial);
  2. to extend legal protection to a wider range of Canadians and to enhance their protection from a wider range of non-consensual sexual offences; and
  3. to encourage the reporting of sexual offences and increase their founding and conviction rates.

In the mid-eighties, the Research and Statistics Division contracted with various consultants to undertake extensive research on the impact of the sexual assault provisions. This research was completed at a time when the field of legislative evaluation research was relatively young. The studies were done in six Canadian cities (Vancouver, Lethbridge, Winnipeg, Hamilton, Montreal, and Fredericton).

An Evaluation of the Sexual Assault Provisions of Bill C-127, Fredericton and Saint John, New Brunswick, J. and J. Research Associates Ltd. (1988) – The aim of this evaluation was to provide information on both the practice of the new legislation, as well as the attitudes towards it and the intended and unintended consequences. The data generated findings that led to contradictory conclusions. For example, while there was a general perception that procedures, practices, and attitudes had changed, there was little systematic empirical data to confirm these changes. There was every indication that much was being done formally/informally to ensure that the ordeal of testifying was not made worse but the objective of encouraging victims to report sexual assaults did not appear to have been met. The data suggested that the new Criminal Code provisions had neither increased nor decreased the level of reporting; most victims who reported were not aware that there had been any changes in the law regarding sexual assault.

Report of the Impact of the 1983 Sexual Assault Legislation in Vancouver, British Columbia, EKOS Research Associates Inc. (1988) – This study reviewed police, Crown, and sexual assault centre files both pre- and post-amendments, conducted interviews with criminal justice professionals (Crown prosecutors, police, victim services) and service providers, observed court proceedings, and conducted interviews with victims. The study was not able to explain whether some of the observed changes – mostly the increase in reporting of incidents – were due to the legislation or to a combination of factors, such as media, public education efforts, and greater awareness. The study found that the amendments were essentially progressive, but had not increased the number of reported sexual assaults. Overall, those interviewed for the study noted ongoing concerns in several areas:

  1. public awareness and attitudes towards victims of sexual assault were still affected by rape myths;
  2. roles and responsibilities of criminal justice professionals (police, victim services, and Crown prosecutors) needed to change; and,
  3. the process needed to ensure that the victim’s experience of reporting an assault and going through a criminal trial minimized the harm to them.

Report of the Impact of the 1983 Sexual Assault Legislation in Hamilton-Wentworth, EKOS Research Associates Inc. (1988) – As with the study in Vancouver, EKOS used a variety of methods to understand the impact of the sexual assault provisions. The study faced the same challenges in determining the causes of the impacts it observed. Likewise, the study found virtually no change in the proportion of cases that ended in conviction. Four major concerns stood out:

  1. need for knowledge, education, and consciousness-raising among the public and all stakeholders;
  2. need for a better understanding of roles and responsibilities;
  3. need for better co-operation and communication; and
  4. need to minimize the trauma for the victim in dealing with the system.

Report of the Impact of the 1983 Sexual Assault Legislation in Lethbridge, Alberta, University of Manitoba Research Ltd., Social Sciences Division (1988) – Changes in the post-reform period and interviews with key informants suggested that the law made a difference; however, the number of cases moving through the system and the court outcomes of cases, both before and after the legislation came into effect, suggested otherwise. Although more cases were processed under the new provisions, there was evidence that change was inhibited by the failure of police and Crown attorneys to adjust their attitudes and practices. The study also concluded that a formal system to provide support services to victims of sexual assault could help alleviate some of their problems. In Lethbridge at the time, such support was minimal and most respondents who provided it wished for more resources. Finally, the study concluded that training was needed at all levels of the system.

Report of the Impact of the 1983 Sexual Assault Legislation in Winnipeg, Manitoba, University of Manitoba Research Ltd., Social Sciences Division (1988) – This research was also conducted by the University of Manitoba. The interviews and court monitoring data provided evidence that the new provisions had a positive impact on the processing of sexual assaults. The study also found that victims' trauma could be minimized by reducing the amount of time complainants wait for a court appearance and eliminating preliminary hearings in sexual assault cases. The report concluded that while the Criminal Code changes were an acknowledgment of women’s rights to be autonomous and self-determining, legislation alone cannot guarantee that these rights will be consistently affirmed.

The Impact of Legislative Change on Survivors of Sexual Assault: A Survey of Front-line Agencies, CS/RESORS Consulting Ltd. (1988) – This study surveyed different agencies that provided services for sexual assault survivors: police-based victim/witness assistance programs (PV/WAs), sexual assault/rape crisis centres (SACs), and hospital-based treatment teams with special training to provide medical, forensic, and psycho-social services for survivors. The majority of the agencies noted that the treatment of the survivor had improved while a strong minority felt that it had remained the same. Respondents believed that it would be unrealistic to expect that legislative change alone could be solely responsible for changing – or not changing – such complex attitudes and behaviours. All hospitals had special areas for privately treating the survivor and ensured that the survivor felt in control of the medical and other procedures and did not feel "acted upon." There was a consistent picture of positive relationships between agencies, police, and Crown, and among the agencies.

Sexual Assault – the 1990s
In the 1990s, as in the decade before, Canada witnessed significant changes in its sexual assault law, through legislative amendments and case law. Criminal Code amendments passed in 1992 introduced a definition of “consent” and limitations on the use of sexual history as evidence. There were also a number of Supreme Court of Canada decisions that supported the rights of the accused within the context of access to complainants’ confidential records, as well as significant discussion around the impact of these decisions. In May 1997, the Criminal Code was amended to include specific provisions that limited the accused’s access to third-party records in sexual assault proceedings (s.278.1). The provisions were challenged on constitutional grounds in R v. Mills and in November 1999, the Supreme Court upheld the legislation.

Implementation Review of Bill C-49, Abt Associates (1997)
This report describes the findings of a review of the implementation of the 1992 Criminal Code amendments on consent and the use of sexual history as evidence. This research project reviewed case law and conducted interviews with Crown attorneys, defence counsel, police, and representatives of sexual assault centres in Vancouver, Calgary, Regina, Toronto, and Montreal.

The report was organized into three main sections concerned with:

  1. whether evidence of prior sexual history could be admissible;
  2. consent or honest but mistaken belief in consent; and
  3. whether personal records of the victim could be disclosed.

In contrast to the interviews with Crown attorneys and defence counsel, but consistent with the interviews with sexual assault centre representatives, the case law review revealed that the judicial interpretations of the new "rape shield" legislation were inconsistent, conflicting, and, overall, did not appear to promote the goals set out in the preamble of the legislation.

The authors of the report noted that judicial interpretation is a key element of the "success" of the legislation in achieving the goals set out in the preamble and that the review showed that the purpose and intent of the legislation was not being furthered by the way in which judges were interpreting it. In the next article, Part II, the difficulties in implementing the sexual assault legislation continue to play out.

Third-Party Records Cases since R. v. O’Connor: A Preliminary Analysis, Karen Busby (1998) – Law professor Karen Busby reviewed records cases for Justice Canada in the aftermath of the O’Connor decision and before the release of the Mills decision. The O’Connor decision dealt with the accused’s access to records before the changes to the Criminal Code established a procedure and set limits. Busby’s findings are limited in that one cannot determine whether applications are standard practice for defence, what the actual frequency of production to the judge or disclosure to the defence is, nor what overall trends are on reasons for production/disclosure. Overall, Busby found that, “the defendant obtained (or was denied) disclosure of records in about 50 per cent of the cases both before and after Bill C-46” (1998, 44). Busby’s work was cited in the Mills decision at para. 92.

Prevalence of Sexual Assault and Therapeutic Records: Research Findings, Julian Roberts (1998) – This short research paper summarized research on: the incidence of sexual assault in Canada, including official crime statistics and victimization surveys (Violence Against Women Survey, General Social Survey); and the incidence of personal records in the Canadian population. In reviewing the available literature, the author found empirical support for the following conclusions:

Survey of Sexual Assault Survivors, Tina Hattem (2000) – Justice Canada conducted this survey with the Canadian Association of Sexual Assault Centres to better understand:

  1. what sexual assault survivors consider when deciding whether or not to report the abuse to the police;
  2. how that decision is affected by the possibility of having to disclose their therapeutic records;
  3. experiences of survivors who report to the police; and,
  4. what women would change in how the criminal justice system handles sexual assault cases.

The findings included that women who recognized that they had been abused were more likely to report to police than women who minimized the behaviour or who were ashamed. Women who were believed or validated by their partners, families, etc., were also more likely to report to the police. Survivors noted that they experienced many aspects of the criminal justice process as a form of re-victimization. Overall, there was a strong sense of the importance of involving survivors in policy research and program implementation.

Criminal Harassment
Section 264 of the Criminal Code, the criminal harassment provisions,came into effect in August 1993. The section was further amended in 1997 and again in 2002. Gill and Brockman reviewed the legislation for Justice Canada in 1995Footnote 9 and conducted a short literature review, as well as case file reviews and interviews with criminal justice staff across the country. Statistics Canada released two articles on criminal harassmentFootnote 10 that used the Uniform Crime Reporting (UCR) Survey to review trends in criminal harassment charges, prosecutions, and court outcomes over the previous five years. Overall, the report concluded that the criminal harassment/stalking legislation represented an important step in addressing the problem. However, it identified the need to improve enforcement, training, communication with victims, management of protection orders, as well as examining cyberstalking more extensively.

The studies conducted on sexual assault and criminal harassment legislation represent strong examples of empirical research on legislation. Ultimately, they also reveal the limitations of legislation in effecting social and cultural change in attitudes and behaviours. Regardless, legislation remains a powerful, if blunt, policy tool and research on its implementation remains an essential piece of the policy cycle.

Conclusion

Part I reviewed three key areas of victims of crime research conducted by Justice Canada in the 1980s and 1990s. The first area dealt specifically with victim-related provisions in the Criminal Code, either newly enacted or amended. The research focused on implementation of the provisions in the provinces and territories, trying to better understand what was working and what was not working for all stakeholders. The second area focused on access to justice, through victim services and the use of PLEI to address victims’ information needs. While still in the early days of such services, it is possible to see the groundwork of project evaluations in this work that was supported by federal, provincial and territorial governments. The third key area was to examine the implementation of significant changes to sexual assault legislation and the introduction of the new offence of criminal harassment.

While not discussed in depth, the latter part of the 1990s also saw the proclamation of the new territory of Nunavut in 1999. With it came the interest and the responsibility on the part of the federal government to address information gaps, as well as the needs of its peoples. Two reports completed by Justice Canada should be mentioned: Nunavut Justice Issues: An Annotated Bibliography by Naomi Giff (2000) and Inuit Women and the Nunavut Justice System by Mary Crnkovich and Lisa Addario with Linda Archibald (2000). These reports called for a significant departure from the then-existing system of justice towards a community-based system. As will be seen in Part II, research on the North and Indigenous peoples as victims of crime emerged as a key area of research in the next decades. And perhaps it is no surprise that the key areas of the 1980s and ‘90s remain priorities after 2000 as well.