Community-Based Sentencing: The Perspectives of Crime Victims

6. Future Directions and Research Priorities

Information

It is clear that the criminal justice professionals who have contact with victims clearly make an effort to provide information about the likely sentencing outcome; nevertheless, victims clearly need to be given more and better information about the sentence imposed. Moreover, this information should be communicated in a manner that is comprehensible to laypersons. Some of this information is general in nature, applying to all conditional sentences or probation orders; other material would apply to the specific sentence that was imposed.

Simply mailing victims an incomprehensible CSI order, particularly one with critical information missing, is in our view inappropriate, particularly for serious crimes of violence. In an ideal world, victims would receive information about a range of issues, including the following:

Talking to the victims made it clear that they had received information about the sentence from numerous sources: police officers, VWAP personnel, the Crown, and in two cases, the offender's conditional sentence supervisor. It was equally clear that these individuals often had different and occasionally conflicting views of the sentence imposed. We feel that information about the factors considered at sentence can most reliably come from the Crown, and it would accordingly be better if this were the victim's single source of information about the sentence imposed.

Information about the Reasons for Sentence

Under present arrangements, it may be difficult for a victim who does not attend the sentencing hearing to know of the reasons provided by the judge for the sentence. These reasons may be communicated to the victim by the Crown or VWAP personnel. Some mechanism is needed to ensure that the victim is provided with an account of the judge's reasons for sentence.

In the event that the victim is present in court at sentencing, the Crown should ensure that they understand the sanction imposed. As noted earlier, it seems clear that Crown counsel make every effort to explain the sentence to victims. However, if the victim is not present, they should be given the opportunity to discuss the sentence with the Crown at some later date, if only by telephone. We feel that this "debriefing" should be conducted by a legal professional, and preferably the one who has had carriage of the case. We realize that the suggestion is at present somewhat impractical, in light of the caseload for which most Crown counsel are responsible. A second best solution may be to provide the victim with the judge's reasons for sentence, if they are available, or to have the sentence explained by VWAP personnel who attended at court.

Judicial Communication

One of the statutory pre-requisites for the imposition of a conditional sentence is that the court must be satisfied that "serving the sentence in the community would not endanger the safety of the community" [2]. But judges need to do more than simply assure themselves that this criterion has been met; they should also make an effort to communicate their confidence in this regard to the individual most affected by the crime, namely the crime victim.

Research upon crime victims and members of the judiciary has revealed two important findings of relevance to the present discussion. First, crime victims state that they appreciate some judicial recognition of the harm inflicted. This recognition may be expressed in remarks at sentencing in the event that the victim is in attendance, or possibly acknowledgement in reasons of the harm as documented in the Victim Impact Statement. Second, judges appear to be aware of this; fully 70% of judges responding to a survey in 2001 stated that they cited the VIS in their reasons for sentence, or addressed the victim directly in oral reasons (Roberts and Edgar, 2002). In the present context, we see an important opportunity for communication between the court and the victim. Judges can play a key role in explaining the imposition of a community-based sanction to the crime victim. This is relatively straightforward if the victim is present at the sentencing hearing. Unfortunately, for a variety of reasons, most victims do not attend the hearing. If the victim is absent, perhaps it is possible to conceive of a mechanism by which the court's reasons are taken down and communicated to the victim, without the necessity of ordering a transcript from the court reporter service.

Information about Breaches and Outcome of the Community Sanction

Under present arrangements, it is difficult to see how the breach information can be conveyed to the victim. Unless the victim has reported an alleged breach, the incident may not come to the attention of the VWAP personnel. Some mechanism is needed to ensure that this information is conveyed to VWAP.

Some commentators may argue that victims have no right to information about the administration of the sentence, and that constitutes a violation of the offender's privacy rights. After all, victims are not informed if, having been committed to custody, the offender violates institutional rules, or commits an offence against another prisoner or a correctional officer. In this latter example however, the victim knows that the offender is within the care of the prison authorities. An offender sentenced to a community-based sanction is supervised by correctional authorities, but remains within the "jurisdiction" of the community. Under these circumstances, we see an enhanced role for the community, and this role carries a responsibility to communicate information about the offender's progress.

There is also a more positive, potentially restorative element to this proposal. For example, knowing that the offender has completed mandatory treatment and served his term of custody in the community may well be of considerable benefit to victims. In a similar fashion, knowing of a successful order will also help to dispel cynicism surrounding offender rehabilitation. One victim who had obviously thought a great deal about the issues, recommended that an informal "outcome hearing" could be held, at which the victim could receive information about the way that the sentence had ended. After hearing this suggestion, we asked the remaining participants whether they thought this would be of benefit to them, and they all responded affirmatively.

Web-based information

Many crime victims seek information from other sources. For example one individual whom we interviewed had turned to the internet, where she found a wealth of information about conditional sentencing. The Department of Justice website contains a fact sheet on conditional sentencing; we recommend that it be expanded and a greater attempt be made to inform victims and members of the public of its existence. As well, this fact sheet could be provided to VWAP personnel for distribution to all victims in cases in which a conditional sentence had been imposed.

Victim Input into the Conditions of a Community-Based Sentence

Most of the victims to whom we spoke had had the opportunity to provide input to the Crown as he or she contemplated submissions on sentence. In some locations victim input is achieved by means of a form completed by the VWAP personnel after speaking with the victim. However it is accomplished, it is essential that this input be solicited. Victims of personal injury offences often have security concerns that can be addressed by the imposition of specific constraints upon the offender's freedom of action. Victims may also provide the judge with information that is important in realizing the restorative purpose of sentencing, namely the acknowledgement and reparation of harm done to the victim and the community.

Victims should be informed however, that the determination of the sentence and any conditions imposed on the offender lies entirely within the discretion of the sentencing court. In this way, they will be better prepared in the event that a condition suggested by the victim and transmitted by the Crown in submissions, is not imposed by the judge. It is very important that victims do not have unrealistic expectations about the nature of the sentence that will be imposed.

Courts should consider carefully the nature of the restrictions imposed. A standard restriction prevents the offender from approaching within 500 metres of the victim's residence. However, if the offender freely circulates within the streets around the victim, this may also arouse apprehension. One victim said that: "the scary thing is that he lives a block away" and added that she was "terrified that he would come back". Perhaps it is worth considering the interests of the victim to a greater degree in constructing these restrictions. Victims also need to be informed of the procedures to be used in case the offender breaches the condition, the possibility of a variance in the conditions, and the consequences should an offender be found in breach of a condition.

Related Security Concerns

Most community based orders carry restrictions on the offender's liberty in a way that relates to the victim. As noted in the previous section, the most frequent such restriction is to avoid approaching within 500 metres of the victim's residence. Most victims were still to some degree apprehensive of the offender. Even if they were not afraid of re-victimization they expressed a desire not to encounter him on the street. Several wanted to know where the offender lived, and, in the words of one victim "whether I am going to bump into him at the mall". Once again the imposition of a community sentence creates a particular concern for the crime victim.

One victim had been told that she would receive monthly verification calls to establish that the offender was in fact complying with victim-related conditions. After three months she had received only one such call, and acknowledged that she would have liked the reassurance of regular contact. Such verification is likely to stretch the capacities of VWAP personnel, or whoever is charged with such a task; however, we feel it is a useful, relatively low-cost service that should be encouraged.

The Need to Encourage Greater Use of Reparative Conditions

The caselaw and the interviews conducted for this study suggest that judges are often unwilling to order reparation for the victim, a conclusion sustained by comments from the crown counsel. Judges prefer not to undertake a damages "hearing", and elect to leave the issue to the possibility of a civil action. Both our interviews and review of reported cases suggest that reparative conditions are not frequently attached to community sanctions.

In some property crime cases such as R. v. MacAdam, courts seemed quite reluctant to order that the offender pay financial compensation. Concerns were expressed that offenders might be held to have breached community sanctions if they were financially unable to pay reparation. This is a legitimate concern (Manson, 2001; Roach, 2003), but one that could be addressed by sensitive administration of the community sanction, including the ability to obtain variances of conditions and a generous interpretation about what constitutes a reasonable excuse for breach of a condition.

More fundamentally, not all offenders will be financially able to make reparation to the victim and thought should be given to blending state and private funds to allow meaningful reparation to victims. (Roach, 2000; Roberts and Roach, 2003; Roach, 2003)

At the same time, more reparative conditions could be attached to community sanctions than at present. Fines are still extensively used as a sanction even though judges are now directed to pay attention to the offender's ability to pay the fines. A victim's claim to reparation should be at least as compelling as the state's claim to benefit from either fines or victim surcharges placed on fines. Reparation can serve as a tangible form of acknowledgement by the offender of responsibility for the offence and harm caused to the victim.

Some of the victims interviewed for this study have had to pursue subsequent litigation before the civil courts in an attempt to receive an award of compensation. This accords with a recent trend of victims, especially in sexual assault cases, making increasing use of civil litigation after the criminal case has been completed (Feldthusen, 1993; Roach, 1999). In our view, this is unfortunate because of the expense, time and trauma that will be imposed by the need to engage in subsequent litigation. Victims are vulnerable to re-victimization in the civil litigation process.

The need for civil litigation is especially unfortunate given the explicit recognition of reparation to victims as a legitimate objective of sentencing. There is no priority of sentencing objectives and in the absence of such a priority, reparation should be considered as important as other more traditional sentencing objectives such as denunciation, deterrence, incapacitation and rehabilitation. There is a danger that the reparative purposes of sentence will be a false promise to victims unless supported by on-the-ground reparation as part of the sentencing process. (Roach, 2000; Roberts and Roach, 2003)

Judges need to be encouraged to make greater use of reparative conditions in community sanctions. As discussed above, concerns about unfair breaches when offenders are not financially able to engage in reparation can be addressed by inquiries into the offender's ability to pay, variances of reparative conditions to allow more time for payment and generous interpretation of what constitutes a reasonable excuse.

Judges may also not have abandoned the caution that surrounded the administration of the restitution provisions of the Criminal Code. The focus on restitution under the Criminal Code has been on "readily ascertainable" pecuniary damages based on "the replacement value" of property and "actual and reasonable expenses" [3]. There is also a sense that the criminal process should not be used as a replacement for civil litigation. (Manson, 2001) It is arguable whether there is a need to re-think restitution in light of the profound significance of the 1996 sentencing reforms [4]. A fundamental feature of those reforms was the recognition of reparation to victims as an objective of sentencing. The concept of reparation to victims in s.718(f) of the Criminal Code, as interpreted by the Supreme Court in R.A.R. is broader and more flexible than the notion of financial restitution of readily ascertainable losses in s.738 of the Code. Reparation does not have to be based on readily ascertainable financial damage and can include symbolic payments to victims and organizations that provide services to victims. These payments can be tailored to reflect both the harms suffered by victims and the means of the offender.

Thought should be given to legislative reforms to encourage the use of reparative conditions. At present, such provisions would be crafted under the general provisions for optional conditions which refer to "such other reasonable conditions as the court considers desirable…for securing the good conduct of the offender and for preventing a repetition by the offender of the same offence or the commission of other offences [5]." Nothing in this basket clause encourages reparative conditions. Moreover the ability of provinces to enact regulations to preclude "the inclusion of provisions on enforcement of restitution orders as an optional condition of a probation order or of a conditional sentence order" is recognized under s.738(2) of the Criminal Code. Perhaps the ability to impose reasonable reparative conditions should be specifically mentioned in the Criminal Code and the broader nature of reparation as opposed to restitution made clearer (Roach, 2000, 2003). In any event, careful follow-up is necessary to determine whether the recognition of reparation to victims as a purpose of sentencing has not become a false promise to victims. The limited data in this study suggest that reparative conditions are not frequently used in community sanctions and that victims have been forced to seek reparation through the expensive (and difficult) process of civil litigation.

"After-Care" from Victim Witness Assistance Personnel

The victims were uniformly positive regarding their contact with the Victim Witness Assistance Program. However, a number of individuals expressed a desire to have some follow-up contact once sentence has been imposed. At present, absent exceptional circumstances, contact between VWAP and the victim ends with the sentencing of the offender. The reason for this is obvious; the Victim/ Witness Assistance Program simply does not have the resources to extend their valuable services beyond this point. However, we feel that this follow-up is important, even if it means simply making a phone call to see whether the victim has any needs that may be addressed by VWAP personnel. The victims suggested that this follow-up from victims' services take place 1-2 weeks after sentencing to answer questions and direct to resources. In making this suggestion, we are well aware that the resources of the Victim witness assistance program are very limited. If this idea is pursued, the program would have to receive additional funding, otherwise it may be impossible to "deliver" upon the promise of additional support, and this would make matters worse for victims.

Research Priorities

We see several research priorities in need of attention, several relating to the limitations of the present study.

First, although there was little evidence of compensation/ reparation in the cases brought to our attention, the sample size prevents us from generalizing to community-based sanctions. Accordingly, it would be useful to conduct research into the issue using a larger and more representative sample. This could be accomplished by means of a victim survey, or an analysis of court documents in cases involving community based sanctions.

Second, many of the victims interviewed for this study had concerns about the compliance rates of offenders serving conditional sentences of imprisonment. This question is clearly of general interest. Little is in fact known about the success rates of conditional sentence orders. The limited research on this question suggests that most orders are in fact completed successfully, but a more comprehensive study needs to be conducted, if only in a single jurisdiction. In Ontario, for example, statistics are compiled by the Ministry of Public Safety and Security that are capable of answering key questions in the area of conditional sentencing such as, "how many offenders serving conditional sentences breach their orders?" These statistics have not been compiled or published simply because of limitations on research resources.