6.7 Restitution

Public Prosecution Service of Canada Deskbook

Guideline of the Director Issued under Section 3(3)(c) of the Director of Public Prosecutions Act

February 8, 2017

Table of Contents

1. Purpose

This guideline offers an overview of the practice and policies of the Director of Public Prosecutions relevant to restitution, particularly in light of the Canadian Victims Bill of Rights (CVBR) and amendments to the Criminal Code made in 2015.

2. Introduction

Restitution orders are made by a criminal court for an offender to pay a victim of crime a set amount which is related to the offence for which the offender has been found guilty. Restitution forms part of the sentence given to an offender. Restitution orders are distinguished in law from compensation orders, from fines and from the victim surcharge. A compensation award is a decision from a provincial or territorial body to provide a sum of money to a victim for the harm or loss related to a criminal action. Fines may form part of the sentence of an offender, but are paid by the offender to the government. These fines become part of the general revenues of the government. Victim surcharges are also paid by the offender to the government. These surcharges are directed to the provision of victim services.Footnote 1

Restitution can only be ordered when there is an identifiable victim, whether they are an individual, institution or organization. Where the loss or damage cannot be attributed to an individual or to a company and counsel is considering a monetary sanction, fines become the appropriate vehicle to include in a sentencing submission.Footnote 2

3. Restitution Rights Under the Canadian Victims Bill of Rights

The Canadian Victims Bill of RightsFootnote 3 created new statutory rights for victims of crime. Under this statute, a victim of crime has several rightsFootnote 4 relevant to restitution. Those rights are:

The CVBR provides that these rights are brought to life by provisions of the Criminal Code which set out the criteria for obtaining a restitution order, the content of the order and the options for enforcing the order. The rights in the CVBR apply only to natural persons who have been victims of an alleged or proven offence in the Criminal Code, Drugs and Controlled Substances Act, Youth Criminal Justice Act, Immigration and Refugee Protection Act and Crimes Against Humanities and War Crimes Act.Footnote 5

The restitution provisions of the Criminal Code apply to all Criminal Code offences and to individuals, organizations, municipalities and governments who are victims of crime. Therefore, while all victims (individuals, organizations, companies) can seek restitution orders and Courts must consider restitution orders for all offences, only natural persons have a statutory right to a remedy if a restitution order is not considered by the Crown and the Court.

4. Obtaining an Order

4.1 Standing of victims and role of Crown counsel

Restitution is sought by application made by Crown counsel, preferably using Form 34.1. As the use of this form is not mandatory by law, Crown counsel may also apply for restitution consistent with practices in a given jurisdiction. Restitution may also be ordered by the Court on its own motion or included in joint submissions on sentence to the Court.

The CVBR gives victims the right to have the court consider making an order for restitution. Victims of crime do not have standing to request restitution on their own motion and must work through Crown counsel to make a request for restitution. The CVBR has not changed the standing of victims to initiate a restitution application. Therefore, in order to give full effect to the victim’s right to have the court consider making a restitution order as provided in the CVBR, Crown counsel must give due consideration to any request from a victim for restitution.

Amendments to the Criminal Code impose obligations on prosecutors and Courts to assist victims in exercising their rights to request restitution. Firstly, Crown counsel must be prepared to respond to the obligatory inquiry by the Court about whether a victim has been given the opportunity to request restitution.Footnote 6 Secondly, where a victim has not been given such an opportunity, the Court may, on application of the prosecutor or on its own motion, adjourn sentencing to allow the victim to do so.

Counsel should be aware that, in large prosecutions such as frauds, law enforcement assistance or third party resources might be needed to identify and contact victims of the offence(s). These arrangements should be made at an early point in the prosecution.

4.2 Damages and losses

The Criminal Code provides that a restitution order may be ordered in any of the following:

  1. in cases of damage, loss or destruction of the property of any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, for an amount not exceeding the value of damaged property (less the value of any property returned to the victim);
  2. in cases of bodily or psychological harm to any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, for an amount not exceeding all pecuniary damages incurred;
  3. in cases of bodily harm or threat of bodily harm to the offender’s spouse or common-law partner or child, or any other person where the spouse or common-law partner, child or other person was a member of the offender’s household at the relevant time, for an amount not exceeding reasonable moving expenses, including temporary housing, food, child care and transportation;
  4. for expenses to replace identity documents and to correct credit history and credit rating in the case of an offence under section 402.2 or 403; and
  5. for expenses to remove the intimate image from the Internet or other digital network in the case of an offence under subsection 162.1(1).Footnote 7

Generally, restitution orders are sought for Criminal Code offences where there are victims named in the charge. However, Crown counsel must be mindful that restitution may be relevant to other types of cases such as offences under the Controlled Drugs and Substances Act or other crimes that do not identify victims in the charge. For example, dangerous driving charges will not normally name a victim even though property or physical damages may have resulted from the alleged offence. Trafficking or production of drugs may result in damages and losses to an identifiable victim, such property damage or destruction through a grow-op, or physical injury or death to a person who consumed an illicit drug.

In all cases, the amount claimed in the application for restitution must be readily ascertainable. The mere fact of a dispute of the amount or of the application for restitution does not constitute a reason to deny the application.Footnote 8 However, incomplete or varying information, the necessity of complicated calculations, or a clear dispute on fundamental factual issues may be the basis for the court to reduce or deny a restitution order.Footnote 9

A restitution order can be made for the total or a partial amount of the loss.Footnote 10 Restitution orders cannot include amounts for pain and suffering nor actuarial or legal costs related to the determination of the loss.Footnote 11

4.3 Factors to consider

In deciding whether to include restitution in any submissions on sentencing, Crown counsel must be governed by the Criminal Code sections on restitution as well as sections 718, 718.1 and 718.2. These provisions were changed in 2015 to give new emphasis to the harm caused by crime to victims and to society. Courts have found that restitution orders may give effect to many of the principles of sentence: denunciation, specific and general deterrence and rehabilitation.Footnote 12

In addition, Crown counsel should consider the following factors in their decision to make an application for restitution:

In all cases, Crown counsel must ensure that their submissions on sentence respect the principles and objectives of sentencing.

4.4 Effect on other parts of a sentence

Appellate courts have consistently held that restitution orders are only one part of an appropriate sentence. However, these appellate courts have varied in their views about the effect of a restitution order on other parts of a sentence, usually incarceration. Generally, the effect of a restitution order will be to reduce the severity of other parts of the sentence (for example, to reduce a period of incarceration) except for the most serious offences.Footnote 15

Crown counsel should consider any payment of restitution prior to sentence and the willingness to enter into a restitution agreement at sentence as factors that may lead the Court to limit the other parts of an appropriate sentence. Any applications by the Crown for restitution must be made on an evidentiary basis considering the facts of each case and the application of the principles of sentencing (totality, rehabilitation, specific and general deterrence).

4.5 Interplay with other proceedings

The existence of pending or completed civil proceedings to recover the amount of the losses, as well as to seek pecuniary damages for pain and sufferings is not a bar to an application nor to the granting of a restitution order.Footnote 16 Similarly, applications or awards from provincial compensation programs are not a bar to an application or a restitution order, but such awards could affect the quantum of a restitution order. Victims have obligations to report restitution orders or receipt of restitution funds to both civil processes and to compensation programs.

4.6 Multiple victims

Where there are multiple victims, the Criminal Code provides that a restitution order may be made out to several victims, with an apportioning of the amounts due to each one. Furthermore, the order may contain a priority ranking to each amount due.Footnote 17 In addition, various cases have clarified that restitution orders may be made against several offenders who participated in the same offence.Footnote 18 Courts must ensure; however, that restitution orders in such cases are consistent with the principles of sentencing (for example, proportionality between offenders, blameworthiness of offenders, etc.).

5. Consultations with Victims of Crime

Consultations with victims of crime have taken a new importance with the enactment of the Canadian Victims Bill of Rights. Most justice system participants have new responsibilities in relation to the rights of victims under the CVBR.

In the territories, Crown counsel must work with Crown Witness Coordinators (CWCs) to provide information to victims about the prospect of restitution. CWCs also act as liaisons between Crown counsel and victims. They are available to help victims and witnesses to understand the court process, their rights and responsibilities in the process and the roles of the court participants. They provide court updates, accompany witnesses to court, provide support during and after testimony, and assist with trial preparation.

In the provinces, Crown counsel must take steps to provide victims with such information and may wish to work with provincial victim and witness services towards that end. All conversations with victims and Crown counsel or victims services undertaken to satisfy these requirements should be documented in the case file.

As first responders, law enforcement has a role in assisting victims of crime to realize their CVBR rights. In addition, many police forces have integrated victim services or work with local or provincial victim service bodies to provide assistance to victims. Crown counsel should be aware of the collaborative arrangement in their area in order to be able to advise the Court of any assistance that has been offered to victims of crime throughout the criminal justice process. Crown counsel should request the collaboration of law enforcement, where necessary, to advise victims of their rights at an early point in the criminal justice process and to remind victims of the need for receipts, work orders or invoices that may substantiate and quantify future claims for restitution.

Courts also have new responsibilities regarding victims of crime following the 2015 Criminal Code amendments. In regards to restitution, the Criminal Code imposes several obligations: firstly, to consider including a restitution order in sentencing for all offences; and secondly, after a finding of guilty, to ask Crown counsel if reasonable steps have been taken to provide victims with an opportunity to indicate if they wish to seek restitution.Footnote 19 Accordingly, Crown counsel or Crown Witness Coordinators should, at an early point in the prosecution, make reasonable efforts to find out if a victim of an offence desires information on restitution and whether they wish to seek restitution. This early discussion will have the benefit of encouraging a victim to compile the receipts, work orders or inventories that will support an application for restitution and assist Crown counsel in avoiding any delays or adjournments related to this information from a victim. It will also allow Crown counsel to include restitution in any resolution offers.

6. Crown Discretion

The role of Crown counsel changes subtly after the presumption of innocence has been refuted by a finding of guilt after trial or a guilty plea. In making submissions on sentence, Crown counsel must be mindful of their role in articulating the principles of sentencing. Specifically, the sentence must reflect the impact of the offence on the community and the victim. Crown counsel must consult the PPSC Deskbook chapter 3.7 on resolution discussions.

It is within Crown counsel’s discretion to decide whether to apply for restitution based on the application of the factors mentioned above to the evidence. In all circumstances, Crown counsel should ensure that, during sentencing submissions, the court is proactively advised whether the victim had requested that restitution be sought by the Crown and, where restitution is not being sought, provide the Crown’s reasons for not seeking restitution.

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