Role of the Victim and Third Parties
The victim of crime is not generally a party to criminal proceedings beyond their role as a witness.
Before the finding of guilt, a victim shares the same role as a member of the public or a witness in the proceedings. They can only become a party to proceedings in the limited situations such as:
- An application for third party records, where the records relate to that person;
- An application on the part of the Crown or victim for the use of any number of testimonial aids;
- An application on the part of the Crown or victim for a publication ban identifying the victim; or
- An application of the victim for a peace bond.
Once there is a finding of guilt, the victim is primarily entitled to participate by way of:
- a victim impact statement at sentencing;
- a request for restitution at sentencing;
- a victim impact statement in a parole ineligibility reduction hearing; and
- a victim impact statement in a Review Board hearing for persons determined to be not criminally responsible due to mental disorder.
The victim is entitled to notice of proceedings in certain circumstances. Notice may include:
- notice of release conditions when accused is granted bail;
- notice of right to file restitution at sentencing;
- notice of right to file a victim impact statement at sentencing;
- notice on request of dispositions from a Review Board hearing relating to an offender found "not criminally responsible"; and
- notice of a "high risk" designation and right to file a victim statement on a review board hearing relating to an offender found "not criminally responsible".
Under ss. 26(1) and 142(1) Corrections and Conditional Release Act requires Corrections Canada and the Parole Board to provide victims of crime with details on the offender. Certain of this information is released on a "case-by-case basis".
Complainants and Victims Defined
“complainant” means the victim of an alleged offence;
“victim” means a person against whom an offence has been committed, or is alleged to have been committed, who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss as the result of the commission or alleged commission of the offence and includes, for the purposes of sections 672.5 [NCR Review Board hearing], 722 [Victim Impact Statement] and 745.63 [Application to Reduce Parole Ineligibility], a person who has suffered physical or emotional harm, property damage or economic loss as the result of the commission of an offence against any other person.
R.S., 1985, c. C-46, s. 2; ... ; 2012, c.1, s. 160, c. 19, s. 371; 2013, c. 13, s. 2; 2014, c. 17, s. 1, c. 23, s. 2, c. 25, s. 2; 2015, c. 3, s. 44, c. 13, s. 3, c. 20, s. 15.
While "victim" encompasses alleged victims, it is considered "improper" for use in court as it is "obnoxious to the presumption of innocence". The use of the term pre-conviction may be in violation of the right to a presumption of innocence.
R v Villota, 2002 CanLII 49650 (ON SC) at para 79
For any order relating to bail that is made under s. 515, a victim of the offence charged can request a copy of the order.
(14) If an order is made under this section, the justice shall, on request by a victim of the offence, cause a copy of the order to be given to the victim.
R.S., 1985, c. C-46, s. 515; R.S., 1985, c. 27 (1st Supp.), ss. 83, 186; 1991, c. 40, s. 31;... 2012, c. 1, s. 32; 2014, c. 17, s. 14; 2015, c. 13, s. 20.
Under s. 674.5(5.1) and (5.2), a victim is entitled to notice on request of any disposition hearings relating to an NCR/Fitness findings and further notice of discharge and accused's intended place or residence.
Under s. 674.5(13.3) to (15.3), a victim is entitled to notice and to file a statement with the court should a review board make a finding of "high risk".
Notice to Victim of Plea Deal
Under s. 606(4.1), Judges are required after accepting the guilty plea for a serious personal injury offence to inquire with the Crown attorney whether "reasonable steps" have been taken to "inform the victims" of the agreement. Failing to take reasonable steps before the guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea."
Under s. 606(4.2), judges are required after accepting a guilty plea for an indictable offence with a maximum penalty no less than 5 years to inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps before the guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea."
(4.1) If the accused is charged with a serious personal injury offence, as that expression is defined in section 752, or with the offence of murder, and the accused and the prosecutor have entered into an agreement under which the accused will enter a plea of guilty of the offence charged — or a plea of not guilty of the offence charged but guilty of any other offence arising out of the same transaction, whether or not it is an included offence — the court shall, after accepting the plea of guilty, inquire of the prosecutor if reasonable steps were taken to inform the victims of the agreement.
Inquiry of court — certain indictable offences
(4.2) If the accused is charged with an offence, as defined in section 2 of the Canadian Victims Bill of Rights, that is an indictable offence for which the maximum punishment is imprisonment for five years or more, and that is not an offence referred to in subsection (4.1), and the accused and the prosecutor have entered into an agreement referred to in subsection (4.1), the court shall, after accepting the plea of guilty, inquire of the prosecutor whether any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement.
Duty to inform
(4.3) If subsection (4.1) or (4.2) applies, and any victim was not informed of the agreement before the plea of guilty was accepted, the prosecutor shall, as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea.
Validity of plea
(4.4) Neither the failure of the court to inquire of the prosecutor, nor the failure of the prosecutor to take reasonable steps to inform the victims of the agreement, affects the validity of the plea.
R.S., 1985, c. C-46, s. 606; R.S., 1985, c. 27 (1st Supp.), s. 125; 2002, c. 13, s. 49; 2015, c. 13, s. 21.
Representation of Victims
Acting on victim’s behalf
2.2 (1) For the purposes of sections 606, 672.5, 722, 737.1 and 745.63, any of the following individuals may act on the victim’s behalf if the victim is dead or incapable of acting on their own behalf:
- (a) the victim’s spouse, or if the victim is dead, their spouse at the time of death;
- (b) the victim’s common-law partner, or if the victim is dead, their common-law partner at the time of death;
- (c) a relative or dependant of the victim;
- (d) an individual who has in law or fact custody, or is responsible for the care or support, of the victim; and
- (e) an individual who has in law or fact custody, or is responsible for the care or support, of a dependant of the victim.
(2) An individual is not entitled to act on a victim’s behalf if the individual is an accused in relation to the offence or alleged offence that resulted in the victim suffering harm or loss or is an individual who is found guilty of that offence or who is found not criminally responsible on account of mental disorder or unfit to stand trial in respect of that offence.
Victim Impact Statement
Victims Bill of Rights
As of August 2013, the Federal Government is in a consultation phase before enacting a Victims' Bill of Rights.
A victim of a young offender has a right to be informed by the police, Attorney General, or victim services of "the identity of the young person and how the offence has been dealt with."
- see s. 12 YCJA
Generally only those who are parties to a criminal proceeding can participate. For criminal matters there is a risk that by permitting intervention it runs the risk of creating unfairness by requiring the accused to face two prosecutors. Consideration should be given on the purpose and usefulness of intervention.
R v Fraser, 2010 NSCA 106 (CanLII), at para 7 ("I would venture it is trite to say that as a general principle in our adversarial system of justice only the actual parties to the litigation may make written or oral submissions or otherwise participate in legal proceedings before any court or tribunal.")
Fraser at para 7 ("Where the proceeding is criminal, there is a heightened concern about the fairness of permitting intervention lest the accused end up, in effect, facing two prosecutors...")
see also R v Finta (1990), 1990 CanLII 6824 (ON CA), 1 O.R. (3d) 183 (C.A.)
R v Neve (1996), 1996 ABCA 242 (CanLII), 108 CCC (3d) 126 (Alta.C.A.)
R v B.P., 2010 ABQB 204 (CanLII)
R v K.A.R. (1992), 1992 CanLII 4829 (NS CA), 116 N.S.R. (2d) 418 at paras 23 to 25
Fraser at para 10