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
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.
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.
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."
Representation of Victims
Complainants in Sexual Offences
The complainant has standing to participate in trial voir dires relating to the use of evidence of the complainant's prior sexual history and the access to the complainant's personal records.
Under s. 278.94(2) and s. 278.94(3) the complainant has a right to make submissions and be represented by counsel. This right under s. 278.94 includes the right to cross-examine any witness called relating to the protected personal information.
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."
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), per Beveridge JA, 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, ibid., 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 CanLII 6824 (ON CA), , 1 OR (3d) 183 (CA), per Morden ACJ
R v Neve, 1996 ABCA 242 (CanLII), 108 CCC (3d) 126 (Alta.C.A.), per Irving JA
R v BP, 2010 ABQB 204 (CanLII), per Strekaf J
R v KAR, 1992 CanLII 4829 (NSCA), , 116 NSR (2d) 418, per Chipman JA, at paras 23 to 25
Fraser, supra, at para 10
- Victims Rights (GC)
- Victim Impact Statements
- Victims as a Factor in Sentencing
- Victim Fine Surcharge