Victims of Crime 

Victims of Crime

DATE: May 20, 2008

SUBJECT: THE RELATIONSHIP BETWEEN CROWN PROSECUTORS AND THE VICTIMS OF CRIME

INFORMING LEGISLATION AND PRINCIPLES:

The Alberta Legislature has enacted the Victims of Crime Act, R.S.A. 2000, c. V-3, which addresses the situation of victims within the criminal justice system. By section 2 of this enactment, the treatment of victims by Crown prosecutors and others is to be governed by certain principles, including the following.

  • Victims should be treated with courtesy, compassion and respect.
  • The privacy of victims should be considered and respected to the greatest extent possible.
  • All reasonable measures should be taken to minimize inconvenience to victims.
  • Information should be provided to victims about the criminal justice system, and about their role and opportunities to participate in the criminal justice process.
  • Information should be provided to victims, in accordance with prevailing law, about the scheduling, progress and final outcome of the court proceedings.
  • Information should be provided to victims about assistance services, including the Victim Impact Statement Program.
  • The views, concerns and representation of victims are an important consideration in criminal justice processes and should be considered in accordance with prevailing law, policies and procedures.

By section 4 of this enactment, victims who so request are (subject to resource, legal and other reasonable limits) to be provided with information respecting, among other things, the status of the prosecution, the court procedures, the role of victims, and the opportunity for victims to present impact statements.

In addition, based upon the principles outlined in this legislation, the Victims of Crime Protocol: What victims can expect from the criminal justice system has been created. This public document outlines the services that victims of crime can expect from the criminal justice system, including the services and information that Crown prosecutors are expected to provide to certain victims.

While the Act and the Protocol properly recognize that victims have an interest in the proceedings and should be treated with respect and sensitivity, these initiatives do not give victims of crime either the authority or the responsibility to make decisions respecting the conduct of the prosecution. The Alberta Court of Appeal explained this as follows:

[W]e do not understand that those initiatives [i.e., the Victims of Crime Act] intended to give victims of crime either the authority or the responsibility to decide whether a prosecution should proceed, and if so, on what terms. That responsibility can only be discharged by qualified prosecutors who have the training, judgment and courage to make the necessary decisions inherent in every prosecution. For example, whether to proceed, and if so on what charge, whether to oppose bail, whether to seek a particular sentence and whether to appeal. Many times these decisions will be difficult and even unpopular, but the responsibility for making them must always rest with the Crown and not with victims of crime, or other interested parties.

Abdication of this prosecutorial responsibility to others who are interested in the outcome of the case, but have little or no understanding of the complexities, or even the basic tenets of our justice system, is wrong, and represents a serious threat to the fair administration of criminal justice.

THE RELATIONSHIP BETWEEN CROWN PROSECUTORS AND VICTIMS:

In the result, three concepts must guide Crown prosecutors in their interaction with victims.

  1. Crown prosecutors must be mindful of their obligations pursuant to the Victims of Crime Act and the Victims of Crime Protocol to keep certain victims informed of developments in cases that directly involve them.
  2. Crown prosecutors must conduct themselves in accordance with the principles and directions outlined in the Code of Conduct for Crown Prosecutors, which includes the requirement that prosecutorial discretion be independent of improper pressure or influence, including that which may be created by victims.
  3. Crown prosecutors:
    1. do not represent victims as legal advisor in any proceedings;
    2. exercise their discretion independently; and
    3. must be scrupulously fair in presenting the case, which may include, for example, presenting evidence that is favourable to the accused.

VICTIM IMPACT STATEMENTS PROCEDURE:

Background:

Section 722 states:

722. (1)

For the purpose of determining the sentence to be imposed on an offender or whether the offender should be discharged pursuant to section 730 in respect of any offence, the Court shall consider any statement that may have been prepared in accordance with subsection (2) of a victim of the offence describing the harm done to, or loss suffered by, the victim arising from the commission of the offence.

(2) For the purpose of determining the sentence to be imposed on an offender or whether the offender should be discharged pursuant to section 730 in respect of any offence, the Court shall consider any statement that may have been prepared in accordance with subsection (2) of a victim of the offence describing the harm done to, or loss suffered by, the victim arising from the commission of the offence.
a) prepared in writing in the form and in accordance with the procedures established by a program designated for that purpose by the Lieutenant Governor in Council of the province in which the Court is exercising its jurisdiction; and
b) filed with the Court.

Related provisions of the Criminal Code create procedures respecting the preparation and consideration of victim impact statements:

  • Section 722(4) defines a victim as a person “to whom harm was done or who suffered physical or emotional loss as a result of the commission of the offence” and certain surviving relatives of deceased victims or of victims who are unable to make the statement.
  • Sections 722.2(1) requires that as soon as practicable after a finding of guilt, and in any event before imposing sentence, the sentencing court shall inquire of the prosecutor or of a victim of the offence, whether the victim(s) have been advised of the opportunity to prepare a victim impact statement.
  • Section 722.2(2) allows the Court, on its own motion or on application of the prosecutor or a victim, to adjourn the proceedings to permit the preparation of a victim impact statement.
  • Section 722(2.1) mandates that the Court permit a victim to read his or her victim impact statement or to present it in any other manner the Court considers appropriate.

In addition, the provincial Victims of Crime Act requires that a victim, on request and at the earliest opportunity, is to be provided with information by the person or agency, including Crown prosecutors, that has the information with respect to the case, including information pertaining to any opportunity for the victim to make representations to the court on the impact of the offence on the victim. (See Victims of Crime Act, R.S.A. 2000, c. V-3, s. 4(1))

Procedure:

Although the means by which to give effect to these provisions, while also respecting the interests and rights of accused persons is difficult, the process is being facilitated in Alberta by the Victim Impact Statement Guidelines Manual. The portion of the manual (see p. 111) delineating the obligations of Crown prosecutors is set out next.

  1. Crown Prosecutor Role in the Victim Impact Statement Process
    1. Receive and keep on file notifications that a victim has been informed of the opportunity to prepare a Victim Impact Statement (court brief from Police), and that the victim intends to prepare a Victim Impact Statement (Victim Impact Statement Court Notification from Victim Services Unit).
    2. In cases where a victim has stated the intent to prepare a victim impact statement, notify the Victim Services Unit or victim of when a case is to be brought forward for sentencing or if the Court location has changed for the next appearance.
    3. After a finding of guilt and before sentencing, notify the Court if a victim has stated the intention to prepare a Victim Impact Statement, or if a Victim Impact Statement has been submitted.
    4. Request an adjournment to permit a victim to prepare a Victim Impact Statement after a finding of guilt, in cases where a victim has notified the Court of the intent to prepare a Victim Impact Statement but the Victim Impact Statement has not been filed, unless the Crown is of the view that an adjournment would interfere with the proper administration of Justice.
  2. Victim Impact Statement Procedure for Crown Prosecutors
    1. Receive and keep on file the notification on the Police court brief that the victim has been advised of the opportunity to prepare a Victim Impact Statement.
    2. Receive and keep on file the Victim Impact Statement Court Notification form, advising of the victim's intention to prepare a Victim Impact Statement and whether or not the victim wishes to read the Victim Impact Statement in court.
    3. In cases where a Victim Impact Statement Court Notification on the Crown file indicates a victim intends to prepare a Victim Impact Statement, and Justice Online Network (JOIN) does not indicate that the Clerk of the Court has received a Victim Impact Statement, notify the Victim Services Unit or victim of when a case is to be brought forward for sentencing.
    4. In cases where a Victim Impact Court Notification in the Crown file indicates the victim wishes to read the Victim Impact Statement aloud in Court, notify the Victim Services Unit or victim of when a case is to be brought forward for sentencing or whether the Court location has changed for the next appearance.
    5. After a finding of guilt, respond to the Judge's question as to whether the victim has been advised of the opportunity to prepare a Victim Impact Statement prior to sentencing.
    6. After a finding of guilt and before sentencing, notify the Court if the victim has stated the intention to complete a Victim Impact Statement, or if a Victim Impact Statement has been received, and whether or not the victim wishes to read the Victim Impact Statement aloud in Court.
    7. After a finding of guilt, in cases where a Victim Impact Statement Court Notification on the Crown file indicates that a victim intends to prepare a Victim Impact Statement and a Victim Impact Statement has not yet been received, request an adjournment to permit the victim to prepare a Victim Impact Statement, unless the Crown is of the view that such an adjournment would interfere with the proper administration of justice.