Description

As part of the Government of Canada’s Victims of Crime Initiative, the Policy Centre for Victim Issues was created in 2000. In that same year, I completed a report for the Department of Justice entitled “The Role of the Victim in the Criminal Process: A Literature Review – 1989 to 1999.” I was recently asked to provide an update to this report, and, despite having retired from the practice and teaching of law in 2018, I was honoured to have been asked to complete this task. I felt honoured by the request to update my report because a large part of my professional life was consumed by working with the victims’ rights movement. As a young criminal lawyer and law professor in the mid-1980s, I was constantly asked two things by friends, family and strangers: how can I defend people I know to be guilty and why is it that the system does not seem to care about crime victims? I had a stock, institutional answer to the question about defending the guilty, but I did not have a genuine response to the question about the mistreatment of victims. Despite being trained, and working, as a defence lawyer, I felt compelled to shift the focus of my research as an academic to find an answer to that question. Since then, I have represented victims’ groups and individual victims in court and before policy makers, advocating for better treatment and increased involvement in the criminal process. As an academic, I wrote numerous law journal articles and reports for the Department of Justice on victims’ rights, and I also arranged conferences for crime victims to share their stories. In 2010, after two decades of working in this field, I withdrew from this particular area of practice and research. Despite the rewarding aspects of helping victims overcome the indifference of state officials, this work can take its toll emotionally. Victims’ rights can be discussed and debated in an abstract and academic way, but ultimately, it has been the personal hardship and suffering of crime victims which has fueled the law reform movement, and by 2010, I was saturated by sad stories. In the early days of this movement, I often seemed to be a lone voice among Canadian lawyers and academics. I was surprised by how much attention was being paid to this issue south of the border, whereas in Canada the issue was largely ignored in the academic community. This was surprising considering that at the first National Conference of Victims of Crime (held in Toronto, 1985), the victim movement was called the “growth industry” of the decade, and in the United Kingdom it was considered the fastest developing voluntary movement. Victim groups and associations were mushrooming all over North America and Europe. In the 1990s, there was an explosion of scholarship and research, and the report I completed in 2000 (and that was published in 2001) was designed to be a comprehensive literature review. The literature was voluminous and the report exceeded 160,000 words. Despite the length of the report, I felt I was only addressing the tip of the iceberg. Even though the 2001 report clearly showed that a great deal of time, effort and money was being put into advancing the interests of victims, I was always concerned that this interest in advancing victims’ rights would eventually wane and that victims’ rights would be relegated to the status of flavour of the decade. Working on this brief update to the 2001 report quickly showed me that my concerns were misplaced and that interest and activity relating to victims’ rights continues to grow at an unprecedented pace. My co-author for this report, a talented young lawyer, Kanchan Dhanjal, spent a great deal of time reviewing a wide variety of periodical indexes and government websites, and when the dust settled, she presented me with 22 books, 418 articles and 147 government reports for us to review for this report. Even this vast collection of literature was incomplete as a report of this brevity required us to exclude from consideration a great deal of literature pertaining to special or unique victim-related issues (such as, victims of terrorism, elder abuse, issues unique to Indigenous victims, human trafficking, victims of hate crimes, etc.). For this brief report, it was also not possible to spend as much time reporting on international developments as was done in the initial report. As some recent European and American developments are of critical importance, there will be some updates on these international changes; however, it has become less necessary to spend time chronicling the literature and reforms in other parts of the world as the past twenty years has seen a significant growth in Canadian scholarship and research. In the first report you might find a few Canadian scholars writing in this area, but now you have many Canadian scholars and researchers, like M. Manikis, J. Roberts, S. McDonald, M. Northcott and J. Wemmers to name a few, making significant and prolific contributions to the literature. Despite the flurry of activity over the past few decades, it still remains difficult to draw a firm conclusion regarding the overall success of this ongoing endeavour in criminal justice reform. There has been an abundance of piecemeal changes, but there still remains disagreement and debate among scholars, and in the community, over fundamental questions such as what are the needs of crime victims, what is their proper role and function within a highly-professionalized justice system, and what does the concept of victims’ rights actually entail? The crime victim may have become an accepted and respected player on the political landscape, but in the legal realm, there are still many who see the crime victim as an unwelcome intruder. This report will be primarily a descriptive report and not a prescriptive report. Despite having worked in the area of victims’ rights since the mid-1990s, and having strong opinions about what needs to be done to support and enhance victims’ rights, this report will not make suggestions or recommendations for future change. The goal in writing this report is to provide an accurate and current outline of new legislative and program developments since 2000, with an accompanying summary of evaluative and empirical studies which attempt to measure the success of new laws, new policies and new programs. As success is often measured by the level of satisfaction, or dissatisfaction, experienced by victims, the focus of this report will be on any studies which attempt to measure this level of success. Whereas the 2001 report was largely structured as a literature review in which many hundreds of articles were reviewed, this review will not undertake an exhaustive summary of the current academic literature. A report of this brevity could not possibly cover and capture the wide body of literature of the last twenty years. In addition, many, if not most, of the articles reviewed in 2001 were in the nature of theoretical perspectives prescribing the proper role of the victim in an adversarial criminal process, and many articles in the sample for this report were also philosophical or theoretical in nature. Despite being important and interesting, the underlying theoretical perspectives have not changed in the past two decades and there is a great deal of overlap and repetition in this part of the literature. This report will not revisit the well-known territory of theory and philosophy in any significant manner; however, Part I of this report will still explore the relationship between theory and practical change in order to provide some context and framework for the remainder of the report. Part II will explore any significant changes, and the studies which have evaluated these changes, with respect to the rights of victims to participate at trial in the past twenty years and with respect to statutory provisions designed to protect the privacy and dignity of the victim as a witness at trial. Parts III and IV will present similar, but briefer, explorations with respect to the welfare rights or entitlements of victims, as well as developments relating to restorative justice. Although some reference will be made to the findings of the 2001 report, it could be helpful to read the lengthier 2001 report in conjunction with this condensed update to get a clear sense of what has changed in the past twenty years and how this enterprise continues to evolve. Although this report is descriptive, and not prescriptive, and I avoid drawing strong conclusions about the actual progress made in the past two decades, I do wish to say that reviewing the literature from the past 20 years served as a personal confirmation that there has not been any retrenchment or retreat with respect to the victims’ rights movement. Victims’ rights were not just the flavour of the last decade of the 20th century. However, it is important not to be deceived by the flurry of law reform and academic activity and simply conclude from the flurry that real progress has been made in ameliorating the plight of the crime victim. Although there was a similar rapid flurry of activity in the last few decades of the 20th century, there were many who believed that victims were just “all dressed up with nowhere to go” (Elias 1993:26). So as the reader of this report wades through all the developments at the beginning of the 21st century which are presented in this report, a critical issue which every reader needs to consider is whether the question posed by Professor Elias at the end of the last century has the same relevance at the beginning of this century: For all the new initiatives, victims have gotten far less than promised. Rights have been unenforced or unenforceable, participation sporadic or ill-advised, services precarious and underfunded, victims needs unsatisfied if not further jeopardized, and victimization increased, if not in court, then certainly in the streets. Given the outpouring of victim attention in recent years, how could this happen? (Elias, 1993:45)

Resources

Name	Format	Description	Link
Victims’ Rights in Canada in the 21st Century	HTML		https://www.justice.gc.ca/eng/rp-pr/jr/vrcan21st-rvcan21st/index.html
Victims’ Rights in Canada in the 21st Century	PDF		https://www.justice.gc.ca/eng/rp-pr/jr/vrcan21st-rvcan21st/pdf/vrcan21st-rvcan21st-en.pdf
Victims’ Rights in Canada in the 21st Century	HTML		https://www.justice.gc.ca/fra/pr-rp/jr/rvcan21st-vrcan21st/index.html
Victims’ Rights in Canada in the 21st Century	PDF		https://www.justice.gc.ca/fra/pr-rp/jr/rvcan21st-vrcan21st/pdf/rvcan21st-vrcan21st-fr.pdf

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