Repairing the Harm: A Special Report on Restitution for Victims of Crime in Canada

Fall 2021

Contents

• Message from the Federal Ombudsman for Victims of Crime.
• Defining restitution.
• Restitution in the United Nations Declaration.
• Restitution in the Criminal Code.
• A fine in lieu of forfeiture.
• The right to seek restitution as a quasi-constitutional right
• The Canadian Victims Bill of Rights (CVBR) – The Right to Restitution.
• Restitution in practice.
• Victims deserve better.
• Best practices in restitution.
• Nova Scotia.
• Saskatchewan.
• British Columbia.
• Summary of Canadian best practices.
• England, Wales and the Netherlands.
• United States: Vermont and California.
• Issue areas.
  1. Barriers to accessing restitution.
     • Challenges faced by victims.
     • Victim dissatisfaction with the justice system.
     • Lack of enforcement mechanism.
     • Establishing a centralized collection mechanism.
  2. Reporting on restitution orders across Canada.
     • A call for transparency in reporting on restitution orders.
     • Reporting on restitution across the nation.
     • Restitution and recidivism.
  3. A restorative justice approach.
     • The role of victims in the criminal justice system.
     • Favoring reparations over restitution.
     • Recommendations from the Federal Ombudsman for Victims of Crime.
     • Conclusion.
     • References.
     • Annex A: OFOVC Restitution Infographic.

Message from the Federal Ombudsman for Victims of Crime[1]

I am pleased to present this Special Report on Restitution for Victims of Crime, which follows the analysis and recommendations contained in our Progress Report on the Canadian Victims Bill of Rights (2020). Restitution is a payment that an offender makes to a victim of crime to cover financial losses that resulted from the crime. The court makes restitution orders to help repair some of the harms done to victims of crime, to encourage offenders to take responsibility for their actions, to prevent offenders from profiting from their crimes and to discourage others from committing crimes. 

If governments at all levels are to honour their commitments to victims of crime, restitution is a critical area for improvement, and it is directly related to a portion of complaints that the Office of the Federal Ombudsman for Victims of Crime (OFOVC) receives. This Special Report examines the systemic failure of criminal justice officials and institutions to actively enforce (with a few notable exceptions) the payment of restitution orders in Canada. It highlights the undue hardship placed on victims of crime relating to restitution. Lastly, in order to enhance recoveries by victims of crime across the nation and offer them protection from the offender as required by the Canadian Victims Bill of Rights (CVBR), it makes recommendations and offers solutions to improve state assistance with the collection of court ordered restitution. 

Canadian statistics suggest that restitution is rarely ordered here. According to data from Statistics Canada, from 2014 to 2019, a mere 1.6 percent of all cases tried in adult criminal courts that produced a guilty verdict resulted in restitution orders.[2] Moreover, we lack comprehensive, national data to show how often court-ordered restitution is actually paid.[3] Judges and courts appear hesitant to order restitution, as they believe offenders are generally insolvent. When ordered, victims face undue hardship trying to enforce these court orders in civil courts on their own. By downloading the burden of enforcement onto victims, governments fail to protect victims from their offenders, as well as creating barriers for victims such as additional financial expenses, feelings of revictimization and loss of productivity. This is unfair and inhumane. 

Criminal justice institutions have a responsibility to ensure that offenders comply with court ordered restitution because victims of crime deserve fair reparation for their losses. While restitution cannot completely “make one whole” again, it is a significant mechanism for victims of crime, and when ordered and paid, it can increase their overall satisfaction with the criminal justice system. Importantly, it also provides recognition that the victim’s personal interests have been affected by the commission of the crime. Some research from other jurisdictions around the world has shown that the payment of restitution lowers offender recidivism. Importantly, restitution has the potential to repair the financial and perhaps relational harms that a crime leaves in its aftermath. It aims to make the offender a productive person by imposing a sanction that is related to the offence, and it tries to restore a victim to the place they occupied before the offence. It may not resolve any psychological issues that a victim suffers because of the offence, but it can help them deal with some of the financial issues that may have arisen.

Victims report to the OFOVC that they are not informed of the right to seek restitution or given information about the process despite requirements in the Canadian Victims Bill of Rights and the Criminal Code for officials to do so. This lack of awareness is problematic: victims need to know their rights, and government officials and institutions have a responsibility to inform victims to ensure procedural fairness. When restitution is ordered, the state should handle the burden of enforcement for safety reasons recognizing that victims generally do not want to have any ongoing contact with the offender. 

Both at the provincial level, where probation and conditional sentences can include restitution, and with federally sentenced offenders, an active approach to enforcement is necessary. Victims and the public expect criminal justice officials to provide information and aid to offenders so they can pay their court orders. Doing so is both a moral imperative and a trauma-informed response to victimization. Yet currently, federal and provincial agencies take a passive approach to enforcement and fail to hold offenders fully accountable for paying restitution. The state should bare responsibility for enforcement, so that victims do not have to confront offenders. When restitution is ordered by the court, an active, victim-centred approach to enforcement is required by agencies responsible for supervising offenders because paying restitution improves public safety by increasing offenders’ sense of personal responsibility and ensuring they do not profit from their crimes. Such an approach may also reduce recidivism. 

Depending on where they live in Canada, it can be very difficult for victims to collect restitution. The burden of enforcement has been downloaded onto victims, who must learn how to navigate the civil court system on their own. Victims who contact our Office express frustration and dismay with this approach. When passed, the CVBR reiterated the importance of restitution for all victims of crime, yet the federal government has provided little financial aid to improve restitution enforcement practices at the provincial and territorial (PT) level. Without dedicated funding allocated to provinces and territories to implement restitution enforcement programs where they did not exist, we see inconsistent practices across Canada. Only three jurisdictions (British Columbia, Saskatchewan and Nova Scotia) currently operate programs to provide ongoing support to victims in this regard. 

Canadians expect offenders to pay their court orders. We must begin to view the collection of restitution for victims as a measure of success or failure of the criminal justice system. The Canadian criminal justice system has an obligation to uphold the rights of victims, particularly where restitution has been ordered. The costs of crime are enormous in Canada, and data from 2008 suggests that the most direct impact of crime is borne by victims directly. Of the total estimated costs, $14.3 billion was incurred as a direct result of crime, for such items as medical attention, hospitalizations, lost wages, missed school days, stolen/damaged property.[4] Given the enormity of material damages and losses victims suffer, and the fact that the federal/provincial/territorial (FPT) governments share the responsibility for responding to victims of crime in Canada, efforts must be made across jurisdictions to provide practical assistance to victims to collect restitution when it is ordered.  

An offender cannot receive a pardon in Canada until their sentence is complete, meaning that all outstanding court orders and fines have been paid in full. Thus, it is in the interest of justice, fairness and the rehabilitation of offenders to pay restitution, make amends and repair the harm done to the victim. 


Heidi Illingworth
 Federal Ombudsman for Victims of Crime

Defining Restitution

Restitution is a monetary amount paid to a victim by the offender to make amends for any financial losses or financial harm. Unlike retributive responses to crime, restitution has the potential to repair the financial and perhaps relational harms that crime has left in its aftermath (Centre for Justice & Reconciliation, 2021).

Restitution is often confused with compensation. Unlike restitution, compensation is a monetary amount paid to the victim from a third party (e.g., a provincial government or insurance company) to make amends for financial losses or financial harm. Whereas compensation is funded by the state, an offender pays restitution to a victim directly as part of their sentence. The court can order restitution as part of a probation order, part of a conditional sentence order, or as a “standalone” order in addition to other parts of the sentence (see Annex A).

Restitution paid by the offender has a much greater symbolic significance to the victim than compensation paid by the state or community. This is because restitution helps to restore a sense of justice to the victim. In other words, while compensation has material worth and symbolizes the state’s solidarity with the victim, restitution has moral significance. Reparation from the offender—whether in the form of financial reimbursement, an apology or even an admission of guilt—carries a symbolic value and can aid in healing. 

Restitution acknowledges the victim’s losses, holds the offender to account and causes the offender to formally recognize their responsibility for the harm they have caused (Wemmers, 2020). Given that crime is a violation of one person by another, it requires a response (Johnstone, 2011). Giving back what has been taken should reflect the fact that one person has been harmed by the wrongful actions of another. However, currently, we view crime as an offence against society (Johnstone 2011). The requirement to make regular restitution payments could serve as a continual reminder to offenders of the harm they caused and the expectation that they restore justice (Ruback, 2018).

Restitution in the United Nations Declaration

The United Nations General Assembly adopted the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power in 1985. Its purpose was to help governments secure justice and assistance for victims of crime (Wemmers, 2020). Essentially, it encourages governments to apply a victim-centred approach when reviewing their practices, regulations and laws and to consider restitution as a viable sentencing option in all criminal cases.

Restitution in the Criminal Code

Since the Criminal Code was established in 1892, sentencing courts have been permitted to order “compensation” for lost or damaged property due to criminal offences. It was not until 1996 that the compensation provisions were repealed and replaced with restitution order provisions (McDonald, 2009). This change in terminology was made to reflect the fact that, as noted above, restitution relates to payment made by the offender, while compensation generally involves payment made by the state. 

Restitution is a discretionary option that a sentencing judge can order as a way to compensate victims for some or all of the losses they have suffered as the result of a crime. It is part of the offender’s punishment. Currently, a judge can order an offender to pay for the costs of any “readily ascertainable” financial losses up to the date of sentencing, but not for any future losses. As McDonald (2015) notes, a judge in Canada can order restitution for financial losses related to any of the following: 

• damage to or the loss or destruction of property—an amount not exceeding the replacement value of the property
• bodily or psychological harm to any person—an amount not exceeding all pecuniary damages incurred as a result of the harm, including loss of income or support
• bodily harm or threat of bodily harm to the offender’s spouse, common-law partner or child, or any other person—an amount not exceeding actual and reasonable expenses incurred by the person for temporary housing, food, childcare and transportation as a result of moving out of the offender’s household
• in the case of identity theft or fraud—an amount that is not more than cost of re-establishing their identity
• distribution of intimate images—an amount not more than the expenses associated with removing the intimate images from the internet

Restitution orders in Canada generally constitute a codified crossover between the criminal and civil courts (see illustration). In most cases, restitution is ordered by the criminal courts under federal sentencing jurisdiction, but enforcement is exclusively a civil process and falls under provincial administration of justice. In some cases, when restitution is ordered as part of a probation order or a conditional sentence order, the probation officer or conditional sentence supervisor might seek to enforce the restitution term in the criminal courts by laying a charge of breach of probation or an allegation of breach of the conditional sentence order. 

If the offender does not pay the restitution order, the Criminal Code/CVBR gives victims the right to register the restitution order with a civil court and seek to enforce it as a judgment through that court. However, the downloading of enforcement onto victims is a significant burden and barrier. It causes additional stress and anxiety, causes victims to incur costs related to collection, and requires them to navigate complex civil processes and procedures unassisted. Victims may also incur additional expenses related to:

• fees to register the restitution order with civil courts
• hiring lawyers to serve offenders and/or garnish wages 
• forensic audits
• asset depreciation and replacement costs 
• time off work for various court attendances, delays and adjournments and personal time to track the monies they are owed 
• following up with officials when offenders have relocated to a new province or territory

Civil enforcement presents a number of significant challenges and barriers for victims. Additional financial and legal costs (both systems and personal) to pursue the order are rarely justified. As the injured party, victims should be protected from secondary victimization and having to pursue their own offender for payment—an activity that is also unsafe. Passive enforcement, in which the state has no real role in ensuring the offender pays, is ineffective in securing recoveries from most offenders. Most current restitution processes do not result in timely payment to meet victims’ immediate financial needs (Warner, 2015).

A fine in lieu of forfeiture

In Canada, offenders are ordered to pay fines more frequently than restitution[5]. Fines are paid to the state, whereas restitution is paid directly to the victims however, both types of orders might be made with respect to the same offence.

A fine in lieu of forfeiture is not like a typical fine that is meant as a punishment to an offender.  Instead, forfeiture of property is meant to remove the proceeds of crime for certain designated offences from an offender, or to deprive an offender from any benefit from the commission of a criminal offence. A fine in lieu of forfeiture is used only where the property that was considered to be proceeds of crime is not available for forfeiture. It is under these circumstances that a court can impose a fine instead of forfeiture of proceeds of crime.   

Fines in lieu of forfeiture represent an example of an enforcement mechanism designed to help ensure the offender pays the restitution order within a specified period. Where a court orders an offender to pay a fine in lieu of forfeiture, it imposes an additional term of imprisonment that the offender will have to serve if they default on the fine in lieu of forfeiture. This term of imprisonment is to be served consecutively to any other imposed term of imprisonment imposed (or term that the offender is then serving). Some provincial laws specify that payments toward a fine in lieu of forfeiture go toward restitution orders first. This is meant to ensure that victims of crime actually receive the compensation that has been awarded to them.

Although the provisions relating to a fine in lieu of forfeiture are not considered punishment and have been enacted for a completely different purpose, they can sometimes lead to an offender being motivated to pay restitution orders. Because various statutory provisions give priority to restitution orders, and because in the usual scenario the amounts paid for a restitution order also reduce the amount required to be paid under the fine in lieu of forfeiture, an offender might be more motivated to make the payments on the restitution order.   

The right to seek restitution as a quasi-constitutional right

All victims of crime have a right to seek restitution in the sentencing process. The CVBR gives them the right to ask the court to make a restitution order, and requires the court to consider their request. Despite this option being available to all victims of crime, restitution is rarely ordered, and is often unpaid in Canada. Statistics show that from 2013 to 2019, only two to three percent of sentences in Canada involved a restitution order. There are also significant gaps that exist related to restitution data. Victims experience low rates of restitution payment as a re-victimization or second wound. 

In Canada, we do not know how often restitution sought by victims is denied by judges, nor how often restitution is included as part of other sentencing options, such as probation. Nor do we know the number of restitution orders outstanding and total amounts that remain to be paid post-sentencing. There is a lack of comprehensive data collection and reporting related to restitution in all jurisdictions. Given the low percentage of restitution orders made and payments collected in Canada, it appears that victims are not well-informed of their right to seek restitution and that the approach to enforcement is passive. 

The Canadian Victims Bill of Rights (CVBR): The Right to Request Restitution

The Canadian Victims Bill of Rights (CVBR) recognizes the importance of victims being able to seek restitution for their losses. Under the Act, restitution is one of the four main areas in which victims’ rights need to be considered. The others include the right to information, the right to protection, and the right to participation.

Other amendments were made to the Criminal Code consequential to the enactment of the CVBR that are relevant to the issue of restitution. In particular, the Criminal Code now requires a court to consider a restitution order in every case where an offender is convicted or given a discharge pursuant to section 730 of the Criminal Code. This section requires an inquiry to be made by the court of the prosecutor if reasonable steps have been made to provide the victim with an opportunity to determine whether they are seeking restitution. The section allows an adjournment to be made to allow a victim to determine whether they wish to seek restitution or to establish their damages. The section also provides for a specific form to be used and, importantly, requires a court that refuses to make a restitution order to provide reasons for refusing the order. The relevant provision is section 737.1 which provides as follows: 

Restitution

Court to consider restitution order

737.1 (1) If an offender is convicted or is discharged under section 730 of an offence, the court that sentences or discharges the offender, in addition to any other measure imposed on the offender, shall consider making a restitution order under section 738 or 739.

Inquiry by court

(2) As soon as feasible after a finding of guilt and in any event before imposing the sentence, the court shall inquire of the prosecutor if reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages, the amount of which must be readily ascertainable.

Adjournment

(3) On application of the prosecutor or on its own motion, the court may adjourn the proceedings to permit the victims to indicate whether they are seeking restitution or to establish their losses and damages, if the court is satisfied that the adjournment would not interfere with the proper administration of justice.

Form

(4) Victims and other persons may indicate whether they are seeking restitution by completing Form 34.1 in Part XXVIII or a form approved for that purpose by the lieutenant governor in council of the province in which the court is exercising its jurisdiction or by using any other method approved by the court, and, if they are seeking restitution, shall establish their losses and damages, the amount of which must be readily ascertainable, in the same manner.

Reasons

(5) If a victim seeks restitution and the court does not make a restitution order, it shall include in the record a statement of the court’s reasons for not doing so.

2015, c. 13, s. 29

Restitution in Practice

The CVBR says rights should be applied under mechanisms provided by law, such as the Criminal Code. It further emphasizes the importance of restitution by providing a standard form (34.1) for victims to complete when asking the court to consider restitution. The court shall inquire of the prosecutor if reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages, the amount of which must be readily ascertainable. The Crown prosecutor is responsible for submitting the victim’s request for restitution to the court at the time of sentencing. If a victim requests restitution and the court decides not to order it, the court must state the reasons for this decision. 

The Court can order the offender to pay restitution directly to the victim or to a public authority created for this purpose. The Court can order the offender to pay the restitution amount immediately, by a specified day in the order, or as part of a payment plan. The Court can also order restitution to be paid to more than one victim and can assign priority among the victims on the order. If an offender fails to pay a restitution order by the day specified in the court order or if the offender does not comply with a payment plan, a victim can file the order in the civil court and use civil enforcement methods to collect the unpaid amount. Some provincial and territorial Victim Services offer help to victims in collecting unpaid restitution orders.[6]

However, in practice, governments have fallen short, especially in taking measures aimed at actually supporting victims in obtaining restitution (Wemmers, 2020). There is a passive approach to enforcement overall that fails to hold offenders accountable or empower victims in their healing and recovery. The OFOVC’s 2020 CVBR Progress Report found serious data gaps relating to restitution at each point of contact between victims and the Canadian justice system (i.e., the police, Crown prosecutors, the courts, review boards, Correctional Service Canada and the Parole Board of Canada), with minimal reporting on restitution, if any at all: 

• Police. In several jurisdictions, even though the police are specifically tasked with providing restitution forms to victims and submitting completed forms to the Crown prosecutor, the number of forms they distribute and submit to the courts is not reported publicly. Many victims report that they have never been advised that they can seek restitution.
• Crown prosecutors. Neither the Public Prosecution Service Canada nor the Integrated Criminal Court Survey (ICCS) reports on whether provincial Crown or federal prosecutors inform victims of their right to seek restitution or on how many victims request restitution during court proceedings.
• Courts. The ICCS reports the number of restitution orders made by the courts, but does not report on how many of them are requested by victims and disallowed by the courts or the number of restitution orders outstanding and total amounts that remain to be paid post-sentencing. In fiscal year 2017–18, ICCS reported that out of 214,540 guilty verdicts, just 5,170 (or 2.41%) contained restitution orders. We have no data about the kinds of cases in which restitution is ordered or the amounts sought versus imposed. There are also no data on the number of times victims had orders entered as civil court judgments in efforts to enforce the orders.
• Review boards. Review board documents do not discuss restitution. Accused persons who are found unfit to stand trial or not criminally responsible are unlikely to be ordered to pay restitution.
• Correctional Service Canada (CSC). Evidence from the OFOVC suggests that while CSC institutional parole officers discuss restitution orders with offenders, CSC does not report publicly on whether offenders fulfill or partially fulfill their court-ordered responsibilities to victims.
• The Parole Board of Canada (PBC). The PBC does not report on whether offenders on conditional release fulfill their restitution order responsibilities. Requirements to pay restitution cannot be included as a condition of release.

Victims Deserve Better

While criminal justice officials (such as police and Crown prosecutors) are specifically charged with ensuring that victims are offered the opportunity to request restitution, we do not know how often or consistently they respect this. 

In addition, if the offender does not pay the restitution order, a victim has the right to register the restitution order with a civil court and seek to enforce it as a judgment through that court—but as Wemmers et al. (2017) have pointed out: “This step can nevertheless be arduous for the victim, given that they often find themselves in a fragile state due to their victimization and the procedure for a civil claim is complicated and expensive. The personal costs incurred by the civil procedures, and particularly the legal costs, can be a significant obstacle for victims’ desire or their ability to recover their money.”

When a victim suffers a financial loss as a result of crime, the officials who work in the criminal justice system need to make serious and active attempts to assist them with the enforcement of court-ordered restitution. Given that the CVBR is toothless (Lawrence, 2016) in terms of enforcing victims’ rights, it needs to be amended to ensure officials in Canada’s criminal justice system have the power to do so. 

In November 2020, the OFOVC made the following recommendation to amend the CVBR (OFOVC, 2020): 

Amend the provisions related to the enforcement of restitution orders (Section 17) with: Every victim in whose favour a restitution order is made has the right, if they are not paid, to have assistance with collection of the judgment that is enforceable against the offender. This recognizes the responsibility of all governments to assist with the enforcement of court-ordered restitution, as victims have a right to receive reparations for the losses they have suffered.

Efforts must also be made across jurisdictions to consistently inform victims of their right to seek restitution, and record and report court data relating to restitution requests made and ordered.

As Wemmers (2020 argues: “Restitution has advantages for victims, but also suffers important limitations. How victims are treated is important for providing victims with a sense of justice.” Victims need to be informed of their right to seek restitution in the courts; they need assistance with enforcing restitution where it is ordered; and comprehensive data collection and reporting in all jurisdictions related to restitution orders is required to measure the implementation of this right. 

Victims’ rights are not evenly applied and distributed across Canada at the federal, territorial and provincial levels (Perrin, 2017). This presents obstacles in upholding the CVBR and ensuring that victims receive reparations they are due. Given that the FPT governments share the responsibility for responding to victims of crime in Canada, efforts must be made across jurisdictions to consistently inform victims of their right to seek restitution, to record and report court data relating to restitution requests made and ordered, and to actively enforce restitution orders. With respect to the execution of restitution orders, victims’ rights are not well respected in Canada. The law tends to prioritize the offender’s rehabilitation and social reintegration (Wemmers, 2020).

The burden of enforcing restitution should be removed from victims of crime—who should not be forced to chase after the person who victimized them—and instead, placed upon the state. At the federal level, government agencies that supervise and reintegrate federally sentenced offenders must play a more significant role in enforcing court orders.

Best Practices in Restitution

Following the enactment of the CVBR in 2015, the federal government did not make additional funding available to the provinces and territories to implement restitution collection and enforcement programs. Thus, the Act fell short of actively helping victims obtain restitution. Victims across jurisdictions report to the OFOVC that they were not informed about their rights to seek restitution and do not know how to go about pursuing it. If criminal justice officials are failing to provide information to victims in a timely way, then it is not surprising that restitution orders in Canada are seldom used (Wemmers et al., 2017). 

Three provincial programs that offer information and support to victims to help them to obtain restitution can serve as best practices for Canada: Nova Scotia, Saskatchewan and British Columbia have operationalized province-wide restitution enforcement programs that arm victims and offenders with knowledge of the restitution process and its components. These programs, outlined below, remove the administrative burden from victims mainly by implementing a specialized team of staff to support offenders in paying the restitution they owe. Ultimately, with dedicated staff, these programs help victims to collect restitution. 

Nova Scotia

In 2008, Nova Scotia received financial support through the Department of Justice Canada’s Victims Fund for a restitution coordinator pilot project that aimed to improve collections rates, enhance victim satisfaction and confidence in the justice system, and alleviate process barriers that reduce the likelihood of a victim successfully recovering their financial loss.[7] From 2018 to 2020, $4,757,896.91 in restitution was ordered, and $224,059.58 was collected and paid to victims—a collection rate of 4.7%. During the COVID-19 pandemic, there has been an increase in payment, with more offenders making use of the online restitution payment system. In January 2021, Nova Scotia started a Restitution Working Group to look for ways to increase payments. Officials noted that “it remains a challenge to track down offenders and to collect on stand alone restitution orders.”

Nova Scotia Victims Services now has a restitution coordinator position that assists victims by:

• answering questions about restitution orders
• acting as a liaison between victims and probation or parole officers in ensuring that restitution payments are being made (if not, the coordinator can discuss a breach charge and/or further action with the probation/parole officer)
• contacting the court on behalf of the victim to inquire about wait times regarding restitution disbursement
• contacting offenders to notify them when a restitution order is outstanding
• negotiating voluntary payment plans with offenders 
• providing assistance and guidance with the civil enforcement process through the Supreme Court of Nova Scotia

Victim Services has also established the Victim Reconnect Program, in which the restitution coordinator works with the courts to try to locate victims whose restitution has been court-ordered.^[8] 

Saskatchewan

Saskatchewan’s Adult Restitution Program (ARP) was initially established through its Community Corrections (probation) offices. Work with offenders incorporated many of the Community Corrections models, including the principles of risk, responsivity and needs. ARP staff provide training and ongoing support to various stakeholders in the criminal justice system to enhance their understanding of the restitution process (McDonald et al., 2014). ARP also send letters to victims to advise them of when the court has ordered restitution, the amount of restitution, the repayment terms, the supervision status, and the local and toll-free numbers for further assistance and information. 

The ARP also focuses on the offender who is required to pay restitution. The program believes that offenders who are knowledgeable, informed and motivated are more likely to pay their restitution. From 2018 to 2020, 1,739 restitution orders supervised by the ARP were paid and closed. The total amount of these orders was $2,926,383; of that, $2,027,289 (69%) was collected and paid out to victims. The restitution coordinator who held this position in 2021 had previously worked as a probation officer. That experience was extremely helpful in evolving the program to focus on supervising offenders and promoting positive outcomes (i.e., increased collection and payments) for victims. Ongoing contact with Community Corrections, distribution of pamphlets explaining the process, and in-office letters sent to offenders ensure this information-sharing mandate is met. That said, despite these efforts to engage offenders, some still fail to pay restitution, either because of refusal or limited means. The Restitution Civil Enforcement Program (RCEP)[9] makes it possible to explore these barriers by completing applicable searches on behalf of enrolled victims and working with offenders to make voluntary payments. 

The ARP and RCEP are funded through Saskatchewan’s Victims’ Fund at a cost of $279,000 annually.[10] This amount pays for four full-time employees, including the restitution coordinator, assistant restitution coordinator, restitution civil enforcement officer and an administrative support position that serves both programs. This amount also includes the costs of searches, such as those associated with Equifax and property registry. Because there are few cases that involve the actual seizure of property, there is no cost through the sheriff’s office at the Court of Queen’s Bench. 

The RCEP takes the onus off the victim to complete a complex civil process. It also reduces their likelihood of feeling re-victimized by the challenges of attempting to collect restitution on their own. From 2017 to 2020, the RCEP helped eligible victims collect $189,289 in restitution. Registered victims have told the ARP anecdotally that even though they may not have collected any money, they appreciate that a program exists to relieve them of the burden of pursuing restitution. It also relieves them of the apprehension they may have otherwise experienced in attempting to track down offenders themselves. 

This approach is shared by certain other jurisdictions in Canada and internationally. The British Columbia model (see below) is informed by Saskatchewan’s model, and is seeing some success in its efforts to incorporate both victims and offenders into the process. 

British Columbia

British Columbia’s Restitution Program (RP) exists within the organizational structure of the Community Safety and Crime Prevention Branch within the Ministry of Public Safety and Solicitor General.[11] The RP is a voluntary program that enables and encourages offenders to comply with restitution orders short of enforcement, and provides support and/or information to victims, offenders and the public. The program works with other justice system participants to fulfill its mandate, including the BC Prosecution Service, BC Corrections and the Court Services Branch. The program facilitates payment of restitution. Since 2015, it has accepted payment for certain types of orders, held in trust and subsequently paid to victims. The RP is currently working with 200 victims. 

The program recognizes that even in cases where restitution has been ordered, victims may face challenges receiving payments, such as the following: the offender may be reluctant or unable to pay; the victim may feel intimidated by the offender and reluctant to enforce the order in civil court; or the victim may be unable to afford the cost or time to enforce the order in civil court.

The RP’s mandate involves:

• helping victims with unpaid restitution orders
• encouraging offenders to comply with restitution orders
• liaising with probation officers, parole officers, victim service workers and other service providers about unpaid restitution orders, as needed
• answering inquiries about restitution orders and providing referrals to resources
• providing general information (not legal advice) about civil court processes

Given that the RP has not been fully staffed on a consistent basis until recently, the amount of restitution payments currently facilitated remains modest.[12] With several enhancement projects underway (including developments in IT and operational partnerships with justice system participants), the numbers are expected to increase over the next few years. The success of the RP cannot be measured in terms of only dollar amounts, because the assistance offered also includes providing support and information to victims, who report that these activities are just as important to them as the facilitation of restitution payments.  

Summary of Canadian best practices

These three Canadian jurisdictions actively enforce restitution. The programs have an important symbolic impact for victims of crime because dedicated staff follow up with offenders and facilitate payments, offenders are held accountable, and victims feel respected. We can meet victims’ need for financial reparation by having dedicated government officials at the provincial/territorial level to support the payment of restitution orders. While some might argue the costs of administering these programs consistently outweigh the amounts they recover for victims, we must not forget the enormous tangible costs of crime that victims’ bear, which warrants keeping such programs and even creating more of them. 

Current practices in Nova Scotia, Saskatchewan and British Columbia are consistent with qualitative evidence the OFOVC has gathered: victims have told us they want help to enforce restitution. As a litmus test for the efficacy of evidence-based practices, these three examples indicate that collaboration among Canadian jurisdictions offers a way forward for the effective administration of restitution. Examples from Europe and the United States (see below) provide insights into other functional restitution programs that also have some potential to shape or inform Canadian practices. 

England, Wales and the Netherlands

In England and Wales, compensation orders resemble restitution orders in Canada, where the court has the legislative authority to issue a restitution order. The order is against an offender for the restitution of any bodily harm, of all losses resulting from the criminal act, or of any other criminal act that is considered by the court in determining the sentence (Powers of Criminal Courts [Sentencing] Act 2000: art. 130[1]). Compensation orders can be requested only for losses, damages and injuries that result directly from the criminal acts for which the offender has been found guilty (Wemmers, 2020; Wemmers et al., 2017).  

The process of the compensation order is that the offender pays the court, after which the court transfers the payment to the victim. As Wemmers (2020) argues, “the fact that the court is responsible for the enforcement of orders lifts a considerable burden from the shoulders of the victim. As such, victims are not responsible for collecting their money and it falls upon the state to contact offenders if they are late or miss a payment.”

In the Netherlands, the same body that is responsible for executing fines handles restitution orders. This again shifts the burden of execution from the victim to the state. The Dutch government introduced restitution orders into the country’s Criminal Code in 1995 to facilitate the compensation of victims. The orders are considered penal measures imposed by the criminal courts (Van Dongen et al., 2013). The state is responsible for collecting the money for victims. 

The law was modified in 2011 to introduce the option for the state to advance money to victims if the offender is late in making a payment (Wemmers 2020). As in England and Wales, the Dutch government applies a victim-centred approach by helping victims make requests for restitution and asking victim service agencies to monitor requests for restitution.

United States: Vermont and California

In the states of Vermont and California, the state and the offender share the costs of restitution. Each state has a Restitution Fund that outlines eligibility according to crime type, explains the parameters of helping offenders reimburse their victims, and defines how payments are made to victims. 

Vermont

Vermont has developed what it considers a “victim-centered approach” to restitution (Rex & Boyle, 2011). It involves having an established fund and centralized unit affiliated to the Vermont Center for Crime Victim Services. The state adds a surcharge to criminal and traffic fines, and the funds from this surcharge are deposited into the Restitution Fund. When a victim is entitled to restitution, a judgment order is sent to the Restitution Unit, which, in turn, verifies the amount and advances payments of up to $10,000. Vermont described its restitution practices in 2011 as follows: 

“The Restitution Unit is structured and operates as a collection agency. Collection analysts manage a caseload of offenders who owe restitution, maintaining regular contact with the offenders and using a number of collection tools to promote compliance. Since July 1, 2004, the unit has advanced a little over $6 million to 5,600 individual crime victims. The overall collection rate of the Unit is 24 percent. One positive outcome has been the coordination between the Restitution Unit and the Victims Compensation Program, which has tripled the amount of restitution ordered to the Compensation Program.”

Through its centralized funding and management mechanism, Vermont favours the payment of restitution to victims and reinforces the notion that victims and their rights are of utmost importance to the state. 

The Vermont Center for Crime Victim Services offers extensive information on its website, especially in terms of its Victims Compensation Program. The comprehensiveness of the resources available online (i.e., eligibility, applicable laws, documentation and frequently asked questions) is a testament to the efficacy of the practices in effect. Information about the Restitution Unit in particular is tailored to both victims and offenders so that each party knows how they will be supported. 

California

As with the Vermont model, California’s Office of Victim and Survivor Rights and Services operates as a division of its Department of Corrections and Rehabilitation. This means restitution is state-guided in its collection and distribution. The web pages dedicated to the Office of Victim and Survivor Rights list extensive resources for victims, offenders and different law enforcement and judiciary agencies across the state.[13] 

A dominant component of the available information focuses on the California Victim Compensation Board (CalVCB), particularly the web pages that describe the Restitution Recovery Program. The CalVCB was the first of its kind in the US. The Restitution Recovery Program involves the collaboration between the state Probation Board and Corrections Services. These entities work together to ensure that restitution judgment orders are filed and that offenders pay restitution to their victims within acceptable time frames. 

The restitution practices in California and Vermont use similar mechanisms as those described in Saskatchewan and British Columbia. We consider them as models for other Canadian provinces and territories whose restitution practices are lacking, such as Ontario and Quebec. All Canadian jurisdictions must strive to meet victims’ needs for restitution; otherwise, the right to seek restitution under the CVBR is merely tokenistic and cannot claim to benefit victims at all. 

Issue Areas

This next section will outline three main issue areas: barriers to accessing restitution, reporting on restitution orders, and using restorative justice approaches to assist in the payment of restitution. The recommendations on how best to move forward and address these issues are embedded within each section.

1. Barriers to accessing restitution

Challenges faced by victims

With the introduction of the right to seek restitution in 2015, the CVBR introduced a standard form into the Criminal Code (34.1) for victims to complete and present to the courts. 

However, victims must meet a few key conditions for restitution to be considered in the first place: 

• They must know or be informed of their right to make a request (which is not always the case).
• They must have reported their victimization to police (otherwise their status as a victim cannot be recognized in a court of law) and the offender must be convicted.

The mere existence of a restitution request form does not guarantee an increase or surge in restitution order requests. The OFOVC CVBR Progress Report points out that for the number of restitution orders to increase, victims first need to be informed of their right to seek it. 

Even when the proper conditions are satisfied, the court may still not impose restitution if other practical challenges are involved. For example, a victim might not have ready access to cost estimates for property repairs or medical procedures. Timing can also be an issue when cases plead out quickly, or for certain groups of victims. In cases such as impaired driving, judges may hesitate to order restitution because they assume insurance payouts will be made. 

The CVBR states that the offender’s financial means or ability to pay does not prevent the court from ordering restitution. When the Canadian Victims Bill of Rights (the “CVBR”) was enacted in 2015, it made numerous consequential changes to the Criminal Code of Canada (“Criminal Code”). With respect to the issue of restitution and the ability of an offender to pay, the Criminal Code was amended by adding section 739.1, which provides that the financial means of an offender does not prevent the Court from making a restitution order as follows:

Ability to pay

739.1 The offender’s financial means or ability to pay does not prevent the court from making an order under section 738 or 739.

2015, c. 13, s. 30

Two Canadian court of appeal decisions (R v. Simoneau^[14] and R v. Bean^[15]) have reinforced that the offender’s ability to pay is not considered the determinative factor in whether or not a restitution order should be made. However, it appears that a court must consider both the offender’s ability to pay and the potential effect of a restitution order on the rehabilitation of the offender in deciding whether a restitution order is appropriate. The ability to pay can include both current and future ability to pay, and is not a determinative factor.

However, it appears that courts still hesitate to order restitution. Offenders are often deemed insolvent, even when they have planned and executed sophisticated scams to defraud victims, have hidden monies offshore, or have declared bankruptcy to avoid paying restitution. There are often valid limits to the amount of restitution the offender can pay, given that they may have limited financial means (Wemmers 2002). Nonetheless, as stated earlier, there is a symbolic value attached to restitution, and victims desire even partial compensation. Judges should receive ongoing education in this area to ensure victims’ rights are given fair consideration.  

At their roots, restitution orders place direct responsibility on offenders for the harms they cause. Paying restitution can support their rehabilitation. At the same time, noncompliance with a restitution order has direct repercussions for victims and causes secondary victimization. We know that the longer it takes to pay restitution, the less satisfied victims are with the criminal justice system (Warner, 2015). Compliance with court orders must be prioritized, with criminal justice staff taking an active approach to ensuring payment.

While the CVBR describes restitution as an important right and priority for victims, criminal justice officials largely overlook payment, taking a passive approach to enforcement. This approach prioritizes the offender’s circumstances over the victim’s needs. The small numbers of restitution orders in comparison to convictions, the disregard for compliance, and the low payment rates suggest that criminal justice officials do not deem the offender’s payment of restitution important in terms of accepting responsibility, making amends or repairing harms. The CVBR benefits no one when the rights it confers to victims are not respected in practice. 

Recommendation: To make the pursuit of restitution barrier-free for victims, amend the Criminal Code and the Canadian Victims Bill of Rights to require specific criminal justice officials (police, Crown counsel and judges) to inform victims at designated points in time about the right to seek restitution. Victims must be provided with information about restitution processes and be given form 34.1 in a timely manner. 


Recommendation: The federal government should amend the Judges Act to ensure that a judge’s eligibility includes training relating to victims’ rights generally and the right to restitution more specifically. As well, the continuing education programs of the Canadian Judicial Council, as well as all provincial courts of justice, should include more information about the rights of victims generally, and the requirement to consider restitution in every case specifically.


Recommendation: The federal government should strengthen guidance to federal prosecutors to include the requirement that they request an adjournment in every case where it is not clear on the file whether an inquiry has been made of a victim about restitution, even in the absence of the proper inquiry by a court. 


Recommendation: The federal government should collaborate with provincial authorities in respect to guidelines for prosecutors to ensure a consistent approach to guidance given to prosecutors about victims’ rights, including the requirement to consider restitution in every case, across the whole country.  

Victim Dissatisfaction with the Justice System

Research on victim satisfaction with restitution has found that factors that influence victim satisfaction are related to the procedure and the outcome of the judicial process (Kunst et al., 2015; Laxminarayan et al., 2013). In terms of judicial process, victim satisfaction with restitution is related to their access to information—specifically, how much information was given to the victim concerning their trial. In this sense, as victims received more information on the progress of their trial, they felt more satisfied with the outcome overall. However, victim satisfaction was unrelated to whether or not they shared their losses or explained their victimization (i.e., in a victim impact statement). 

The outcome of judicial process showed a lack of consensus on victim satisfaction with restitution. This is partly due to the fact that the outcome relates to the type of crime (personal or property). It is important to understand differences among types of victims (instead of lumping them together in a homogenous group) according to crime type, and which factors have a greater influence on satisfaction versus others, especially in relation to restitution. Overall, Wemmers (2002) notes that follow-up activities are critically important to most victims, especially concerning offenders’ compliance, which needs to be closely monitored (and not by victims). 

Victims who do not receive any restitution will be dissatisfied with the criminal justice system, but may not associate their dissatisfaction with their restitution not being paid (Ruback et al., 2008; Ruback & Shaffer, 2005; Latimer et al., 2005). More research on victim satisfaction may be needed to establish a clearer link between satisfaction and receipt of restitution. 

The OFOVC has received complaints[16] from victims regarding restitution and the many challenges they experience, especially regarding enforcement. 

Lack of Enforcement Mechanism

The longer it takes for restitution to be paid, the higher the costs to both the system and the victim (Warner, 2015). Civil enforcement against the criminal offender demographic can be extremely complex, and the costs to pursue recovery through civil process are rarely justified. The victims who are most in need of restitution repayment are often the least well-positioned to pursue enforcement (Warner, 2015). However, we must weigh the costs of enforcement to society with the costs of crime borne directly by victims. Even with offenders having limited funds, we must not dismiss restitution outright. As noted earlier, restitution is ordered by the criminal courts under federal sentencing jurisdiction, but the mechanism of enforcement is usually a civil process, under provincial administration of justice jurisdiction. The establishment of various central collection mechanisms or programs would help to ensure restitution is paid.


Lack of information and other barriers 

The OFOVC has heard from many victims who have expressed confusion and frustration about the lack of information about restitution and have reported that the process is barrier-ridden and difficult to navigate. Victims must submit requests for restitution prior to sentencing so the court can consider them; there is no ability to request restitution after sentencing. The time-sensitive nature highlights the urgency of informing victims when they first report crimes and again when they interact with victim services and/or Crown counsel and staff. To make the process more accessible and barrier-free, victims must be informed in a timely manner about the right to seek restitution, provided with the appropriate forms, and given information about the process.


We have also heard from victims of various tragedies whose families are struggling financially and who are approaching us for information about restitution because they have faced difficulties accessing it elsewhere. Victims are unable to exercise their full rights if they do not know what they are. 


Many Canadians who have been victims of fraud report that while the extent of the damage of fraud may vary monetarily, feelings of shame, violation and devastation are not uncommon. Some of the victims we have heard from have reached out to our office on behalf of elderly parents who have lost the majority of their life savings. Many reported that the emotional toll this took on them was compounded by difficulty obtaining restitution payment. Victims do not feel it is fair for convicted persons to get away with not paying. 


To increase the number of successful recoveries for victims of crime, a high degree of collaboration and information-sharing between federal and provincial criminal and civil justice partners is necessary, with dedicated staff to support victims with enforcement. All jurisdictions should establish a position or program dedicated to restitution enforcement and collection.


Recommendation: Amend the Canadian Victims Bill of Rights to give every victim in whose favour a restitution order is made the right, if restitution is not paid, to assistance with collection of the enforceable judgment. This recognizes the responsibility of all governments to assist with the enforcement of court-ordered restitution, given that victims have a right to receive reparations for the losses they have suffered.


Recommendation: In order to increase the number of successful recoveries for victims of crime, a high degree of collaboration and information sharing between federal and provincial criminal and civil justice partners is necessary, with dedicated staff to support victims with enforcement. With funding assistance from the federal government, PTs should establish dedicated positions or programs to assist victims of crime with enforcing and collecting restitution based on the models from Saskatchewan, British Columbia or Nova Scotia, all of which provide significant positive outcomes to victims of crime. 


Recommendation: Fund more quantitative and qualitative research on various aspects of restitution, including the impacts of non-payment and victim satisfaction related to payment and non-payment. This will provide more clarity for policy implications and practices that can be operationalized across Canada, including by federal agencies, such as CSC and PBC, who do not actively enforce restitution orders. 


Enforcement downloaded onto victims

When restitution is ordered, victims feel it is unsafe and unfair that enforcing the order becomes their responsibility through civil courts. Since victims largely do not want to have contact with their offender, forcing them to personally pursue restitution fails to provide them protection under the law. Many victims of crime also report that they feel as though they have been treated as an afterthought in our criminal justice system; when the state downloads the responsibility for enforcement of restitution onto them, it amplifies this perception. The vast majority of the victims we have heard from have emphasized the need to change this.


One option is to implement a federal income tax offset program, which would essentially be more cost-effective than passive enforcement for collecting smaller-value orders. Such a program would eliminate many of the process barriers that victims experience through civil process (such as offender privacy issues, victim privacy issues and secondary victimization). To effect recoveries though a federal income tax offset program, the debt must be owed to the Crown (victims would sign it over) and levied pursuant to federal, provincial or territorial legislation (Warner, 2015). 


Recommendation: The federal government should explore the creation of a federal income tax offset program to enforce restitution and ensure the state is responsible for the collection mechanism. This type of enforcement mechanism would give meaning and effect to federal criminal sentencing orders (i.e., the realities of inter-jurisdictional offender and victim mobility) and assist with debtor-creditor priority issues.


Custody transfers and international barriers

In addition, the OFOVC has occasionally heard from victims with restitution orders who are concerned that their offender will be deported without having paid restitution in part or in full. Many victims believe that deportation allows the offender to evade responsibility and avoid repayment. Also, transparency between federal agencies (i.e., CSC, PBC, the Canada Border Services Agency) and victims is essential to ensure that restitution orders are paid before any order for deportation is fulfilled and that victims are not falling through the cracks upon custody transfers. Similarly, we have heard from victims who are attempting to enforce restitution orders against offenders who have since moved to other countries, such as the United States. 


Recommendation: When considering admissibility for an offender, the Immigration Review Board should take a victim-centred and trauma-informed approach and consider the needs of victims to receive reparations. Deporting an offender is not necessarily in the victims’ interest, especially if there is no public safety risk, and it can allow a convicted fraudster to avoid paying restitution. 

Establishing a Centralized Collection Mechanism

One important way to improve restitution processes and outcomes for victims of crime would be to systematically monitor restitution orders across Canada. Currently, the data on orders and payments made are not fully captured in Statistics Canada information, but may be captured at the provincial or territorial level. This represents a significant data gap and means that restitution compliance is not measured uniformly across Canada. From the perspective of victims, such compliance is a matter of accountability by offenders, who should not be let off the hook. 

Recommendation: To emphasize the importance of fulfilling court-ordered obligations, such as restitution, federal agencies, such as CSC, should require their institutional and community-based parole officers to create payment plans to ensure offenders pay restitution to victims first, followed by fines and any other outstanding orders.

Enforcing restitution compliance

In provinces such as Saskatchewan, Nova Scotia and British Columbia, where restitution programs have been implemented, recoveries for victims are enhanced because there are dedicated staff to address compliance. At the federal level, both the CSC and PBC have a responsibility to ensure that offenders fulfill their court-ordered obligations. We can no longer overlook the enforcement of restitution compliance for federally sentenced offenders. 

For its part, CSC should ensure that offenders at least attempt to meet their court-ordered obligations. Almost 900 federal offenders have active restitution orders which must not be ignored by CSC and a clear strategy should be developed to ensure that offenders pay what they owe. Institutional parole officers should address these as part of case management. Provinces and territories already have mechanisms (such as Family Responsibility Offices[17]) to ensure that child support is collected; restitution orders could be handled similarly. Parole officers should also be required to develop payment plans to ensure restitution and fines or other outstanding orders are paid. Offenders are not eligible to be considered for a pardon unless they complete their sentence in full, meaning that all fines and restitution orders must be paid as a condition of their pardon being granted. For example, small amounts can be paid into an account on a monthly basis and transferred to the court, where victims can access it.

Victims of crime should not bear the administrative burden of their restitution orders. The fact that related and functional case management mechanisms exist for child support indicates that it is possible to implement a similar mechanism across for restitution collection at the PT and federal level. All victims across Canada should have equitable assistance with the enforcement of restitution; otherwise, it is too easy for offenders to shirk their responsibilities.

Recommendation: Federal agencies, such as CSC and PBC—that are responsible for the custody and supervision of offenders—should develop and implement restitution information programs to encourage regular payments by federally sentenced offenders. Existing staff, such as institutional and community-based parole officers, should actively provide information to offenders and regularly monitor their progress in making payments to victims, as part of case management. Provincial officials responsible for the custody and supervision of offenders also need to take an active approach, providing updated information to offenders (especially those on probation in the community) to monitor their progress in making payments to victims. Ultimately, the costs involved in this type of initiative (i.e., the sending of letters, or even emails, to remind offenders of their obligations) would be minimal, and the benefits to victims, offenders and the system as a whole could be substantial.

1. Reporting on Restitution Orders across Canada

A Call for Transparency 

There is a significant gap in data with respect to restitution. Thus, a pan-Canadian data collection initiative is needed to clarify the number of restitution orders sought, granted and denied per province and territory, as well as all amounts collected and paid to victims, categorized by types of crime. We also need to gather data in other scenarios where restitution is ordered—for example, if ordered as part of probation or other conditional sentences. 

Statistics Canada produces an annual report on guilty cases by type of sentence. Since restitution orders are dealt with at the time of sentencing, the report includes data on restitution. However, the provinces and territories do not report consistently in this area. Web pages for PT governments do not provide the number of restitution orders requested or granted each fiscal year. Similarly, there do not appear to be any available statistics about the number of restitution orders outstanding and total amounts that remain to be paid post-sentencing. 

Reporting Across the Nation

While Nova Scotia, Saskatchewan and British Columbia help victims to collect restitution and report publicly on the amounts recovered, most jurisdictions do not. 

What information is lacking is how many victims sought restitution orders, how many restitution orders were granted, and for how much. For example, the British Columbia government website provides extensive information about the province’s restitution program and links the restitution order form in several languages, but does not report on the total number of restitution orders made. 


A number of other provinces and territories also do not report on the number of restitution orders made each year. As a result, it is impossible to have a full picture of the restitution imposed and paid across Canada. This data gap and lack of transparency do not benefit victims.

Recommendation: Provinces and territories should report on the number of restitution orders requested, the number imposed and denied, and the amounts collected, paid and outstanding to victims annually. Consistent national data collection and reliable tracking practices for the payment of restitution orders must be established in order to determine how this right has been implemented. 

Recommendation: Federal agencies responsible for managing and supervising offenders should report publicly on the number of offenders with restitution orders and the amounts collected or paid to victims annually. CSC should also develop Memoranda of Understanding (MOUs) to share information with provinces and territories that have instituted restitution collection and enforcement positions or programs to bring more transparency to the tracking and payment of restitution orders. 

Restitution and Recidivism

The OFOVC encourages the use of a centralized collection mechanism because of the correlation between restitution compliance and declining rates of recidivism (Cares & Haynes, 2018; Jacobs & Moore, 1994; Outlaw, 2018; Ruback et al., 2018). Outlaw (2018) reports findings from Ruback et al. (2018) on the correlation between restitution payment and reduced recidivism: 

“[Offenders] who paid more frequently, and [who paid] a larger proportion of restitution were less likely to be rearrested within the 2 years. The results […}revealed that the link between… [sending a ‘reminder’ to the offender] and recidivism was primarily mediated through actual payment, and that the increase in the number of payments that resulted from the reminders was more impactful than the increase in the proportion of the total that was paid.”

Paying more restitution is associated with positive outcomes for offenders. Outlaw and Ruback (1999) led a study that concluded that offenders who paid more restitution were less likely to be arrested once they began making payments. This trend was particularly strong among offenders with community ties, which suggests that their restitution compliance was encouraged by a sense of accountability. In an earlier study by Miller (1981), offenders who paid all of their restitution had fewer revocations than those who paid no or partial restitution. These examples show that restitution payments have the potential to positively influence the offender’s character.

Conversely, offenders who reoffend are less likely to have paid their restitution in full and less likely to have paid anything toward the restitution they owed (Ruback & Shaffer, 2005; Ruback et al., 2004). In fact, they paid a smaller proportion and made fewer payments toward the restitution and other economic sanctions. 

Another interesting finding is that providing information to offenders seemed to cause them to pay more overall and make more payments. Part of the information provided was an explanation of the distinction between restitution and other fees, costs and fines that offenders were expected to pay. The information provided to offenders must clearly state what restitution payments are, why they matter to the victim and state, and when (i.e., at what frequency) they are meant to be made. 

Providing information to offenders has shown to be beneficial for restitution compliance (Gladfelter et al., 2018; Lurigio & Davis, 1990; Mears, 2014). The simple act of sending an information letter to offenders, outlining the amounts they have already paid and still owe, seemed to make offenders more likely to pay restitution (Ruback, 2016; Ruback et al., 2014). This shift likely occurs because receiving a reminder reinforces the offender’s obligation (to their victims), which encourages them to pay (or continue paying) restitution. 

Recommendation: Federal agencies, such as CSC and PBC—that are responsible for the custody and supervision of offenders—should develop and implement restitution information programs to encourage regular payments by federally sentenced offenders. Existing staff, such as institutional and community-based parole officers, should actively provide information to offenders and regularly monitor their progress in making payments to victims, as part of case management. Provincial officials responsible for the custody and supervision of offenders also need to take an active approach, providing updated information to offenders (especially those on probation in the community) to monitor their progress in making payments to victims. Ultimately, the costs involved in this type of initiative (i.e., the sending of letters, or even emails, to remind offenders of their obligations) would be minimal, and the benefits to victims, offenders and the system as a whole could be substantial.

1. A Restorative Justice Approach

The Role of Victims in the Criminal Justice System

 Victims hold a unique position in that they are on the receiving end of the crime and not “just another witness” (Johnstone, 2011). Restitution cannot promise to restore victims to their pre-victimization lives (Johnstone, 2011). This is especially true given the barriers to accessing restitution as well as the lack of harmonized enforcement and reporting mechanisms in use. Further, the idea that money (or the monetary value of a restitution order alone) can right an offender’s wrong may be insulting to victims (Burnside & Baker, 1994). 

The criminal justice system has been guided by what it assumes to be the general public interest in punishing crime, rather than by a concern to meet the more particular needs of victims (Johnstone, 2011), which go way beyond those of other members of the public who are affected only indirectly by the commission of a crime in a community. Nothing obvious is restored to crime victims when an offender is punished; on its own, punishment is not enough to help the victim recover. As long as the justice system is geared toward punishing offenders, victims’ needs will go unmet, including the need for financial restoration in the aftermath of crime.

Favouring Reparations over Restitution

Lawrence (2017) speaks to the restorative potential of restitution in that it can have rehabilitative effects, and she argues that an expansion of this remedy is required. For restitution to be more meaningful for victims, in a symbolic and practical sense, its application and use need to change. One way to shift the perspective on restitution is to favour reparations as a means of recovering losses or harms to victims. 

Restorative justice (RJ) approaches are sometimes used as an alternative to more traditional actions in the criminal justice system (i.e., prosecution, conviction). These approaches allow victims to obtain reparations. Reparations can include restitution among other measures like mediation and acknowledgement of wrongdoing. 

RJ practices aim to bring together the offender, the victim and the community to “address the harm caused by the criminal behaviour” (Latimer et al., 2005). Participation in a RJ program is both voluntary and community-based, and addresses four components: recidivism, victim satisfaction, offender satisfaction and restitution compliance (Latimer et al., 2005). Due to the nature of these programs, victims are more likely to gain closure (i.e., receive reparation). This is because RJ programs tend to encourage and help offenders to accept responsibility for their behaviours and actions and to repair the harm they caused victims (Wemmers et al., 2017). RJ programs also facilitate dialogue wherein the offender understands what their actions cost and why their victims need the money. Sometimes, the outcome is to negotiate a reasonable amount that the offender can actually pay.

RJ practices and reparations at large are more suitable to the needs of victims at an individual level because they do not depend on following a specific procedure or respecting a protocol that determines its admissibility in the justice system. 

Victims are eligible to seek restitution only once they have reported their victimization and have filed a restitution claim form at the sentencing phase for their offender, after which a judge determines other sentencing conditions for the offender. Even if restitution is ordered, victims will likely have to bear the responsibility of enforcement without help from the PT government, opening the possibility for miscommunication and overall dissatisfaction with the criminal justice system. Instead, RJ practices are voluntary measures taken between the victim and their offender to make reparations. These practices imply a shift away from the criminal justice system toward non-judicial methods.

In their meta-analysis of the effectiveness of RJ practices, Latimer et al. (2005) explain that participation in RJ programs is associated with higher restitution compliance rates. This means that once restitution has been determined at the sentencing stage, victims and offenders can complement this process with mediation, reconciliation or another form of RJ. In this sense, RJ is flexible and can adjust to victims’ needs. This hybrid format between criminal justice system and RJ practices gives the government assurance that the offender has received a punishment, but still places the victim’s needs at the centre of the process. Logically, choosing an approach that reflects the victim’s needs would increase their chances for healing and recovery. Latimer et al. (2005) caution that Canadian legislation might not be strong enough to make sure that such a process is in place. Therefore, to this end, mechanisms are needed to ensure that a hybrid format between the criminal justice system and RJ is adopted and implemented for victims. 

RJ programs account for a more holistic overall approach to providing closure to victims, especially because it gives them a voice. With more information about RJ approaches and restitution in general at their disposal, victims are likely to be more satisfied with the outcomes of their trials—and convinced that justice was restored—because their offenders have been held accountable. Sometimes, reparations may even result in victims forgiving their offenders, especially when victims take part in the justice process through different elements of RJ. This is significant for victims who are left feeling dehumanized by the justice process. 

RJ can provide a more effective means of implementing restitution because of its focus on the offender accepting responsibility for their actions and the need to address and repair any relational harms caused by the crime. For those offenders who are convicted, restitution must be monitored and enforced to assure completion. RJ dialogues and processes provide an effective environment in which to monitor how restitution is completed. Importantly, it also centres the voices and needs of victims while acknowledging the fact that the offender and the community have important roles to play in addressing the harm. 

Recommendation: Existing restitution processes do not serve victims adequately or consistently across Canada because restitution is rarely ordered and is complex to enforce. The increased use of RJ programs as a normative response to crime is required because it would give victims a greater say in the process, increase their overall satisfaction, and improve the monitoring and enforcement of restitution, given that RJ’s core purpose is to address and repair harm. 

Recommendation: The federal Minister of Justice should initiate a public awareness campaign in all provinces and territories dedicated to ensuring that all Canadians know of their right to request restitution in every case, should they become a victim of a crime.

Recommendations from the Federal Ombudsman for Victims of Crime

The following is a list of the recommendations from the Federal Ombudsman for Victims of Crime, as presented in this Special Report on Restitution:

1. To make the pursuit of restitution barrier-free for victims, amend the Criminal Code and the Canadian Victims Bill of Rights to require specific criminal justice officials (police, Crown counsel and judges) to inform victims at designated points in time about the right to seek restitution. Victims must be provided with information about restitution processes and be given form 34.1 in a timely manner. 
2. The federal government should amend the Judges Act to ensure that a judge’s eligibility includes training relating to victims’ rights generally and the right to restitution more specifically. As well, the continuing education programs of the Canadian Judicial Council, as well as all provincial courts of justice, should include more information about the rights of victims generally, and the requirement to consider restitution in every case specifically.
3. The federal government should strengthen guidance to federal prosecutors to include the requirement that they request an adjournment in every case where it is not clear on the file whether an inquiry has been made of a victim about restitution, even in the absence of the proper inquiry by a court. 
4. The federal government should collaborate with provincial authorities in respect to guidelines for prosecutors to ensure a consistent approach to guidance given to prosecutors about victims’ rights, including the requirement to consider restitution in every case, across the whole country.  
5. Amend the Canadian Victims Bill of Rights to give every victim in whose favour a restitution order is made the right, if restitution is not paid, to assistance with collection of the enforceable judgment. This recognizes the responsibility of all governments to assist with the enforcement of court-ordered restitution, given that victims have a right to receive reparations for the losses they have suffered. 
6. To increase the number of successful recoveries for victims of crime, a high degree of collaboration and information sharing between federal and provincial criminal and civil justice partners is necessary, with dedicated staff to support victims with enforcement. The federal government should provide funding to allow PTs to establish dedicated positions or programs to assist victims of crime with enforcing and collecting restitution based on the models from Saskatchewan, British Columbia or Nova Scotia, all of which provide significant positive outcomes to victims of crime. 
7. Fund more quantitative and qualitative research on various aspects of restitution, including the impacts of non-payment and victim satisfaction related to payment and non-payment. This will provide more clarity for policy implications and practices that can be operationalized across Canada, including by federal agencies, such as CSC and PBC, who do not actively enforce restitution orders.
8. The federal government should explore the creation of a federal income tax offset program to enforce restitution and ensure the state is responsible for the collection mechanism. This type of enforcement mechanism would give meaning and effect to federal criminal sentencing orders (i.e., the realities of inter-jurisdictional offender and victim mobility) and assist with debtor-creditor priority issues.
9. When considering admissibility for an offender, the Immigration Review Board should take a victim-centred and trauma-informed approach and consider the needs of victims to receive reparations. Deporting an offender is not necessarily in the victims’ interest, especially if there is no public safety risk, and it can allow a convicted fraudster to avoid paying restitution. 
10. To emphasize the importance of fulfilling court-ordered obligations, such as restitution, federal agencies, such as CSC, should require their institutional and community-based parole officers to create payment plans to ensure offenders pay restitution to victims first, followed by fines and any other outstanding orders.
11. Federal agencies, such as CSC and PBC—that are responsible for the custody and supervision of offenders—should develop and implement restitution information programs to encourage regular payments by federally sentenced offenders. Existing staff, such as institutional and community-based parole officers, should actively provide information to offenders and regularly monitor their progress in making payments to victims, as part of case management. Provincial officials responsible for the custody and supervision of offenders also need to take an active approach, providing updated information to offenders (especially those on probation in the community) to monitor their progress in making payments to victims. Ultimately, the costs involved in this type of initiative (i.e., the sending of letters, or even emails, to remind offenders of their obligations) would be minimal, and the benefits to victims, offenders and the system as a whole could be substantial.
12. Provinces and territories should report on the number of restitution orders requested, the number imposed and denied, and the amounts collected, paid and outstanding to victims annually. Consistent national data collection and reliable tracking practices for the payment of restitution orders must be established in order to determine how this right has been implemented. 
13. Federal agencies responsible for managing and supervising offenders should report publicly on the number of offenders with restitution orders and the amounts collected or paid to victims annually. CSC should also develop Memoranda of Understanding (MOUs) to share information with provinces and territories that have instituted restitution collection and enforcement positions or programs to bring more transparency to the tracking and payment of restitution orders. 
14. Existing restitution processes do not serve victims adequately or consistently across Canada because restitution is rarely ordered and is complex to enforce. The increased use of RJ programs as a normative response to crime is required because it would give victims a greater say in the process, increase their overall satisfaction, and improve the monitoring and enforcement of restitution, given that RJ’s core purpose is to address and repair harm.
15. The federal Minister of Justice should initiate a public awareness campaign in all provinces and territories dedicated to ensuring that all Canadians know of their right to request restitution in every case, should they become a victim of a crime.

Conclusion

The findings and recommendations in this Special Report on Restitution for Victims of Crime in Canada highlight the serious challenges that victims face with respect to enforcing court-ordered restitution. Federal, provincial and territorial governments need to prioritize an active approach to enforcement on behalf of victims because the payment of restitution has restorative potential for both victims and offenders. 

The expansion of the promising practices presented in this report would be impactful in supporting victims of crime. These recommendations cannot realistically be implemented without proper leadership, initiative and concerted effort by the federal government in partnership with PT governments. A heightened sense of accountability is required to ensure the rights of victims across Canada are respected and upheld at every stage of the criminal justice process.

References

Barnett, R. (1977). Restitution: A New Paradigm for Criminal Justice. Ethics, 87(279). 

Burnside, J. P., & Baker, N. (1994). Relational justice: repairing the breach. Waterside Press.

Canada, S. Table 35-10-0030-01: Adult criminal courts, guilty cases by type of sentence. 

Canadian Institutes of Health Research, Natural Sciences and Engineering Research Council of Canada and Social Sciences and Humanities Research Council of Canada. (2018). Tri-Council Policy Statement: Ethical Conduct for Research Involving Humans. https://ethics.gc.ca/eng/documents/tcps2-2018-en-interactive-final.pdf 

Canadian Victims Bill of Rights, SC 2013, c 13, s 2 (2015). https://laws-lois.justice.gc.ca/eng/acts/C-23.7/page-1.html 

Cares, A. C., & Haynes, S. H. (2018). Restitution: A different kind of economic sanction? Criminology & Public Policy, 17(4):815-823. https://doi.org/10.1111/1745-9133.12402 

Community Neh Kanikonri:io Council. http://www.akwesasne.ca/justice/community-neh-kanikonriio-council/

Declan, R. (2006). Retribution and restorative justice. Handbook of Restorative Justice. Routledge.

Gladfelter, A. S., Lantz, B., & Ruback, R. B. (2018). Beyond ability to pay: Procedural justice and offender compliance with restitution orders. Int J Offender Ther Comp Criminol, 62(13), 4314-4331. https://doi.org/10.1177/0306624x18759195 

Harland, A., & Rosen, C. (2004). Impediments to the recovery of restitution by crime victims. Violence and Victims, 5(2). https://doi.org/10.1891/0886-6708.5.2.127 

Hogg, P. (2007). Constitutional Law of Canada (5th ed.). Thomson Carswell.

Jacobs, S., & Moore, D. C. (1994). Successful restitution as a predictor of juvenile recidivism. Juvenile and Family Court Journal, 45(1), 3-14. https://doi.org/10.1111/j.1755-6988.1994.tb00930.x 

Johnstone, G. (2011). Healing the victim. Restorative Justice: Ideas, Values, Debates (2nd ed.). Routledge.

Justice. http://www.akwesasne.ca/justice/ 

Kunst, M., Popelier, L., & Varekamp, E. (2015). Victim satisfaction with the criminal justice system and emotional recovery: A systematic and critical review of the literature. Trauma, Violence, & Abuse, 16(3), 336-358. https://doi.org/10.1177/1524838014555034 

Latimer, J., Dowden, C., & Muise, D. (2005). The effectiveness of restorative justice practices: A meta-analysis. The Prison Journal, 85(2), 127-144. https://doi.org/10.1177/0032885505276969 

Lawrence, M.S. (2016). Looking the gift horse in the mouth: An examination of the Canadian approach to criminal restitution in case of sexual violence. Canadian Criminal Law Review, 20:209. 

Lawrence, M.S. (2017). Restitution & restorative justice: A call for the expansion and increased use of criminal restitution orders at sentencing. In J. Desrosier, M. Garcia, and M.E. Sylvestre, Eds., Réformer le droit criminal au Canada: défis et possibilités / Criminal Law Reform in Canada: Challenges and Possibilities. Thomson Reuters.

Laxminarayan, M., Bosmans, M., Porter, R., & Sosa, L. (2013). Victim satisfaction with criminal justice: A systematic review. Victims & Offenders, 8(2), 119-147. https://doi.org/10.1080/15564886.2012.763198 

Lurigio, A. J., & Davis, R. C. (1990). Does a threatening letter increase compliance with restitution orders?: A field experiment. Crime & Delinquency, 36(4), 537-548. https://doi.org/10.1177/0011128790036004007 

McDonald, S. (2009). Understanding restitution. Victims of Crime Research Digest 2:10-16, Department of Justice. https://www.justice.gc.ca/eng/rp-pr/cj-jp/victim/rd09_2-rr09_2/rd09_2.pdf

McDonald, S., Northcott, M., & Raguparan, M. (2014). The Federal Victim Surcharge in Saskatchewan. Department of Justice Canada.

McDonald, S. (2015). Restitution Research Overview. National Victims of Crime Awareness 

Week, April 2015. https://www.victimsweek.gc.ca/symp-colloque/past-passe/2015/presentation/pdf/mcdonald.pdf

Mears, D. P. (2014). The role of information in changing offender behavior, criminal justice system actions, and policy maker decisions. Criminology & Public Policy, 13, 441–449. https://doi.org/10.1111/1745-9133.12102 

Miller, T. I. (1981). Consequences of restitution. Law and Human Behavior, 5(1), 1-17. https://doi.org/10.1007/BF01048570 

Mirsky, L. (2004). Restorative justice practices of Native American, First Nation and other Indigenous People of North America: Part one. Restorative Practices eForum. https://www.iirp.edu/news/restorative-justice-practices-of-native-american-first-nation-and-other-indigenous-people-of-north-america-part-one 

Mirsky, L. (2004). Restorative justice practices of Native American, First Nation and other Indigenous People of North America: Part two. Restorative Practices eForum. https://www.iirp.edu/news/restorative-justice-practices-of-native-american-first-nation-and-other-indigenous-people-of-north-america-part-two 

Moen, K. (2013). Choice in criminal law: Victims, defendants, and the option of restitution. Cornell Journal of Law and Public Policy, 22(3). 

Office of the Federal Ombudsman for Victims of Crime. (2020). Progress Report: The Canadian Victims Bill of Rights. https://www.victimsfirst.gc.ca/res/pub/prcvbr-reccdv/index.html 

Office of Victim & Survivor Rights & Services. (2021). https://www.cdcr.ca.gov/victim-services/ 

Outlaw, M. (2018). More than a nudge?: Follow-up, fairness, and lower recidivism. Criminology & Public Policy, 17(4), 783-787. https://doi.org/10.1111/1745-9133.12406 

Outlaw, M. C., & Ruback, R. B. (1999). Predictors and outcomes of victim restitution orders. Justice Quarterly, 16(4), 847-869. https://doi.org/10.1080/07418829900094391 

Perrin, B. (2017). Victim Law: The Law of Victims of Crime in Canada. Thomson Reuters Canada.

Powers of Criminal Courts (Sentencing) Act (R-U) 2000: art. 130(1).

Restitution Recovery Program. (2016). https://victims.ca.gov/restitution/ 

Rex, J., & Boyle, E. (2011). The Vermont Model: A Victim-centered Approach to Restitution. Vermont Center for Crime Victim Services.

Ruback, R. Barry. An Experimental and Survey Analysis of Economic Sanctions in Centre County, Pennsylvania. Inter-university Consortium for Political and Social Research [distributor], 2016-01-04. https://doi.org/10.3886/ICPSR36152.v1 

Ruback, R. B., Cares, A. C., & Hoskins, S. N. (2008). Crime victims' perceptions of restitution: The importance of payment and understanding. Violence Vict, 23(6), 697-710. https://doi.org/10.1891/0886-6708.23.6.697 

Ruback, R. B., Gladfelter, A. S., & Lantz, B. (2014). Paying restitution: Experimental analysis of the effects of information and rationale. Criminology & Public Policy, 13(3), 405-436. https://doi.org/10.1111/1745-9133.12094 

Ruback, R. B., Knoth, L. K., Gladfelter, A. S., & Lantz, B. (2018). Restitution payment and recidivism: An experimental analysis. Criminology & Public Policy, 17(4), 789-813. https://doi.org/10.1111/1745-9133.12401 

Ruback, R. B., & Shaffer, J. N. (2005). The role of victim-related factors in victim restitution: A multi-method analysis of restitution in Pennsylvania. Law Human Behavior, 29(6), 657-681. https://doi.org/10.1007/s10979-005-7372-x 

Ruback, R. B., Shaffer, J. N., & Logue, M. A. (2004). The imposition and effects of restitution in four Pennsylvania counties: Effects of size of county and specialized collection units. Crime & Delinquency, 50(2), 168-188. https://doi.org/10.1177/0011128703258943 

Statistics Canada. Table 35-10-0030-01  Adult criminal courts, guilty cases by type of sentence

Steps to Justice: Your guide to law in Ontario. (2020). How does the FRO enforce child support? https://stepstojustice.ca/questions/family-law/how-does-fro-enforce-child-support 

The California Victims Compensation Board. (2016). https://victims.ca.gov/ 

The Vermont Restitution Unit. http://www.ccvs.vermont.gov/support-for-victims/restitution-unit 

Van Dongen, J.D.M., S.D. Lindenbergh, and M.R. Hebly (2013). You are lucky if you can pluck from a peacock - experiences of victims of crimes with the recovery of their damage. Erasmus MC: University Medical Center Rotterdam. Retrieved from: http://hdl.handle.net/1765/41444

Victims Compensation Program. http://www.ccvs.vermont.gov/support-for-victims/victims-compensation-program 

Victim Impact Statement and Restitution. https://www.saskatchewan.ca/residents/justice-crime-and-the-law/victims-of-crime-and-abuse/victim-impact-statement-and-restitution#:~:text=Restitution%20Civil%20Enforcement%20Program,collect%20unpaid%20restitution%20from%20offenders 

Victim Restitution. https://www2.gov.bc.ca/gov/content/justice/criminal-justice/bcs-criminal-justice-system/if-you-are-a-victim-of-a-crime/victim-of-crime/victim-restitution 

Warner, L. (2015). Restitution Collections in Nova Scotia: Making it Work for Victims. National Victims of Crime Awareness Week, April 2015. https://www.victimsweek.gc.ca/symp-colloque/past-passe/2015/presentation/pdf/warner.pdf   

Wemmers, J.-A. (2002). Restorative justice for victims of crime: A victim-oriented approach to restorative justice. International Review of Victimology, 9:43-59.

Wemmers, J.-A., Manikis, M., & Sitoiani, D. (2017). Restitution in the context of criminal justice (publication no. http://dx.doi.org/10.2139/ssrn.3635097). International Centre for Comparative Criminology / Centre international de criminologie comparée (CICC), Université de Montréal.

Wemmers, J-A. (2020). Restitution: Helping victims or offenders? In J. Joseph, S. Jergenson (eds.), An International Perspective on Contemporary Developments in Victimology, https://doi.org/10.1007/978-3-030-41622-5_20 

Wenzel, M., Okimoto, T. G., Feather, N. T., & Platow, M. J. (2008). Retributive and restorative justice. Law and Human Behavior, 32(5), 375-389. https://doi.org/10.1007/s10979-007-9116-6 

Zhang, T. (2008). Costs of Crime in Canada, 2008. Department of Justice Canada. https://www.justice.gc.ca/eng/rp-pr/csj-sjc/crime/rr10_5/rr10_5.pdf   

Annex A: OFOVC Restitution Infographic