Restitution in Canadian criminal justice
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AbstractIf the accused actually has money on his or her person at the time of arrest, and ownership of that money is not contested, it can be immediately scooped to satisfy any restitution order. If not, the victim must take the restitution order and file it at the Clerk of the Court of Queen's Bench, or equivalent superior court, and take proceedings, usually by way of garnishment or seizure, to enforce it. Anyone who has tried personally to take the technical steps necessary to enforce a civil judgment knows the wrenching difficulties inherent in that process. Indeed, this restitution legislation itself provides that the victim is free to pursue any civil remedy available, with or without an order of restitution. Where physical injury has occurred, a civil lawsuit for pain and suffering would have to be independently brought because this category of injury could never be included in a statutory restitution order. Centuries ago a court had no power at all to order restitution. It was not until 1592 that in England one was allowed to apply for a Writ of Restitution. When one considers that victims of crime have not always had the right in law to get their property back, we have made remarkable progress from rights of restitution toward rights of compensation for victims of crime. Today, the victim is not limited to recovered property or to instances involving the loss of physical property in order to make a claim for restitution. Today, one may claim compensation in criminal court which, up to now, had to be taken forward exclusively in civil litigation. What is the benefit, therefore, of pursuing a restitution order that goes beyond confiscated property? Simply, such an order represents the best legal action for a victim in most circumstances. If the offender has assets or is likely to be employed after the sentence is served, it may be worthwhile having a judgment on the record with the Clerk of the Court. This judgment can be periodically renewed until it is paid. This restitution process may eliminate the need to hire a lawyer and launch a civil action which would, in many cases, yield no greater benefit than that contained in a restitution order. It is still too early to know how these sections will develop in practice. Much will depend on how many eligible victims learn of this law to obtain a restitution order and how determined they are to pursue their claims. How much will the Crown co-operate in advancing a restitutionary claim? What evidence will they require of the victim? One hopes that the practical requirements will not necessitate the victims hiring their own lawyer in the cause. How will the judiciary embrace this new power to compensate victims of crime? At this point, however, one thing is clear. Victims of crime can claim a potentially potent tool to obtain restitution and compensation under this new legislative regime. This was clearly designed in response to the call for more direct personal accountability on the part of offenders and for more rights on the part of victims.
Article deposited after permission was granted by the editor of LawNow magazine, 06/28/2010.