section 2

INTRODUCTION AND BRIEF DESCRIPTION

The term "victim" is defined in section 2 of the Criminal Code. The term is defined broadly and includes an alleged victim, meaning a conviction need not be entered for the term to apply.

SECTION WORDING

2. victim means a person against whom an offence has been committed, or is alleged to have been committed, who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss as the result of the commission or alleged commission of the offence and includes, for the purposes of sections 672.5, 722 and 745.63, a person who has suffered physical or emotional harm, property damage or economic loss as the result of the commission of an offence against any other person.

EXPLANATION

Section 2 of the Criminal Code contains many definitions of terms used throughout the legislation. The term "victim" has been given an expansive definition, notably those who have suffered harm as a result of an alleged crime. That is, a conviction need not be entered for the term "victim" to be wielded. The term "victim" appears over two-hundred times within the Criminal Code. Alternative definitions of the term exist notably at section 722(4). There are many other pieces of legislation which also define the term in slightly different ways, including many provincial Acts that deal with victim compensation. Further legislative treatment of the term victim is found at section 722 of the Code, when dealing with Victim Impact Statements.

COMMENTARY

The legislatures of various levels of government have recently taken a stronger approach to victim's rights. One such example is the Canadian Victims Bill of Rights. Recognizing this trend, courts have attempted to maintain a balance between being able to assert the rights of victims in court proceedings while not trampling on the rights of an accused to make full answer and defence and be presumed innocent until convicted of their charge. In any given criminal trial, the term victim will arise and be wielded at various stages of the proceedings. Section 2 is designed to be broad and flexible. The term victim may very well import different meanings at different stages. When testifying about the events, the term victim would simply indicate a person against whom a crime was allegedly commited. Upon conviction, the term victim takes on greater gravitas, the findings of fact having been made. Upon acquittal, the term victim may be used to soften the reality that the evidence proffered by the Crown simply did not meet the criminal standard required for conviction. Defence counsel and Crown's should be mindful of the large array of meanings the term can import, and weary of being too cavalier in its usage. For Crowns, there is little lost in referring to a witness as complainant or simply by name throughout the proceedings prior to conviction, but equivalently, defence counsel should recognize that the term is to be broadly construed, and the occasional use of the word victim by a Judge does not imply bias or a pre-ordained outcome of a trial.

STRATEGY

The definition of the term victim often arises in situations where the Crown is seeking a publication ban on one of the victim's names, or alternatively, when the Crown is attempting to submit a victim impact statement from a collateral who purports to have been victimized by the crime. These situations often arise in cases where a youthful teen has been assaulted, and the parents submit victim impact statements, or as was seen in R. v. K.J. referenced below, where a social worker was able to submit a victim impact statement about the effect of the crime on one of her clients. Since victim impact statements can only be used for limited purposes, it is often an academic exercise in attempting to exclude a victim impact statement of a slighly less connected individual. Generally, the Court's preference has been to allow the statement to be read, with a judicial nod to the effect that a victim impact statement must be overtly directed to "permissible information" and "used for its intended purpose." As regards publication bans, again, the Courts have tended to take expansive definitions of the term and err on the side of granting the publication ban on the purported victim's name if requested.

QUESTIONS AND ANSWERS

Q.

The person who caused harm to me has not yet been convicted. Am I still considered a "victim" at law under the Criminal Code?

A.

Yes. The definition set out in this section clearly defines a "victim" as someone "...against whom an offence has been committed, or is alleged to have been committed." Thus, the term "victim" could still be used in court to describe an alleged victim even though the trial has not yet resulted in a conviction. Despite this, it is generally considered bad form to refer to a witness as a "victim" prior to a guilty verdict. Crowns, defence lawyers and Judges will tend to avoid that term until a conviction is rendered. This however results more from convention than operation of law. Contrariwise, it is not unusual for any courtroom participant to use the word "victim" interchangeably with the term "alleged victim" as the trial progresses. I.e. "The victim is requesting a publication ban prior to commencement of the trial, your Honour."

Q.

I am the victim of a crime. Am I automatically entitled to compensation?

A.

No. The criminal court system in Canada deals with the question of guilt or innocence of an accused, and the appropriate punishment upon conviction. The criminal process can impose restitution in the event of monetary loss. For example, if a person damaged your vehicle and is convicted of mischief, the Court can impose payment of restitution on an accused to pay for the damage caused. This is known as a free-standing restitution order. The criminal court, however, is not equipped to deal with loses due to pain and suffering or psychological damage. The civil law system, or alternatively, the criminal injuries compensation boards of the various provinces are best suited to dealing with damages beyond basics in a criminal context.

RELATED CASES

The Alberta Court of Queen's Bench deals with whether siblings of the victim of a crime constitute "victims" as per the Criminal Code, in the context of granting a publication ban on the victim's names. Justice Strekaf holds at paragraph 20: "Under this definition, the siblings of the deceased child do not qualify as victims for the purposes of section 486.4 and, therefore, no application was properly before the Court on their behalf, nor was there jurisdiction to grant an order on their behalf."
Justice Mossip of the Ontario Superior Court of Justice considers the definition of "victim" as drafted in section 2 of the Criminal Code at paragraph 32 in the context of victim impact statements. Recognizing, at paragraph 30, that the purpose of a victim impact statement was: "[to]...provide information to the Judge about the impact of the crime" and "...provide the victim an opportunity for meaningful participation", the Judge endorsed an expansive definition of the term victim to include "...both direct victims and victims directly affected." Thus, individuals impacted by the crime, in this case the social workers who took the initial crime report, were allowed to submit victim impact statements.

RELATED LINKS

A relatively recent focus on victim's rights in Canada has led to the creation of the Canadian Victims Bill of Rights. The Act received Royal Assent on April 23, 2015 under the Harper government, begins with preamble that "...victims of crime and their families deserve to be treated with courtesy, compassion and respect, including respect for their dignity"
Ontario has a specialized tribunal known as the Criminal Injuries Compensation Board (CICB). Its function is to assess monetary compensation for victims and family members of deceased victims of violent crimes committed in Ontario.
The Compensation for Victims of Crime Act is a piece of legislation in Ontario that sets out the process, the tribunal and compensation system for victims of crime in Ontario.

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