NCJ Number
57887
Journal
CRIMINAL LAW QUARTERLY Volume: 20 Issue: 3 Dated: (JUNE 1978) Pages: 383-408
Date Published
1978
Length
26 pages
Annotation
A CRITICAL ANALYSIS IS PRESENTED OF A PROPOSAL BY THE LAW REFORM COMMISSION OF CANADA TO ACCORD RESTITUTION A CENTRAL ROLE IN SENTENCING.
Abstract
THE CANADIAN CRIMINAL CODE'S PROVISIONS REGARDING WHEN AND HOW RESTITUTION ORDERS MAY BE IMPOSED AND ENFORCED ARE INADEQUATE FOR IMPLEMENTING THE COMMISSION'S PROPOSAL. STATUTORY INADEQUACIES CAN BE RESOLVED. A MORE FUNDAMENTAL PROBLEM HAS TO DO WITH THE COMBINING OF PUBLIC AND PRIVATE INTERESTS THAT IS IMPLIED IN USING RESTITUTION AS A DISPOSITION. THE RIGHTS OF THE INJURED OR AGGRIEVED TRADITIONALLY HAVE BEEN HELD SEPARATE FROM THE CRIMINAL LAW. PROBLEMS ARISE WHEN AN ATTEMPT IS MADE TO SETTLE AT THE SAME TIME QUESTIONS OF PUBLIC AND PRIVATE INTERESTS (I.E., BOTH THE ACCUSED'S GUILT AND THE VICTIM'S COMPENSATION) IN A PROCEEDING THAT IS STRUCTURED TO DEAL WITH ONLY ONE SET OF VALUES. ADDITIONAL PROBLEMS SURFACE WHEN ORGANIZATIONAL AND OPERATIONAL REALITIES OF THE CRIMINAL JUSTICE SYSTEM ARE CONSIDERED. THESE PROBLEMS CONCERN THE FOLLOWING: (1) WHETHER COURTS ARE LIKELY TO IMPOSE RESTITUTION IF THEY SEE THEMSELVES ACTING AS COLLECTION AGENCIES; (2) WHETHER CRIMINAL COURTS ARE COMPETENT IN DECIDING DAMAGES; (3) THE POSSIBILITY THAT DOLLARS (WILLINGNESS TO MAKE RESTITUTION) MIGHT BE TRADED FOR LENIENCY; (4) THE ACCURACY OF CLAIMS THAT RESTITUTION REHABILITATES; (5) THE POSSIBILITY THAT PROMOTING RESTITUTION WILL RAISE FALSE HOPES FOR MOST VICTIMS, PARTICULARLY IN LIGHT OF THE FACT THAT THE MAJORITY OF CRIMES GO UNSOLVED; (6) THE QUESTION OF WHAT IS TO BE DONE ABOUT VICTIMS' RIGHTS WHEN CASES ARE 'DEALT AWAY' IN PLEA BARGAINING; AND (7) THE POSSIBILITY THAT SOME VICTIMS MIGHT ABUSE THE SYSTEM BY PRESSING CHARGES TO COLLECT A DEBT THROUGH A RESTITUTION ORDER. IT IS CONCLUDED THAT THE COMMISSION'S PROPOSAL IS WELL MEANING BUT IMPRACTICAL. (LKM)