JACK H. BATTEN July 14 1962


JACK H. BATTEN July 14 1962



A lawyer makes the case for

While our courts show mounting concern for the rehabilitation of criminals, ive leave the innocent people they have robbed and maimed on their own, often to face cruel hardships. Here are the facts, and the one solution that promises justice for both parties to a crime

LAST SUM MEK nearly a dozen elderly women in Toronto were the victims of a cruel fraud that cost some of them the savings of their lives. They were fleeced by the operators of phony home improvement businesses, who convinced the women that the roofs and exteriors of their houses needed expensive—and completely unnecessary—repairs.

“They said my roof would collapse with the first heavy snow,” Alice Langford, a seventyfour-year-old spinster, later testified in court. She lost several hundred dollars to the con men for work that an expert carpenter valued at two hundred dollars. Some of her neighbors suffered far greater losses for equally fraudulent work, and in every case it was money that the victims could never replace.

The phony builders eventually received penitentiary sentences, but the women they robbed were left with an even bleaker future. None of them recovered their money, none received compensation of any sort for their losses. “What it probably means for some of them,” says the assistant manager of the Toronto Better Business Bureau, who first investigated the home improvement racket, “is that their lives have been shortened by just that many years.”


The fate of these spinsters and widows points up one of the major failings of our present day criminal law system—it seeks to provide no relief whatever for the victims of crimes. In recent years our criminal courts have shown an increasing interest in the reformation and rehabilitation of the prisoners they convict and sentence. In the midst of this new concern, it is the law-abiding victim who is forgotten. Far too often he is left the biggest loser of all by the courts, and he may continue to pay a penalty for being victimized long after the criminal has finished paying his debt for committing the crime. Dr. Stephen Schafer, reader in criminology at the University of Maryland, recently made a far-ranging study of this anomalous situation. “The number of victims may be assumed to have increased at the same rate as criminals,” he concluded. “But there has been no improvement in the victim’s lot to compare

with the advances which have been made in criminology, and certainly not to compare with the amelioration of the lot of the criminal which has taken place.”

In Canada the provisions of our Criminal Code—the only statute that mentions victims of crimes—offers them only small hope of relief. Basically the code empowers the judge presiding at a criminal trial to do three things for the victim: one, order a person convicted of an indictable offense to compensate his victim for any loss or damage to property caused by the offense; two, order restitution to the victim of any property taken from him by the convicted person; and three, place the convicted man on suspended sentence on condition that he make reparation for “the actual loss or damage caused by the commissioner of the offense.”

These provisions, mildly promising on paper, are hedged in with enough conditions and qualifications to take away almost all of their theoretical effectiveness. A judge can order stolen property restored to its rightful owner, but only if the property is before the court at the time of the trial and only if it can be positively identified by the owner. This presents an almost impossible hurdle when the stolen property is money. In one recent case, a thief was convicted of stealing bank notes, but there was no evidence to prove that the stolen notes were the same notes found on the thief when he was arrested. The burgled victim recovered nothing, and at the conclusion of the case an order was made returning all the notes, stolen or otherwise, to the convicted robber.

The most useful provision of the code, poten-

tially, is the section permitting a judge to order restitution for “actual loss or damage” as a condition of giving the convicted man a suspended sentence. But to most lawyers this section is shrouded in mystery. What does “actual” loss mean and how far does it go? Does it allow an assault-and-robbery victim to recover for the knock on his head? Can a woman indecently assaulted recover for psychic shock? No one can be certain since no judge has yet made a decision that interprets and explains the section. In fact one specialist in criminal law can recall hearing this section applied only once— a fighting drunk was put on probation on condition that he reimburse the victim of one of his punches for the price of a new upper plate.


But the greatest obstacle to the code's effective use, according to Toronto criminal lawyer Joseph B. Pomerant, is that no one in our courts is exclusively interested in speaking for the victim. “The crown attorney is primarily concerned with developing the crown’s case,” he points out, “and to him the victim is simply another witness.” The solution, Pomerant suggests, is to give the victim’s own lawyer some status in the criminal trial. “Right now, the victim's counsel has no right to be heard, but if he were permitted to address the court before sentence of the convicted man, he might persuade the judge to use the code for the benefit of his client.”

Even with this reform there would still be a serious practical problem in actually getting any money the court might think just out of the hands of the man who committed the crime into the hands of the man he committed it against. In most cases’compensation depends on the ability of the convict to pay. Since most criminals, with the possible exceptions of gamblers and Mafia operators, are neither affluent nor stable members of the community, they would rarely have money to meet a compensation payment. The code permits the victim to turn his order for restitution into an ordinary civil judgment and to enforce it in all the usual ways. But few victims are willing to lay out yet more money in CONTINUED ON PAGE 46



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It’s hard to get damages from a jailbird who earns 25c a day

attempting to collect on a judgment against a criminal—crooks are by and large a judgment-proof class, especially the ones earning twenty-five cents a day in prison.

The criminals who do have money often manage to conceal it, before their conviction, out of reach of the courts and of their victims. The Toronto Better Business Bureau suspects that this is a common practice among door-to-door swindlers. The bureau reports that it receives frequent complaints of men working these rackets again even after one or two convictions and jail sentences. Since the bureau has no record of anyone receiving restitution for losses, the only conclusion is that the proceeds of one fraud have been stored away to finance the next one.

At this point the victim can hardly be blamed for wanting a return to the good old days when restitution took place in its purest form, the days when the victim collected everything and the state nothing, t his may have been only a slight variation on that primitive axiom. “An eye for an eye. a tooth for a tooth." but at least it didn't callously ignore the victim — as we do now. Pure restitution died out sometime in the Middle Ages when the state took over the duties of law enforcement and directed that fines and penalties should be paid into the public coffers, rather than to the victim. The barons and ecclesiastical authorities who instituted the new system weren't motivated by noble sentiments; the fines were just another source of revenue for them. But the idea that a criminal offense was an act against the state, not against the individual, hung on and led to the watered-down system of restitution we practise in our courts today. The results have penalized the victim.

A few countries — not including Canada — have finally recognized this and are at last beginning to investigate the only possible solution to the problem. This is a system of state compensation to victims of all crimes. In England, where the most progress has been made, the movement was triggered by a blatant example of a victim's unfair treatment by the courts. A London shopkeeper was attacked by a pair of thugs who beat him so badly that he lost his sight. Under statutory provisions similar to the sections in our code, the court that convicted the thugs ordered them to compensate their victim at the rate of five shillings per week. But the blind shopkeeper's injuries were fixed at £. I 1,500. At the rate of five shillings a week he would have to live 442 years in order to collect in full. The case created so much public feeling that it led to the appointment of a government committee to study the whole question of state compensation, and to the introduction in parliament of two private members’ bills. There has been no legislation passed yet. but the favorable report of the committee indicates that new legislation isn't far away.

There have been cases in Canada just as shocking as the English case, but so far none has stimulated a reform movement. Lawyers, law teachers and legislators seem mostly apathetic to the problem. “We don't want to make any changes that might interfere with the business of trying criminals.” one Toronto lawyer says. “It might turn the criminal courts into some kind of collection agency.” The opposition is just as casual as this statement suggests. No one has really taken the time to articulate the arguments against state compensation, but in general there are three of them, all equally unconvincing.

State compensation will make people careless to the dangers of crime.

A group of judges and lawyers who met at the University of Atlanta two years ago thought that Americans might become downright nonchalant toward crime if they could expect to be compensated for any risks. "Compensation insurance robs the insured of a good deal of his otherwise present vigilance toward danger.” they reported. This argument might have some slight application to fraud cases, but it hardly applies to crimes of violence. Automobile insurance hasn't created a race of crash-happy drivers, and a system of state compensation won't induce ordinary citizens to challenge an armed robber or cross a bigtime gambler. Even in nonviolent crimes, like fraud and false pretenses, the victims arc less likely to be nonchalant than they are to be helpless or gullible, and there's no reason why cither of these failings should make the hapless victim ineligible for compensation.

Outraged souls, not pocketbooks

A more real problem is the danger of exaggerated or fraudulent claims. A man who hurts himself in a drunken fall might claim that he had been attacked in order to protect his good name; frequently women who complain that they have been raped turn out to have made all their objections after the event. It would take careful policing to prevent these people from receiving compensation. It might be necessary to make it an offense to declare a false statement in an application for state relief.

State compensation will interfere with the prosecution of criminals^

The opposition of most law enforcement agencies to state compensation is based on the ways in which it might influence crown witnesses. They are afraid that a witness who is already assured of compensation for his injuries or losses will be reluctant to testify against his assailant in court. But many trial lawyers don't agree that a witness will clam up for that reason alone. "Most witnesses in criminal cases,” says one experienced Toronto counsel, “testify out of a sense of outrage to their souls, not to their pocketbooks. At least in court, they seem more angry over being defrauded or slugged than over financial losses. Compensation wouldn't make the slightest difference to the tone of their testimony.”

Slate compensation is an unwarranted extension of the welfare state.

The judges and lawyers at the Atlanta conference decided that this was their main objection. State com-

pensation would produce "sociological decadence," they reported, and lead to “the abandonment of individual responsibility." This is the familiar argument used against practically every piece of social legislation in the last thirty years and it shouldn't apply now any more than it ever did.

In fact the argument has even less application in 1962. The state already makes provision for so many accidents of life that it is too late to deny relief to anyone as deserving as the victim of a criminal offense. The English parliamentary committee pointed to this obvious blank spot in government assistance and used it as the principal justification for its recommendations:

"Although the welfare state helps the victims of many kinds of misfortune, it does nothing for the vic-

tims of crimes of violence as such, notwithstanding that they are largely deprived of the means of self-protection and in most cases have no effective remedy at law. There is an argument for filling this gap, based mainly on considerations of sympathy for the innocent victim, but falling short of acceptance of any bounden duty to mitigate the victim's hardship: and we think this argument more likely to appeal to the public than any more abstruse principles

In Canada the handsome protection that our laws give to cars and their drivers contrasts grimly with the treatment of criminal victims. Miss Langford. the defrauded spinster, would be far better off financially if she had been struck by a hit-and-run driver instead of a hit-and-run con man. She

could have recovered for her injuries from Ontario’s Unsatisfied Judgment Fund, which was created to cover just such cases. But there is no similar fund in Ontario, or any other province. tor destitute fraud victims or crippled assault victims.

The victim stands by himself. No government now has any obligation to pay him compensation when it fails to protect him from criminal violence. The courts aren't much help to him and the state won't allow him to take the law into his own hands. The criminal has the last laugh — the victim’s taxes help pay for the criminal's food, lodging, entertainment. heat, light and reform during his term in prison. It's about time we gave the victims of crime the same just treatment we give the criminals.★