Guest Blog by: Kathryn Adams
While it can initially seem like a victory for a crime victim to be awarded a Restitution Order by a Canadian Court , in reality it usually is not. Collecting on such orders is frustratingly elusive due to the many protections that offenders enjoy, impeding the victims who are seeking outstanding restitution through civil court.
The woman who was convicted of embezzling from my small business was sentenced to house arrest. As part of her house arrest and parole requirements, she was ordered to make restitution payments, which she did while under court supervision because she feared actual jail. Avoiding incarceration can be a powerfully persuasive motivator.
Alas, collecting on the remainder of the order is causing significant difficulty because the deck is stacked in favour of the offender. The offender in my case feels fully entitled to keep the remaining funds that she was convicted of stealing, which is a huge sum. Now that the period of house arrest and parole supervision has come to an end, there is no incentive for the offender to repay the balance of the order against her.
The offender has boldly declared to her parole officer that she “declines to pay” any further restitution (even though she is quite able to do so) once she is free of legal supervision. An offender who knows how toothless the laws are for civil enforcement of restitution orders can display a lot of hubris without fear of repercussion.
The offender has no obligation to disclose to me (or to her parole officer) the name of her legal representative, which now makes it difficult for me to serve legal notices. Moreover, the parole officer was legally unable to disclose to me the name of the offender’s employer or home address because of Canadian privacy laws. Steps to enforce a restitution order require that the offender be served with a request to pay.
A victim cannot serve notices to an offender who is legally permitted to hide behind privacy laws. Restitution orders are thus rendered largely useless to a victim and issuing them becomes little more than a formality.
A web search for information turns up little else than cautions about how difficult the process is to gain enforcement of a restitution judgement. It leaves the victims to bear an egregious portion of the cost of enforcing reparations in addition to the cost of the crime losses they have already suffered.
While “remedies” to enforce collection exist, in practical application they do not. In theory, one can seize bank accounts of offenders but that requires knowing the offender’s bank account numbers. The banks would violate Canada ‘s privacy laws if they disclosed such information without the account-holder’s consent. No offender is going to permit such a disclosure.
Even if a bank account number was discovered, the offender can simply and immediately switch banks and/or account numbers, forcing the victim back to square one.
Saskatchewan has a very successful Civil Enforcement Program that has unequivocally proven that such a program works. Victims who are assisted in collecting restitution are less of a drain on other social systems. Holding offenders accountable to pay restitution even beyond their incarceration is a significant deterrent to crime, and certainly a deterrent to recidivism.
The implementation of such a program is necessary ASAP in all provinces, as both a further disincentive to offenders who would commit fraud and, concomitantly, a welcome means for victims to collect far more successfully on their restitution judgments.