Restitution Collections in Nova Scotia: Making it Work for Victims

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1 Restitution Collections in Nova Scotia: Making it Work for Victims Lisa Warner Restitution Coordinator Victim Services, Court Services Division Nova Scotia Department of Justice April 2015

2 Restitution orders are unique - Codified cross-over between the criminal & civil courts. Restitution Order Debt owed to victim Civil Judgment Ordered by the criminal courts [Federal sentencing jurisdiction] The grey zone* But the mechanism of enforcement is civil process [Provincial administration of justice jurisdiction]

3 Current Situation in NS 1000 victims* awarded restitution annually Number of victims Baseline $3.0 M in financial losses $ millions $4.2 $2.9 $3.0 Baseline

4 Current Situation in NS 50% of victims are private citizens $895, in losses/yr * Sample year

5 Current Situation in NS Nearly ½ are stand alone orders Most are lower $ value Orders [I.e. 72% < $ ]

6 Current Situation in NS % of monies collected (Total restitution due by March 31, 2013) Collection rates are low % of orders with NO payments Example Compliance metric * Poor overall compliance for Stand alone Rest Orders * Sample year

7 CASE STUDY Victim of Fraud Restitution Due Date Crime/financial loss reported to law enforcement Criminal Investigation Criminal Prosecution Sentence (May result in offender serving custodial term and/or multi-year community sentence order) Civil Enforcement Victim assumes $ loss while state tries the accused Actual Inflation Lost Opportunity Costs: Term 3.4% Carrying Costs: Credit 18.5% 2007* $14, $14, $14, = $15, = $15, = $17, = $15, = $15, = $20, = $16, = $17, = $34, = $16, = $18, = $49, Enforcement Costs & requirement to independently navigate civil process Victim may incur additional expenses during criminal justice process associated with: - Assembling multiple repair quotes, uninsured losses & medical expenses, forensic audits, obtaining receipts - Asset depreciation & replacement costs - Court attendances, delays & adjournments - Missed work time - Child care - Transportation costs - Attendances at breach hearings - Following up with Correctional facilities/ Probation Officers/Court staff/parole Officers; including out of province when offenders have since relocated.

8 Challenges with civil enforcement Passive enforcement is ineffective in affecting recoveries from most criminal-debtors. Costs to pursue the order are rarely justified (both systems costs & personal costs). Requires victims pay fees and navigate a complicated civil process. Doesn t address the unique concerns and barriers faced by victim-creditors (I.e. secondary victimization, privacy concerns, etc.) Doesn t result in timely payment to meet victims immediate financial needs.

9 Competing Creditors Statutory priority creditors De facto priority creditors Better resourced judgment-creditors Other victim-creditors Approximately 50-60% of criminal activity is committed by 15% of the population. A victim with a Restitution Order is an unsecured creditor.

10 Victim as competing creditor CRA Restitution Order (Criminal Code) Victim A MEP Civil Judgment (NS Creditors Relief Act) Victim B Victim A Victim B Victim C Victim C

11 So what CAN we do? Use the collection mechanisms for victims that are available to the state?* (*Such as Motor Vehicle License suspensions, Federal Income Tax Set Off Program, etc.)

12 E.g. Federal Income Tax Set-Off Program - More cost-effective for collections of smaller value orders. - More effective in recovering against criminal debtors than passive enforcement. - Eliminates many of the process barriers experienced by victims through civil process (FOIPOP & offender privacy issues, victim privacy issues, secondary victimization, etc.) - Helps give meaning and effect to federal criminal sentencing orders (I.e. Realities of Inter-jurisdictional offender and victim mobility) - Assists with debtor-creditor priority issues. - Collection practices are Income tested.

13 Key Lessons Learned: The longer it takes for restitution to be paid, the greater the victims dissatisfaction with the criminal justice system, And the higher the costs to both the system and to the victim. Civil enforcement against the criminal offender demographic can be extremely complex. The costs to pursue recovery through civil process is rarely justified. Victims who are most in need of restitution repayment, are often the least well-positioned to pursue enforcement. We can t address all of the process barriers victims experience with civil enforcement in Nova Scotia. ALL successful recoveries required a high degree of collaboration between criminal and civil justice partners.

14 But restitution is not crown debt To affect recoveries through Income Tax Set-Off Program the debt must be: How? Restitution Debt Designation 1) Owed to the Crown, and 2) Levied pursuant to federal or provincial legislation

15 Current Statutory Framework Court-ordered restitution Debt owed to victim Victim assumes $ loss during criminal justice process If offender doesn t pay... Victim must independently pursue civil enforcement Possible Statutory/Regulatory Framework - Public Authority Court-ordered restitution Victim assigns debt to designated Public Authority Crown-designated Debt Only designated for the purpose of collections. (I.e. No effect on Treasury/Consolidated Revenue). Province collects $ through Public Authority on victims behalf Provincial agm t with Canada Revenue Agency (Income Tax Set-Off) Criminal order compliance Province disburses any $ s collected to victims Public Authority attempts collections until no longer in the interests of justice

16 Questions & Feedback? Lisa Warner Restitution Coordinator Nova Scotia Department of Justice Victim Services, Court Services Division PO Box Hollis St, 4th Floor Halifax, NS B3J 3L9 Toll Free: T: F: