Avenues to Address Crime for Victims (4:III)

From Clicklaw Wikibooks



A. Pursuing the Matter Through the Criminal System

Apart from the initial report to police, the victim is not responsible for the prosecution of the offender. The burden to conduct the case is on the Crown. The crime is also against the community, and the victim is a witness to this crime. Whether the victim wants to proceed, drop charges, or testify has little bearing on the case.

Police can make an arrest if there are reasonable grounds for the police to believe that an offence has been committed, if there is a warrant, or if they find a person committing an offence. If the Crown believes that there is a reasonable likelihood of conviction and it is in the public interest to proceed, a charge must then be laid. However, if the police decide not to recommend charges and if the explanation is unsatisfactory, the victim may want to discuss the situation with a superior officer. In BC, the police are not responsible for laying charges; they are responsible for completing an incident report or a Report to Crown if they are recommending charges, but it is up to Crown to determine whether charges will be laid. If Crown has not approved charges and the explanation is not satisfactory, the victim may wish to discuss the matter with a more senior Crown Counsel. If still not satisfied, the victim may write to Regional Crown Counsel. Finally, it may be appropriate to write to the BC Attorney General in Victoria.

A factsheet outlining complaints processes for justice agencies has been developed for victims and is available here.

For individuals in situations which they believe is dangerous, but are not assault, sexual assault or other more common types of violent offences, there are various sections of the Criminal Code that may be relevant. If a client is a victim of one of these offences, it is within their rights to contact the police and ask that charges be laid. The following is a list of some related offences:

  • s 264(1): Criminal Harassment; s 264.1: Uttering Threats; s 346: Extortion; s 372(1): False Messages; s 372(2): Indecent Phone Calls;s 372(3): Harassing Phone Calls; s 423: Intimidation; s 425: Offences by employers (threats and intimidation); s 430: Mischief (damage to property); and s 810: Breaching a Peace Bond.

If the accused is convicted of an offence, the victim may submit an application for an order that the accused pay an amount by way of satisfaction or compensation for loss or damage to property suffered by the applicant as a result of the commission of an offence. This is known as a restitution order and can be found under s 738 of the Criminal Code. The application must be made early enough for the judge to render a decision at the time of sentencing and the loss must be quantifiable. Restitution amounts must be easily calculable and not in great dispute.

Restitution will not be ordered in all cases where there is monetary loss or damages. The judge must consider whether a restitution order should be included in the sentence and whether all aspects of the sentence reflect the purposes and principles of sentencing and are appropriate given the circumstances of the offence and the particular offender. The ability of the offender to pay a restitution order will be a consideration. Restitution cannot be ordered for pain and suffering or other damages that can only be assessed in the civil courts.

The aspects of physical injury/psychological harm that could be covered by restitution would only be those that are quantifiable from a cost perspective and that take place prior to sentencing.  For example, these may be:

  • medications not covered by insurance
  • costs related to medical treatment
  • counselling expenses 

This makes it distinct from the more general and less quantifiable “pain and suffering.”

Although the restitution order is made by a criminal court as part of an offender’s sentence, it is similar to a civil order in some aspects. If the offender does not pay the amount ordered, the victim can file the order in the civil court and use civil enforcement methods to collect the money. For example, bank accounts may be seized or liens placed on property.

1. The Canadian Victims Bill of Rights

This Act recognises that crime has a harmful impact on victims and on society. This Act lists out the rights of victims, as well as those who are authorised to act on their behalf. Section 3 provides that if the victim is dead or incapable of acting on their own behalf, another person may be able to act on their behalf.

A victim is defined as a person who has suffered physical or emotional harm, property damage, or economic loss as a result of a crime. However, a person who has been charged, convicted, or found not criminally responsible due to a mental disorder for the offence that resulted in the victimisation is not defined as a victim. Furthermore, s 19(2) stipulates that a victim is entitled to exercise their rights under this Act only if they are present in Canada or they are a Canadian citizen or a permanent resident.

Adhering to this definition, victims of crime are able to exercise their rights under this Act while an offence is being investigated or prosecuted and while the offender is going through the corrections or conditional release process. The offence committed against the victim must fall under the Criminal Code, the Youth Criminal Justice Act, or the Crimes Against Humanity and War Crimes Act. The rights also apply to some offences under the Controlled Drugs and Substances Act and parts of the Immigration and Refugee Protection Act.

The rights apply to offences which occur in Canada. They also apply if the offence is investigated and prosecuted in Canada or if the offender is serving a sentence or conditional release in Canada.

Victims have the right to:

  • request information
  • have their security and privacy considered by the appropriate authorities, be protected by the criminal justice system
  • participate by presenting victim impact statements
  • request that their identity be protected
  • have the court consider making a restitution order against the offender
  • have a restitution order entered as a civil court judgment that is enforceable against the offender

A judge can order restitution for financial losses related to:

  • damaged or lost property due to the crime
  • physical injury or psychological harm due to the crime
  • physical injury due to the arrest or attempted arrest of the offender
  • costs for temporary housing, food, childcare and transportation due to moving out of the offender's household (this only applies if a victim has moved because they had been physically harmed or threatened with physical harm due to the offence, arrest, or attempted arrest of the offender)
  • costs that victims of identity theft had to pay to re-establish their identity, and to correct their credit history and their credit rating

No cause of action, right to damages, or right to appeal exists from any decision or order arises from an infringement or denial of a right under this Act.

If not satisfied by the response of the federal department, agency, or body, victims have the right to file a complaint with the relevant authority. Victims also have the right to file a complaint if they are of the opinion that their rights under this Act have been infringed or denied by a provincial or territorial department. All federal departments and agencies that have responsibilities under this Act need to provide a way for victims to file complaints. Complaints against a provincial or territorial agency, like police or victim services, will be addressed through the appropriate provincial or territorial laws.

Additional information can be found here.

2. Court Orientation, Preparation and Accompaniment

If a charge is laid, the victim may be asked to testify as a witness, or may want to deliver a victim impact statement. They can receive help from Victim Service Workers, who can explain their rights, the type of support available, and their role in the criminal justice process. Victim Service Workers can also help with Crime Victim Assistance Program applications, and provide victims with information about subpoenas, pre-trial meetings with Crown, the court process, as well as court accompaniment for victims who attend court. Victim impact statements allow the judge to determine whether a restitution order is required if the victim experiences a financial loss and any information on the statement may be used to impact the sentencing process for the offender.

For more information, including guides for both child and adult witnesses, and on victim impact statements, click here.

Under s 486 of the Criminal Code, witnesses can receive testimonial accommodations such as testifying behind a screen, on video camera so as to not see the offender or in a closed court upon application. The Crown counsel in charge of the prosecuting the offence will generally ask the victim whether or not they would like testimonial accommodation but victims can also speak with the Crown counsel to discuss the matter.

Victims can also request language assistance, including visual language assistance, if they are required to testify in court. The Ministry of Justice provides court interpreters to translate criminal and family law court proceedings in a variety of different languages. Additional language support for other court related activities is available through outside organisations. Individuals can find a full list of language assistance services available at the following link: http://www2.gov.bc.ca/gov/content/justice/criminal-justice/bcs-criminal-justice-system/services-and-resources/translation-services


3. Victim Travel Fund

The Victim Travel Fund provides funding to a maximum of $3 000 per family/victim to help attend and participate in interviews, hearings, and other justice-related proceedings. Funding is available to victims who have suffered significant physical or emotional trauma as a result of a serious criminal offence, and victims who require a support person to attend a proceeding. Funding is also available to immediate family members of deceased victims (e.g., parents, spouse, children, and siblings). Eligible expenses may include meals, accommodation and the most economical form of travel. Applicants for the Victim Travel Fund must also meet the following criteria:

  • make the applications prior to the justice proceeding
  • to the eligible, the applicant has to travel more than 100 km one way to attend the justice proceeding
  • the justice proceeding will take place in BC and the proceeding is expected to impact the outcome disposition or results of the proceeding or hearing (this excludes provincial parole and federal hearings)
  • travel and related expenses are not covered by Crown counsel, the Crime Victim Assistance Program, or any other source

For more information or to request a Victim Travel Fund application form, call the Victim Safety Unit at 604-660-0316 or toll free at 1-877-315-8822, or e-mail vsusg@gov.bc.ca.

Furthermore, you may contact VictimLinkBC by phone at 604-875-0885 or email victimlinkbc@bc211.ca to ask to be connected to a victim service worker. A victim service worker may be able to help you apply for travel assistance.

4. Parole Board of Canada Hearings

If a conviction occurs, victims may still be affected later on by decisions to release the offender(s). Victims who wish to attend Parole Board of Canada hearings may apply for financial assistance, including for travel, hotel and meal expenses. In order to be eligible, victims must have registered with Correctional Service Canada. For information on registering, click here. Support persons may also be eligible for funding. Please note that this is only available for federally supervised offenders, and that applications should be submitted at least 30 days before the hearing date.

For more information, see the Department of Justice website.

B. Crime Victim Assistance Program

The Crime Victim Assistance Act [CVAA] is the primary piece of legislation that governs the Crime Victim Assistance Program (CVAP).

Although the CVAA and the Criminal Injury Compensation Act are both in force, it is expected that the Criminal Injury Compensation Act will ultimately be repealed. The transitional provisions of the CVAA allow previously adjudicated claims under the old Act to be transferred to the new Act for ongoing administration and for any further reviews.

It is important to remember that, unlike under the old Act, a person cannot be awarded damages for pain, suffering, mental trauma, etc. under the CVAA – although a person can be awarded a variety of benefits, such as counselling, medical expenses, and other services or expenses. The CVAP replaces the Criminal Injury Compensation Program. The Victim Services and Crime Prevention Division of the Ministry of Public Safety and Solicitor General administers this program.

The CVAP has been developed in response to the changing needs of victims and others impacted by violent crime. Benefits are available to victims of crime, and their immediate family members and those who meet the legislation’s definition of witness. One should note that the Program is not based on a compensation model, but rather is based on a financial assistance model. This provides eligible claimants with financial support as well as additional services and assistance to aid in their recovery from the physical and psychological effects of their victimization, and to offset the costs of the victimization.

Under the CVAA, a victim can still:

  • initiate civil proceedings on his or her own
  • make a claim under the Act

If a victim wishes to initiate civil proceedings after making an application under the CVAA, the CVAP Director must receive a copy of the notice of civil claim within 10 days of service on the defendant (CVAA, s 15(1)). After paying fees and disbursements, any money awarded to the victim in the civil proceedings must go toward paying back the money they received under the CVAA.

The fact that an accused has not been criminally charged or has been acquitted of criminal charges is not a bar to commencing civil proceedings as the legal issues and the standard of proof are different. The difficulty with recovering anything directly from the accused is that there is seldom anything to be collected.

Moreover, the procedure for making an application for assistance under the CVAA is less complicated than initiating a civil action.

1. The CVAA Does Not Apply To All Offences

The CVAA applies to offences involving violence, as opposed to property related offences. The list of offences for which the CVAA applies is set out in the Schedule of Offences that can be found in Schedule 1 of the Crime Victim Assistance (General) Regulations. The CVAA does not apply where the injury or death of the victim occurred:

  • in relation to an offence that occurred on or before July 1, 1972 (this is when the Criminal Injury Compensation Act came into effect);
  • as the result of a motor vehicle offence, other than an assault using the motor vehicle;
  • out of, and in the course of their employment; for which compensation is payable through workers’ compensation; or
  • outside of British Columbia.

The CVAA does not apply when the applicant is a party to the prescribed offence.

2. Who is Eligible and What They May Receive

a) Victims

“Victim” means a person who is injured or killed as a direct result of either a prescribed offence or when acting as a “good Samaritan” while:

  • (i) lawfully arresting or attempting to arrest a person, or assisting or attempting to assist a peace officer to arrest a person, in respect of a criminal offence; or
  • (ii) lawfully preventing or attempting to prevent an offence or a suspected offence under the Criminal Code or assisting or attempting to assist a peace officer to do so.

Victims may be eligible for the following benefits:

  • medical or dental services or expenses
  • disability aids
  • vocational services or expenses
  • repair or replacement of damaged or destroyed personal property (glasses, disability aids or clothing only - not stolen property)
  • vehicle modification or acquisition for disabled victims
  • maintenance for a child born as a result of the prescribed offence
  • lost earning capacity (in relation to long term injuries)
  • prescription drug expenses
  • counselling services or expenses
  • protective measures, services or expenses for high risk victims
  • home modification, maintenance or moving expenses
  • income support
  • transportation and related expenses
  • crime scene cleaning

b) Immediate Family Members

Immediate family members may be eligible for the following benefits:

  • counselling services or expenses
  • vocational services or expenses
  • income support for dependent family members of a deceased victim
  • prescription drug expenses (related to psychological trauma)
  • funeral expenses
  • transportation and related expenses
  • earnings loss due to bereavement leave
  • homemaker and child care expenses
  • crime scene cleaning

Under this Act, “Immediate Family Members” include persons who at the time of the offence were:

  1. a spouse, child, sibling, step sibling, half sibling or parent of the victim, and, for this purpose,
    • (i) “spouse” means a person who:
      • is married to the victim;
      • is living and cohabiting with the victim in a marriage-like relationship; or
      • was qualified as a spouse under law or was entitled to maintenance/alimony/support when the incident occurred
    • (ii) “child” includes:
      • a child to whom the victim stands in the place of a parent;
      • a child who is eligible for child support under another enactment;
      • a child of the victim born after the death of the victim; or
      • an adult to whom the victim stood in the place of a parent when the adult was a child, and
    • (iii) “parent” includes:
      • a person who stands in the place of a parent to the victim; or
      • a person who stood in the place of a parent to the victim when the victim was a child.
  2. if dependent in whole or in part on the victim for financial support, a grandparent or grandchild of the victim.

c) Witnesses

“Witness” is a person who, although not necessarily related to a victim, has a strong emotional attachment to the victim and who:

  • (i) witnesses in close proximity:
    • a prescribed offence that causes a life-threatening injury to, or the death of, the victim; or
    • the immediate aftermath of a prescribed offence that causes the death of the victim, in circumstances that are sufficient to alarm, shock, and frighten a reasonable person with that emotional attachment to the victim, and
  • (ii) suffers psychological harm that:
    • is diagnosed by a registered psychologist or a medical or nurse practitioner as a recognized psychological or psychiatric condition; and
    • in the opinion of the person who makes the diagnosis, is the result of the circumstances in subparagraph (i).

Witnesses may be eligible for counselling, and related prescription drug expenses, transportation expenses to attend counselling and crime scene cleaning expenses.

3. Application for Benefits

The application forms are available from the Crime Victim Assistance Program (contact information is at the beginning of the chapter under Resources) or from any police department, victim service program, and many community agencies. They are also available on the Victim Services page of the Ministry of Justice website.

The Crime Victim Assistance Program staff will then obtain a police report of the incident (if the matter was reported to the police) and other supporting documents. When describing what happened on the application form, an applicant should give a general but clear statement of the event, and then make reference to the police report for additional details. She or he should include on the application:

  • the date the report was made to the police as well as the police report number if a police report has been made (although a police report is highly advisable it is not mandatory)
  • if a police report was not made, information should be provided as to why the incident was not reported and if possible, names of any witnesses, persons to whom a disclosure was made or to whom the incident was reported should be provided
  • information about what occurred
  • information about any physical or psychological injuries he or she may have received
  • names of any doctors, counsellors, or anyone else that has been seen as a result of the injuries
  • original receipts for expenses incurred as a result of the injuries. If the applicant has access to funding from other sources in relation to these expenses (e.g. extended health coverage, personal disability insurance, etc.) the original receipts should be sent to this funding source first and then CVAP will consider paying any remaining outstanding balance.

Minors can submit an application on their own and do not require a parent or guardian to apply on their behalf. However, applications for minors may also be submitted by their parent or guardian. A parent or guardian is not required because some parents or guardians may be supportive of the offender or feel that there is a stigma associated with the victimisation. In addition, some children do not want to have their parents know of the offence. In cases where the offender is the victim’s parent, the Ministry of Children and Family Development may take custody of the victim. In this case, a representative of the Ministry can make an application on behalf of the child.

Depending on the case, the applicant may be interviewed by the adjudicator. In rare circumstances, the applicant may be examined by the Program’s consulting medical practitioner if there are questions about the long term nature of the physical injuries sustained.

The Program will gather additional supporting information from a variety of sources such as medical, hospital, dental, employer reports, and information from CPP, Ministry of Social Development, or other sources relevant to the particular claim.

The decision regarding eligibility and entitlement to benefits involves a two-step process in which the adjudicator first determines whether the person is an eligible applicant and then determines what benefits, if any, will be provided. The decision will be made in writing and will set out the factors considered in making the determination.

4. Limitation Period

Generally, an application must be made within one year of the date of the offence or event. There are exceptions to the one year time limit, as follows:

  • If the offence involves a sexual offence, there is no time limit for making an application (other than that the offence must have occurred on or after July 1, 1972).
  • If the applicant is a minor, they have one year from the date they turn 19 to make an application. There is no time limit for the victim if the offence is a sexual offence. However, a minor does not have to wait until they are 19 to make a claim. Minors can submit an application on their own and do not need a parent or guardian to apply on their behalf. However, a parent or guardian may also submit an application for the minor.

The Director also has discretion to extend the one year time limit if satisfied that the application could not reasonably have been made within one year from the date of the offence or one year from the date the applicant turned 19.

5. Denials or Reductions in Benefits

Benefits can be denied if:

  • The victim does not meet the eligibility criteria;
  • The victim was a party to the offence that caused their injury or death; and/or
  • They fail to cooperate with law enforcement authorities.

Benefits can be denied or reduced if:

  • The benefits are available from another source for a same or similar purpose; and/or
  • The applicant contributed to the circumstances giving rise to the injury or death.

6. Payment of Benefits

Payments can be provided directly to the service provider, such as a counsellor, or as reimbursement to the applicant for expenses that were incurred prior to the decision being completed. Some applicants are eligible for income support or lost earning capacity benefits that are provided on a monthly basis.

7. Does the Alleged Offender Have to Be Charged or Convicted?

A police report is not required and it is not necessary for an offender to be identified, charged or convicted in order for an applicant to be eligible for benefits. Where the victim has not reported the offence to the police, information from a witness or someone the applicant disclosed the incident to, or a report from a health care professional, counsellor, social worker or other agency may be accepted as supporting evidence of the offence.

8. Co-operation with Law Enforcement

Since the Program is part of the criminal justice system, and is a publicly funded program, there is an expectation that the victim will cooperate with the police and Crown counsel in order to hold offenders accountable. There are some exceptions in relation to issues of non-cooperation, but in general, benefits may be denied or reduced if the applicant has no reasonable basis for failing to cooperate with law enforcement.

9. Prior Claims With the Criminal Injury Compensation Program (CICP)

Applications received prior to June 30, 2002 will have been adjudicated under the Criminal Injury Compensation Act, RSBC 1996, c 85 [CICA] by the CICP. Once a final determination was made under the CICA, ongoing administration of the claim transfers to the Crime Victim Assistance Program and any further reviews for reassessment or reconsideration will be conducted in accordance with the Crime Victim Assistance Act [CVAA].

If a person was receiving a pension from the CICP, they will remain eligible for an ongoing pension, subject to the same conditions and limitations, except where there is a change in circumstance such that their injury improves or worsens. In cases where there is a change in their condition, their claim will be reviewed under the provisions of the CVAA.

10. Types of Reviews

Once an original adjudication is completed, there are two types of reviews available. Under s 12 of the CVAA, if there is new information available or there has been a change of circumstance that could affect the applicant’s eligibility for benefits, a reassessment decision can be completed.

Under s 13 of the CVAA an applicant or their legal representative may request the Director to reconsider a decision. This request must be made in writing, identifying the error made in the decision to be reconsidered and be delivered to the Director within 60 days from the date the decision was made.

The Director may extend the time limit for making the request for reconsideration if satisfied that a request for reconsideration could not reasonably have been delivered within the limitation period. Note that since the legislation restricts consideration to whether or not the request could have been “delivered” within the requisite time period, there are limited grounds for an extension (e.g. interruption of mail service, applicant moved and the decision was returned to the program for re-direction, etc.).

A reconsideration decision is considered final and conclusive and is not subject to further review except by way of a judicial review. The legislation provides that an application for judicial review on a question of law or excess of jurisdiction must be brought not later than 60 days after the decision is made.

11. Criminal Injuries Outside British Columbia

National Office for Victims

Provides general information for victims and the public, referrals to the Correctional Service of Canada (CSC) and the Parole Board of Canada (PBC) for specific enquiries, and works to incorporate a victim’ s perspective in national policy development.

Online Website
Phone 1-866-525-0554


The following is a list of criminal injury compensation legislation and program contact information for all Canadian provinces. A person who was the victim of a crime of violence that occurred in another province can contact the relevant program to determine whether he or she qualifies for any form of compensation.

a) Other Canadian Provinces and Territories

Alberta
  • Victims of Crime Financial Benefits Program
Online Website
Address Alberta Solicitor General and Ministry of Public Security
9th Floor, John E. Brownlee Building
10365 – 97 Street
Edmonton, AB T5J 3W7
Phone (780) 427-3441
Toll-free in Alberta: 310-0000
Outside Alberta: (780) 427-2711


Manitoba
  • Compensation for Victims of Crime Program
Online Website
Address 1410-405 Broadway
Winnipeg, MB R3C 3L6
Phone (204) 945-0899
Toll-Free: 1-800-262-9344


New Brunswick
  • Victim Services Program
Online Website
Email: DPS-MSP.Information@gnb.ca
Address Argyle Place
P.O. Box 6000
Fredericton, NB E3B 5H1
Phone (506) 453-3992


Newfoundland
  • Victim Services Program, Provincial Headquarters
Online Website
Email: victimservices@gov.nl.ca
Address Department of Justice
Victim Services Program
4th Floor, East Block
Confederation Building
P.O. Box 8700
St. John’s, NL A1B 4J6
Phone (709) 729-7970


Northwest Territories
  • Government of the Northwest Territories
Online Website
Address Department of Justice
c/o Public Trustee Office
P.O. Box 1320
Yellowknife, NWT X1A 2L9
Phone (867) 873-7500


Nova Scotia
  • Criminal Injuries Compensation Board
Online Email: justweb@gov.ns.cac
Address Victim Services Division
5151 Terminal Road, 3rd Floor
P.O. Box 7
Halifax, NS B3J 2L6
Phone (902) 424-4030


Ontario
  • The Criminal Injuries Compensation Board
Online Email: info.cicb@ontario.ca
Address 4th Floor, 655 Bay Street
Toronto, ON M7A 2A3
Phone (416) 326-2900
Toll-Free: 1-800-372-7463
Fax: (416) 326-2883


  • Victim Notification System (VNS), Ontario Ministry of the Attorney General
Online
Phone (416) 314-2447
Toll-Free: 1-888-579-2888


Prince Edward Island
  • Victim Services
Online Website


  • Queens and Kings Counties
Address Honourable C.R. McQuaid Family Law Centre
1 Harbourside Access Road
P. O. Box 2000
Charlottetown, PE C1A 7N8
Phone (902) 368-4582
Fax:(902) 368-4514


  • Prince County
Address 263 Harbour Drive
Suite 19, 2nd Floor
Summerside, PE C1N 5P1
Phone (902) 888-8217 or (902) 888-8218
Fax: 902) 888-8410


Quebec
  • Commission de la sante et de la sécurité du travail, Dir. l’indemnisation des Victimes d’actes criminels
Online Website
Email: info@ivac.qc.ca
Address 1199, Rue Bleur
C.P. 6056, succursale Centre-ville
Montreal, QC H3C 4E1
Phone (514) 906-3019
Toll-Free: 1-800- 561-4822
Fax: (514) 906-3029


Saskatchewan
  • Victim Services
Online Website
Email: victimsservices@gov.sk.ca
Address 610 - 1874 Scarth Street
Regina, SK, S4P 4B
Phone (306) 787-3500
Toll-Free: 1-888-286-6664
Fax: (306) 787-0081


Yukon
  • Victim Services
Online Website
Email: victim.services@gov.yk.ca


  • Whitehorse
Address Street address: 301 Jarvis Street, 2nd floor, Whitehorse Yukon
Mailing address: Victim Services, Dept. of Justice, Government of Yukon, Box 2703, Whitehorse, Yukon Y1A 2C6
Phone (867) 667-8500
Toll free (In Yukon): 1-800-661-0408, local 8500
Fax: (867) 393-6240


  • Dawson City
Address Street address: 705B Church Street, Dawson City, Yukon
Mailing address: Box 1312, Dawson City, Yukon Y0B 1G0
Phone (867) 993-5831
Fax: (867) 993-6380


  • Watson Lake
Address Street address: 820 Adela Trail, Watson Lake, Yukon
Mailing address: Box 622, Watson Lake, Yukon Y0A 1C0
Phone (867) 536-2541
Fax:(867) 536-2684


C. Pursuing the Matter in a Civil (Tort) Action

Criminal court determines whether or not the accused is guilty, and if so, what would be appropriate punishment. However, the criminal court will do little in the way of providing compensation for the victim, other than possibly making a restitution order. Receiving financial compensation from the offender for the damages caused is one of the reasons why survivors of violence sue in civil court.

Examples of applicable torts include: assault; battery; trespass to the person; breach of privacy; intentional or negligent infliction of nervous shock or emotional distress; false imprisonment; trespass to land; intimidation (usually a business tort, but applicable in some cases), and defamation.

MacKay v. Buelow (1995), 11 RFL (4th) 403 provides a helpful illustration of the applicability of tort law in this area. The defendant (the plaintiff’s ex-husband) harassed and intimidated the plaintiff by continuously calling her, leaving notes at her home, threatening to kidnap their daughter, throwing things at the plaintiff, hanging a used condom in her home, stalking her, directly and indirectly threatening to kill her, videotaping her through her bathroom window, advising third parties about nude movies of the plaintiff, and continuously harassing her friends and colleagues. The court held that the conduct of the defendant was exceptionally outrageous and awarded the plaintiff damages based on the torts of trespass to the person, breach of privacy, and intentional infliction of emotional distress.

Pursuing the matter through the criminal justice system is best done before any civil action is taken, given that:

  • in a criminal case, the investigation is conducted by the police who are public servants, which saves the victim both time and expense in gathering witnesses and other evidence;
  • a criminal conviction is convincing evidence in itself; and
  • in a civil suit, the opposing side has more access to the victim’s personal history. If the civil suit is pursued concurrently or before the criminal trial, the information brought up in the former may leak into the latter. Furthermore, the accused could try to argue that the victim is pursuing the criminal trial only because they want to gain as much as possible in the civil action.

The burden of proof in a civil trial is lower than in a criminal trial, but the evidence must still be clear and convincing. As a plaintiff in a civil action, a survivor of physical or sexual assault must prove on a balance of probabilities that the assault was perpetrated by the defendant named in the action, and that this assault resulted in damages. This is a less stringent test than that placed upon the Crown in criminal proceedings, where the case must be established beyond a reasonable doubt. Thus, it is possible for a victim to win a civil suit even in the event there has been a previous acquittal in criminal proceedings.

A civil suit may also give the victim access to compensation from third parties and institutional defendants (e.g. government institutions, foster homes, and residential schools) upon whom liability may be imposed. This is beneficial where the individual perpetrator has few assets or none at all.

Pursuant to the Limitation Act, RSBC, c 266, in most cases, there is a two year limitation on initiating a claim in tort (s 6). However, there are exceptions to this rule. In BC, there is an exemption to the two year time limit for cases of sexual assault (s 3(1)(j)). The Limitation Act was also recently amended to also allow for an exemption for physical assault claims for minors and for adults who were living in a personal or dependent relationship with their abuser (s 3(1)(k)). The rationale for these exemptions are that those victims may not be expected to recognise the wrongness of what has happened to them and have the ability to bring a claim within a limitation period.

Bringing a civil action may be a long process and the plaintiff should consider the personal toll it may impose on them. Some victims who go through this process feel as though their life is on hold, and are unable to get on with other parts of their life. Remember, however, that in many cases the parties will settle, although the outcomes of negotiations are extremely difficult to predict. Some people may benefit from counselling while pursuing a civil action.

The victim should seek a lawyer who is experienced with this area of law. There may be issues and circumstances in each particular case that make it difficult to assess the probability of success. It is very important that individuals do not jump to conclusions as to whether or not it is “worth it” to take this route. Some lawyers may be willing to take on a case on a contingency fee basis, which means that they will get a certain percentage of any damages, if they are awarded.

NOTE: Others must not take control of the victim’s decisions. A victim should be informed of his or her options and the potential consequences of each course of action in order to allow him or her to give informed instructions to counsel.


© Copyright 2017, The Greater Vancouver Law Students' Legal Advice Society.


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