Avenues to Address Crime for Victims (4:IV): Difference between revisions

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{{REVIEWED LSLAP | date= July 13, 2024}}
{{LSLAP Manual TOC|expanded = victims}}
{{LSLAP Manual TOC|expanded = victims}}


== A. Pursuing the Matter Through the Criminal System ==
== 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 criminal case.
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 criminal 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 substantial likelihood of conviction and that it is in the public interest to prosecute, a '''charge''' is 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 Counsel 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.  
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 substantial likelihood of conviction and that it is in the public interest to prosecute, a '''charge''' is 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 Counsel 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 [https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/criminal-justice/bc-criminal-justice-system/if-victim/publications/complaints-process-justice-agencies.pdf here].  
A factsheet outlining complaints processes for justice agencies has been developed for victims and is available [https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/criminal-justice/bc-criminal-justice-system/if-victim/publications/complaints-process-justice-agencies.pdf Complaints Processes for Justice Agencies in British Columbia].  


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:  
For individuals in situations which they believe are dangerous, but are not assaults, sexual assault, or other more common types of violent offences, there are various sections of the ''Criminal Code'' that may be relevant. If an individual 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.  
*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. 
=== 1. Seeking Restitution Orders ===


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.
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 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.


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:
For all convictions or section 730 discharges, the judge is required to consider making a restitution order (''Criminal Code'', s 737.1(1)) and victims must be given a reasonable opportunity to indicate whether they are seeking restitution (''Criminal Code'', s 737.1(2)). A judge is entitled to decide against making a restitution order, although they must provide reasons if omitting a restitution order against a victim’s wishes (''Criminal Code'', s 737.1(5)).


*medications not covered by insurance
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, although an offender’s financial circumstances do not prevent a court from making a restitution order (''Criminal Code'', s 739.1). Restitution cannot be ordered for pain and suffering or other damages which can only be assessed in the civil courts.
*costs related to medical treatment
 
*counselling expenses 
The only aspects of physical injury or psychological harm that can be covered by restitution are those that are quantifiable from a cost perspective and that take place prior to sentencing (''Criminal Code'', s 737.1(2)). A judge can order restitution for financial losses related to:
 
*damaged or lost property due to the crime (''Criminal Code'', s 738(1)(a));
*physical injury or psychological harm due to the crime (''Criminal Code'', s 738(1)(b));
*physical injury due to the arrest or attempted arrest of the offender (''Criminal Code'', s 738(1)(c));
*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) (''Criminal Code'', s 738(1)(c));
*costs that victims of identity theft had to pay to re-establish their identity, and to correct their credit history and their credit rating (''Criminal Code'', s 738(1)(d));
*reasonable expenses for the removal of intimate images published without consent on the internet or other digital network (''Criminal Code'', s. 738(1)).


This makes it distinct from the more general and less quantifiable “pain and suffering.”
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.  
Although the restitution order is made by a criminal court as part of an offender’s sentence, it is like a civil order in some respects. 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 (''Criminal Code'', s 741(1)). For example, bank accounts may be seized, or liens may be placed on property.  
 


=== 1. The Canadian Victims Bill of Rights ===
=== 2. The Canadian Victims Bill of Rights ===


This Act recognizes 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 authorized to act on their behalf. Section 3 provides that if the victim has passed away or is otherwise incapable of acting on their own behalf, another person may be able to act on their behalf.  
The ''CVBR'' recognizes 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 authorized to act on their behalf. Section 3 provides that if the victim has passed away or is otherwise 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, if a person is charged with or convicted of the offence that resulted in the victimization, they are not defined as a victim. The same applies if a person that suffers the harm or loss is found not criminally responsible for the offence that resulted in the victimization due to a mental disorder. 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 if they are a Canadian citizen or permanent resident.
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 (''CVBR'', s 2). However, if a person is charged with or convicted of the offence that resulted in the victimization, they are not defined as a victim; the same applies if a person that suffers the harm or loss is found not criminally responsible for the offence that resulted in the victimization due to a mental disorder (''CVBR'', s 4). Furthermore, a victim is entitled to exercise their rights under this Act only if they are present in Canada or if they are a Canadian citizen or permanent resident (''CVBR'', s 19(2)).


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''.
Adhering to this definition, victims of crime can 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 (''CVBR'', s 18). 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'' (''CVBR'', s 2). The rights also apply to some offences under the ''Controlled Drugs and Substances Act'' and parts of the ''Immigration and Refugee Protection Act'' (''CVBR'', s 2).


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.
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 (''CVBR'', s 5).


Victims have the right to:  
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.
*request information (''CVBR'', ss 6–8);
*have their security and privacy considered by the appropriate authorities and be protected by the criminal justice system (''CVBR'', ss –11);
*participate by presenting victim impact statements, and receive testimonial aids when testifying (''CVBR'', ss 13, 15;
*request that their identity be protected (''CVBR'', s 11);
*have the court consider making a restitution order against the offender (''CVBR'', s 16);
*have a restitution order entered as a civil court judgment that is enforceable against the offender (''CVBR'', s 17).


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.
No cause of action, right to damages, or right to appeal any decision or order arises from an infringement or denial of a right under this Act (''CVBR'', s 28).


Additional information can be found [https://www.canada.ca/en/services/policing/victims/rolerights.html here].  
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 (''CVBR'', s 25). 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, agency, or body, subject to the laws of that province or territory (''CVBR'', s 26). All federal departments and agencies that have responsibilities under this Act need to provide a way for victims to file complaints (''CVBR'', s 25(3)). 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 at [https://www.canada.ca/en/services/policing/victims/rolerights.html Victims' Roles and Rights in the Criminal Justice System - Canada.ca].


=== 2. Court Orientation, Preparation and Accompaniment ===
=== 3. Court Orientation, Preparation and Accompaniment ===


If a charge is laid, the victim may be asked to testify as a witness, or the victim 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 CVAP 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 [https://www2.gov.bc.ca/gov/content/justice/criminal-justice/bcs-criminal-justice-system/if-you-are-a-victim-of-a-crime/the-court-case/court-support here].
If a charge is laid, the victim may be asked to testify as a witness, or the victim 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 CVAP 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, is available at [https://www2.gov.bc.ca/gov/content/justice/criminal-justice/bcs-criminal-justice-system/if-you-are-a-victim-of-a-crime/the-court-case/court-support Court Support for Victims of Crime - gov.bc.ca].


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.
Under s 486 of the ''Criminal Code'', witnesses can receive testimonial accommodations such as testifying behind a screen, on video camera to not see the offender, or in a closed court upon application. The Crown counsel in charge of prosecuting the offence will generally ask the victim whether 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 [https://www2.gov.bc.ca/gov/content/justice/criminal-justice/bcs-criminal-justice-system/services-and-resources/translation-services here].
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 organizations. Individuals can find a full list of language assistance services available at [https://www2.gov.bc.ca/gov/content/justice/criminal-justice/bcs-criminal-justice-system/services-and-resources/translation-services Translation Services - gov.bc.ca].


=== 4. Things victims and witnesses should know about participating in a criminal trial ===


=== 3. Things you should know about being a witness ===
There are many resources available to witnesses to assist them during the court process and mitigate stress that arises from testifying. However, prior to agreeing to be a witness in a criminal case, a person must understand that the process may be an intrusive and uncomfortable experience. This is particularly relevant to victims, who in the process of testifying may feel retraumatized and contribute to feelings of revictimization.


Although as stated above there are many resources available to witnesses to assist them and to make the process of giving evidence in court less stressful it is important that before a person decides to be a witness in a criminal case, they understand the possibly intrusive and uncomfortable experience that they may be put through by agreeing to give evidence. This is particularly important for victims as the process may make them feel as if they are being revictimized.
==== a) All witnesses are generally compellable ====


Once a person agrees to provide evidence or disclose that they were involved in or witnessed a crime, a subpoena can be issued compelling them to attend court on a specific date to give evidence (''Criminal Code'', s 698). Individuals who have been served with a subpoena and fail to show up to court, or later refuse to give evidence at trial, may be arrested and charged with contempt, which carries a punishment including imprisonment of up to 90 days (''Criminal Code'', s 708). Further, if a person provides false evidence in court, they can be charged with perjury, which carries a punishment of imprisonment up to 14 years (''Criminal Code'', ss 131–132).


'''All witnesses are generally compellable'''
==== b) Cross-examination can be stressful ====


It is also important to understand that a competent witness is generally a compellable witness. Therefore, once you agree to give evidence or clearly make it known that you are a witness to a crime, a subpoena can be issued which compels you to attend court on a specific date to give evidence. If you have been served with a subpoena and you then fail to show up for the trial or later refuse to give evidence at trial, you can be charged with contempt. Also, if you lie while giving evidence in court, you can be charged with perjury.  
Cross-examination can be a stressful experience for a witness. Defence counsel will likely challenge a witness’ evidence to show that they are not a credible witness or that the evidence they are giving is unreliable (see [https://www.canlii.org/en/bc/bcpc/doc/2000/2000bcpc11/2000bcpc11.html?autocompleteStr=R%20v%20Parent%2C%202000%20BCPC%2011&autocompletePos=1 R v Parent, 2000 BCPC 11]). Defence counsel will generally do this by showing that the witness’s testimony is inconsistent with other independent evidence, they have made prior inconsistent statements, or their testimony has changed during direct examination and cross-examination. Defence counsel may also attempt to show that the witness has a motive to lie or mislead the court, which may include cross-examining them on any bias or prejudice they have towards the accused. Even if a witness appears credible, the defence may attempt to show that their evidence is unreliable because they are mistaken about what they saw.  


==== c) Discreditable conduct of a witness can be used to challenge their credibility ====


'''Cross-examination can be stressful'''
Section 12 of the ''Canadian Evidence Act'' states “a witness may be questioned as to whether the witness has been convicted of any offence, excluding any offence designated as a contravention under the ''Contraventions Act'', but including such an offence where the conviction was entered after a trial on an indictment.” In [https://www.canlii.org/en/on/onca/doc/1989/1989canlii7241/1989canlii7241.html ''R v Cullen'', 52 CCC (3d) 459] the Ontario Court of Appeal stated at para 9 that, “for the purpose of challenging a witness’ credibility, cross-examination is permissible to demonstrate that a witness has been involved in discreditable conduct.” Therefore, apart from the accused, any witness can not only be cross-examined on any criminal record that they have, but they can also be cross-examined on the details of those convictions, any pending charges, acquittals, or any other discreditable conduct which they may not have been charged with. For example, the defence may hire a private investigator to follow a witness to gather evidence on their conduct. If the witness was participating in discreditable conduct, the defence could use this evidence during a cross-examination as a means of discrediting the witness in court.


Cross-examination can be a stressful experience for a witness. Defence counsel will likely challenge a witness’ evidence in an attempt to show that they are not a credible witness or that the evidence they are giving is unreliable.  Defence counsel will generally do this by showing: the witness’s testimony is inconsistent with other independent evidence; they have made prior inconsistent statements; or their testimony has changed during direct examination and cross-examination.  Defence counsel may also attempt to show that the witness has a motive to lie or mislead the court, which may include cross-examining them on any bias or prejudice they have towards the accused.  Even if a witness appears credible, the defence may attempt to show that their evidence is unreliable because they are mistaken about what they saw. 
==== d) An accused can make an application to have third-party records of witnesses such as counselling records disclosed ====


The defence can make an application to a trial judge for the disclosure of third-party records, which include medical, psychiatric, therapeutic, and counselling records. Although the burden is higher for sexual offences, under s 278.3 of the ''Criminal Code'', the defence can make an application to a trial judge for the disclosure of such records. This also includes personal records such as a victim’s journal or diary. The disclosure of these records can be traumatizing for a witness or victim, particularly victims of a sexual offence.


'''Discreditable conduct of a witness can be used to challenge their credibility'''
The process the court undergoes when deciding whether to admit the records involves “the balancing of the rights of the accused under ss 7 and 11 of the ''Charter'' with the privacy rights of the complainant.” Unlike documents which the prosecution has in their possession, the burden is on the accused to prove that third-party records should be disclosed because the information is not part of the prosecution’s case, and third-parties have no obligation to assist the defence. However, under s 278.5 if the trial judge is satisfied that the defence’s application is made in accordance with s 278.3, and that they have established that the record is likely relevant to an issue at trial or to the competence of the witness to testify, and production of the record is necessary in the interests of justice, they may order the third party to produce the records. The trial judge will then review the records and may order their disclosure to the accused under s 278.7.


Section 12 of the ''Canadian Evidence Act'' states “a witness may be questioned as to whether the witness has been convicted of any offence, excluding any offence designated as a contravention under the ''Contraventions Act'', but including such an offence where the conviction was entered after a trial on an indictment.” In [https://www.canlii.org/en/on/onca/doc/1989/1989canlii7241/1989canlii7241.html ''R v Cullen'', 52 CCC (3d) 459] the Ontario Court of Appeal stated at para 9 that, “for the purpose of challenging a witness’ credibility, cross-examination is permissible to demonstrate that a witness has been involved in discreditable conduct.” Therefore, with the exception of the accused a witness can not only be cross-examined on any criminal record that they have, but they can also be cross-examined on the details of those convictions, any pending charges, acquittals, or any other discreditable conduct which they may not have been charged with. So, for example, the defence could hire a private investigator to follow a witness and if they gather evidence of discreditable conduct that the witness has been involved in, they could cross-examine that witness on that conduct for the purpose of discrediting the witness in court.  
=== 5. Victim Travel Fund ===


The BC 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 from 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:


'''An accused can make an application to have third-party records of witnesses such as counselling records disclosed'''
*the applicant must make the applications prior to the justice proceeding;
*the applicant has to travel more than 100 km one way to attend the justice proceeding;
*the justice proceeding must 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); and
*travel and related expenses are not covered by Crown counsel, the CVAP, or any other source.


It is unlikely that many victims would want the records of the discussions that they have had with their counsellor or therapist disclosed, particularly if they have been the victim of a sexual offence. The disclosure of such records can be traumatizing for a witness. However, the defence can make an application to a trial judge for the disclosure of third-party records, which include medical, psychiatric, therapeutic, and counselling records. Although the burden is higher for sexual offences, under s 278.3 of the ''Criminal Code'', the defence can make an application to a trial judge for the disclosure of such records which also includes personal records such as a victim’s journal or diary.  
For more information or to apply for the Victim Travel Fund, see this page: [https://www2.gov.bc.ca/gov/content/justice/criminal-justice/bcs-criminal-justice-system/if-you-are-a-victim-of-a-crime/victim-of-crime/victim-travel-assistance Victim Travel Assistance].


The process the court undergoes when deciding whether to admit the records involves “the balancing of the rights of the accused under ss 7 and 11 of the ''Charter'' with the privacy rights of the complainant.”  Unlike documents which the prosecution has in their possession, the burden is on the accused to prove that third-party records should be disclosed because the information is not part of the prosecution’s case, and third-parties have no obligation to assist the defence.  However, under s 278.5 if the trial judge is satisfied that the defence’s application is made in accordance with s 278.3, and that they have established that the record is likely relevant to an issue at trial or to the competence of the witness to testify, and production of the record is necessary in the interests of justice, then he may order the third-party to produce the records. The trial judge will then review the records and may order their disclosure to the accused under s 278.7.
== B. 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 (PBC) 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 (CSC). For information on registering, visit [https://www.canada.ca/en/correctional-service/services/you-csc/victims/register.html Registering as a Victim of Crime -csc-scc.gc.ca].


'''Legal representation for witnesses if an application is made to see their personal records'''
'''Support persons may also be eligible for funding'''. An eligible support person must be an adult over the age of 18 years of age who is chosen by the registered victim. Support persons may include relatives, friends or victim service workers. Support persons who wish to attend a PBC hearing with a registered victim must submit a written request to the office of the PBC in the region where the hearing will take place, once the victim has received notice from CSC/PBC of potential hearing dates. A security screening will be conducted for all visitors before they are allowed into a penitentiary. If the support person is accompanying the victim to the hearing, but does not intend to go to the hearing, then a security screening is not required. Please note, however, that if the support person should need to enter the penitentiary, the security screening would be required.


The Legal Services Society (LSS) provides free legal representation for victims of, or witnesses to, a crime “if an application is made to see their personal records, such as counselling records. The Attorney General authorizes LSS to provide a lawyer to represent a victim/witness at a hearing where a judge decides if the defence can access these records. The victim/witness does not have to be financially eligible to qualify for this kind of representation.” Therefore, it is recommended that any witness who does not have their own legal representation applies to the LSS for representation if they are made aware of an application made by the accused for their personal records.
'''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, visit [https://canada.justice.gc.ca/eng/fund-fina/cj-jp/fund-fond/attend-audience.html Attending Parole Board of Canada Hearings - justice.gc.ca].


More information on the Legal Services Society is available [https://lss.bc.ca here] or by calling 1-866-577-2525 or 604-408-2172 (Greater Vancouver).
== C. Pursuing the Matter in a Civil (Tort) Action ==


The Legal Services Society manual can be accessed [https://lss.bc.ca/sites/default/files/2019-03/introduction_Oct09.pdf here].
Criminal courts determine whether the accused is guilty, and if so, what would be the 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. In this regard, a victim may sue an alleged offender regardless of the offender’s verdict at a criminal trial. Receiving financial compensation from the offender for the damages caused is one of the reasons why survivors of violence sue in civil court.  


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.


=== 4. Victim Travel Fund ===
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'' also allows 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 is that those victims may not be expected to recognize the impact of what has happened to them and have the ability to bring a claim within a limitation period.


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:
Bringing a civil action may be a long process and the plaintiff should consider the personal toll and financial costs it may impose on them. Some victims who go through this process feel as though their lives are on hold and are unable to get on with other parts of their lives. 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.
*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 CVAP, 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.  
Victims should be referred to 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. 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.


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.
A victim must not be pressured into making a decision not in their interests, so others must not take control of the victim’s decisions. A victim should be informed of their options and the potential consequences of each course of action in order to allow them to give informed instructions to counsel.


=== 1. A Civil Suit is Separate from the Criminal Case ===


=== 5. Parole Board of Canada Hearings ===
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 they seldom have assets that could support a damage award made by the court.


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 [https://www.csc-scc.gc.ca/victims/003006-0001-eng.shtml here].  
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.


'''Support persons may also be eligible for funding'''. An eligible support person must be an adult over the age of 18 years of age who is chosen by the registered victim. Support persons may include relatives, friends or victim service workers.  Support persons who wish to attend a PBC hearing with a registered victim must submit a written request to the office of the PBC in the region where the hearing will take place, once the victim has received notice from CSC/PBC of potential hearing dates. A security screening will be conducted for all visitors before they are allowed into a penitentiary. If the support person is accompanying the victim to the hearing, but does not intend to go to the hearing, then a security screening is not required. Please note, however, that if the support person should need to enter the penitentiary, the security screening would be required.
Pursuing the matter through the criminal justice system is best done before any civil action is taken, given that:


'''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.'''
*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, since document disclosure in a civil suit applies to both the plaintiff and defendant, and the ''Criminal Code'' provisions restricting the scope of admissible evidence about the victim do not apply. If the civil suit is pursued concurrently or before the criminal trial, the information brought up in the former may be utilized the latter, often to the detriment of the victim. Furthermore, the accused may argue that the victim is pursuing the criminal trial only because they want to gain as much as possible in the civil action.


For more information, see the [http://canada.justice.gc.ca/eng/fund-fina/cj-jp/fund-fond/attend-audience.html Department of Justice website].
Previous criminal convictions are admissible in subsequent civil proceedings. While a verdict on a criminal trial has no impact on a verdict on the civil trial of the same matter, it is inevitable that a conviction gives rise to a legal presumption of wrongdoing. Moreover, the material facts underlying the conviction are presumed correct unless proven otherwise. In this sense, a defendant’s criminal conviction renders the plaintiff’s case in a civil litigation much stronger. Even if the accused was acquitted in a criminal matter, the plaintiff’s case would be unaffected because the burden of proof in a civil case is lower than a criminal case.


== B. Crime Victim Assistance Program ==
=== 2. Civil Torts ===
 
The ''Crime Victim Assistance Act'' [''CVAA''] is the primary piece of legislation that governs the Crime Victim Assistance Program (CVAP). 
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.
 
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. 
[https://www.canlii.org/en/on/oncj/doc/1995/1995canlii17903/1995canlii17903.html?autocompleteStr=%09MacKay%20v%20Buelow%20(1995)%2C%2011%20RFL%20(4th)%20403%20&autocompletePos=1 ''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.
 
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:
#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.
#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 [http://www2.gov.bc.ca/gov/content/justice/criminal-justice/bcs-criminal-justice-system/if-you-are-a-victim-of-a-crime/victim-of-crime/financial-assistance-benefits 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.
{{ResourcesLSLAP_phoneonline
| phone = 1-866-525-0554
| online = [http://www.publicsafety.gc.ca/cnt/cntrng-crm/crrctns/ntnl-ffc-vctms-en.aspx Website]
}}
*[http://www.victimsfirst.gc.ca/index.html Federal Ombudsman for Victims of Crime]
*[https://ovc.ncjrs.gov/findvictimservices/results2.asp Directory of International Crime Victim Compensation Programs]
 
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 =====
 
*[http://www.canlii.org/en/ab/laws/stat/rsa-2000-c-v-3/latest/rsa-2000-c-v-3.html ''Victims of Crime Act'', RSA 2000, c V-3]
 
*'''Victims of Crime Financial Benefits Program'''
 
{{ResourcesLSLAP
| address = Alberta Solicitor General and Ministry of Public Security <br /> 9th Floor, John E. Brownlee Building <br /> 10365 – 97 Street <br /> Edmonton, AB T5J 3W7
| phone = (780) 427-3441 <br /> Toll-free in Alberta: 310-0000 <br /> Outside Alberta: (780) 427-2711
| online = [https://www.solgps.alberta.ca/programs_and_services/victim_services/help_for_victims/financial_assistance/Pages/GetFinancialAssistance.aspx Website]
}}
 
===== Manitoba =====
 
*[http://web2.gov.mb.ca/laws/statutes/ccsm/v055e.php ''Victims’ Bill of Rights'', CCSM c V55]
 
*'''Compensation for Victims of Crime Program'''
 
{{ResourcesLSLAP
| address = 1410-405 Broadway <br /> Winnipeg, MB R3C 3L6 <br />
| phone = (204) 945-0899 <br /> Toll-Free: 1-800-262-9344
| online = [http://www.gov.mb.ca/justice/victims/services/compensation.html Website]
}}
 
===== New Brunswick =====
 
*[https://www.canlii.org/en/nb/laws/stat/snb-2016-c-113/latest/snb-2016-c-113.html ''Victims Services Act'', SNB 2016 c 113]
 
*'''Victim Services Program'''
 
{{ResourcesLSLAP
| address = Argyle Place <br /> P.O. Box 6000 <br /> Fredericton, NB E3B 5H1
| phone = (506) 453-3992
| online = [http://www2.gnb.ca/content/gnb/en/departments/jps/public_safety/content/safety_protection/content/victim_services.html Website] <br /> Email: DPS-MSP.Information@gnb.ca
}}
 
===== Newfoundland =====
 
*[http://www.assembly.nl.ca/Legislation/sr/statutes/v05.htm ''Victims of Crime Services Act'', RSNL 1990, c V-5] 
 
*'''Victim Services Program, Provincial Headquarters'''


{{ResourcesLSLAP
=== 3. Interaction with the ''Crime Victim Assistance Act'' ===
| address = Department of Justice <br /> Victim Services Program <br /> 4th Floor, East Block <br /> Confederation Building <br /> P.O. Box 8700 <br /> St. John’s, NL A1B 4J6                 
| phone = (709) 729-7970
| online = [http://www.justice.gov.nl.ca/just/victim_services/victim_services_program.html Website] <br /> Email: victimservices@gov.nl.ca
}}
 
===== Northwest Territories =====
 
*[https://www.justice.gov.nt.ca/en/files/legislation/victims-of-crime/victims-of-crime.a.pdf  ''Victims of Crime Act'', RSNWT 1988, c 9]
 
*'''Government of the Northwest Territories'''
 
{{ResourcesLSLAP
| address = Department of Justice <br /> c/o Public Trustee Office <br /> P.O. Box 1320 <br /> Yellowknife, NWT X1A 2L9             
| phone = (867) 873-7500
| online = [https://www.justice.gov.nt.ca/en/victim-services/ Website]
}}
 
===== Nova Scotia =====
 
*[http://nslegislature.ca/legc/statutes/victims.htm ''Victims’ Rights and Services Act'', SNS 1989, c 14] 
 
*'''Criminal Injuries Compensation Board'''
 
{{ResourcesLSLAP
| address = Victim Services Division <br /> 5151 Terminal Road, 3rd Floor <br /> P.O. Box 7 <br /> Halifax, NS B3J 2L6       
| phone = (902) 424-4030
| online = Email: justweb@gov.ns.cac
}}
 
===== Ontario =====
 
*[http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_95v06_e.htm ''Victims’ Bill of Rights'', SO 1995, c 6] 
 
*'''The Criminal Injuries Compensation Board'''
 
{{ResourcesLSLAP
| address = 4th Floor, 655 Bay Street <br /> Toronto, ON M7A 2A3   
| phone = (416) 326-2900 <br /> Toll-Free: 1-800-372-7463 <br /> Fax: (416) 326-2883
| online = Email: info.cicb@ontario.ca
}}
 
*'''Victim Notification System (VNS), Ontario Ministry of the Attorney General'''
 
{{ResourcesLSLAP_phoneonline
| phone = (416) 314-2447 <br /> Toll-Free: 1-888-579-2888
}}
 
===== Prince Edward Island =====
 
*[https://www.princeedwardisland.ca/sites/default/files/legislation/v-03_1.pdf ''Victims of Crime Act'', RSPEI 1988, c V-3.1] 
 
*'''Victim Services'''
 
{{ResourcesLSLAP_online
| online = [https://www.princeedwardisland.ca/en/information/justice-and-public-safety/victim-services Website]
}}
 
*'''Queens and Kings Counties'''
 
{{ResourcesLSLAP_addressphone
| address = Honourable C.R. McQuaid Family Law Centre <br /> 1 Harbourside Access Road <br /> P. O. Box 2000 <br /> Charlottetown, PE C1A 7N8
| phone = (902) 368-4582 <br /> Fax:(902) 368-4514
}}
 
*'''Prince County'''
 
{{ResourcesLSLAP_addressphone
| address = 263 Harbour Drive <br /> Suite 19, 2nd Floor <br /> Summerside, PE C1N 5P1
| phone = (902) 888-8217 or (902) 888-8218 <br /> Fax: 902) 888-8410
}}
 
===== Quebec =====
 
*[http://www.canlii.org/en/qc/laws/stat/rsq-c-i-6/latest/rsq-c-i-6.html ''Crime Victims Compensation Act'', LRQ c. I-6]
 
*'''Commission de la sante et de la sécurité du travail, Dir. l’indemnisation des Victimes d’actes criminels'''
 
{{ResourcesLSLAP
| address = 1199, Rue Bleur <br /> C.P. 6056, succursale Centre-ville <br /> Montreal, QC H3C 4E1
| phone = (514) 906-3019 <br /> Toll-Free: 1-800- 561-4822 <br /> Fax: (514) 906-3029
| online = [http://www.ivac.qc.ca Website] <br /> Email: info@ivac.qc.ca
}}
 
===== Saskatchewan =====
 
*[http://www.qp.gov.sk.ca/documents/English/Statutes/Statutes/V6-011.pdf ''Victims of Crime Act'', SS 1995, c V-6.011]
 
*'''Victim Services'''
 
{{ResourcesLSLAP
| address = 610 - 1874 Scarth Street <br /> Regina, SK, S4P 4B
| phone = (306) 787-3500 <br /> Toll-Free:  1-888-286-6664 <br /> Fax: (306) 787-0081
| online = [https://www.saskatchewan.ca/residents/justice-crime-and-the-law/victims-of-crime-and-abuse/help-from-victim-service-units-and-agencies Website] <br /> Email: victimsservices@gov.sk.ca
}}
 
===== Yukon =====
 
*[http://www.gov.yk.ca/legislation/acts/cpvst.pdf ''Crime Prevention and Victim Services Trust Act'', RSY 2002, c 49]
 
*'''Victim Services'''
 
{{ResourcesLSLAP_online
| online = [http://www.justice.gov.yk.ca/prog/cor/vs/index.html Website] <br /> Email: victim.services@gov.yk.ca
}}
 
*'''Whitehorse'''
 
{{ResourcesLSLAP_addressphone
| address = '''Street address:''' 301 Jarvis Street, 2nd floor, Whitehorse Yukon <br /> '''Mailing address:''' Victim Services, Dept. of  Justice, Government of  Yukon, Box 2703, Whitehorse, Yukon Y1A 2C6
| phone = (867) 667-8500 <br /> Toll free (In Yukon): 1-800-661-0408, local 8500 <br /> Fax: (867) 393-6240
}}
 
*'''Dawson City'''
 
{{ResourcesLSLAP_addressphone
| address = '''Street address:''' 705B Church Street, Dawson City, Yukon <br /> '''Mailing address:''' Box 1312, Dawson City, Yukon Y0B 1G0
| phone = (867) 993-5831 <br /> Fax: (867) 993-6380
}}
 
*'''Watson Lake'''
{{ResourcesLSLAP_addressphone
| address = '''Street address:''' 820 Adela Trail, Watson Lake, Yukon <br /> '''Mailing address:''' Box 622, Watson Lake, Yukon Y0A 1C0
| phone = (867) 536-2541 <br /> 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.
The overall effect of the ''CVAA'' provisions governing civil actions is that money awarded as judgment, settlement, or restitution must be paid to the CVAP to cover the cost or value of benefits given, except with the consent of the CVAP. The benefit of this scheme is that even if a claimant receives no additional money through a combination of reduced damages and CVAP benefits than through full damages alone, they do not have to wait for the conclusion of a civil suit to receive financial benefits; furthermore, the risk of recovering no money from the offender falls on the CVAP, not the claimant.


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.
Section 8 of the ''CVAA'' establishes that the CVAP may, before or after providing benefits, require the claimant to pay the CVAP part or all the following amounts received to cover the cost or value of the claimant’s benefits:


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.  
*damages received in a civil action started by the claimant against a person arising out of the prescribed offence;
*amounts received in settlement of such an action; or
*amounts received as restitution under section 738 of the ''Criminal Code'' in the criminal case against the accused of the prescribed offence.  


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 ''CVAA'' also entitles the CVAP to recover the cost of benefits from civil actions started by a claimant after applying for CVAP benefits. If a claimant initiates civil proceedings after applying for CVAP benefits, the CVAP must receive a copy of the notice of civil claim within 10 days of service on the defendant (''CVAA'', s 15(1)). While as a starting point, the claimant’s entitlement to damages or settlement is unaffected by their entitlement to CVAP benefits (''CVAA'', s 15(2)), this is qualified by the power of the CVAP to claim partial entitlement to the proceeds of civil actions against a person arising out of a prescribed offence.


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.
With respect to a claimant who has received CVAP benefits, the ''CVAA'' empowers the CVAP to commence action against a person arising out of a prescribed offence in the following circumstances (''CVAA'', s 16(1)):
*the claimant has not commenced any such action; or
*the claimant has commenced such an action, but the CVAP has not concurred to the settlement agreement reached by the parties.


'''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.
If the CVAP commences such a civil action, it becomes entitled to a portion of the damages equivalent to the cost or value of benefits provided (''CVAA'', s 16(2)). If a claimant starts a civil action after the CVAP commences theirs, the claim available to the claimant as the plaintiff is reduced by the CVAP’s claim (''CVAA'', s 16(3)).


Money that the CVAP recovers from actions is applied in the following order (''CVAA'', s 17):
*firstly, to pay the cost of litigating the action;
*secondly, to pay the cost or value of benefits awarded;
*thirdly, to the claimant.


{{REVIEWED LSLAP | date= July 4, 2019}}
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{{LSLAP Manual Navbox|type=chapters1-7}}

Latest revision as of 01:26, 26 August 2024

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on July 13, 2024.
LSLAP Manual
LSLAP Manual
This page is from the
Law Students' Legal
Advice Program Manual.
See the full contents.
LSLAP Manual
Introduction
Chapters
4. Victims
 · I. Introduction

 · II. Governing Legislation
 · III. Crime Victim Assistance Program
 · IV. Avenues to Address Crime
 · V. Victims of Sexual Assault
 · VI. Victims of Relationship Violence
 · VII. Abuse of the Seniors & Disabled
 · VIII. Victims of Human Trafficking
 · IX. Missing Persons and Abductions
 · X. TIP & Restorative Justice
 · XI. Resources for Indigenous Victims

 · XII. Referrals and Follow-up
v • d • e



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 criminal 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 substantial likelihood of conviction and that it is in the public interest to prosecute, a charge is 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 Counsel 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 Complaints Processes for Justice Agencies in British Columbia.

For individuals in situations which they believe are dangerous, but are not assaults, sexual assault, or other more common types of violent offences, there are various sections of the Criminal Code that may be relevant. If an individual 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.

1. Seeking Restitution Orders

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 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.

For all convictions or section 730 discharges, the judge is required to consider making a restitution order (Criminal Code, s 737.1(1)) and victims must be given a reasonable opportunity to indicate whether they are seeking restitution (Criminal Code, s 737.1(2)). A judge is entitled to decide against making a restitution order, although they must provide reasons if omitting a restitution order against a victim’s wishes (Criminal Code, s 737.1(5)).

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, although an offender’s financial circumstances do not prevent a court from making a restitution order (Criminal Code, s 739.1). Restitution cannot be ordered for pain and suffering or other damages which can only be assessed in the civil courts.

The only aspects of physical injury or psychological harm that can be covered by restitution are those that are quantifiable from a cost perspective and that take place prior to sentencing (Criminal Code, s 737.1(2)). A judge can order restitution for financial losses related to:

  • damaged or lost property due to the crime (Criminal Code, s 738(1)(a));
  • physical injury or psychological harm due to the crime (Criminal Code, s 738(1)(b));
  • physical injury due to the arrest or attempted arrest of the offender (Criminal Code, s 738(1)(c));
  • 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) (Criminal Code, s 738(1)(c));
  • costs that victims of identity theft had to pay to re-establish their identity, and to correct their credit history and their credit rating (Criminal Code, s 738(1)(d));
  • reasonable expenses for the removal of intimate images published without consent on the internet or other digital network (Criminal Code, s. 738(1)).

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 like a civil order in some respects. 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 (Criminal Code, s 741(1)). For example, bank accounts may be seized, or liens may be placed on property.

2. The Canadian Victims Bill of Rights

The CVBR recognizes 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 authorized to act on their behalf. Section 3 provides that if the victim has passed away or is otherwise 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 (CVBR, s 2). However, if a person is charged with or convicted of the offence that resulted in the victimization, they are not defined as a victim; the same applies if a person that suffers the harm or loss is found not criminally responsible for the offence that resulted in the victimization due to a mental disorder (CVBR, s 4). Furthermore, a victim is entitled to exercise their rights under this Act only if they are present in Canada or if they are a Canadian citizen or permanent resident (CVBR, s 19(2)).

Adhering to this definition, victims of crime can 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 (CVBR, s 18). 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 (CVBR, s 2). The rights also apply to some offences under the Controlled Drugs and Substances Act and parts of the Immigration and Refugee Protection Act (CVBR, s 2).

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 (CVBR, s 5).

Victims have the right to:

  • request information (CVBR, ss 6–8);
  • have their security and privacy considered by the appropriate authorities and be protected by the criminal justice system (CVBR, ss –11);
  • participate by presenting victim impact statements, and receive testimonial aids when testifying (CVBR, ss 13, 15;
  • request that their identity be protected (CVBR, s 11);
  • have the court consider making a restitution order against the offender (CVBR, s 16);
  • have a restitution order entered as a civil court judgment that is enforceable against the offender (CVBR, s 17).

No cause of action, right to damages, or right to appeal any decision or order arises from an infringement or denial of a right under this Act (CVBR, s 28).

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 (CVBR, s 25). 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, agency, or body, subject to the laws of that province or territory (CVBR, s 26). All federal departments and agencies that have responsibilities under this Act need to provide a way for victims to file complaints (CVBR, s 25(3)). 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 at Victims' Roles and Rights in the Criminal Justice System - Canada.ca.

3. Court Orientation, Preparation and Accompaniment

If a charge is laid, the victim may be asked to testify as a witness, or the victim 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 CVAP 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, is available at Court Support for Victims of Crime - gov.bc.ca.

Under s 486 of the Criminal Code, witnesses can receive testimonial accommodations such as testifying behind a screen, on video camera to not see the offender, or in a closed court upon application. The Crown counsel in charge of prosecuting the offence will generally ask the victim whether 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 organizations. Individuals can find a full list of language assistance services available at Translation Services - gov.bc.ca.

4. Things victims and witnesses should know about participating in a criminal trial

There are many resources available to witnesses to assist them during the court process and mitigate stress that arises from testifying. However, prior to agreeing to be a witness in a criminal case, a person must understand that the process may be an intrusive and uncomfortable experience. This is particularly relevant to victims, who in the process of testifying may feel retraumatized and contribute to feelings of revictimization.

a) All witnesses are generally compellable

Once a person agrees to provide evidence or disclose that they were involved in or witnessed a crime, a subpoena can be issued compelling them to attend court on a specific date to give evidence (Criminal Code, s 698). Individuals who have been served with a subpoena and fail to show up to court, or later refuse to give evidence at trial, may be arrested and charged with contempt, which carries a punishment including imprisonment of up to 90 days (Criminal Code, s 708). Further, if a person provides false evidence in court, they can be charged with perjury, which carries a punishment of imprisonment up to 14 years (Criminal Code, ss 131–132).

b) Cross-examination can be stressful

Cross-examination can be a stressful experience for a witness. Defence counsel will likely challenge a witness’ evidence to show that they are not a credible witness or that the evidence they are giving is unreliable (see R v Parent, 2000 BCPC 11). Defence counsel will generally do this by showing that the witness’s testimony is inconsistent with other independent evidence, they have made prior inconsistent statements, or their testimony has changed during direct examination and cross-examination. Defence counsel may also attempt to show that the witness has a motive to lie or mislead the court, which may include cross-examining them on any bias or prejudice they have towards the accused. Even if a witness appears credible, the defence may attempt to show that their evidence is unreliable because they are mistaken about what they saw.

c) Discreditable conduct of a witness can be used to challenge their credibility

Section 12 of the Canadian Evidence Act states “a witness may be questioned as to whether the witness has been convicted of any offence, excluding any offence designated as a contravention under the Contraventions Act, but including such an offence where the conviction was entered after a trial on an indictment.” In R v Cullen, 52 CCC (3d) 459 the Ontario Court of Appeal stated at para 9 that, “for the purpose of challenging a witness’ credibility, cross-examination is permissible to demonstrate that a witness has been involved in discreditable conduct.” Therefore, apart from the accused, any witness can not only be cross-examined on any criminal record that they have, but they can also be cross-examined on the details of those convictions, any pending charges, acquittals, or any other discreditable conduct which they may not have been charged with. For example, the defence may hire a private investigator to follow a witness to gather evidence on their conduct. If the witness was participating in discreditable conduct, the defence could use this evidence during a cross-examination as a means of discrediting the witness in court.

d) An accused can make an application to have third-party records of witnesses such as counselling records disclosed

The defence can make an application to a trial judge for the disclosure of third-party records, which include medical, psychiatric, therapeutic, and counselling records. Although the burden is higher for sexual offences, under s 278.3 of the Criminal Code, the defence can make an application to a trial judge for the disclosure of such records. This also includes personal records such as a victim’s journal or diary. The disclosure of these records can be traumatizing for a witness or victim, particularly victims of a sexual offence.

The process the court undergoes when deciding whether to admit the records involves “the balancing of the rights of the accused under ss 7 and 11 of the Charter with the privacy rights of the complainant.” Unlike documents which the prosecution has in their possession, the burden is on the accused to prove that third-party records should be disclosed because the information is not part of the prosecution’s case, and third-parties have no obligation to assist the defence. However, under s 278.5 if the trial judge is satisfied that the defence’s application is made in accordance with s 278.3, and that they have established that the record is likely relevant to an issue at trial or to the competence of the witness to testify, and production of the record is necessary in the interests of justice, they may order the third party to produce the records. The trial judge will then review the records and may order their disclosure to the accused under s 278.7.

5. Victim Travel Fund

The BC 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 from 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:

  • the applicant must make the applications prior to the justice proceeding;
  • the applicant has to travel more than 100 km one way to attend the justice proceeding;
  • the justice proceeding must 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); and
  • travel and related expenses are not covered by Crown counsel, the CVAP, or any other source.

For more information or to apply for the Victim Travel Fund, see this page: Victim Travel Assistance.

B. 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 (PBC) 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 (CSC). For information on registering, visit Registering as a Victim of Crime -csc-scc.gc.ca.

Support persons may also be eligible for funding. An eligible support person must be an adult over the age of 18 years of age who is chosen by the registered victim. Support persons may include relatives, friends or victim service workers. Support persons who wish to attend a PBC hearing with a registered victim must submit a written request to the office of the PBC in the region where the hearing will take place, once the victim has received notice from CSC/PBC of potential hearing dates. A security screening will be conducted for all visitors before they are allowed into a penitentiary. If the support person is accompanying the victim to the hearing, but does not intend to go to the hearing, then a security screening is not required. Please note, however, that if the support person should need to enter the penitentiary, the security screening would be required.

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, visit Attending Parole Board of Canada Hearings - justice.gc.ca.

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

Criminal courts determine whether the accused is guilty, and if so, what would be the 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. In this regard, a victim may sue an alleged offender regardless of the offender’s verdict at a criminal trial. Receiving financial compensation from the offender for the damages caused is one of the reasons why survivors of violence sue in civil court.

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 also allows 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 is that those victims may not be expected to recognize the impact 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 and financial costs it may impose on them. Some victims who go through this process feel as though their lives are on hold and are unable to get on with other parts of their lives. 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.

Victims should be referred to 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. 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.

A victim must not be pressured into making a decision not in their interests, so others must not take control of the victim’s decisions. A victim should be informed of their options and the potential consequences of each course of action in order to allow them to give informed instructions to counsel.

1. A Civil Suit is Separate from the Criminal Case

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 they seldom have assets that could support a damage award made by the court.

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.

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, since document disclosure in a civil suit applies to both the plaintiff and defendant, and the Criminal Code provisions restricting the scope of admissible evidence about the victim do not apply. If the civil suit is pursued concurrently or before the criminal trial, the information brought up in the former may be utilized the latter, often to the detriment of the victim. Furthermore, the accused may argue that the victim is pursuing the criminal trial only because they want to gain as much as possible in the civil action.

Previous criminal convictions are admissible in subsequent civil proceedings. While a verdict on a criminal trial has no impact on a verdict on the civil trial of the same matter, it is inevitable that a conviction gives rise to a legal presumption of wrongdoing. Moreover, the material facts underlying the conviction are presumed correct unless proven otherwise. In this sense, a defendant’s criminal conviction renders the plaintiff’s case in a civil litigation much stronger. Even if the accused was acquitted in a criminal matter, the plaintiff’s case would be unaffected because the burden of proof in a civil case is lower than a criminal case.

2. Civil Torts

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.

3. Interaction with the Crime Victim Assistance Act

The overall effect of the CVAA provisions governing civil actions is that money awarded as judgment, settlement, or restitution must be paid to the CVAP to cover the cost or value of benefits given, except with the consent of the CVAP. The benefit of this scheme is that even if a claimant receives no additional money through a combination of reduced damages and CVAP benefits than through full damages alone, they do not have to wait for the conclusion of a civil suit to receive financial benefits; furthermore, the risk of recovering no money from the offender falls on the CVAP, not the claimant.

Section 8 of the CVAA establishes that the CVAP may, before or after providing benefits, require the claimant to pay the CVAP part or all the following amounts received to cover the cost or value of the claimant’s benefits:

  • damages received in a civil action started by the claimant against a person arising out of the prescribed offence;
  • amounts received in settlement of such an action; or
  • amounts received as restitution under section 738 of the Criminal Code in the criminal case against the accused of the prescribed offence.

The CVAA also entitles the CVAP to recover the cost of benefits from civil actions started by a claimant after applying for CVAP benefits. If a claimant initiates civil proceedings after applying for CVAP benefits, the CVAP must receive a copy of the notice of civil claim within 10 days of service on the defendant (CVAA, s 15(1)). While as a starting point, the claimant’s entitlement to damages or settlement is unaffected by their entitlement to CVAP benefits (CVAA, s 15(2)), this is qualified by the power of the CVAP to claim partial entitlement to the proceeds of civil actions against a person arising out of a prescribed offence.

With respect to a claimant who has received CVAP benefits, the CVAA empowers the CVAP to commence action against a person arising out of a prescribed offence in the following circumstances (CVAA, s 16(1)):

  • the claimant has not commenced any such action; or
  • the claimant has commenced such an action, but the CVAP has not concurred to the settlement agreement reached by the parties.

If the CVAP commences such a civil action, it becomes entitled to a portion of the damages equivalent to the cost or value of benefits provided (CVAA, s 16(2)). If a claimant starts a civil action after the CVAP commences theirs, the claim available to the claimant as the plaintiff is reduced by the CVAP’s claim (CVAA, s 16(3)).

Money that the CVAP recovers from actions is applied in the following order (CVAA, s 17):

  • firstly, to pay the cost of litigating the action;
  • secondly, to pay the cost or value of benefits awarded;
  • thirdly, to the claimant.
v • d • e
 
Chapters 1-7
Criminal Law  · Youth Justice  · Family Law  · Victims  · Public Complaints · Human Rights  · Workers Compensation
Chapter One:
Criminal Law
Chapter Two:
Youth Justice
Chapter Three:
Family Law
Chapter Four:
Victims
Chapter Five:
Public Complaints
Chapter Six:
Human Rights
Chapter Seven:
Workers' Compensation
I. Introduction · II. Governing Legislation, Policy & Guidelines · III. Introduction to Compensation Claims for Injured Workers · IV. LSLAP's Role at the Initial Decision Level · V. Limitation Periods and Timing of Decisions · VI. Making a Claim · VII. The Claim Acceptance Process · VIII. Worker Status · IX. Disability and Causation · X. Time Limits and Procedures · XI. Claim Benefits · XII. Appeals · XIII. Health and Safety Regulations · XIV. Assessments of Employers · XV. The WCB Fair Practices Office · Appendix A: Abbreviations · Appendix B: List of Cases · Appendix C: Referrals · Appendix D: Resources · Appendix E: Small Claims Flow Chart · Appendix F: Checklist for Interviews · Appendix G: Checklist for Appeals · Appendix H: Sample Authorization Form
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