Difference between revisions of "Avenues to Address Crime for Victims (4:IV)"
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For more information, see the [http://canada.justice.gc.ca/eng/fund-fina/cj-jp/fund-fond/attend-audience.html Department of Justice website]. | For more information, see the [http://canada.justice.gc.ca/eng/fund-fina/cj-jp/fund-fond/attend-audience.html Department of Justice website]. | ||
== B. Pursuing the Matter in a Civil (Tort) Action == | |||
Criminal courts determine whether or not 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. | |||
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. | |||
[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. | |||
''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: | Pursuing the matter through the criminal justice system is best done before any civil action is taken, given that: | ||
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*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. | *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. | 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. | ||
The burden of proof in a civil trial is lower than in a criminal trial, but the evidence must still be clear and convincing. As a plaintiff in a civil action, a survivor of physical or sexual assault must prove on a '''balance of probabilities''' that the assault was perpetrated by the defendant named in the action, and that this assault resulted in damages. This is a less stringent test than that placed upon the Crown in criminal proceedings, where the case must be established '''beyond a reasonable doubt'''. Thus, it is possible for a victim to win a civil suit even in the event there has been a previous acquittal in criminal proceedings. | |||
A civil suit may also give the victim access to compensation from third parties and institutional defendants (e.g. government institutions, foster homes, and residential schools) upon whom liability may be imposed. This is beneficial where the individual perpetrator has few assets or none at all. | A civil suit may also give the victim access to compensation from third parties and institutional defendants (e.g. government institutions, foster homes, and residential schools) upon whom liability may be imposed. This is beneficial where the individual perpetrator has few assets or none at all. | ||
Pursuant to the ''Limitation Act'', RSBC, c 266, in most cases, there is a '''two year limitation''' on initiating a claim in tort (s 6). However, there are '''exceptions''' to this rule. In BC, there is an exemption to the two year time limit for cases of sexual assault (s 3(1)(j)). The ''Limitation Act'' was also recently amended to also allow for an exemption for physical assault claims for minors and for adults who were living in a personal or dependent relationship with their abuser (s 3(1)(k)). The rationale for these exemptions | 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 is that those victims may not be expected to recognise the wrongness of what has happened to them and have the ability to bring a claim within a limitation period. | ||
Bringing a civil action may be a long process and the plaintiff should consider the personal toll it may impose on them. Some victims who go through this process feel as though their | 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 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. | ||
'''Students should refer the victim 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. It is very important that students not jump to conclusions as to whether or not it is “worth it” to take this route. Some lawyers may be willing to take on a case on a contingency fee basis, which means that they will get a certain percentage of any damages, if they are awarded. | |||
'''NOTE:''' Others must not take control of the victim’s decisions. A victim should be informed of | '''NOTE:''' 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. | ||
{{REVIEWED LSLAP | date= | {{REVIEWED LSLAP | date= August 10, 2020}} | ||
{{LSLAP Manual Navbox|type=chapters1-7}} | {{LSLAP Manual Navbox|type=chapters1-7}} |