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

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Avenues to Address Crime for Victims (4:IV) (view source)

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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 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:  
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:  
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*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.   
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.   


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


Additional information can be found [https://www.canada.ca/en/services/policing/victims/rolerights.html here].  
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 ===
=== 2. 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 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 so as 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 or not they would like testimonial accommodation but victims can also speak with the Crown counsel to discuss the matter.


Victims can also request language assistance, including visual language assistance, if they are required to testify in court. The Ministry of Justice provides court interpreters to translate criminal and family law court proceedings in a variety of different languages. Additional language support for other court-related activities is available through outside organizations. 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].


=== 3. Things you should know about being a witness ===
=== 3. Things victims and witnesses should know about participating in a criminal trial ===


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.  
As stated, 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.


'''All witnesses are generally compellable'''  
'''All witnesses are generally compellable'''  


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.  
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. 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 charged with contempt. Further, if a person provides false evidence in court, they can be charged with perjury.


'''Cross-examination can be stressful'''
'''Cross-examination can be stressful'''
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'''Discreditable conduct of a witness can be used to challenge their credibility'''
'''Discreditable conduct of a witness can be used to challenge their credibility'''


S 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.  
S 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. 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 discerptible conduct, the defence could use this evidence during a cross-examination as a means of discrediting the witness in court.  


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


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.  
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, then 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.  
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 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.  
'''Legal representation for witnesses if an application is made to see their personal records'''
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.
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).
The Legal Services Society manual can be accessed [https://lss.bc.ca/sites/default/files/2019-03/introduction_Oct09.pdf here].


=== 4. Victim Travel Fund ===
=== 4. Victim Travel Fund ===
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=== 5. Parole Board of Canada Hearings ===
=== 5. 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, see [https://www.csc-scc.gc.ca/victims/003006-0001-eng.shtml here].  
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.csc-scc.gc.ca/victims/003006-0001-eng.shtml 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.
'''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.
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'''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.'''  
'''Please note that this is only available for federally supervised offenders and that applications should be submitted at least 30 days before the hearing date.'''  


For more information, see the [http://canada.justice.gc.ca/eng/fund-fina/cj-jp/fund-fond/attend-audience.html Department of Justice website].
For more information, visit [http://canada.justice.gc.ca/eng/fund-fina/cj-jp/fund-fond/attend-audience.html Attending Parole Board of Canada Hearings - justice.gc.ca].


== B. Pursuing the Matter in a Civil (Tort) Action ==
== B. Pursuing the Matter in a Civil (Tort) Action ==
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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.
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.
'''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.


:'''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.
:'''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.
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