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

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

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

A factsheet outlining complaints processes for justice agencies has been developed for victims and is available [http://www2.gov.bc.ca/assets/gov/law-crime-and-justice/criminal-justice/bc-criminal-justice-system/if-victim/publications/complaints-process-justice-agencies.pdf].  

*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.   

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

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

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

For more information, including guides for both child and adult witnesses, and on victim impact statements, click [http://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].

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.

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’ 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.   

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, 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-exam that witness on that conduct for the purpose of discrediting the witness in court.  

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 section 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 process the court undergoes when deciding whether to admit the records involves “the balancing of the rights of the accused under s7 and s11 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 s278.5 if the trial judge is satisfied that the defence’s application is made in accordance with s278.3, 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 s278.7.  

More information on the Legal Services Society is available here: [https://lss.bc.ca] or by calling 1-866-577-2525 or 604-408-2172 (Greater Vancouver)  

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