Avenues to Address Crime for Victims (4:IV)
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 here.
For individuals in situations which they believe is dangerous, but are not assault, sexual assault or other more common types of violent offences, there are various sections of the Criminal Code that may be relevant. If a client is a victim of one of these offences, it is within their rights to contact the police and ask that charges be laid. The following is a list of some related offences:
- s 264(1): Criminal Harassment; s 264.1: Uttering Threats; s 346: Extortion; s 372(1): False Messages; s 372(2): Indecent Phone Calls; s 372(3): Harassing Phone Calls; s 423: Intimidation; s 425: Offences by Employers (Threats and Intimidation); s 430: Mischief (Damage to Property); and s 810: Breaching a Peace Bond.
If the accused is convicted of an offence, the victim may submit an application for an order that the accused pay an amount by way of satisfaction or compensation for loss or damage to property suffered by the applicant as a result of the commission of an offence. This is known as a restitution order and can be found under s 738 of the Criminal Code. The application must be made early enough for the judge to render a decision at the time of sentencing and the loss must be quantifiable. Restitution amounts must be easily calculable and not in great dispute.
Restitution will not be ordered in all cases where there is monetary loss or damages. The judge must consider whether a restitution order should be included in the sentence and whether all aspects of the sentence reflect the purposes and principles of sentencing and are appropriate given the circumstances of the offence and the particular offender. The ability of the offender to pay a restitution order will be a consideration. Restitution cannot be ordered for pain and suffering or other damages that can only be assessed in the civil courts.
The aspects of physical injury/psychological harm that could be covered by restitution would only be those that are quantifiable from a cost perspective and that take place prior to sentencing. For example, these may be:
- medications not covered by insurance
- costs related to medical treatment
- counselling expenses
This makes it distinct from the more general and less quantifiable “pain and suffering.”
Although the restitution order is made by a criminal court as part of an offender’s sentence, it is similar to a civil order in some aspects. If the offender does not pay the amount ordered, the victim can file the order in the civil court and use civil enforcement methods to collect the money. For example, bank accounts may be seized or liens placed on property.
1. The Canadian Victims Bill of Rights
This Act 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.
Adhering to this definition, victims of crime are able to exercise their rights under this Act while an offence is being investigated or prosecuted and while the offender is going through the corrections or conditional release process. The offence committed against the victim must fall under the Criminal Code, the Youth Criminal Justice Act, or the Crimes Against Humanity and War Crimes Act. The rights also apply to some offences under the Controlled Drugs and Substances Act and parts of the Immigration and Refugee Protection Act.
The rights apply to offences which occur in Canada. They also apply if the offence is investigated and prosecuted in Canada or if the offender is serving a sentence or conditional release in Canada.
Victims have the right to:
- request information
- have their security and privacy considered by the appropriate authorities, be protected by the criminal justice system
- participate by presenting victim impact statements
- request that their identity be protected
- have the court consider making a restitution order against the offender
- have a restitution order entered as a civil court judgment that is enforceable against the offender
A judge can order restitution for financial losses related to:
- damaged or lost property due to the crime
- physical injury or psychological harm due to the crime
- physical injury due to the arrest or attempted arrest of the offender
- costs for temporary housing, food, childcare and transportation due to moving out of the offender's household (this only applies if a victim has moved because they had been physically harmed or threatened with physical harm due to the offence, arrest, or attempted arrest of the offender)
- costs that victims of identity theft had to pay to re-establish their identity, and to correct their credit history and their credit rating
No cause of action, right to damages, or right to appeal exists from any decision or order arises from an infringement or denial of a right under this Act.
If not satisfied by the response of the federal department, agency, or body, victims have the right to file a complaint with the relevant authority. Victims also have the right to file a complaint if they are of the opinion that their rights under this Act have been infringed or denied by a provincial or territorial department. All federal departments and agencies that have responsibilities under this Act need to provide a way for victims to file complaints. Complaints against a provincial or territorial agency, like police or victim services, will be addressed through the appropriate provincial or territorial laws.
Additional information can be found here.
2. Court Orientation, Preparation and Accompaniment
If a charge is laid, the victim may be asked to testify as a witness, or 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 here.
Under s 486 of the Criminal Code, witnesses can receive testimonial accommodations such as testifying behind a screen, on video camera so as to not see the offender or in a closed court upon application. The Crown counsel in charge of the prosecuting the offence will generally ask the victim whether or not they would like testimonial accommodation but victims can also speak with the Crown counsel to discuss the matter.
Victims can also request language assistance, including visual language assistance, if they are required to testify in court. The Ministry of Justice provides court interpreters to translate criminal and family law court proceedings in a variety of different languages. Additional language support for other court-related activities is available through outside organisations. Individuals can find a full list of language assistance services available here.
3. Things you should know about being a witness
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.
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.
Cross-examination can be stressful
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.
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, 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.
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 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.
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 here or by calling 1-866-577-2525 or 604-408-2172 (Greater Vancouver).
The Legal Services Society manual can be accessed here.
4. Victim Travel Fund
The Victim Travel Fund provides funding to a maximum of $3 000 per family/victim to help attend and participate in interviews, hearings, and other justice-related proceedings. Funding is available to victims who have suffered significant physical or emotional trauma as a result of a serious criminal offence, and victims who require a support person to attend a proceeding. Funding is also available to immediate family members of deceased victims (e.g., parents, spouse, children, and siblings). Eligible expenses may include meals, accommodation and the most economical form of travel. Applicants for the Victim Travel Fund must also meet the following criteria:
- make the applications prior to the justice proceeding
- to the eligible, the applicant has to travel more than 100 km one way to attend the justice proceeding
- the justice proceeding will take place in BC and the proceeding is expected to impact the outcome disposition or results of the proceeding or hearing (this excludes provincial parole and federal hearings)
- travel and related expenses are not covered by Crown counsel, the 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 firstname.lastname@example.org.
Furthermore, you may contact VictimLinkBC by phone at 604-875-0885 or email email@example.com to ask to be connected to a victim service worker. A victim service worker may be able to help you apply for travel assistance.
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 hearings may apply for financial assistance, including for travel, hotel and meal expenses. In order to be eligible, victims must have registered with Correctional Service Canada. For information on registering, click here.
Support persons may also be eligible for funding. 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, see the 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.
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.
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.
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 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 their options and the potential consequences of each course of action in order to allow them to give informed instructions to counsel.
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 10, 2020.|
|© Copyright 2020, The Greater Vancouver Law Students' Legal Advice Society.|