Crime Victim Assistance Program (4:III)
The Crime Victim Assistance Act [CVAA] is the primary piece of legislation that governs the Crime Victim Assistance Program (CVAP).
Although the CVAA and the Criminal Injury Compensation Act, RSBC 1996, c 85 [CICA] are both in force, it is expected that the CICA will ultimately be repealed.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.
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, 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 their 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 CICA 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. For resources for those outside of British Columbia, please refer to the resources listed on page 4-12.
The CVAA does not apply when the applicant is a party to the prescribed offence.
2. Who is Eligible and What They May Receive
Under this Act, “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:
- 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
- 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,
- "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
- "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
- "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
- "spouse" means a person who:
- if dependent in whole or in part on the victim for financial support, a grandparent or grandchild of the victim.
"Witness" is a person who, although not necessarily related to a victim, has a strong emotional attachment to the victim and who:
- is a witness in close proximity to:
- 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
- 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 1.
Witnesses may be eligible for counselling, 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 CVAP (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 website.
The CVAP 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. They 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 they 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 victimization. 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. 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 CICA by the CICP. Once a final determination was made under the CICA, ongoing administration of the claim transfers to the CVAP and any further reviews for reassessment or reconsideration will be conducted in accordance with the 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. Type 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, the 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. The application is made to the provincial or territorial Superior Court (e.g., Supreme Court of British Columbia). Once the application is accepted, the Superior Court decides whether to set aside the adjudicator’s decision and to order for a re-hearing. Winning at the judicial review hearing is not a guaranteed win at the new adjudicative hearing. For more information, consult this.
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 7, 2020.|
|© Copyright 2021, The Greater Vancouver Law Students' Legal Advice Society.|