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Avenues to Address Crime for Victims (4:IV) (view source)
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The application forms are available from the Crime Victim Assistance Program (see [[Introduction to Law for Victims of Crime (4:I)#Crime Victim Assistance Program | contact information]] ) or from any police department, victim service program, and many community agencies. They are also available on the Victim Services page of the [http://www.pssg.gov.bc.ca/victimservices/financial/index.htm Ministry of Justice website]. | The application forms are available from the Crime Victim Assistance Program (see [[Introduction to Law for Victims of Crime (4:I)#Crime Victim Assistance Program | contact information]] ) or from any police department, victim service program, and many community agencies. They are also available on the Victim Services page of the [http://www.pssg.gov.bc.ca/victimservices/financial/index.htm Ministry of Justice website]. | ||
The Crime Victim Assistance Program 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, | The Crime Victim Assistance Program 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. She or he 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 he or she may have received; | |||
*names of any doctors, counsellors, or anyone else that has been seen as a result of the injuries, and | |||
*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, though applications for minors can 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 client’ s parent, the Ministry of Children and Family Development may have apprehended the client. 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, and in rare circumstances 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); or | |||
*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. However, 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 ''Criminal Injury Compensation Act'', RSBC 1996, c 85 [CICA] by the CICP. Once a final determination was made under the ''CICA'', ongoing administration of the claim transfers to the Crime Victim Assistance Program and any further reviews for reassessment or reconsideration will be conducted in accordance with the ''Crime Victim Assistance Act'' [''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. Types 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, 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. | |||
=== 11. Criminal Injuries Outside British Columbia === | |||
National Office for Victims | |||
Telephone: 1-866-525-0554Website: www.publicsafety.gc.ca/prg/cor/nov/nov-bnv-eng.aspx Provides general information for victims and the public, referrals to the Correctional Service of Canada (CSC) and the Parole Board of Canada (PBC) for specific enquiries, and works to incorporate a victim’ s perspective in national policy development. Federal Ombudsman for Victims of Crime Website: www.victimsfirst.gc.ca/index.html Directory of International Crime Victim Compensation Programs Website: www.ncjrs.gov/ovc_archives/reports/intdir2005/canada.html | |||
skip p 4-12 to 4-14 | |||
== C. Pursuing the Matter in a Civil (Tort) Action == | |||
Criminal court determines whether or not the accused is guilty, and if so, what would be 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. 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: 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 other 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. | |||
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 (section 6). However, there are '''exceptions''' to this rule. In B.C., there is an exemption to the two year time limit for cases of sexual assault (section 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 (section 3(1)(k)). The rationale for these exemptions are that those victims may not be expected to recognize 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 life is on hold, and are unable to get on with other parts of their life. Remember, however, that in many cases the parties will settle, although the outcomes of negotiations are extremely difficult to predict. Some people may benefitfrom 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:''' Students must not take control of the client’ s decisions. Clients, especially those who have beenvictimized, may want clinicians to direct their decision-making. A client should be informed of his or her options and the potential consequences of each course of action in order to allow him or her to give informed instructions to counsel. | |||