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

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.  

 

For a client in a situation they believe is dangerous, but which does not constitute assault, sexual assault or another of the more common 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:  

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:

 

 

 

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.

 

 

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 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 victimization 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.

 

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.

 

*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

*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)

 

No cause of action, right to damages, or right to appeal 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.

 

 

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. 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 here].

=== 3. 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:

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 vsusg@gov.bc.ca.  

Furthermore, you may contact VictimLinkBC by phone at 604-875-0885 or email victimlinkbc@bc211.ca to ask to be connected to a victim service worker. A victim service worker may be able to help you apply for travel assistance.

=== 4. Parole Board of Canada Hearings ===

If the criminal prosecution is successful, 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 [http://www.csc-scc.gc.ca/victims/003006-0001-eng.shtml here]. Support persons may also be eligible for funding. 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 [http://canada.justice.gc.ca/eng/fund-fina/cj-jp/fund-fond/attend-audience.html website].  

Although the ''CVAA'' and the ''Criminal Injury Compensation Act'' are both in force, it is expected that the ''Criminal Injury Compensation Act'' 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, and 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 his or her 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.

 

Moreover, the procedure for making an application for assistance under the CVAA is less complicated than initiating a civil action.

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:  

The CVAA does not apply when the applicant is a party to the prescribed offence.  

*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

 

Under this Act, “Immediate Family Members” include persons who at the time of the offence were:

The application forms are available from the Crime Victim Assistance Program (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 [http://www2.gov.bc.ca/gov/content/justice/criminal-justice/bcs-criminal-justice-system/if-you-are-a-victim-of-a-crime/victim-of-crime/financial-assistance-benefits 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, 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  

*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 have apprehended 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 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.

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. However, a parent or guardian may also submit an application for the minor.   

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.

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.

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.

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.

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.

| phone = 1-800-830-3118

| online = [http://www.publicsafety.gc.ca/cnt/cntrng-crm/crrctns/ntnl-ffc-vctms-en.aspx Website]

The following is a list of criminal injury compensation legislation and program contact information for all Canadian provinces. A person who was the victim of a crime of violence that occurred in another province can contact the relevant program to determine whether he or she qualifies for any form of compensation.

| online = [https://www.solgps.alberta.ca/programs_and_services/victim_services/help_for_victims/financial_assistance/Pages/GetFinancialAssistance.aspx Website]

*[https://www.justice.gov.nt.ca/en/files/legislation/victims-of-crime/victims-of-crime.a.pdf  ''Victims of Crime Act'', RSNWT 1988, c 9]

| online = Email: justweb@gov.ns.cac

| online = [https://www.saskatchewan.ca/residents/justice-crime-and-the-law/victims-of-crime-and-abuse/help-from-victim-service-units-and-agencies Website] <br /> Email: victimsservices@gov.sk.ca

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 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 BC, 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 benefit from counselling while pursuing a civil action.

The victim should seek 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 individuals do 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 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.