Avenues to Address Crime for Victims (4:IV): Difference between revisions
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Avenues to Address Crime for Victims (4:IV) (view source)
Revision as of 20:34, 17 July 2017
, 17 July 2017LSLAP Clinician update: additional minor paragraphs, minor spelling errors, link updates
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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 here]. | 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 here]. | ||
For | 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: 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. | *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. | 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. | ||
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=== 1. The Canadian Victims Bill of Rights === | === 1. The Canadian Victims Bill of Rights === | ||
This Act | 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 | 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. | ||
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''. | 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''. | ||
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*request information | *request information | ||
*have their security and privacy considered by the appropriate authorities, be protected by the criminal justice system | *have their security and privacy considered by the appropriate authorities, be protected by the criminal justice system | ||
*participate by presenting victim impact statements | *participate by presenting victim impact statements | ||
*request that their identity be protected | *request that their identity be protected | ||
*have the court consider making a restitution order against the offender | *have the court consider making a restitution order against the offender | ||
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*costs that victims of identity theft had to pay to re-establish their identity, and to correct their credit history and their credit rating | *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 from any decision or order arises from an infringement or denial of a right under this Act. | 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. | 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. | ||
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=== 2. Court Orientation, Preparation and Accompaniment === | === 2. Court Orientation, Preparation and Accompaniment === | ||
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]. | 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 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 at the following link: | |||
http://www2.gov.bc.ca/gov/content/justice/criminal-justice/bcs-criminal-justice-system/services-and-resources/translation-services | |||
=== 3. Victim Travel Fund === | === 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: | 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: | ||
*applications | *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 | *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) | *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) | ||
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=== 4. Parole Board of Canada Hearings === | === 4. Parole Board of Canada Hearings === | ||
If | 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 [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]. | For more information, see the Department of Justice [http://canada.justice.gc.ca/eng/fund-fina/cj-jp/fund-fond/attend-audience.html website]. | ||
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== B. Crime Victim Assistance Program == | == B. Crime Victim Assistance Program == | ||
The ''Crime Victim Assistance Act'' [''CVAA''] is the | 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'' 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. | 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. | ||
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*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. | *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 | 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 victimisation. 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. | 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. | ||
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==== National Office for Victims ==== | ==== National Office for Victims ==== | ||
Provides | 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. | ||
{{ResourcesLSLAP_phoneonline | {{ResourcesLSLAP_phoneonline | ||
| phone = 1- | | phone = 1-866-525-0554 | ||
| online = [http://www.publicsafety.gc.ca/cnt/cntrng-crm/crrctns/ntnl-ffc-vctms-en.aspx Website] | | online = [http://www.publicsafety.gc.ca/cnt/cntrng-crm/crrctns/ntnl-ffc-vctms-en.aspx Website] | ||
}} | }} | ||
*[http://www.victimsfirst.gc.ca/index.html Federal Ombudsman for Victims of Crime] | *[http://www.victimsfirst.gc.ca/index.html Federal Ombudsman for Victims of Crime] | ||
*[ | *[https://ovc.ncjrs.gov/findvictimservices/results2.asp Directory of International Crime Victim Compensation Programs] | ||
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. | 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. | ||
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===== New Brunswick ===== | ===== New Brunswick ===== | ||
*[ | *[https://www.canlii.org/en/nb/laws/stat/snb-2016-c-113/latest/snb-2016-c-113.html ''Victims Services Act'', SNB 2016 c 113] | ||
*'''Victim Services Program''' | *'''Victim Services Program''' | ||
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| address = Argyle Place <br /> P.O. Box 6000 <br /> Fredericton, NB E3B 5H1 | | address = Argyle Place <br /> P.O. Box 6000 <br /> Fredericton, NB E3B 5H1 | ||
| phone = (506) 453-3992 | | phone = (506) 453-3992 | ||
| online = [http://www2.gnb.ca/content/gnb/en/departments/public_safety/safety_protection/content/victim_services.html Website] <br /> Email: DPS-MSP.Information@gnb.ca | | online = [http://www2.gnb.ca/content/gnb/en/departments/jps/public_safety/content/safety_protection/content/victim_services.html Website] <br /> Email: DPS-MSP.Information@gnb.ca | ||
}} | }} | ||
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| address = Department of Justice <br /> c/o Public Trustee Office <br /> P.O. Box 1320 <br /> Yellowknife, NWT X1A 2L9 | | address = Department of Justice <br /> c/o Public Trustee Office <br /> P.O. Box 1320 <br /> Yellowknife, NWT X1A 2L9 | ||
| phone = (867) 873-7500 | | phone = (867) 873-7500 | ||
| online = [ | | online = [https://www.justice.gov.nt.ca/en/victim-services/ Website] | ||
}} | }} | ||
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{{ResourcesLSLAP | {{ResourcesLSLAP | ||
| address = 4th Floor, | | address = 4th Floor, 655 Bay Street <br /> Toronto, ON M7A 2A3 | ||
| phone = (416) 326-2900 <br /> Toll-Free: 1-800-372-7463 <br /> Fax: (416) 326-2883 | | phone = (416) 326-2900 <br /> Toll-Free: 1-800-372-7463 <br /> Fax: (416) 326-2883 | ||
| online = Email: info.cicb@ontario.ca | | online = Email: info.cicb@ontario.ca | ||
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===== Prince Edward Island ===== | ===== Prince Edward Island ===== | ||
*[ | *[https://www.princeedwardisland.ca/sites/default/files/legislation/v-03_1.pdf ''Victims of Crime Act'', RSPEI 1988, c V-3.1] | ||
*'''Victim Services''' | *'''Victim Services''' | ||
{{ResourcesLSLAP_online | {{ResourcesLSLAP_online | ||
| online = [ | | online = [https://www.princeedwardisland.ca/en/information/justice-and-public-safety/victim-services Website] | ||
}} | }} | ||
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| address = 1199, Rue Bleur <br /> C.P. 6056, succursale Centre-ville <br /> Montreal, QC H3C 4E1 | | address = 1199, Rue Bleur <br /> C.P. 6056, succursale Centre-ville <br /> Montreal, QC H3C 4E1 | ||
| phone = (514) 906-3019 <br /> Toll-Free: 1-800- 561-4822 <br /> Fax: (514) 906-3029 | | phone = (514) 906-3019 <br /> Toll-Free: 1-800- 561-4822 <br /> Fax: (514) 906-3029 | ||
| online = [http://www.ivac.qc.ca Website] <br /> Email: | | online = [http://www.ivac.qc.ca Website] <br /> Email: info@ivac.qc.ca | ||
}} | }} | ||
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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. | 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. | 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. | ''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. | ||
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*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; | *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 | *a criminal conviction is convincing evidence in itself; and | ||
*in a civil suit, the | *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. | ||
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. | 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. | ||
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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. | 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 ( | 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 are 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 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. | 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. | ||