Avenues to Address Crime for Victims (4:IV): Difference between revisions
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A factsheet outlining complaints processes for justice agencies has been developed for victims and is available [https://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 [https://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 individuals in situations which they believe | For individuals in situations which they believe are dangerous, but are not assaults, sexual assault, or other more common types of violent offences, there are various sections of the ''Criminal Code'' that may be relevant. If an individual 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. | *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. | ||
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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. | ||
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 | 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 which can only be assessed in the civil courts. | ||
The aspects of physical injury | The only aspects of physical injury or psychological harm that can be covered by restitution are 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 | *medications not covered by insurance | ||
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This makes it distinct from the more general and less quantifiable “pain and suffering.” | 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 | 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 respects. 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 may be placed on property. | ||
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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 | No cause of action, right to damages, or right to appeal 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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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 [https://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 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 [https://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 | 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 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 | 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 organizations. Individuals can find a full list of language assistance services available [https://www2.gov.bc.ca/gov/content/justice/criminal-justice/bcs-criminal-justice-system/services-and-resources/translation-services here]. | ||
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'''Discreditable conduct of a witness can be used to challenge their credibility''' | '''Discreditable conduct of a witness can be used to challenge their credibility''' | ||
S 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 [https://www.canlii.org/en/on/onca/doc/1989/1989canlii7241/1989canlii7241.html ''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. | |||
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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. | 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 | 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 they 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. | ||
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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: | ||
*make the applications prior to the justice proceeding | *make the applications prior to the justice proceeding | ||
*to | *to be eligible, the applicant has to travel more than 100 km one way to attend the justice proceeding | ||
*the justice proceeding | *the justice proceeding must 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 | *travel and related expenses are not covered by Crown counsel, the CVAP, or any other source | ||
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=== 5. Parole Board of Canada Hearings === | === 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, | 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 (PBC) 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 (CSC). For information on registering, see [https://www.csc-scc.gc.ca/victims/003006-0001-eng.shtml 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. | '''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 | '''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 [http://canada.justice.gc.ca/eng/fund-fina/cj-jp/fund-fond/attend-audience.html Department of Justice website]. | For more information, see the [http://canada.justice.gc.ca/eng/fund-fina/cj-jp/fund-fond/attend-audience.html Department of Justice website]. | ||
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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 (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'' | 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'' also allows 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 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 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. | 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. | ||