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

{{REVIEWED LSLAP | date= August 1, 2023}}

*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 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 which can only be assessed in the civil courts.

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

*costs related to medical treatment

*counselling expenses 

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.  

=== 1. The Canadian Victims Bill of Rights ===

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 has passed away or is otherwise 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, if a person is charged with or convicted of the offence that resulted in the victimization, they are not defined as a victim. The same applies if a person that suffers the harm or loss is found not criminally responsible for the offence that resulted in the victimization due to a mental disorder. 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 if they are a Canadian citizen or 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.

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.

=== 2. Court Orientation, Preparation and Accompaniment ===

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.

=== 3. Things victims and witnesses should know about participating in a criminal trial ===

As stated, there are many resources available to witnesses to assist them during the court process and mitigate stress that arises from testifying. However, prior to agreeing to be a witness in a criminal case, a person must understand that the process may be an intrusive and uncomfortable experience. This is particularly relevant to victims, who in the process of testifying may feel retraumatized and contribute to feelings of revictimization.  

'''All witnesses are generally compellable'''

Once a person agrees to provide evidence or disclose that they were involved in or witnessed a crime, a subpoena can be issued compelling them to attend court on a specific date to give evidence. Individuals who have been served with a subpoena and fail to show up to court, or later refuse to give evidence at trial, may be charged with contempt. Further, if a person provides false evidence in court, they can be charged with perjury.  

'''Cross-examination can be stressful'''

Cross-examination can be a stressful experience for a witness. Defence counsel will likely challenge a witness’ evidence in an attempt to show that they are not a credible witness or that the evidence they are giving is unreliable. Defence counsel will generally do this by showing: the witness’s testimony is inconsistent with other independent evidence; they have made prior inconsistent statements; or their testimony has changed during direct examination and cross-examination. Defence counsel may also attempt to show that the witness has a motive to lie or mislead the court, which may include cross-examining them on any bias or prejudice they have towards the accused. Even if a witness appears credible, the defence may attempt to show that their evidence is unreliable because they are mistaken about what they saw.  

'''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. For example, the defence may hire a private investigator to follow a witness to gather evidence on their conduct. If the witness was participating in discerptible conduct, the defence could use this evidence during a cross-examination as a means of discrediting the witness in court.  

'''An accused can make an application to have third-party records of witnesses such as counselling records disclosed'''

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.  

=== 4. 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.

=== 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 (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, visit [https://www.csc-scc.gc.ca/victims/003006-0001-eng.shtml Registering as a Victim of Crime -csc-scc.gc.ca].  

'''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, visit [http://canada.justice.gc.ca/eng/fund-fina/cj-jp/fund-fond/attend-audience.html Attending Parole Board of Canada Hearings - justice.gc.ca].

== B. Pursuing the Matter in a Civil (Tort) Action ==

Criminal courts determine whether or not the accused is guilty, and if so, what would be the 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. In this regard, a victim may sue an alleged offender regardless of the offender’s verdict at a criminal trial. 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 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.

[https://www.canlii.org/en/on/oncj/doc/1995/1995canlii17903/1995canlii17903.html?autocompleteStr=%09MacKay%20v%20Buelow%20(1995)%2C%2011%20RFL%20(4th)%20403%20&autocompletePos=1 ''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.

*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 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.

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'' 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.

'''Victims should be referred 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. 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 their options and the potential consequences of each course of action in order to allow them to give informed instructions to counsel.