Difference between pages "Crime Victim Assistance Program (4:III)" and "Missing Persons and Abductions (4:IX)"

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{{REVIEWED LSLAP | date= June 30, 2021}}
{{REVIEWED LSLAP | date= June 30, 2021}}
{{LSLAP Manual TOC|expanded = victims}}
{{LSLAP Manual TOC|expanded = victims}}
According to the National Center for Missing Persons and Unidentified Remains (NCMPUR), British Columbia records the highest number of missing persons in the country, accounting for more than 40% of the countries 29,645 cases in 2020 .


The ''Crime Victim Assistance Act'' [''CVAA''] is the primary piece of legislation that governs the Crime Victim Assistance Program (CVAP).
NCMPUR categorizes probable cause for missing persons into the following categories:


Although the CVAA and the ''Criminal Injury Compensation Act'', RSBC 1996, c 85 [''CICA''] are both in force, it is expected that the ''CICA'' will ultimately be repealed.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. 
* Abduction by stranger
* Accident
* Wandered Off
* Parental Abduction with Custody Order
* Parental Abduction without Custody Order
* Abducted by Relative
* Runaway
* Presumed Dead
* Human Trafficking
* Unknown


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, 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.
In British Columbia, there is no waiting period to report someone missing and anyone can make a report. Furthermore, you do not need to be a member of the missing persons immediately family to make a report. Before contacting police, you may want to reach out to family members, friends, loved ones and next of kin prior to filing a report. However, if these attempts at gaining information on an individuals whereabouts are unsuccessful, reporting to police is the best next step. You can expect the following from police when making a report :


Under the ''CVAA'', a victim can still:
* Report will be taken seriously, and investigation started without delay.
*initiate civil proceedings on their own
* Conducting a thorough investigation, including risk assessment, focused on the safety and wellbeing of the missing person
*make a claim under the Act
* Offer information about supports or resources that may be available, designate a contact person within the police force to support ongoing communication, and keep you updated on the investigation, as appropriate
* Consult with the family or reportee before releasing information or photographs of the missing person to the media, unless doing so would jeopardize the missing person or the investigation, for example by creating delays.
* When a missing person has been found, attend the location in person to confirm their identity and wellbeing. To balance respect for privacy with police duty to investigate safety concerns, this may be handled differently in some circumstances.
* Not close a file until the missing person has been located and their identity has been established.
* Not share information about the location of a found missing adult without their permission. Police may also keep this information confidential in certain cases involving minors, depending on the circumstances.
* Where appropriate, work with other agencies to promote a found missing person’s ongoing safety and limit recurring reports involving the same person, or to prevent others from going missing in similar circumstances.


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''.


The fact that an accused has not been criminally charged or has been acquitted of criminal charges is not a bar to commencing civil proceedings as the legal issues and the standard of proof are different. The difficulty with recovering anything directly from the accused is that there is seldom anything to be collected.
== A. Governing Legislation and Resources ==


Moreover, the procedure for making an application for assistance under the ''CVAA'' is less complicated than initiating a civil action.
=== 1. Legislation ===


The Missing Persons Act (the Act) came into force June 9, 2015, setting out the provisions for accessing records that will help find missing persons, including special provisions for people who are vulnerable, youth and persons at risk.


=== 1. The ''CVAA'' Does Not Apply to All Offences ===
The Act allows a member of a police force to apply to the court for records to help find a missing person. When there is a risk of serious harm to a missing person or a concern that records could be destroyed, the Act authorizes officers to make an Emergency Demand for Records without going through the court. Section 18 of the Act requires that a report on the use of  Emergency Demands for Records must be submitted to the Minister or his or her designate on an annual basis and must be made public.


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 Act defines a missing person as an individual whose whereabouts are unknown despite reasonable efforts to locate the individual and:
*in relation to an offence that occurred on or before July 1, 1972 (this is when the ''CICA'' came into effect);
*as the result of a motor vehicle offence, other than an assault using the motor vehicle;
*out of, and in the course of their employment; for which compensation is payable through workers' compensation; or
*outside of British Columbia. For resources for those outside of British Columbia, please refer to the resources listed on page 4-12.


The ''CVAA'' does not apply when the applicant is a party to the prescribed offence.
1. who has not been in contact with those persons who would likely be in contact with the individual or;


2. whose safety and welfare are feared for given:
    i) the individuals age
    ii) the individual’s physical or mental capabilities, or
    iii) the circumstance surrounding the individuals absence


=== 2. Who is Eligible and What They May Receive ===
=== 2. Resources ===


== A) Victims ==
==== a. The National Centre for Missing Persons and Unidentified Remains (NCMPUR) ====


Under this Act, “victim” means a person who is injured or killed as a direct result of either a prescribed offence or when acting as a “good Samaritan” while:
NCMPUR is Canada's national centre that provides law enforcement, medical examiners and chief coroners with specialized investigative services in support of missing persons and unidentified remains investigations.
#lawfully arresting or attempting to arrest a person, or assisting or attempting to assist a peace officer to arrest a person, in respect of a criminal offence; or
#lawfully preventing or attempting to prevent an offence or a suspected offence under the Criminal Code or assisting or attempting to assist a peace officer to do so.


Victims may be eligible for the following benefits:
One of the NCMPUR’s responsibilities is managing the national public website to provide information on selected cases to the public for the purposes of seeking tips on investigations.
*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


The Canadasmissing.ca website features profiles of missing persons and unidentified remains that have been published at the request of the primary investigator from either police, coroner or medical examiner agency. Furthermore, resources are provided that instruct individuals on how to submit tips, specialized services, and fact sheets.


== B) Immediate Family Members ==
==== b. Travel Reunification Services ====


Immediate family members may be eligible for the following benefits:
This is a program designed to assist a parent or a legal guardian who cannot afford to return the abducted child to or within Canada, once the child is located. In order to be eligible for travel assistance, the following guidelines must be met:
*counselling services or expenses
*vocational services or expenses
*income support for dependent family members of a deceased victim
*prescription drug expenses (related to psychological trauma)
*funeral expenses
*transportation and related expenses
*earnings loss due to bereavement leave
*homemaker and child care expenses
*crime scene cleaning


Under this Act, “Immediate Family Members” include persons who at the time of the offence were:
1. The request for transportation must come from the investigating Police Agency or the Central Authority from the child's home province:
*A law enforcement agency investigating a child abduction complaint;
*A representative of a Canadian Central Authority pursuant to the Hague Convention on the Civil Aspects of International Child Abduction; or
*An agency designated by NCMPUR Operations.


#a spouse, child, sibling, step sibling, half sibling or parent of the victim, and, for this purpose,
2.The requesting agency is responsible for assessing the financial status of the family and determining if transportation should be provided. (For example: whether the requesting parent's financial circumstances would make paying for the child and/or parent's transportation prohibitive).
##"spouse" means a person who:
##*is married to the victim;
##*is living and cohabiting with the victim in a marriage-like relationship; or
##*was qualified as a spouse under law or was entitled to maintenance/alimony/support when the incident occurred
##"child" includes:
##*a child to whom the victim stands in the place of a parent;
##*a child who is eligible for child support under another enactment;
##*a child of the victim born after the death of the victim; or
##*an adult to whom the victim stood in the place of a parent when the adult was a child
##"parent" includes:
##*a person who stands in the place of a parent to the victim; or
##*a person who stood in the place of a parent to the victim when the victim was a child
#if dependent in whole or in part on the victim for financial support, a grandparent or grandchild of the victim.


3.Assistance will be limited to child abduction situations, including situations where the child is abducted by parent or legal guardian.


== C) Witnesses ==
4.Assistance will be provided to transport:
*In the case of older abducted children, home; and
*In the case of younger children, enable the left behind parent or legal guardian to travel to the jurisdiction where the child is and return home.


"Witness" is a person who, although not necessarily related to a victim, has a strong emotional attachment to the victim and who:
5.In some cases, it may be appropriate for a person other than the left behind parent or legal guardian to retrieve the child and accompany the child home.


#is a witness in close proximity to:
6.If the left behind parent is travelling to retrieve the child, the requesting authority must make every reasonable effort to confirm/ensure that the parent will be able to obtain legal physical custody of the child. For example, consideration should be given to whether a return order is pending or under appeal, the child's whereabouts are known, there are legal impediments to the child's removal, etc.
#*a prescribed offence that causes a life-threatening injury to, or the death of, the victim; or
#*the immediate aftermath of a prescribed offence that causes the death of the victim, in circumstances that are sufficient to alarm, shock, and frighten a reasonable person with that emotional attachment to the victim, and
#suffers psychological harm that:
#*is diagnosed by a registered psychologist or a medical or nurse practitioner as a recognized psychological or psychiatric condition; and
#*in the opinion of the person who makes the diagnosis, is the result of the circumstances in subparagraph 1.


Witnesses may be eligible for counselling, related prescription drug expenses, transportation expenses to attend counselling, and crime scene cleaning expenses.
7.The requesting agency must ensure that the parent or legal guardian has all the necessary documents in order to retrieve the child. For example: child's birth certificate; custody order; passport and any other necessary travel documents.


8.Assistance will not be provided to transport the abductor, even if he or she is the person able to accompany the child home.


=== 3. Application for Benefits ===
The application forms are available from the CVAP (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 [https://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 Victim Services page of the Ministry of Justice website].
The CVAP 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.  They 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 they 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 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.
The Program will gather additional supporting information from a variety of sources such as medical, hospital, dental, employer reports, and information from CPP, Ministry of Social Development, or other sources relevant to the particular claim.
The decision regarding eligibility and entitlement to benefits involves a two-step process in which the adjudicator first determines whether the person is an eligible applicant and then determines what benefits, if any, will be provided.  The decision will be made in writing and will set out the factors considered in making the determination.
=== 4. Limitation Period ===
Generally, an application must be made within one year of the date of the offence or event.  There are exceptions to the one-year time limit, as follows:
*if the offence involves a sexual offence, there is no time limit for making an application (other than that the offence must have occurred on or after July 1, 1972).
*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. A parent or guardian may also submit an application for the minor.
The Director also has discretion to extend the one-year time limit if satisfied that the application could not reasonably have been made within one year from the date of the offence or one year from the date the applicant turned 19.
=== 5. Denials or Reductions in Benefits ===
Benefits can be denied if:
*the victim does not meet the eligibility criteria;
*the victim was a party to the offence that caused their injury or death; and/or
*they fail to cooperate with law enforcement authorities.
Benefits can be denied or reduced if:
*the benefits are available from another source for a same or similar purpose; and/or
*the applicant contributed to the circumstances giving rise to the injury or death.
=== 6. Payment of Benefits ===
Payments can be provided directly to the service provider, such as a counsellor, or as reimbursement to the applicant for expenses that were incurred prior to the decision being completed.  Some applicants are eligible for income support or lost earning capacity benefits that are provided on a monthly basis.
=== 7. Does the Alleged Offender Have to Be Charged or Convicted? ===
A police report is '''not''' required and it is not necessary for an offender to be identified, charged or convicted in order for an applicant to be eligible for benefits.  Where the victim has not reported the offence to the police, information from a witness or someone the applicant disclosed the incident to, or a report from a health care professional, counsellor, social worker or other agency may be accepted as supporting evidence of the offence.
=== 8. Co-operation with Law Enforcement ===
Since the Program is part of the criminal justice system and is a publicly funded program, there is an expectation that the victim will cooperate with the police and Crown counsel in order to hold offenders accountable. There are some exceptions in relation to issues of non-cooperation, but in general, benefits may be denied or reduced if the applicant has no reasonable basis for failing to cooperate with law enforcement.
=== 9. Prior Claims with the Criminal Injury Compensation Program (CICP) ===
Applications received prior to June 30, 2002 will have been adjudicated under the ''CICA'' by the CICP.  Once a final determination was made under the ''CICA'', ongoing administration of the claim transfers to the CVAP and any further reviews for reassessment or reconsideration will be conducted in accordance with the ''CVAA''.
If a person was receiving a pension from the CICP, they will remain eligible for an ongoing pension, subject to the same conditions and limitations, except where there is a change in circumstance such that their injury improves or worsens.  In cases where there is a change in their condition, their claim will be reviewed under the provisions of the ''CVAA''.
=== 10. Type of Reviews ===
Once an original adjudication is completed, there are two types of reviews available.  Under s 12 of the ''CVAA'', if there is new information available or there has been a change of circumstance that could affect the applicant’s eligibility for benefits, a '''reassessment''' decision can be completed.
Under s 13 of the ''CVAA'', an applicant or their legal representative may request the Director to reconsider a decision.  This request must be made in writing, identifying the error made in the decision to be '''reconsidered''' and be delivered to the Director '''within 60 days''' from the date the decision was made.
The Director may extend the time limit for making the request for reconsideration if satisfied that a request for reconsideration could not reasonably have been '''delivered''' within the limitation period.  Note that since the legislation restricts consideration to whether or not the request could have been “delivered” within the requisite time period, there are limited grounds for an extension (e.g. interruption of mail service, the 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. The application is made to the provincial or territorial Superior Court (e.g., Supreme Court of British Columbia). Once the application is accepted, the Superior Court decides whether to set aside the adjudicator’s decision and to order for a re-hearing. Winning at the judicial review hearing is not a guaranteed win at the new adjudicative hearing. For more information, consult [https://judicialreviewbc.ca/wordpress/wp-content/uploads/2016/09/Judicial-review-guide-PLUS-App-A_Nov-52015.pdf this].


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Revision as of 03:16, 3 November 2021

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on June 30, 2021.
LSLAP Manual
LSLAP Manual
This page is from the
Law Students' Legal
Advice Program Manual.
See the full contents.
LSLAP Manual
Introduction
Chapters
4. Victims
 · I. Introduction

 · II. Governing Legislation
 · III. Crime Victim Assistance Program
 · IV. Avenues to Address Crime
 · V. Victims of Sexual Assault
 · VI. Victims of Relationship Violence
 · VII. Seniors or Those with Disabilities
 · VIII. Victims of Human Trafficking
 · IX. Missing Persons and Abductions
 · X. TIP and Restorative Justice
 · XI. Resources for Indigenous Victims

 · XII. Referrals and Follow-up
v • d • e



According to the National Center for Missing Persons and Unidentified Remains (NCMPUR), British Columbia records the highest number of missing persons in the country, accounting for more than 40% of the countries 29,645 cases in 2020 .

NCMPUR categorizes probable cause for missing persons into the following categories:

  • Abduction by stranger
  • Accident
  • Wandered Off
  • Parental Abduction with Custody Order
  • Parental Abduction without Custody Order
  • Abducted by Relative
  • Runaway
  • Presumed Dead
  • Human Trafficking
  • Unknown


In British Columbia, there is no waiting period to report someone missing and anyone can make a report. Furthermore, you do not need to be a member of the missing persons immediately family to make a report. Before contacting police, you may want to reach out to family members, friends, loved ones and next of kin prior to filing a report. However, if these attempts at gaining information on an individuals whereabouts are unsuccessful, reporting to police is the best next step. You can expect the following from police when making a report :

  • Report will be taken seriously, and investigation started without delay.
  • Conducting a thorough investigation, including risk assessment, focused on the safety and wellbeing of the missing person
  • Offer information about supports or resources that may be available, designate a contact person within the police force to support ongoing communication, and keep you updated on the investigation, as appropriate
  • Consult with the family or reportee before releasing information or photographs of the missing person to the media, unless doing so would jeopardize the missing person or the investigation, for example by creating delays.
  • When a missing person has been found, attend the location in person to confirm their identity and wellbeing. To balance respect for privacy with police duty to investigate safety concerns, this may be handled differently in some circumstances.
  • Not close a file until the missing person has been located and their identity has been established.
  • Not share information about the location of a found missing adult without their permission. Police may also keep this information confidential in certain cases involving minors, depending on the circumstances.
  • Where appropriate, work with other agencies to promote a found missing person’s ongoing safety and limit recurring reports involving the same person, or to prevent others from going missing in similar circumstances.


A. Governing Legislation and Resources

1. Legislation

The Missing Persons Act (the Act) came into force June 9, 2015, setting out the provisions for accessing records that will help find missing persons, including special provisions for people who are vulnerable, youth and persons at risk.

The Act allows a member of a police force to apply to the court for records to help find a missing person. When there is a risk of serious harm to a missing person or a concern that records could be destroyed, the Act authorizes officers to make an Emergency Demand for Records without going through the court. Section 18 of the Act requires that a report on the use of Emergency Demands for Records must be submitted to the Minister or his or her designate on an annual basis and must be made public.

The Act defines a missing person as an individual whose whereabouts are unknown despite reasonable efforts to locate the individual and:

1. who has not been in contact with those persons who would likely be in contact with the individual or;

2. whose safety and welfare are feared for given: 

   i) the individuals age 
   ii) the individual’s physical or mental capabilities, or
   iii) the circumstance surrounding the individuals absence

2. Resources

a. The National Centre for Missing Persons and Unidentified Remains (NCMPUR)

NCMPUR is Canada's national centre that provides law enforcement, medical examiners and chief coroners with specialized investigative services in support of missing persons and unidentified remains investigations.

One of the NCMPUR’s responsibilities is managing the national public website to provide information on selected cases to the public for the purposes of seeking tips on investigations.

The Canadasmissing.ca website features profiles of missing persons and unidentified remains that have been published at the request of the primary investigator from either police, coroner or medical examiner agency. Furthermore, resources are provided that instruct individuals on how to submit tips, specialized services, and fact sheets.

b. Travel Reunification Services

This is a program designed to assist a parent or a legal guardian who cannot afford to return the abducted child to or within Canada, once the child is located. In order to be eligible for travel assistance, the following guidelines must be met:

1. The request for transportation must come from the investigating Police Agency or the Central Authority from the child's home province:

  • A law enforcement agency investigating a child abduction complaint;
  • A representative of a Canadian Central Authority pursuant to the Hague Convention on the Civil Aspects of International Child Abduction; or
  • An agency designated by NCMPUR Operations.

2.The requesting agency is responsible for assessing the financial status of the family and determining if transportation should be provided. (For example: whether the requesting parent's financial circumstances would make paying for the child and/or parent's transportation prohibitive).

3.Assistance will be limited to child abduction situations, including situations where the child is abducted by parent or legal guardian.

4.Assistance will be provided to transport:

  • In the case of older abducted children, home; and
  • In the case of younger children, enable the left behind parent or legal guardian to travel to the jurisdiction where the child is and return home.

5.In some cases, it may be appropriate for a person other than the left behind parent or legal guardian to retrieve the child and accompany the child home.

6.If the left behind parent is travelling to retrieve the child, the requesting authority must make every reasonable effort to confirm/ensure that the parent will be able to obtain legal physical custody of the child. For example, consideration should be given to whether a return order is pending or under appeal, the child's whereabouts are known, there are legal impediments to the child's removal, etc.

7.The requesting agency must ensure that the parent or legal guardian has all the necessary documents in order to retrieve the child. For example: child's birth certificate; custody order; passport and any other necessary travel documents.

8.Assistance will not be provided to transport the abductor, even if he or she is the person able to accompany the child home.


v • d • e
 
Chapters 1-7
Criminal Law  · Youth Justice  · Family Law  · Victims  · Public Complaints · Human Rights  · Workers Compensation
Chapter One:
Criminal Law
Chapter Two:
Youth Justice
Chapter Three:
Family Law
Chapter Four:
Victims
Chapter Five:
Public Complaints
Chapter Six:
Human Rights
Chapter Seven:
Workers' Compensation
I. Introduction · II. Governing Legislation, Policy & Guidelines · III. Introduction to Compensation Claims for Injured Workers · IV. LSLAP's Role at the Initial Decision Level · V. Limitation Periods and Timing of Decisions · VI. Making a Claim · VII. The Claim Acceptance Process · VIII. Worker Status · IX. Disability and Causation · X. Time Limits and Procedures · XI. Claim Benefits · XII. Appeals · XIII. Health and Safety Regulations in the Workplace · XIV. Assessments of Employers · XV. The WCB Fair Practices Officer · Appendix A: Abbreviations · Appendix B: List of Cases · Appendix C: Referrals · Appendix D: Resources · Appendix E: Claims Process · Appendix F: Checklist for Interviews · Appendix G: Checklist for Appeals · Appendix H: Sample Authorization Form
© Copyright 2023, The Greater Vancouver Law Students' Legal Advice Society.


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