Avenues to Address Crime for Victims (4:IV)

A. Pursuing the Matter Through the Criminal System

Apart from the initial report to police, the victim is not responsible for the prosecution of the offender. The burden to conduct the case is on the Crown. The crime is also against the community, and the victim is a witness to this crime. Whether the victim wants to proceed, drop charges, or testify has little bearing on the case.

Police can make an arrest if there are reasonable grounds for the police to believe that an offence has been committed, if there is a warrant, or if they find a person committing an offence. If the Crown believes that there is a reasonable likelihood of conviction and it is in the public interest to proceed, a charge must then be laid. However, if the police decide not to recommend charges and if the explanation is unsatisfactory, the client may want to discuss the situation with a superior officer. In B.C., the police are not responsible for laying charges; they are responsible for completing an incident report or a Report to Crown if they are recommending charges, but it is up to Crown to determine whether charges will be laid. If Crown has not approved charges and the explanation is not satisfactory, the client may wish to discuss the matter with a more senior Crown Counsel. If still not satisfied, the client may write to Regional Crown Counsel. Finally, it may be appropriate to write to the B.C. Attorney General in Victoria.

For a client in a situation they believe is dangerous, but which does not constitute assault, sexual assault or another of the more common violent offences, there are various sections of the Criminal Code that may be relevant. If a client is a victim of one of these offences, it is within their rights to contact the police and ask that charges be laid. The following is a list of some related offences:

• 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. After sentencing, thejudge has no jurisdiction to order restitution. If the accused does not pay, the applicant can, by filing the order, enter a judgment in Supreme Court. The judgment is rendered against the accused in civil proceedings. Often restitution is part of a probation order, which is a good way of securing compliance. Compensation may also be ordered to a bona fide purchaser of property that is restored to its rightful owner.

1. Court Orientation, Preparation and Accompaniment

If a charge is laid, the client may be asked to testify as a witness, or 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, see: http://www.pssg.gov.bc.ca/victimservices/court/

2. Victim Travel Fund

The Victim Travel Fund provides funding to a maximum of $3 000 per family/victim to help attend and participate in justice-related proceedings. Funding is available to victims who have suffered significant physical or emotional trauma as a result of a serious criminal offence. 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 should be made prior to 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 B.C. 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 being covered by Crown counsel, the Crime Victim Assistance Program or any other source.

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.

3. Parole Board of Canada Hearings

If the criminal prosecution is successful, clients 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, see http://www.csc-scc.gc.ca/victims/003006-0001-eng.shtml). 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 website.

B. Crime Victim Assistance Program

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. 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 Justice administers this program.

The CVAP has been developed in response to the changing needs of victims and others impacted by violent crime. Benefits are available to victims of crime, and their immediate family members and those who meet the legislation’s definition of witness. One should note that the Program is not based on a compensation model, but rather is based on a financial assistance model. This provides eligible claimants with financial support as well as additional services and assistance to aid in their recovery from the physical and psychological effects of their victimization and to offset the costs of the victimization.

Under the CVAA, a victim can still:

• initiate civil proceedings on his or her own; and/or
• make a claim under the Act.

If a client 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)). Keep in mind that 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 since 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.

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

1. The CVAA Does Not Apply To All Offences

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:

• in relation to an offence that occurred on or before July 1, 1972 (this is when the Criminal Injury Compensation Act 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.

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

2. Who is Eligible and What They May Receive

a) Victims

“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:

• (i) 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
• (ii) 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:

• 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; and/or
• crime scene cleaning.

b) Immediate Family Members

“Immediate Family Members” include persons who at the time of the offence were:

1. a spouse, child, sibling, step sibling, half sibling or parent of the victim, and, for this purpose,
   • (i) “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
   • (ii) “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, and
   • (iii) “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.
2. if dependent in whole or in part on the victim for financial support, a grandparent or grandchild of the victim.

Immediate family members may be eligible for the following benefits:

• 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; and/or
• crime scene cleaning.

c) Witnesses

“Witness” is a person who, although not necessarily related to a victim, has a strong emotional attachment to the victim and who:

• (i) witnesses in close proximity:
  • 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
• (ii) 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 (i).

Witnesses may be eligible for counselling, and related prescription drug expenses, transportation expenses to attend counselling and crime scene cleaning expenses.

3. Application for Benefits

The application forms are available from the Crime Victim Assistance Program (see contact information ) or from any police department, victim service program, and many community agencies. They are also available on the Victim Services page of the Ministry of Justice website.

The Crime Victim Assistance Program staff will then obtain a police report of the incident (if the matter was reported to the police) and other supporting documents. When describing what happened on the application form, an applicant should give a general but clear statement of the event, and then make reference to the police report for additional details. She or he should include on the application:

• the date the report was made to the police as well as the police report number if a police report has been made (although a police report is highly advisable it is not mandatory);
• if a police report was not made, information should be provided as to why the incident was not reported and if possible, names of any witnesses, persons to whom a disclosure was made or to whom the incident was reported should be provided;
• information about what occurred;
• information about any physical or psychological injuries he or she may have received;
• names of any doctors, counsellors, or anyone else that has been seen as a result of the injuries, and
• 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, though applications for minors can 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 client’ s parent, the Ministry of Children and Family Development may have apprehended the client. 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, and in rare circumstances 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); or
• If the applicant is a minor, they have one year from the date they turn 19 to make an application. There is no time limit for the victim if the offence is a sexual offence. However, a minor does not have to wait until they are 19 to make a claim. Minors can submit an application on their own and do not need a parent or guardian to apply on their behalf. However, a parent or guardian may also submit an application for the minor.

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 Criminal Injury Compensation Act, RSBC 1996, c 85 [CICA] by the CICP. Once a final determination was made under the CICA, ongoing administration of the claim transfers to the Crime Victim Assistance Program and any further reviews for reassessment or reconsideration will be conducted in accordance with the Crime Victim Assistance Act [CVAA].

If a person was receiving a pension from the CICP, they will remain eligible for an ongoing pension, subject to the same conditions and limitations, except where there is a change in circumstance such that their injury improves or worsens. In cases where there is a change in their condition, their claim will be reviewed under the provisions of the CVAA.

10. Types 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, 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.

11. Criminal Injuries Outside British Columbia

National Office for Victims Telephone: 1-866-525-0554Website: www.publicsafety.gc.ca/prg/cor/nov/nov-bnv-eng.aspx 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. Federal Ombudsman for Victims of Crime Website: www.victimsfirst.gc.ca/index.html Directory of International Crime Victim Compensation Programs Website: www.ncjrs.gov/ovc_archives/reports/intdir2005/canada.html

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C. Pursuing the Matter in a Civil (Tort) Action

Criminal court determines whether or not the accused is guilty, and if so, what would be appropriate punishment. However, the criminal court will do little in the way of providing compensation for the victim, other than possibly making a restitution order. Receiving financial compensation from the offender for the damages caused is one of the reasons why survivors of violence sue in civil court.

Examples of applicable torts: assault; battery; trespass to the person; breach of privacy; intentional or negligent infliction of nervous shock or emotional distress; false imprisonment; trespass to land; intimidation (usually a business tort, but applicable in some cases), and defamation.

MacKay v.Buelow (1995), 11 RFL (4th) 403 provides a helpful illustration of the applicability of tort law in this area. The defendant (the plaintiff’s ex-husband) harassed and intimidated the plaintiff by continuously calling her, leaving notes at her home, threatening to kidnap their daughter, throwing things at the plaintiff, hanging a used condom in her home, stalking her, directly and indirectly threatening to kill her, videotaping her through her bathroom window, advising third parties about nude movies of the plaintiff, and continuously harassing her friends and colleagues. The court held that the conduct of the defendant was exceptionally outrageous and awarded the plaintiff damages based on the torts of trespass to the person, breach of privacy, and intentional infliction of emotional distress. Pursuing the matter through the criminal justice system is best done before any civil action is taken, given that:

• in a 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 other side has more access to the victim’s personal history. If the civil suit is pursued concurrently or before the criminal trial, the information brought up in the former may leak into the latter. Furthermore, the accused could try to argue that the victim is pursuing the criminal trial only because they want to gain as much as possible in the civil action.

The burden of proof in a civil trial is lower than in a criminal trial, but the evidence must still be clear and convincing. As a plaintiff in a civil action, a survivor of physical or sexual assault must prove on a balance of probabilities that the assault was perpetrated by the defendant named in the action, and that this assault resulted in damages. This is a less stringent test than that placed upon the Crown in criminal proceedings, where the case must be established beyond a reasonable doubt. Thus, it is possible for a victim to win a civil suit even in the event there has been a previous acquittal in criminal proceedings.

A civil suit may also give the victim access to compensation from third parties and institutional defendants (e.g. government institutions, foster homes, and residential schools) upon whom liability may be imposed. This is beneficial where the individual perpetrator has few assets or none at all.

Pursuant to the Limitation Act, RSBC, c 266, in most cases, there is a two year limitation on initiating a claim in tort (section 6). However, there are exceptions to this rule. In B.C., there is an exemption to the two year time limit for cases of sexual assault (section 3(1)(j)). The Limitation Act was also recently amended to also allow for an exemption for physical assault claims for minors and for adults who were living in a personal or dependent relationship with their abuser (section 3(1)(k)). The rationale for these exemptions are that those victims may not be expected to recognize the wrongness of what has happened to them and have the ability to bring a claim within a limitation period.

Bringing a civil action may be a long process and the plaintiff should consider the personal toll it may impose on them. Some victims who go through this process feel as though their life is on hold, and are unable to get on with other parts of their life. Remember, however, that in many cases the parties will settle, although the outcomes of negotiations are extremely difficult to predict. Some people may benefitfrom counselling while pursuing a civil action.

Students should refer the victim 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. It is very important that students not jump to conclusions as to whether or not it is “worth it”to take this route. Some lawyers may be willing to take on a case on a contingency fee basis, which means that they will get a certain percentage of any damages, if they are awarded.

NOTE: Students must not take control of the client’ s decisions. Clients, especially those who have beenvictimized, may want clinicians to direct their decision-making. A client should be informed of his or her options and the potential consequences of each course of action in order to allow him or her to give informed instructions to counsel.