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Law 12Sentencing and the Correctional SystemMs. Ripley
COMPENSATION FOR VICTIMS (Learning About Law, p226-228)
The victim of a crime suffers the most specific loss or harm from a criminal act. In the past, victims were left to pay their own medical expenses and to seek compensation. They may have lost wages or property and have been unable to function fully in society. As well, victims were often blamed for their circumstances, particularly in the case of sexual assaults.
Canadian legislation to aid victims of crime began to emerge in 1967, starting in Saskatchewan and gradually spreading to other provinces and territories. At present, the only province that does not have some scheme for victim compensation is Prince Edward Island. Most criminal injuries compensation plans limit applications for compensation to victims of violent crime and specify compensation mainly for "pain and suffering" resulting from criminal actions. Victims of property crimes and driving offences are excluded, as insurance policies cover these kinds of losses. As well, where a victim has a hand in her or his own victimization, compensation will be limited or denied. For example, a victim who was involved in criminal or immoral conduct connected to the incident may be ineligible for compensation.
Those who argue in favour of compensation say that, as a society, we have a legal and moral duty to compensate victims. They reason that society must protect its citizens, and an extension of this is to pay compensation to those citizens it does not adequately protect. As well, it is argued that society has a moral duty to share the risks and costs of being individual victims of crime.
A final argument in favour of compensating victim,; is that it benefits society If a victim does not report a crime, then all of society pays a share in that cost. Police investigation and the eventual arrest of the offender may be the only way to prevent more criminal acts of a similar nature from occurring.
An application for compensation can be made by the victims, the people who maintain or care for a victim, or a victim's depend ants. Most provinces relate their definitions of "victim" to specific sections in the Criminal Code. Generally, people who are injured while assisting a police officer, while arresting a criminal, or whilepreventing the commission of a crime are also eligible.
To win an award, the applicant must prove that there is a connection between the offender's actions and the applicant's injury. The applicant must also file within one year of the injury unless the provincial compensation board gives permission for an extension. While none of the provinces limits applications to citizens who reside in their jurisdictions, the injury that is being compensated must have occurred in that jurisdiction.
Criminal injuries compensation plans do not require the identification or conviction of an offender for the victim to be compensated, as does tort law. However, once compensation is paid by a provincial compensation board to a victim, the victim cannot then sue the offender for the same injury in civil court. The right to sue the offender is given to the provincial board. Some provinces pursue this as a means of offsetting the cost of the compensation program, but the recovery of payouts outs is minimal (less than 5 percent per year of the amount paid out is recovered in this type of civil action).
Jewers v. Criminal Injuries Compensation Bd. (1987), 44 D.L.R. (4th) 188 (N.S.C.A.)
Jewers had assaulted a person, but received an absolute discharge at trial. She was subsequently stabbed by the mother of the victim of the assault and was injured. She applied to the Nova Scotia Criminal Injuries Compensation Board for compensation for the attack. Her award for compensation was reduced by 40 percent because of her criminal acts in the circumstances leading to the stabbing incident.
Was it reasonable to reduce the amount of the award Jewers received by 40 percent because her actions had, in part, led to her current situation? Explain.
Poholko v. Criminal Injuries Compensation Bd. (1983), 58 N.S.R. (2d) 15 (C.A.)
A prostitute went willingly with a client and was then kidnapped and assaulted by him. Although her conduct did not directly lead to the injuries that resulted from the assault, the compensation she received was reduced by 50 percent because she was engaging in an immoral activity that had led directly to the situation in she was attacked.
1. Why was Poholko considered partly responsible for her injuries?
2. Do you believe that it was reasonable to reduce the compensation she received by 50 percent? Explain.