Criminal law

The victim

What is the difference between a criminal prosecution and a civil suit?

A criminal prosecution and a civil suit are two very different things.

• Criminal prosecution
  
  A criminal prosecution occurs when someone has committed a crime set out in the Criminal Code (theft, rape, murder, etc.) or in another law that is criminal in nature, such as the Controlled Drugs and Substances Act. Since the fight against crime involves society as a whole, it is the state, and not the victim, that lays charges against the accused. The person who lays the charges is called the Crown prosecutor. For more information on this topic, see Representing the victim. Within the context of a criminal prosecution, the victim is generally a key witness.
  The primary objective of a criminal prosecution is to hold the youth accountable for what he’s done, usually by imposing a sentence on him. Another objective is to have the youth repair the harm done to the victim. For example, sentences can include fines, community service, custody, compensation, etc.
  
  
• Civil suit
  
  Unlike a criminal prosecution, the public interest is not what drives a civil suit. Rather, it is the personal interests of the victim that are at stake. So it is the victim herself (or her parents if she is under 18) who pursues the perpetrator and who claims damages. A victim who wishes to be compensated for the damage suffered (damaged property, bodily injuries, psychological trauma, etc.) and who has not otherwise been compensated can bring a civil suit against the guilty person.

A person who commits an offence can therefore be brought to justice both criminally and civilly, since the two systems have different objectives. However, a victim will never be compensated twice for the same damages.

What is the Crime Victims Compensation Program?

In Quebec, the victim of a criminal act can ask to be compensated under the Crime Victims Compensation Program, a Quebec government initiative (most provinces offer a similar program). In order to be admissible, the victim has to have been injured – physically or psychologically – in the course of an offence. The offence must have been committed in Quebec and be a criminal act contained in the Criminal Code. This program does not apply to crimes committed against property, such as vandalism, fraud, theft without violence, etc.

For example, the damage resulting from the following acts can give rise to compensation: sexual assault, robbery (theft accompanied by violence or by threat of violence), assault resulting in bodily injury or mental shock, etc.

To obtain further information, victims should contact the Crime Victims Compensation program.

Can the victim be compensated for her injuries?

Yes. The victim has several possible recourses:

• In the case of a criminal prosecution: an order for compensation or restitution.
  
  When handing down a sentence, the youth court judge must take into account the damages, loss or injury caused to the victim. What’s more, when a teenager is charged, the judicial services of the court send the victim a form called a Victim Impact Statement. In this document, the victim can spell out the type of injuries she has suffered and the costs she has incurred. She can also attach proof of her injuries and associated costs, such as receipts, bills, photos, etc., and send it all to the clerk of the court. If the teenager is found guilty, the judge must consider the Victim Impact Statement when determining the sentence.
  
  In his decision, the judge can order the teenager to pay the victim a sum of money as compensation or damages. The victim can therefore be reimbursed for medical fees, lost wages, broken windows, broken locks, stolen goods that were re-sold, etc. if the teenager is capable of paying the sum. If the judge concludes that the teenager does not have the means to pay the amount in question (for example, if the damages add up to several thousand dollars), he may decide not to order that the victim be reimbursed, leaving her to find another solution. The judge can also order the teenager to pay a partial reimbursement to the victim, to do repair work, or to give back the goods that were taken from the victim.
  
  
• Civil suit
  
  A civil suit also allows the victim to be reimbursed. The victim (or the parents of the victim if she is under 18) must bring a suit against the person who committed the offence. Given the complexity of procedures in such a case, the victim would benefit from consulting a lawyer. Keep in mind that there are costs involved in a civil suit, such as medical expertise, lawyers’ fees, court costs, personal investment, stress, etc., and that these costs must be paid regardless of whether the victim wins or loses the suit. In short, this option requires time and money.
  
  However, if the damages are less than $ 7000, or if the victim agrees to reduce her claim to $ 7000 or less, she can bring her suit to small claims court, which is a part of the Court of Quebec. The procedures are less complex, faster and above all, less expensive. Also, lawyers are not permitted to represent people in small claims court, so the parties represent themselves.
  
  
• The Crime Victims Compensation Program (IVAC, for “Indemnisation des victimes d’actes criminels”)
  
  The IVAC program also offers the victim the possibility of being compensated for certain damages. The program reimburses medical assistance (hospitalization, medical and surgical fees, medication, etc.). A monthly or one-time amount may be awarded. In order to apply to the IVAC program for compensation, the victim must complete an application form. This form is available from the management of the program itself, in CLSCs, in Crime Victims Assistance Centres (CAVAC), from youth protection centres (Centres de protection de l’enfance et de la jeunesse: CEPJ) and in police stations.
  It is the victim’s decision whether to launch a civil suit or to ask for compensation through the IVAC program. It is also possible to combine the three options (criminal, civil, IVAC program). However, the victim cannot be compensated for the same damage more than once.
  
  A civil suit may allow the victim to claim for damages that are not covered by the IVAC program or which were not ordered to be reimbursed at the sentencing stage of the criminal prosecution. Similarly, if following a civil suit or a criminal prosecution, the victim receives less than the amount that she could have received under the IVAC program, she can claim the difference from the program for up to one year after the date of the judgment.
  Unlike the civil suit, the IVAC program and criminal prosecution do not cost anything for the victim or her parents.

Is it possible to sue the parents of the teenager who committed the offence? What can be gained by doing so?

Not only can the victim pursue the teenager who committed the crime, but she can also pursue his parents in court. In fact, parents are sometimes held responsible for their child’s actions while he is a minor.

It can be advantageous for the victim to pursue both the adolescent and his parents. Why? Suppose the trial judge orders the perpetrator to pay a certain amount to the victim, but the teenager does not have the financial ability to do so. In such a case, if the victim successfully sues the parents as well, they will be required to pay the victim.

Finally, the victim has 10 years following the date of the civil judgement to obtain payment. Therefore, even if the teenager or his parents are not able to pay the victim at the time of the judgment, they might be able to do so sometime over the next 10 years.

How soon must the victim seek compensation?

• Civil suit
  
  A victim who wishes to begin a civil suit must do so within three years following the day the damage was caused. However, if the damage was not discovered until some time after it was caused, the three-year delay begins on the day that the problem manifested itself for the first time.
  
  For example, let’s say that a person was roughed up during a theft, but she doesn’t feel any pain in the few days following the theft. If she starts suffering from severe backaches associated with the theft two weeks after the incident, the three-year period begins to run from this point.
  
  
• The Crime Victims Compensation Program (IVAC)
  
  The victim may present a request for compensation up to one year after incurring the injuries.
  
  In order to ensure the best possible outcome, it’s a good idea for the victim to pursue the perpetrator of the offense or to file a request for compensation as soon as possible. There are several reasons for this: the facts are fresh in the victim’s memory, the witnesses are easier to locate, and the victim’s credibility will be stronger.

What sort of compensation can the victim expect?

• Civil suit
  
  It is the trial judge who decides the amount of compensation that will be granted to the victim. In order to determine this amount, he takes into consideration the evidence that is presented to him by the plaintiff (the victim and her parents) and the respondent (the perpetrator and his parents, as the case may be) in equal measure.
  
  A civil suit reimburses the victim for all the damages she incurred that were proven, without overcompensating her. For example, the compensation granted by the judge can cover the following damages: dental treatment, damaged property, loss of salary, pain and suffering related to the incident, etc.
  
  
• The Crime Victims Compensation Program (IVAC)
  
  Once the victim has been accepted to the program, she will receive compensation to pay for the costs incurred for her recovery: physiotherapy, psychotherapy, medication, nursing services, orthopaedic implant, etc. Certain costs connected to personal security, such as installation costs of an alarm system or registration in self-defense classes, can also be reimbursed. Finally, in the event of permanent repercussions, monthly payments or a lump sum may be awarded. The amount of compensation awarded is determined according to the specific facts of every situation.

Can the victim be compensated even if the perpetrator is found not guilty or cannot be located?

• Civil suit
  
  The victim must know the perpetrator’s identity in order to launch a civil suit. Obviously, she cannot collect compensation from the perpetrator if she doesn’t know who he is. However, the victim can still sue if the perpetrator is known but cannot be found, although it will clearly be more difficult to collect the amount determined by the court.
  
  The victim can launch a civil suit against the perpetrator even if he was acquitted (i.e. found not guilty) during a criminal prosecution. Civil suits and criminal prosecutions are independent of one another, and the degree of proof required is different for each. Given that the consequences of being found guilty in a criminal prosecution are very serious, the law requires a higher level of proof. Therefore, even if the evidence isn’t enough to find the accused guilty in a criminal prosecution, it might still be enough to have him held responsible in a civil suit.
  
  
• The Crime Victims Compensation Program (IVAC)
  
  The victim can be compensated even if the perpetrator cannot be located or if he is found not guilty. In addition, the victim does not have an obligation to file a police report concerning the incident in order to be compensated. However, she must show, in a convincing way, that she was a victim of a criminal act described in the law. In such a situation, an investigator from IVAC can meet with the victim, the witnesses and the police officers who were involved in the case (if any) in order to be sure that the request is well-founded.

How is the youth court required to treat a victim who is requesting compensation?

The law takes into account the interests of victims of crimes committed by youth by recognizing their right to:

• be treated with courtesy and compassion, and to have their dignity and privacy respected;
  
• incur the fewest possible number of inconveniences as a result of their participation in the youth justice system;
  
• be informed about the proceedings against the teenager who committed an offence against them;
  
• participate and be heard in the proceedings against the teenager;
  
• know the identity of the accused youth and be informed if the case is transferred to an extrajudicial sanctions program, and to learn the nature of the sanction;
  
• have access to the teenager’s court record and possibly his other files;
  
• obtain reparation.

The law aims to strengthen and facilitate victims’ role in the youth criminal justice system. For instance, victims are encouraged to participate in conferences and youth justice committees, and new community-oriented sentences are being explored. To learn more, see the Infosheet Sentencing.

1. Ministère de la justice du Québec