CURRENT FINANCIAL ASSISTANCE PROGRAMS

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New Zealand established the first modern financial assistance system for victims of violent crime in 1963. A year later, the United Kingdom established a non-statutory tribunal that awarded compensation to victims of violent crime similar to what they could have expected to recover in a successful civil action. The United Kingdom enacted the Criminal Injuries Compensation Act in 1995, which provides victims of violent crime with loss of earnings payments as well as compensation for pain and suffering through an injury-based tariff. 1 The British program remains the most generous in the world, and provides awards to crime victims ranging from £1,000.00 for minor injuries to £250,000.00 for quadriplegia or severe brain damage.

In 1967 Ontario 2 and Saskatchewan followed New Zealand and the United Kingdom in providing financial assistance to victims of violent crime, and today all provinces except Newfoundland provide violent crime victims with some form of financial assistance. 3

A. Policy rationales for financial assistance

There are various policy rationales that underlie providing financial assistance to victims

of violent crime:

Criminal injuries financial assistance reflects society's compassion for innocent victims and a collective desire to help those who have been harmed as a result of violent crime.
Governments fund a number of programs that are designed to promote the welfare of its citizenry and financial assistance for victims of violent crime is a reasonable extension of these kinds of state funded programs.
Similarly, governments provide several insurance-like programs such as health care insurance, unemployment insurance and workplace injury insurance that spread certain inevitable risks in society. Victim financial assistance is seen, again, as a reasonable extension of these kinds of programs.

B. Role of the federal government

The federal government originally funded all provincial financial assistance programs on a cost-sharing basis, which ended in 1992. At around the same time, the federal government introduced a victim surcharge on Criminal Code fines, to be applied to provincial victim services and programs, thereby offsetting the provinces' loss of federal revenue to some extent. Today the federal Department of Justice continues to provide some financial assistance directly to crime victims in strictly prescribed circumstances through a Victims Fund administered by its Policy Centre for Victim Issues. 4 For example, Canadians who are victims of serious violent crimes abroad can apply for emergency financial assistance with travel and counselling costs where no other source of financial assistance is available. The Victims Fund also helps victims who are registered with the Correctional Service of Canada or the National Parole Board with travel and accommodation costs to attend a hearing related to the offender who harmed them.

C. Provincial financial assistance programs

Victim services and programs are now viewed primarily as a provincial responsibility and the provinces that do provide financial assistance programs for victims of violent crime do so according to their own legislation and procedures. 5

Generally, the provincial financial assistance programs are available to victims of violent crimes or dependents of homicide or sexual assault victims. The amount of financial assistance can be reduced if the victim contributed to his or her injuries. Limitation periods are usually set at one or two years, with discretion to extend in appropriate circumstances. All provincial programs provide victims of violent crime with some assistance with various crime-related expenses and losses such as dental and eye glasses replacements, counselling, wage losses, funeral costs, or childcare.

The amount of financial assistance paid varies between provincial programs, ranging from $2,000.00 in Nova Scotia for counselling expenses, to Quebec's program at the other end of the spectrum, which has no maximum limits on what may be paid to crime victims. In Ontario, the CICB may make a lump sum award up to a maximum of $25,000.00, or a monthly award of up to $1,000.00, to a maximum of $365,000.00. 6 (Monthly payments constitute about 10% of the CICB's total payments each year. 7)

D. Operation of the Criminal Injuries Compensation Board

The CICB is an independent adjudicative tribunal established in 1971 under the Compensation for Victims of Crime Act. It is composed of a full-time Chair, one full-time Vice Chair and two part-time Vice Chairs and, currently, 28 part-time adjudicators. 8 The Chairs and the adjudicators are appointed by the Government for fixed terms. The CICB staff are government employees who process applications, prepare files for hearing and arrange for payment of awards.

The CICB receives about 4,000 applications each year. 9 About one-half of the applications that proceed to hearing each year are decided by way of an oral hearing presided over by two adjudicators, while the balance are decided by way of a written hearing in which a single adjudicator reviews the documentary evidence filed in support of an application. 10 The CICB can make awards in respect of reasonable expenses and pecuniary losses relating to the criminal injury, pain and suffering, and support of a child born as a result of rape. 11 About 90% of hearings result in a payment to the victim. 12 Assault offences (including simple assault, assault causing bodily harm, domestic assault, sexual assault, and assault with a weapon) account for about 85% of all the applications in which the CICB awards financial assistance. 13

The average CICB payment made to victims of violent crime between 2003 and 2006 was about $8,400.00. 14 This amount has slowly crept up from about $4,700.00 in fiscal year 1995-1996. 15 No definitive explanation emerged to account for this increase, although CICB adjudicators and Deloitte Inc. 16 ("Deliotte") identified the Divisional Court's 1992 decision in Evoy v. Ontario (Criminal Injuries Compensation Board) 17 as a contributing factor.

Under the Compensation for Victims of Crime Act, the CICB "may deem more than one act to be one occurrence where the acts have a common relationship in time and place". 18 The practice of many CICB adjudicators prior to the Evoy decision was to treat patterns of physical or sexual abuse as a single occurrence resulting in a single payment. In Evoy, the court held that the CICB must order a separate award for each assault that occurs in a relationship marked by a pattern of physical or sexual violence if the assaults are unrelated in time and place, with the result that the total CICB payments in these cases have risen since Evoy.

Pain and suffering is the largest component of the CICB's awards, accounting for about 80% of the total payments issued. 19 In deciding the quantum of pain and suffering awards, CICB adjudicators take into account a variety of factors, including the following:

the nature of the occurrence (e.g. degree of violence, use of weapons, relationship with offender, length of the victimization, age of victim);
the severity and nature of the injuries (including the degree of emotional trauma);
the convalescence period and the time for the victim to be able to resume normal activities; and
any continuing disability. 20

E. Ombudsman's Report

The Ombudsman of Ontario, in his report Adding Insult to Injury, concluded: "The Criminal Injuries Compensation Board is in deplorable shape". 21

The Ombudsman traced the slow and arduous journey that some victims of violent crime had to endure at the CICB, starting with the time it took to actually get an application form mailed to them and ending, on average, about three years later. During this time, victims were asked to fill out an "avalanche of documentation", 22 application forms were routinely returned for minor corrections, and applications sat for months awaiting preparation for hearing by claims analysts. Victims attempting to find out information about their applications were met with suspicion and a lack of compassion and sensitivity.

The Ombudsman found the lack of consistent and sufficient funding by successive Ontario governments over many years to be at the root of the CICB's "colossal failure". 23 He also found that the CICB's bureaucratic and insensitive attitudes and processes exacerbated its funding difficulties. He made 17 recommendations, including that the Ministry immediately start to provide sufficient financial support to the CICB and that the CICB provide victim sensitivity training to its staff and improve its case management processes.

My mandate is to advise the Attorney General on the broad issue of whether the government should continue to provide financial assistance to victims of violent crime and I did not revisit in detail the CICB's day-to-day operations. I have, however, reviewed the quarterly reports that the Ministry and the CICB provided to the Ombudsman and I have been briefed by senior CICB staff about the efforts taken to reduce its backlog. The Ministry and the CICB have taken significant steps to address the Ombudsman's recommendations. Further, I am advised that the number of complaints received by the Ombudsman about the CICB has significantly dropped, and that the Ministry and the CICB's quarterly reports have not caused him any concern regarding the implementation of his recommendations.

Following the Ombudsman's report, the Ministry injected additional funds into the CICB and appointed 14 new adjudicators. There are some current indicators of positive results. For example, the time for an application to be assigned to a case analyst, who prepares the file for hearing, has dropped from 15 months to less than five months. 24 As well, the CICB held 40% more hearings in the past year than the year before. 25 It will take time, however, for these additional resources and improved administrative practices to significantly reduce the overall delays. I am advised that the CICB currently has a backlog of about 8,000 applications and victims must still wait over two years before receiving a decision. The CICB estimates that it will take another two years before the CICB is operating without a backlog.

The government should continue to provide financial assistance to victims of violent crime and the adjudicative panel must have sufficient funding and resources once the current backlog is cleared to ensure that the problems identified in the Ombudsman's report do not reoccur.

F. Victim Quick Response Program

In response to the Ombudsman's report, the Ministry announced the creation of the VQRP to provide victims of violent crime with immediate assistance for emergency expenses, funeral expenses and counselling. The VQRP was established on a pilot basis and its original expiry date of March 31, 2008 was very recently extended to March 31, 2009. The VQRP provides victims of violent crime with the following financial assistance: (i) up to $1,000.00 for certain immediate emergency expenses, including emergency home repairs and emergency accommodation, (ii) up to $5,000.00 for burial or cremation costs, and (iii) up to $1,000.00 for short-term counselling.

Victims of violent crime apply for VQRP financial assistance through local community agencies throughout Ontario known as VCARS agencies. 26 The VCARS agencies submit the VQRP application to the OVSS, which decides generally within three days whether or not to grant an application. VQRP monies are paid directly to service providers arranged by VCARS agencies.

G. Other Financial Remedies Available to Crime Victims

(i) Civil litigation

Victims of crime have traditionally been able to sue for damages relating to torts such as assault, battery, false imprisonment, intentional infliction of nervous shock and invasion of privacy. The Victims' Bill of Rights creates a statutory presumption that victims of sexual and domestic assault suffered emotional distress, thereby relieving a victim of having to prove this aspect of his or her injury in a civil suit against the offender. 27

While civil litigation is a vehicle by which offenders can be held directly accountable to crime victims, the reality is that civil litigation imposes a significant economic burden that many victims are unable to bear and offenders generally do not have sufficient financial resources to satisfy a civil judgment. As well, offenders often cannot be located or are unknown to their victims.

(ii) Civil Remedies Act, 2001 28

The Civil Remedies Act allows the Attorney General to seek a civil court order transferring title of property or proceeds relating to unlawful activity to the Crown, which the government then uses to compensate crime victims. This remedy, however, is rarely of assistance to victims of violent crime because it would be unusual for proceeds or property to be acquired as a result of the commission of these offences.

(iii) Restitution

Offender accountability is an important issue for many victims of crime. It is also an issue of societal interest, which is reflected in the fact that one of the objectives of criminal sanctions is "to promote a sense of responsibility in offenders". 29 Restitution is one means by which offenders can be made directly financially accountable to crime victims for the harm they inflicted and therefore can contribute to this sense of direct responsibility.

Section 738 of the Criminal Code authorizes a court to order that an offender compensate a victim for property damages and financial losses incurred as a result of bodily or psychological harm. Restitution cannot be ordered for non-monetary losses such as pain and suffering. A victim can file a restitution order in a civil court and use civil enforcement methods to collect the money. Like civil litigation, however, restitution is often not an effective remedy for victims of violent crime in Ontario. Crown attorneys rarely ask courts to impose restitution orders in cases involving personal violence. Further, in my experience, judges are reluctant to impose a financial obligation on offenders who often have no financial means to comply with restitution orders.

Some provincial and foreign jurisdictions have taken additional steps to assist victims of crime collect financially from offenders beyond simply informing them how to apply for restitution and having prosecutors make the restitution applications on their behalf. In Saskatchewan, for example, the payment of restitution is part of an offender's probation terms and is monitored through either a victim service program or by the provincial Corrections and Public Safety Department, depending on whether there are other probationary terms. Offenders can be charged with a breach of their probation if they fail to satisfy the restitution order. In Alaska and New Jersey, the state government pursues the collection of restitution orders directly against offenders on behalf of crime victims. California has established the Victim Compensation and Government Claims Board. This Board is fully funded by restitution fines, diversion fees, restitution orders, and penalties paid by offenders and makes restitution or compensation payments to crime victims directly out of these moneys.

The federal Policy Centre for Victim Issues 30 is currently undertaking research with the provinces on the use of restitution and how to best support victims who wish to enforce restitution orders. This research is just underway, however, and no results are yet available.

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