Q: I am the victim of a crime. I understand there may be some way to get compensation for my losses. Is that true?
A: The status of the law was immobile for years, but recently changes have begun to occur. It will also depend upon the nature of your losses.
Under the Criminal Code of Canada, the court sentencing an offender has the ability to make a restitution order. This means that if someone can prove their loss, the judge can order the offender to repay all or part of what was taken.
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For example, if you own a building and someone smashes out the windows, that person could be ordered to pay for the repairs.
Or, if you have an employee who has stolen from you, he or she could be ordered to repay all or part of the amount taken.
This type of compensation depends on the person accused of the crime being found guilty or pleading guilty to the offence. If the person is found not guilty, then there can be no compensation order. To get a restitution order, there has to be agreement or at least little dispute as to what is owed or what the costs are.
The purpose of a restitution order is twofold. First, it gets some money back into the hands of victims. Second, it promotes a sense of responsibility in the offender and an acknowledgement that his or her actions had consequences for other people. It is part of the sentence, so it must be complied with by the offender or there can be additional sanctions.
Bear in mind that a restitution order is not made in all cases, or each time someone asks for it. It depends on the circumstances of each offence and each offender. Restitution is different from compensation. Restitution is ordered by a judge under the Criminal Code, which is a federal law and the same across Canada.
Compensation is ordered under provincial laws, which vary significantly from place to place. However, most provincial compensation schemes also depend on someone being convicted of an offence. When that happens, the victim can apply to a provincial board or tribunal, setting out the circumstances of the offence, the effect it had on the victim and the amount lost.
The board can award cash to a victim, although it may not be full compensation or the amount desired. The operation of each of these boards is different depending on where you live, but almost every one is part of government so you can find information about it by making inquiries, usually of the justice department.
A new type of provincial legislation is coming into play. This new type of law allows a provincial government to seize property that it believes was used in or was obtained from the commission of a crime. The province then applies to the judge to have that property sold and the money used to compensate victims in whole or in part.
Alberta has recently passed a law to this effect with one twist. The law allows the province to seize and sell before a conviction is obtained. This raises interesting legal challenges. Every citizen in Canada has the right to be presumed innocent until convicted of a crime by a court. But this type of law allows the government to seize and sell while someone is still presumed to be innocent. The province just needs “reasonable and probable grounds” to believe the person committed a crime.
The difficulty with this law is that it is quite possible that someone could have their property seized and sold, but then be found not guilty. The province doesn’t have to give the person’s stuff back.
The question is why a person should lose property when a court would not find them guilty. It is anticipated there will be numerous legal challenges to this law, which will likely go all the way to the Supreme Court of Canada.
Rick Danyliuk is a practising lawyer in Saskatoon with McDougall Gauley LLP. He also has experience in teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
