This article was originally published by The Lawyer's Daily on August 21, 2019, part of LexisNexis Canada Inc.
In April 2019, the Conservative government of Ontario announced its plans to repeal the Compensation for Victims of Crime Act in the 194-page bill tabled as part of the Finance minister’s budget measures. Bill 100, titled the Protecting What Matters Most Act, would also dissolve Ontario’s Criminal Injuries Compensation Board, the tribunal that has awarded financial assistance to victims of crime since 1971.
The government claims that by doing so, they can save up to $30 million annually starting in 2021-2022 and re-invest $6 million a year in victim services such as the Civil Remedies Grant Program.
Previously, the Compensation for Victims of Crime Act allowed for lump-sum payments of up to $25,000 or monthly payments of up to $1,000 to compensate victims of crime for medical and therapy expenses, funeral and burial expenses, legal expenses, loss of income or support, as well as pain and suffering.
Effective May 29, the total available funding for one victim is increased to $30,000 but compensation for pain and suffering is capped at $5,000. This cap applies to any decisions rendered by the board on or after May 29, 2019. The amendment prohibiting the board from accepting new applications is not yet in force.
For most cases, the increase in awards to $30,000 is unattainable. In reality, most victims will never benefit from the increase in light of the $5,000 cap on compensation for pain and suffering — the category where the board had the most discretion to consider the impact of the crime.
According to the board’s 2017-2018 annual report, compensation for pain and suffering accounted for 95 per cent of its payments that year. Notably, pain and suffering accounted for approximately $33 million of the 3,569 claims the board paid out that year. If each of those cases resulted instead in a maximum payment of $5,000, the board would have paid out less than $18 million. Needless to say, the maximum is usually set aside for the most catastrophic incidents.
The money that will be saved comes in large part from the Consolidated Revenue Fund, which is paid in part by fine surcharges imposed under the Provincial Offences Act and the Criminal Code. Pursuant to the Victims’ Bill of Rights, these funds are meant to be used to assist victims of crime.
Compensation provided by the board has always been limited. As a result, an application to the board has long been a last resort for survivors of violent crimes. Nevertheless, a sudden and dramatic reduction in victim compensation is more likely to harm the very people the province purports to help. The board’s claimants are primarily vulnerable individuals living in poverty, many of whom are women. Removing financial assistance to victims is likely to increase their reliance on the health care system and other provincially funded social services.
The province is also replacing the board with an administrative model. Instead of having to appear before an adjudicator, claimants will submit their documents to an administrative body that will then process the claims and issue the payments. Their goal is “to provide support to victims in a timely and compassionate manner.” This will bring Ontario’s approach to victim compensation in line with other Canadian provinces as an administrative model rather than an adjudicative system.
According to former Attorney General Caroline Mulroney, the board was ineffective, as applicants would often wait up to three years to receive their compensation award. This view was based on a 2007 ombudsman’s report that no longer reflects reality. Last year’s annual report showed an average turnaround time of 374 days. In the civil law system, these same claims can take several years.
Although an administrative model may in fact lower costs and allow for more efficient processing of claims, it is also possible that such a model will create a bureaucratic system that replaces the board’s victim-centred and trauma-informed approach with impersonal, rigid procedures that make decision-making slow.
If efficiency and cost-effectiveness is the goal, a solution should be possible without scrapping the whole system. After all, the board has been available to mitigate unfairness and fill the gaps in our criminal and civil justice system by offering:
- No limitation period for claims made by victims of domestic and sexual violence;
- Financial compensation without the need for a police report;
- Financial compensation without the need for a criminal conviction;
- Financial compensation regardless of whether their perpetrator has assets to compensate the victims;
- The ability to file an application without having to notify convicted offenders;
- A hearing without the involvement of convicted offenders;
- The option to conduct a written hearing rather than an oral hearing;
- The option to request immediate financial support for medical treatment prior to a final decision;
- Expedited timeliness for financial compensation as compared to the civil law system;
- Affording survivors a measure of anonymity not available in the civil or criminal justice system;
- Requests for medical records and reports are made and paid for by the board; and
- If the perpetrator is indigent or cannot be located, a survivor can hope to recover some compensation through the board as opposed to suing in the civil court system.
The criminal justice system is designed to convict criminals; it is not designed to help victims. Immediate financial compensation assists victims in practical ways and assures victims that they are valued members of society.
It is not clear how the new scheme will compare to the board as no details of this scheme have yet been released. Many questions remain unanswered.
Who has or is being consulted in this decision to disband the board? What will this new administrative model look like and how will it function? How will the claims be assessed? What criteria will be used? Will the individuals administering this new scheme have any legal training or understanding of the impact of trauma on applicants? Will applicants be required to make police reports? Must the perpetrator be convicted of the crime underlying the application? Will the survivors still be able to access funding for other categories of expenses?
To date, all we know about this new scheme is that victims will now get significantly less compensation and will no longer have their cases heard before an impartial adjudicator.
This is no surprise in light of other recent decisions by the provincial government. These include cuts to funding for Legal Aid Ontario, cuts to legal aid for immigrants and refugees, cuts to social assistance and supportive housing and a lower-than-hoped increase in funding for rape crisis centres.
Shiva Bakhtiary is a lawyer at Osler, Hoskin & Harcourt LLP and an executive member of the Ontario Bar Association's Young Lawyers Division.