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S.M. 1998, c. 44
THE VICTIMS' RIGHTS AND CONSEQUENTIAL AMENDMENTS ACT
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(Assented to June 29, 1998)
WHEREAS the people of Manitoba believe that victims of crime and their interests are a significant concern of the criminal justice system;
AND WHEREAS victims of crime should be treated compassionately and fairly by persons employed in the criminal justice system and should receive helpful information about the criminal matters that affect them and about their rights;
AND WHEREAS persons employed in the criminal justice system should consider the rights of victims in a manner that is consistent with the law and the public interest, that is reasonable in the circumstances of the case and that does not result in a delay of criminal proceedings;
AND WHEREAS it is in the public interest to give guidance and direction to victims of crime and to persons employed in the criminal justice system about the manner in which victims are entitled to be treated:
THEREFORE HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
In this Part,
"crime" means an offence under the Criminal Code (Canada), including offences that are the subject of proceedings under the Young Offenders Act (Canada); (« acte criminel »)
"director" means the person designated as the Director of Victims' Support Services under subsection 16(1); (« directeur »)
"immediate family" means the spouse, child, parent, grandparent, sister or brother of the victim; (« famille immédiate »)
"minister" means the member of the Executive Council charged by the Lieutenant Governor in Council with the administration of this Act; (« ministre »)
"victim" means a person against whom a crime has been committed or is alleged to have been committed and, where the victim is an individual who is
(a) deceased, includes a member of his or her immediate family, or
(b) incapacitated, includes his or her designated representative. (« victime »)
Nothing in this Act prevents the release of information, the provision of services or the consultation with victims that would have taken place before this Act came into force.
Victims are entitled to the following:
(a) to be treated with courtesy, compassion and respect for their dignity and privacy and to suffer the minimum of necessary inconvenience from their involvement with the criminal justice system;
(b) to receive, on request, information about their participation in criminal proceedings;
(c) to have their views considered and, where appropriate, to receive assistance throughout the criminal justice process;
(d) if their personal interests are affected, to have their views or concerns brought to the attention of the court, where appropriate and consistent with criminal law and procedure;
(e) to have reasonable measures taken with respect to their safety and the safety of their families and to protect them from intimidation and retaliation, where evidence demonstrates that such measures are necessary;
(f) to have ready access to information about their rights under this Act;
(g) to receive prompt decisions on applications for compensation under Part 5 and prompt payment of any compensation to which they are entitled.
Victims are entitled to be informed about services available under The Legal Aid Services Society of Manitoba Act, including
(a) free legal advice about their rights; and
(b) the right to apply for other legal aid services.
Victims are entitled to be given access to free, independent counsel when access to personal information about them is sought under section 278.3 of the Criminal Code (Canada).
Victims are entitled to have ready access to information about protective orders available through the courts.
Victims are entitled in appropriate cases to have restitution requested for damaged or lost property and, when stolen property is recovered, to have it returned at the earliest possible date.
Victims are entitled, on request, to receive information about, and where appropriate to participate in, restorative justice programs which seek to address more fully the needs of victims.
A victim is entitled, on request, to be informed about
(a) the status of the police investigation into the matter affecting him or her and any prosecution that results from that investigation, to the extent that the release of the information is within the law and does not prejudice the investigation or prosecution or any related investigation or prosecution;
(b) the role of the victim and other persons involved in the prosecution;
(c) court procedures that relate to the prosecution; and
(d) the dates and places of all significant proceedings that relate to the prosecution and their outcomes.
Victims are entitled to participate in the provincial Victim Impact Statement Program by preparing a written account of the impact the crime has had on them.
In this section, "offender" means a person who is or was being held in a provincial custodial facility or is or was otherwise under the supervision of a person appointed or employed to provide a provincial correctional service.
A victim is entitled, on request, to be provided with the following information about the offender who committed or is alleged to have committed the crime against the victim:
(a) the offender's name, the offence that resulted in the charge or conviction and the court that dealt with the matter;
(b) any relevant dates related to the status of the offender, including the date of release, the dates of temporary absences or other types of release and the date of termination of any supervision order or condition related to the offender;
(c) the name and location of
(i) the custodial facility where the offender is in custody, or
(ii) the correctional services office in the area where the offender is residing;
(d) the general destination of the offender on any authorized absence and, if known, on release;
(e) notice, in a case where the offender escapes from custody or is otherwise unlawfully at large in the community or is in breach of a supervision order;
(f) any other information about the offender if disclosure of the information does not contravene another law.
A victim is entitled to be notified promptly and to be provided with all information that may be relevant in protecting the victim, or to have the appropriate police agency so notified and informed, where an offender is or is about to be released from a provincial custodial facility, or has escaped from such a facility or has breached the terms of a supervision order, if there are reasonable grounds to believe that the offender will pose a threat to the victim.
A victim who believes it would be of assistance in going forward with his or her life to meet with the offender who was convicted of the crime against the victim for the purpose of explaining the impact the crime has had on the victim and the victim's family, may request the facility head of the provincial custodial facility where the offender is being held to arrange the meeting.
The facility head shall arrange the meeting as requested by the victim if the facility head believes that such a meeting is in the public interest, having regard to such factors as the offender's willingness to accept responsibility for the crime, the offender's conduct in the custodial facility, the risk that the offender will re-offend, the offender's willingness to participate in the meeting and the effect that the meeting may have on the rehabilitation of the offender.
ACCOUNTABILITY AND COMPLAINT PROCESS
A victim who believes that he or she has not been dealt with in accordance with this Part may complain to the director.
The director shall investigate each complaint and, in consultation with appropriate officials in the justice system, take or recommend any steps that the director considers necessary to address the victim's concerns and to address any systemic concerns that, in the opinion of the director, are raised by the victim's complaint.
The director shall provide the victim with a report on the outcome of the investigation, including any steps taken or recommended to address the victim's concerns and to address any systemic concerns identified by the director in reviewing the victim's complaint.
The director shall give the victim an opportunity to comment on the report prepared under subsection (3), and shall include a summary of any comments received from victims in the annual report under section 13.
The director shall, within six months after the end of the fiscal year, submit a report to the minister regarding the complaints received from victims under section 12 during that fiscal year and how the complaints were addressed, and shall include in the report a summary of any comments received from victims.
The director's report shall not include the name of a victim or any other person.
The minister shall lay the director's report before the Legislative Assembly within 15 days after receiving it if the Legislative Assembly is sitting and, if it is not sitting, within 15 days after the beginning of the next sitting.
No new cause of action, right of appeal, claim or other remedy exists in law because of this Part or anything done or not done under this Part.
In this Part and Parts 3 to 6,
"compensation" means compensation payable under Part 5; (« indemnité »)
"director" means the person designated as the Director of Victims' Support Services under subsection 16(1); (« directeur »)
"fund" means the Victims' Assistance Fund continued under subsection 17(1); (« Fonds »)
"minister" means the member of the Executive Council charged by the Lieutenant Governor in Council with the administration of this Act; (« ministre »)
"surcharge" means a surcharge established under section 21. (« amende supplémentaire »)
The minister may designate an employee under the administration of the minister as the Director of Victims' Support Services.
The duties and functions of the director include the following:
(a) to promote the principles set out in Part 1;
(b) to provide victims and their families with general information respecting programs and services for victims, the structure and operation of the criminal justice system, and this Act;
(c) to provide information to the public about this Act, using pamphlets, notices, electronic distribution or any other medium that, in the opinion of the director, will effectively communicate the information to the public;
(d) to receive and investigate complaints in accordance with section 12 and prepare the report respecting complaints under section 13;
(e) to receive from any person, organization or institution, submissions relating to the needs and concerns of victims and applications for grants from the fund;
(f) to receive and make decisions respecting applications for compensation under Part 5;
(g) to carry out other duties and functions assigned by the minister.
The director may delegate any of his or her duties and functions to an employee under the administration of the minister.
VICTIMS' ASSISTANCE FUND
The Victims' Assistance Fund is continued.
The following must be deposited into the fund:
(a) money collected as surcharges under this Act;
(b) money collected as surcharges in Manitoba pursuant to section 737 (victim surcharge) of the Criminal Code (Canada) and directed by the Lieutenant Governor in Council to be paid into the fund;
(c) money received by the Crown for the purpose of assisting victims;
(d) money appropriated by the Legislature for the purpose of the fund;
(e) money received as a repayment or refund of a grant made under section 20 or as a grant recovered as a debt due pursuant to section 47;
(f) money that is payable to the Crown in right of Manitoba under an agreement with the Crown in right of Canada respecting assistance to victims and that is approved by the minister for deposit in the fund.
Money from any person or source made payable to the fund shall be deposited into the fund and any such money received subject to trust conditions shall be disbursed pursuant to those conditions.
The fund shall be under the control and supervision of the Minister of Finance and shall be held in trust for the purpose of this Act in a separate account in the Consolidated Fund.
If at any time the balance to the credit of the fund or the amount received subject to trust conditions is in excess of the amount that is required for the immediate purposes of this Act or the trust conditions, the Minister of Finance may invest the excess and earnings from the investment shall be credited to the fund.
The minister may, in accordance with this Act and the regulations, request that payments be made from the fund
(a) to promote, deliver and administer services for victims;
(b) to conduct research into the needs and concerns of victims and into services for victims;
(c) to distribute information respecting services for victims;
(d) to make grants with respect to programs and services that benefit victims of crime; and
(e) to pay the costs of administering this Act.
A person who pleads guilty to or is found guilty of an offence, except a parking offence and any offence exempted by regulation, under an Act of the Legislature or under a regulation, shall, in addition to any other penalty imposed, pay a surcharge.
The amount of the surcharge is the amount provided for in the regulations.
For the purpose of enforcement, the surcharge is deemed to be a fine, and where a fine is imposed, the surcharge shall be collected with the fine.
Despite subsections (1) and (2), a justice may, having regard to the circumstances of an offender, including the degree of financial hardship the surcharge would impose on the offender, reduce or waive the surcharge.
COMPENSATION FOR VICTIMS OF CRIME
In this Part,
"appeal board" means a body designated under section 38 or the Compensation Appeal Board appointed under section 39; (« Commission d'appel »)
"applicant" means a person who applies for compensation under subsection 23(1); (« auteur d'une demande »)
"child" includes a child to whom a victim stands in loco parentis; (« enfant »)
"dependant" means a spouse or a child or other relative of a deceased victim who was, in whole or in part, dependent on the income of the victim at the time of the victim's death, and includes a child of the victim born after the victim's death; (« personne à charge »)
"injury" means bodily harm, pregnancy and mental or nervous shock; (« blessure »)
"spouse" includes a person who cohabited with a victim
(a) for at least the five years immediately before the victim's death, during which the person was dependent on the income of the victim, or
(b) for at least the year immediately before the victim's death, if a child born of the relationship was a dependant of the victim at the time of the victim's death; (« conjoint »)
"victim" means a person who is injured or dies as a result of an event described in subsection 23(1). (« victime »)
An application for compensation may be made, in accordance with this Act and the regulations, to the director in respect of a person who is injured or dies as a result of an event that occurs in Manitoba and that
(a) is caused by an act or omission of another person that is an offence under the Criminal Code (Canada) specified in the regulations; or
(b) occurs while the person does or attempts to do any of the following:
(i) lawfully arrest a person or preserve the peace,
(ii) assist a peace officer in the execution of his or her duty, or
(iii) lawfully prevent the commission of an offence or suspected offence under the Criminal Code (Canada).
For the purpose of subsection (1),
(a) it is not a requirement that a person be charged with, or convicted of, an offence in respect of the event that results in an injury or death; and
(b) a person incapable of forming a criminal intent is deemed to have intended the act or omission that results in an injury or death.
Compensation payable to a victim in respect of his or her injury is determined in accordance with this Act and the regulations, and consists of expenses incurred by the victim in respect of the injury and,
(a) if the victim is disabled by the injury, compensation for loss of wages; and
(b) if the victim is permanently impaired by the injury, compensation for the impairment.
Compensation payable to dependants of a victim in respect of the victim's death is determined in accordance with this Act and the regulations, and consists of expenses incurred in respect of the victim's death and,
(a) for the spouse of the victim, compensation for loss of the victim's wages; and
(b) for a dependant other than a spouse, compensation in the form of a monthly payment.
Subject to the regulations, compensation may be paid in a lump sum or periodic payments or both, and may be made subject to such terms and conditions as the director considers reasonable.
An application for compensation may be made
(a) by a victim in respect of his or her injury;
(b) by a dependant in respect of a victim's death;
(c) by a person who incurs an expense or other pecuniary loss as a result of a victim's injury, if the maintenance of the victim is the responsibility of the person; or
(d) by a person who incurs funeral expenses in respect of a victim's death.
If a person eligible for compensation is under 18 years of age, an application for compensation may be made on his or her behalf by a parent or guardian of the person or by another person acceptable to the director.
If a person eligible for compensation is mentally incompetent, an application for compensation may be made on his or her behalf by the person's committee, the person's substitute decision maker for property appointed under The Vulnerable Persons Living with a Mental Disability Act or, if the person does not have a committee or substitute decision maker, a person acceptable to the director.
Subject to subsection (2), an application for compensation must be made within one year after the date of the event that results in the victim's injury or death, or within one year after the date when the victim becomes aware of or knows or ought to know the nature of the injuries and recognizes the effects of the injuries.
The director may, before or after the expiry of the one year period, extend the time for making an application if he or she considers it appropriate.
On receipt of an application for compensation, the director shall determine, in accordance with this Act and the regulations, whether compensation is payable and, if so, the amount.
The director may
(a) request the applicant to provide, or authorize the director to obtain, information that the director considers necessary to make a determination under subsection (1); and
(b) consider any statement, document or information that he or she considers relevant to making the determination.
A duly qualified medical practitioner, nurse, dentist, chiropractor, chiropodist, optometrist, physiotherapist, psychologist, occupational therapist or osteopath who attends or consults on a victim's injury, and a hospital providing care or treatment to the victim, shall provide reports respecting the injury, care or treatment in the form required by the director, without charge to the victim.
Subject to the regulations, the director may refuse to award compensation or may reduce the amount of compensation payable if he or she is of the opinion that
(a) the event that resulted in the victim's injury or death was not reported to law enforcement authorities within a reasonable time after it occurred;
(b) the applicant has not assisted law enforcement authorities to apprehend or prosecute a person whose actions resulted in the victim's injury or death;
(c) the victim's injuries or death occurred while participating in a criminal offence;
(d) the victim's conduct directly or indirectly contributed to the victim's injury or death; or
(e) the applicant has not provided information requested by the director, or in the form requested by the director, within a reasonable time after the request was made.
The director may at any time vary the amount of compensation payable based on new information or a change in the circumstances of the person receiving the compensation.
The director shall deduct the following from any compensation payable to a victim or dependant:
(a) an amount paid or payable to a victim or dependant in respect of the victim's injury or death under The Workers Compensation Act, the Canada Pension Plan, the Employment Insurance Act (Canada) or any other Act of Parliament or the Legislature or the legislature of another province or a territory of Canada;
(b) an amount recovered by the victim or dependant from the person who caused the victim's injury or death or from any other person in respect of the injury or death;
(c) a benefit received by the victim or dependant as a result of the victim's injury or death through accident, sickness or life insurance or another compensation scheme;
(d) an amount or benefit prescribed by regulation.
A person who applies for or receives compensation must immediately advise the director of
(a) any money received at any time from the person who caused the victim's injury or death or from any other person in respect of the injury or death; and
(b) any action or proceeding taken to recover money from any person in respect of the injury or death.
The director may, as a condition of awarding compensation, require the victim or dependant to bring an action within a specified period of time against the person who caused the victim's injury or death, and, if the victim or dependant fails to do so, an action may be commenced by the Attorney General in the name and on behalf of the victim or dependant.
Where a victim or dependant has applied for or received compensation, any settlement of an action or proceeding taken by the victim or dependant against the person who caused the victim's injury or death must be approved by the director, and any settlement made without his or her approval is void.
If a victim or dependant referred to in subsection (2) fails to bring an action or to co-operate in respect of an action brought on his or her behalf, the director may refuse to award compensation or, if compensation has been awarded, may reduce or revoke the award.
If, after compensation is awarded, the victim or dependant receives money, as a result of a civil action or otherwise, from the person who caused the victim's injury or death or from any other person in respect of the injury or death, the money shall be applied as follows:
(a) first, to pay any legal costs incurred in obtaining the money;
(b) second, to reimburse the Crown for the amount of the compensation paid and reasonable costs incurred in dealing with the application and making the order for compensation;
(c) third, to the victim or dependant.
The director may reduce or discontinue periodic payments of compensation to an injured victim or a dependant of a deceased victim where the victim or dependant receives money from the person who caused the injury or death or from any other person in respect of the injury or death.
The director must give written notice
(a) to the applicant of a decision made under section 29 respecting an application for compensation; and
(b) to a person receiving compensation, of a decision affecting the nature or amount of compensation payable to the person.
A notice given under subsection (1) shall include information on the right to request a reconsideration under subsection (3).
A person who receives notice under subsection (1) and is not satisfied with the decision of the director may, within 60 days after receiving the notice, request that the director reconsider the matter and may, for that purpose, provide additional information to the director.
After reconsidering a matter, including any additional information provided by the person requesting the reconsideration, the director shall give written notice of his or her decision to the person and shall include in the notice information on the right to appeal under section 37.
A person who receives a notice under subsection 36(4) (reconsideration) may appeal the decision to the appeal board within 30 days after receiving the notice.
The appeal board may extend the time for appeal if it is satisfied that the person appealing has a reasonable excuse for failing to appeal within the time referred to in subsection (1).
The Lieutenant Governor in Council may designate a board or other body established under another Act of the Legislature, or appoint a board under section 39, to hear appeals made under subsection 37(1).
The Lieutenant Governor in Council may appoint a board of not more than five members to be known as the Compensation Appeal Board, and may make regulations respecting the board and its operation, including the following:
(a) the composition of the board, including the term of its members and the designation of a chairperson from among the members;
(b) practice and procedure, including quorum and the conduct of hearings.
Members of the appeal board may be paid remuneration, and may receive reasonable travelling and living expenses while away from their ordinary places of residence in the course of their duties as members of the board, at rates prescribed by regulation.
The appeal board may confirm, vary or rescind the decision of the director.
For the purpose of this Act, each member of the appeal board has the powers of a commissioner under Part V of The Manitoba Evidence Act.
The appeal board may
(a) request persons with special technical knowledge to advise the board on matters relevant to an appeal; and
(b) require an appellant to undergo a medical examination by a physician named or approved by the board.
The appeal board shall as soon as practicable give written notice of its decision, and reasons for the decision, to the appellant and shall include in the notice information on the right to appeal under section 44.
A person who receives notice under section 43 may, within 30 days, appeal the decision of the appeal board to the Court of Queen's Bench.
An appeal may be taken only on a question of law or jurisdiction.
Compensation payable to a victim or dependant under this Part is deemed to be wages for the purposes of The Garnishment Act and is exempt from seizure or attachment under a garnishing order to the same extent as wages are exempt under that Act.
A person who deliberately makes a false or misleading statement in an application for a grant under Part 4 or for compensation under Part 5 is guilty of an offence.
The minister may recover as a debt due to the Crown a grant or any compensation that
(a) is paid on the basis of the statements of a person who is later convicted of an offence under section 46; or
(b) is required under this Act or the regulations to be repaid or refunded.
The Lieutenant Governor in Council may make regulations
(a) respecting surcharges, including the amounts of surcharges, or a method of calculating surcharges, on offences or classes of offences, and prescribing offences for which no surcharge is payable;
(b) respecting payments from the fund under section 20;
(c) respecting grants under clause 20(d), including applications, terms and conditions under which grants may be made, and the repayment or refund of grants or parts of grants if terms or conditions are not met;
(d) for the purpose of clause 23(1)(a) (eligibility for compensation), specifying offences under the Criminal Code (Canada);
(e) respecting compensation, including
(i) applications for compensation,
(ii) the classes of injury and expenses and other pecuniary losses for which compensation is payable,
(iii) the amounts, including maximum amounts, of compensation payable with respect to a class of injury or expense or other pecuniary loss and with respect to any one application,
(iv) conduct for which, and providing for amounts by which, compensation may be reduced,
(v) deductions to be made from compensation payable,
(vi) terms and conditions to which the payment of compensation may be made subject, and the repayment or refund of compensation if terms or conditions are not met, and
(vii) how and when payments of compensation are to be made;
(f) respecting fees for information or reports, including medical reports, required to determine eligibility for compensation or the amount of compensation payable;
(g) respecting appeals to the appeal board;
(h) respecting the service of notices and other documents that are required to be given or served under this Act;
(i) defining a word or expression that is used and not defined in the Act;
(j) enlarging or restricting the meaning of a word or expression used in this Act;
(k) respecting any matter that the Lieutenant Governor in Council considers necessary or advisable to carry out the intent and purpose of this Act.
TRANSITIONAL, CONSEQUENTIAL, REPEAL, C.C.S.M. REFERENCE, AND COMING INTO FORCE
Part 5 (compensation for victims of crime) applies in respect of a person who is injured or dies as a result of an event that occurs on or after the day this Act comes into force.
Despite the repeal of The Criminal Injuries Compensation Act by this Act, an application for compensation made under that Act before this Act comes into force shall be continued as if that Act and regulations under it remained in force and this Act had not come into force.
Despite the repeal of The Criminal Injuries Compensation Act by this Act, an application for compensation may be made within the time allowed under that Act but the application is deemed to have been made under this Act.
The director may, in accordance with this Act, review and confirm, discontinue or vary an order made under The Criminal Injuries Compensation Act under which compensation is paid or payable.
A reference in an Act, regulation, by-law, agreement or other document to the an Act repealed under section 52 is deemed to be a reference to this Act.
Section 78 of The Manitoba Public Insurance Corporation Act is amended by striking out "The Criminal Injuries Compensation Act" and substituting "The Victims' Rights Act".
REPEAL, C.C.S.M. REFERENCE, AND COMING INTO FORCE
The following Acts are repealed:
(a) The Criminal Injuries Compensation Act, R.S.M. 1987, c. C305;
(b) The Justice for Victims of Crime Act, S.M. 1986-87, c. 28.
This Act may be cited as The Victims' Rights Act and referred to as chapter V55 of the Continuing Consolidation of the Statutes of Manitoba.
This Act comes into force on a day fixed by proclamation.