SUBJECT: STATUTE OF LIMITATION FOR THOSE IN LOW INCOME
PURPOSE: This
briefing note is a recommendation for changes in policy pertaining to the
statute of limitations.
ISSUE: There
is not enough action to provide an extended grace period for the statute of
limitations for those with low income.
Background:
According to
the government of Canada, “a victim is defined as a person who has suffered
physical or emotional harm, property damage, or economic loss as a result of a
crime.” People that experience
victimization from crime are more likely to be in a circumstance, situation or
scenario wherein they are in a marginalized position. Such is the case when an individual is
experiencing poverty. When people are in
poverty, they are more likely to be exploited by predators. The theory of exploitation comes from Akers
who says that crime occurs as a result of a discrepancy between expectations
and aspirations (2013). Criminals
perform a cost- benefit analysis to determine the likelihood that they won’t
suffer any repercussions as a result of criminal activity. When the victimization occurs, the victim is
left to rely on the Police and then the judicial system thereafter. According to the Guardian the “poor and the
unemployed are twice as likely to become victims of violent crime and nearly
three times more likely to suffer emotional damage as a result of being
attacked” (2006). These people are left
to report the crime to the police who then run investigations on the matter so
that a criminal charge can take place under the Criminal Code. As it pertains to theft, it is often a crime
of convenience. This means that
criminals seek to victimize another based on the fact that the victim is in a
position wherein that the risk taken by the criminal to commit the crime is
low, such is the case with detection and consequences. This means that victims of theft and crime as
such suffer because of their position.
Not all these victims are “low income,” however what is evident here is
that robbery is tied to violent crime.
Criminals that seek to rob another are often armed with weapons such as
knives, batons or even firearms. Robbery
involves assault with verbal violence and potential battery. It is classified as a violent crime in most
jurisdictions even though there is not weapon with which to cause battery. Regardless, and to reiterate, the victims of
violent crime are most likely those that are experiencing poverty. The issue here is, if a litigation case was
commenced by the victim, does the criminal have enough funds to pay back the valuables
in question along with the pain and suffering?
What needs to occur is a method to garnish the salary of the criminal in
the event of a litigation case started on the assailant by the victim. There is currently no such method here in
Canada. Victims are left to deal with
the inefficient Crime Victim Assistance Program who’s mandate provides
compensation for the “valuable” item/ (s) but not a method for the “pain and
suffering,” endured as a result of victimization. As mentioned above, these victims suffer from
the victimization but they are also more prone to suffer emotionally as
result. Oftentimes victims suffer flash
backs and memories which trigger the onset of Post- Traumatic Stress Disorder,
if they already don’t have it from their circumstance, situation or scenario. Further, these individuals also experience
depression if the PTSD continues. The
Crime Victim Assistance Program is limited in their ability to offer the right
support to these victims. In fact, what
is offered is negligent. They should
offer litigation to recoup the losses and also gain a compensation for the pain
and suffering endured by the victimization.
This then becomes the fault of the government. Victims exercise rights under the Canadian
Victims Bill of Rights. These rights
include; information, protection,
participation, and restitution.
Specifically, as it pertains to “restitution,” litigation can restore
what was physically taken from the victim and pain and suffering do to
emotional damage. According to Mirman
Lawyers pain and suffering are calculated “by adding up the economic damages
and multiplying them by a number between 1.5 and 5, depending on the severity
of the injury.”
Considerations:
As mentioned,
many victims of crime are in a situation of poverty. Which means they are unable to afford to
retain a lawyer to commence a litigation case against the assailants so that
they may seek pain and suffering. What
makes things worse is that there is not a legal coverage program in place in
Canada. These victims are left without
adequate resources to be able to recoup their losses. If the method of notifying the Police and
commencing a judicial case via litigation is not handled appropriately by those
in office, the victim has very limited options.
The statute of limitations says that a limitation period is granted so
that an aggravated individual can commence a civil case against the perpetrator/
(s). A limitation period as per Peace
Law in 2021 defines it as, “a time limit as to when legal proceedings may be
commenced by filing a claim. It defines the time in which an aggrieved person
can initiate a claim arising from any injury, loss, or damage that occurred as
a result of an act or an omission.”
Limitation periods vary across the country and are very similar. For example, the limitation period in Ontario
is 2 years and is governed according to the Limitations Act, 2002 and
other various common law. What is
important to note here is that such time period needs to be extended for those experiencing
low income. Current methods to extend
the statute of limitations are as follows;
“statutory discovery rule, common law discovery rule, equitable estopple
and equitable tolling” per the American Bar in 2009. A statutory discovery rule means that a
statute ties the limitation period to the discovery of a violation. The common law discovery rule on the other hand
means, the postponing of the limitation date to the day in which the victim
discovered he or she was being wronged.
An equitable estopple refers to the steps in which the plaintiff has
discovered the injury but the defendant has done something to prevent
escalation to a lawsuit. Lastly,
equitable tolling is when a plaintiff knows he or she is being injured but does
not have the necessary grounds to make a case because of a lack of information. These are situations wherein victims go
through a process of collecting information to make a substantiative case
against the defendant. Sometimes
victimization goes on for years and it becomes a matter of equitable
tolling. The collection of data to make facts
or identify evidence and supporting evidence is very costly and emotionally
draining. Those in poverty sometimes do
not have the resources to be able to conduct such study. The reason why limitation periods exist is
because of evidence. There is a great
loss of evidence after such period. Regardless,
the Police attempt to do investigation and the crime victims programs attempts
to provide restitution however, what it lacks is the restitution of the pain
and suffering and litigation if possible.
Victims have already undergone victimization, why then does the current
system insist in providing a service that doesn’t rectify the situation? And to reiterate most victims are in
situations of marginalization wherein crimes of convenience occur. Proper interventions by the government needs
to be deployed to assist victims so they may integrate back into the
society. The stakeholders for this
matter are the government, law enforcement, crime victim programs and the
victim or plaintiff.
Options:
Option
1: Pain and suffering restitution by provincial crime program.
This option
is not feasible. The concern here is
that if the perpetrator is not caught where then would such restitution come
from? Despite this however, selecting
this option gives the victims equity. It
allows them compensation for the victimization and assists to reintegrate them
back into society. Victim Programs only
provide restitution for the items that were taken however they can also provide
litigation so that pain and suffering can be collected. Most criminals are unemployed however, if
they were to be employed, litigation can seek garnishment to attain the pain
and suffering funds allocated to the victim.
From a security perspective this option allows society to be able to
give the victims a method by which to gain back a lot of what they lost. From an accountability perspective, the
government ensures that they are doing as much as they can to help victims of
crime and also providing additional deterrence to crime in the form of
litigation and garnishments.
Option
2: Extend statute of limitations for qualifying victims.
The statute
of limitations can be extended already per the above methods however, it is
important to understand that those in low income situations should receive additional
time to be able to commence a litigation case because they are unable to afford
a lawyer. By extending the time period,
victims are given a duration by which they can come up with the funds for a
retainer. Selecting this option henceforth
gives those victims equity. This also is
a sustainable option because it would allow people to commence more cases
wherein victimization occurred thus it would create case law. From a security perspective, this option
gives victims an extended duration in which they can not only save funds but
also gain facts, evidence and supporting evidence for their case. This is a feasible option and would require
minor amendments to existing legislations.
Option
3: Combination of option 1 and option 2.
This is not a
feasible option however it would allow the government to conduct research on
the actual need or demand of the victims.
Through the research they can then begin to supply accordingly. This option is also sustainable as it allows
the government to cater the macroscopic demands accordingly. For example there are more victimizations in
Surrey than in a city like Delta. This
means that Surreys Demands are different
from Deltas and by selecting this option, the government recognizes that.
Option
4: Status quo.
This option
is the most feasible. By selecting this
option, victims are left to use the existing methods to extend the statute of
limitations as above. This option is
accountable because there is a presumption that the risk is greater of a loss
of evidence when exceeding the limitation period. This option does nothing for sustainability. From a security perspective, selecting this
option uses the existing legislation and does not doubt their enforcement.
Recommendation:
Option three
is recommended.
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