What is Restitution? Information for Victims of Crime

What is Restitution? Information for Victims of Crime

Table of Contents Introduction 3 What is Restitution? 4 When can the Court order Restitution? 6 How Much Can I Receive? 8 How Do I Ask for Restitution? 9 How Do I Receive the Money? 10 What If the Offender Doesn t Pay? 11 What Other Options Does a Victim Have? 16 Glossary 18 Resources 20 ISBN: 978-1-894829-88-5 2

Introduction Criminal acts affect victims in many different ways. Crime may lead to physical injury, emotional and psychological harm, damage to property, and financial loss, among other effects. When a person is found guilty of committing a crime, he or she faces consequences, called a sentence, which is given to that person by a judge. The sentencing of offenders found guilty of criminal acts has a number of purposes, as listed in the Criminal Code of Canada. The purposes of sentencing include deterring offenders and others from committing crimes in the future, separating offenders from the community when they are a threat to public safety, condemning criminal activity, and rehabilitating offenders so that they will not commit further crimes. Two other purposes of sentencing are: to repair some of the harm done to victims and/or to the community; and to promote a sense of responsibility in offenders through the acknowledgement of the harm done to victims and/or to the community 3

What is Restitution? Restitution is one tool that a judge may use that satisfies these last two purposes of sentencing. Restitution is a payment made by a person found guilty of a crime to a victim to compensate for certain financial losses the victim experienced as a result of the crime. A restitution order may be made by a judge as part of sentencing, after an offender has been found guilty of a crime. The order requires the offender to pay a certain amount of money to the victim or victims of the criminal act. The restitution order will include a deadline date for the offender to pay the full amount of money, or if the judge thinks it is more appropriate, a payment plan for the offender to pay off the restitution order in installments. A restitution order may be a stand-alone order that is part of the offender s sentence. The judge also might include restitution as a condition of an offender s probation order or conditional sentence order. 4

Every victim of a crime has the right to receive information about restitution and to have the court consider making a restitution order against the offender. The judge must ask the Crown Attorney (also known as the prosecutor) if steps have been taken it let victims know about their right to request restitution. If a victim requests restitution, but the judge does not make a restitution order, the judge must explain the reasons for not doing so. If the offender does not pay the restitution order by the deadline date or misses an installment, the victim has the right to register the restitution order as a civil judgment that can then be enforced against the offender. This process is explained in further detail later in this booklet. 5

When Can the Court Order Restitution? Restitution is not ordered in every single criminal case. First, it can only be ordered after a person has been found guilty of a crime. Second, the victim must have experienced a financial loss. Third, it is up to the judge whether a restitution order is appropriate in that particular case. It is important to remember that just because a victim requests restitution does not mean the judge will order restitution. When determining whether a restitution order is appropriate, the judge will consider the nature of the crime committed and the personal situation of the offender. However, a judge may still make an order for restitution even if the offender has a poor financial situation. 6

Judges may make a restitution order in the following situations: when a victim s property has been damaged, destroyed, or lost; when a victim has suffered bodily or psychological harm that has led to a precise financial loss, such as loss of income; when a victim is the offender s spouse, commonlaw partner, child or another person that lived with the offender and they have to pay money to move out of the offender s home because they suffered bodily harm or were threatened with bodily harm; when an individual is a victim of identity theft or fraud and has to pay to re-establish their identity by replacing documents, correcting their credit history, or taking other actions; when an intimate image of the victim has been published without their consent and they had to pay money to have the image removed from the Internet and/or another location; when a person loses money after they innocently purchased stolen property from the offender that was later returned to its original owner; when a person loses money after loaning money to the offender and accepted stolen property as security that was later returned to its original owner. 7

How Much Money Could I Receive in a Restitution Order? A judge will only order restitution if the exact amount of money can be easily calculated to be paid by the offender to the victim. For all of the situations described in the last section, the amount of money ordered as restitution must be readily ascertainable. This means that the judge must be able to see exact amounts for, as example, costs for repairing damaged property or for loss of income due to bodily injury suffered as part of a crime. Usually, these exact costs will be found by looking at receipts, estimates, invoices, or other documents that show the costs related to the victim s financial loss. It is important for victims seeking restitution to keep all relevant documents showing costs or estimates of costs and to submit them to the Court. Compensation for pain and suffering is NOT something that a judge can include in a restitution order. Only costs that can be precisely measured by can be included as restitution. Claims for compensation for pain and suffering may occur as part of a civil lawsuit. For more information, this option is discussed in further detail later in this booklet. 8

How Do I Ask for Restitution? To ask for restitution, a victim should complete a Statement on Restitution form, which is available online here (http://www.victimserviceshelp.ca/pdf/ rest_form.pdf) and can also be obtained from the police, the Crown Attorney s office, or Victim Services. This form allows the victim to describe the exact financial losses he or she suffered as part of the crime and to provide proof of the amounts being requested as restitution. Once the victim completes this form, it can be returned to the police officer investigating the case, the Crown Attorney handling the prosecution or Victim Services. The victim must include all related receipts or cost estimates with the form. For more information, or if you have any other questions about restitution, a victim may speak to the police, the Crown Attorney handling the case or Victim Services. For further instructions on completing the Statement of Restitution form, you may refer to these instructions (http://www.victimserviceshelp.ca/pdf/ rest_instr.pdf) or contact PLIAN if you have any general questions about restitution. 9

How Do I Receive the Money from a Restitution Order? If an offender is sentenced to pay a restitution order, they are required to pay the full amount of the order right away. The offender usually does not pay the victim directly, but pays the money to the Court, who will then send the money to the victim. To know the exact procedure for this, victims should speak to the staff in the court where the case is being heard or speak to their Victim Services Coordinator. 10

What if the Offender Does Not Pay Restitution? It is important for victims to remember that, unfortunately, there is no guarantee they will ever receive the money the offender was ordered to pay as restitution. As well, in some cases the offender may not pay the amounts they were supposed to before the deadline date set by the judge or the installment dates set in the payment schedule. However, there are ways for victims to try and recover the money they are owed from an offender in a restitution order. If an offender does not pay the restitution order by the deadlines set by the judge, the victim also has the right to file the restitution order as a civil judgment. This method allows enforcement of the restitution order against the offender in the same way a person would enforce the payment of money ordered as part of a civil lawsuit. 11

Enforcing a restitution order as a civil judgment requires several steps: 1) If the full restitution amount has not been paid by the offender in the time ordered, the victim can ask for a certified copy of the restitution order from the Criminal Division staff at the Court. 2) The next step is to take the restitution order to the Court Registry that handles civil lawsuits. In most cases, this will be the Small Claims Court Registry, located in every Provincial Court. 3) The victim must then complete and file a judgment form and a judgment registration form with the Small Claims Court Registry. There is no cost for filing the judgment form, but there is a $15.00 cost for the judgment registration form. However, this amount is added on to the total amount of the restitution order that the offender must pay. The judgment form will be signed by the judge who ordered the restitution. The judgment registration form is then sent to the Sheriff s Office for enforcement. Judgment Form: www.court.nl.ca/provincial/forms/smallclaims/ judg04dec08.pdf (also available at Provincial Court) Judgment Registration Form: https://jer-remote.justice.gov.nl.ca/forms/reg.pdf (also available at Provincial Court or at the Sheriff s Office) 12

4) The next step is for the Sheriff s Office to enforce the restitution order (now a judgment) against the offender. The victim should contact the Sheriff s Office to provide information about enforcing the judgment. The Sheriff s Office is located in St. John s and can be contacted at 709-729-4646. 5) In order to enforce the judgment, the Sheriff s Office needs information about the offender s financial situation, assets, and ability to pay. If the victim has this information, especially about assets owned by the offender, he or she should provide the information to the Sheriff s Office which may then be able to enforce collection of the restitution order. If the victim does not know this information, he or she may instruct the Sheriff s Office to serve a questionnaire on the offender about their ability to pay the restitution amount. The offender has 15 days to complete and return the questionnaire. The questionnaire to be used can be found here: https://jer-remote.justice.gov.nl.ca/forms/ finq.pdf (also available at the Sheriff s Office) 13

6) If the offender does not provide the required financial information, the victim can request a payment hearing in Small Claims Court. To do this, the victim must complete a Notice to Payment Hearing Form and Summons to Payment Hearing Form and file both forms with Small Claims Court. The Summons Form must be served on the offender at least 5 days before the payment hearing date. Notice to Payment Hearing Form: http://www.court.nl.ca/provincial/forms/ smallclaims/notice_pay_hear04dec08.pdf (also available at Provincial Court) Summons to Payment Hearing Form: http://www.court.nl.ca/provincial/forms/ smallclaims/summ_pay_hear04dec08.pdf (also available at Provincial Court) 7) The payment hearing allows a judge to determine the offender s ability to pay the restitution amount and if necessary, to set a payment schedule. The offender is required to bring financial information to the hearing with them. If the offender has received a summons and does not attend the payment hearing, the judge may issue a warrant for his or her arrest. 14

8) Once the financial information of the offender is known, including the possessions and property they own, the victim can direct the Sheriff s Office to recover restitution, including potentially through the seizure and sale of the offender s assets. 15

What Other Options Does a Victim Have to Recover Losses as a Result of Crime? Victims have other options to try and recover losses resulting from crimes. One option is to file an insurance claim with their insurance company. Another option is to start a civil action, or a lawsuit, against the offender. In Newfoundland and Labrador, civil actions for less than $25,000 are started in Small Claims Court, using a Statement of Claim form that can be found here: http://www.court.nl.ca/provincial/forms/ smallclaims/soc_09_aug.pdf (also available at Provincial Court) More information on starting a Small Claims Court action can be found here: http://www.court.nl.ca/ provincial/courts/smallclaims/procedures.html For claims over $25,000, the action must start at Supreme Court, Trial Division. This is done by filing a Statement of Claim with the Court. The Statement of Claim form can be found here: http://www.court.nl.ca/ supreme/general/forms/civil_proceedings/ form_503a_statement_of_claim.pdf (also available at Supreme Court, Trial Division) 16

For more information on starting a civil lawsuit, including all of the forms and procedures required, it may be advisable to contact a lawyer for advice or to contact the Court where you would be starting the civil action. Be advised that court staff can only provide general legal and procedural information and cannot provide legal advice. You may also contact the Public Legal Information Association of NL (PLIAN) if you have questions about these procedures, about restitution generally, or to receive a referral to a lawyer who can provide a consultation and legal advice at a reduced cost. PLIAN can be contacted by phone toll-free at 1-888- 660-7788 or by email at info@publiclegalinfo.com. 17

Important Terms Crown Attorney: Also sometimes called the prosecutor. This is the lawyer who prosecutes the criminal case in court. This means the Crown Attorney usually argues that accused persons should be found guilty of the crimes with which they are charged. The Crown Attorney is NOT the lawyer for the victim, but will often call the victim to be a witness during the trial. Restitution: Money paid by a person found guilty of a crime to the victim of that crime to cover certain financial losses as a result of the crime. Restitution Order: A decision made by a judge during sentencing, ordering a person found guilty of a crime to pay restitution to a victim. The restitution order may be made on its own, or be a part of a probation order or conditional sentence order, also as part of sentencing. Sheriff s Office: Location where restitution orders may be enforced if the offender has not paid them without delay. The Sheriff s Office will require the order to first be registered at the Small Claims Court Registry and will also require financial information about the offender in order to enforce payment of the restitution order. 18

Small Claims Court Registry: The location where restitution orders under $25,000 may be registered for enforcement if they are not paid by the offender without delay. Small Claims Court Registries are located in all Provincial Courts in Newfoundland and Labrador. Victim Services Coordinator: A person who is available to assist victims of crime during all parts of a criminal case. The Victim Services Coordinator can provide information about restitution, tell the victim what to expect in court, set up a meeting with the Crown Attorney, help the victim complete a Victim Impact Statement form, and be present in court when the victim testifies during a trial. 19

Resources Public Legal Information Association of NL www.publiclegalinfo.com Legal Information Line and Lawyer Referral Service (Monday-Friday, 9 AM to 12 PM): 1-888-660-7788 or 709-722-2643 Email inquiries anytime at info@publiclegalinfo.com Victim Services www.victimserviceshelp.ca Provincial Office: 709-729-7970 Provincial Court www.court.nl.ca/provincial Phone: 709-729-1004 Email contact: inquiries@provincial.court.nl.ca Sheriff s Office 319 Duckworth Street St. John s, NL 709-729-4646 20

RCMP 1-800-709-7267 (for emergencies dial 911) RNC Northeast Avalon: 709-729-8000 Corner Brook: 709-637-4100 Labrador City: 709-944-7602 Churchill Falls: 709-925-3524 Hearing Impaired: 1-800-363-4334 21

Suite 227, 31 Peet Street, St. John s, NL A1B 3W8 Telephone: (709) 722-2643 Toll Free: 1-888-660-7788 www.publiclegalinfo.com 22