Do crimes open criminal and common law cases?

[caspar99]

If someone commits a crime (let's say assault) and the victim reports it, is there automatically a criminal case as well as a common law case? How does it work?

Let's say I report a sexual assault to the police. Naturally, there would be a criminal case, since this is an actual crime committed. But is there also a civil case? Is this something I decide on my own if I want to go through with it? I'm really confused about how it would actually work if I were to go talk to a lawyer and/or police (and about that - who should I go to? Lawyer or police station??)

[patwin87]

I think you are confusing common law with civil law. Assault was a crime under common law, but almost all 'common law' countries now have entirely statutory criminal laws.

To answer what I 'think' you mean, when you report an assault to the police, they open the criminal prosecution. If you wish to also sue your assailant for damages, that is a civil case (not a common law case) and you have to actually file the lawsuit yourself. (Obviously in most cases you would hire a lawyer who would file it for you.)

The police have no involvement at all in your civil case for damages.

Richard

[janyd]

Common law is not in play in this at all.

A crime by its definition is covered by Criminal Code of Canada that means a Statutory Law. Since there is a Statute covering crimes, Common Law no longer exists in this area.

A criminal charge works like this: you file a "complaint" with the police. They investigate and if they determine that a crime occurred, they or the Crown Attorney file the charge in Court, in the name of Her Majesty the Queen. There are only a very few circumstances where a private person can lay a criminal charge and you need a special permission to do that. Criminal cases are always captioned as "R. v. Joe Criminal" or "Regina versus ..." which is Latin for "The Queen against ..." The victim of the crime has no say in how the criminal case is being conducted. The reason for it is that we live in a Constitutional Monarchy. The criminal has broken The Queen's Law, not yours. The Queen has signed and proclaimed that law. Only the Queen is entitled to enforce it.

Civil case is completely separate an independent of the criminal case.

If you have suffered some sort of damages as the result of the crime, you may be entitled to sue in civil court for compensation. It is quite unusual in Canada to do that, more common in the USA, especially if the victim of the crime thinks the criminal did not get punished enough. (See the OJ Simpson case)

You would need to show to the civil court what damages you suffered, how much it cost you and how much you expect it will cost you in the future. For example, you have a well paying job, but as the result of injuries suffered by this crime, you are no longer able to do that job. You can sue for lost wages that you could have expected to earn had you not been injured by this crime. You had to pay for therapy, for home care, etc.

The difficulty with these cases is that even if you get a judgment for your damages, you may never be able to collect on it. Say you were beaten up, the criminal gets 5 years in criminal court, you get $300,000 damages in civil court. The guy is in jail, he will be in jail for about another 3 years or so, how is he going to pay you your $300,000? Maybe he gets out of jail and stays on the straight and narrow path of righteousness. He gets a job. As a convicted assailant, not much chance he gets anything better than wiping the floor at McDonald's. How is he going to ever pay you your $300,000?? At $10/hour minimum wage, it would take him 30,000hours of work or 3,750 work days or more than 17 years to even earn that kind of money, not counting anything for paying his income tax and using some money for his own room and board. If you take 30% of his gross income which is about the maximum a court would allow you to take, it would take him more than 50 years to pay you off. Basically, what you have here is a "Never Never Plan."

You've spent another $5,000 on a lawyer to get you your $300,000 judgment. How will you collect?
If you do not start collecting your judgment in a timely fashion (about 10 years), the judgment will lapse and become unenforceable.

Any lawyer worth his salt would have long told the criminal to declare bankruptcy and wipe your damages award clean. He would invoke the Law of Equity and claim that despite the fact that you should be entitled to such compensation, it would not be just - equitable, and not in the public interest to hold the guy in virtual slavery for the next 50 years by confiscating 30% of his wages for such a long time. Don't forget than even if he was a teenager at the time of the crime, he would be on Old Age Pension before he'd pay off your judgment.

Some provinces are starting to clue in on this problem and are setting up "Victims of Crime Funds" to offer at least some compensation to victims. It is of course nowhere near of what they should really receive, but it is much better than the chances they have without it.