When most victims and survivors of crime think about the “legal system,” they think of the criminal justice system. The police investigate and lay charges. A Crown Prosecutor prosecutes the case. A Judge hands down a sentence if the accused is convicted. If the offender is sent to prison, a parole board may release the offender.
For many victims and survivors, the justice system is a confusing, slow and sometimes painful process. Victims and survivors should receive information about their case, can attend court, present a Victim Impact Statement at sentencing, attend parole hearings, etc. Collectively, these are known as “victims’ rights”. Far from perfect, the advancement of victims’ rights from when I first began my career has been significant.
For victims and survivors of impaired driving (or anyone involved in a motor vehicle collision), there is another “legal system” they must navigate – the civil process. It is equally complex, slow moving and can also be a painful process.
The goal is different. The criminal process is meant to hold people accountable and punish them on behalf of the state. In a civil case, the goal is compensation for the person who was harmed.
The two systems are different in many ways. In the justice system, the Crown or the state is responsible for prosecuting the accused. The Crown must prove guilt beyond a reasonable doubt which is a very high standard. Decisions are made in the interests of justice, not any individual person.
In a civil case, it is the victim or survivor who decides to sue the driver (or their insurance company). The burden of proof is lower – it is based on a balance of probabilities – something is more likely to have happened than not. Victims and survivors, with their lawyer, make decisions in their interest. The penalty is a financial one and it goes directly to the victim or survivor (minus legal fees).
Most victims and survivors of crime do not experience the civil process, usually because the offender has no money or may not be able to pay anything significant. With motor vehicle crashes, victims and survivors are guaranteed compensation through insurance although that may differ from jurisdiction to jurisdiction. Some provinces have government-run insurance, which means victims and survivors cannot sue, but even where jurisdictions do allow a civil suit, the rules may be different. 1
In theory, someone who was assaulted could try to sue the person who harmed them, but they may have to pay their lawyer up front because there is no guarantee they will get anything out of the offender. With motor vehicle cases, victims and survivors are essentially suing an insurance company2 and lawyers have confidence there will be a payout so they just take a portion of whatever the settlement is. The more you get, the more they get.
Civil suits can take years depending on their complexity. Often times, the civil process may have to wait until a criminal case is over (if there is one) as police are not allowed to release information until a criminal case is over.
And not all civil cases are all the same. Even in cases where someone has tragically died can be quite different. My Mom, for example, was almost 80 years old, had no dependents, etc. Our case would be “simpler’” from a legal perspective than a case involving a 42-year-old parent who had three children and was the sole breadwinner in the family. In both cases, factors like loss of companionship are relevant but in the latter case, lawyers also have to figure out what the cost of raising the children until they are adults will be.
Injury cases can be very time consuming and complex. Survivors may have to prove how serious their injuries are, which may involve repeated evaluations with various doctors over years. And that is just the physical injuries. There may also be PTSD and other injuries caused.
But both of these legal systems, each difficult in different ways, are happening as a parent grieves their child, a spouse grieves their partner, or a child grieves their parents. Or while a survivor and their family are struggling with the challenges of physical injuries which may involve significant changes in their life (i.e. not able to work, changing relationships, repeated surgeries, etc. They are going through some of the most painful and challenging times of their lives while having to learn about, understand and suffer through these two legal systems that march on at their own pace.
One survivor I met through MADD Canada chose to settle a civil suit after eight years because it just became too much for him and his family. We have heard from people about having private investigators follow them and take photos of them. People may be asked the most invasive and personal questions in a civil process, often about their medical history and their relationships with their loved one.
There is so much more to say about the civil process. If you missed our Lunch and Learn about Civil Law, Michael Warfe, an expert in personal injury law at Quail Warfe Kreder LLP, explains how the process works, why some things are the way they are and answers a lot of questions people may have. You can access the webinar here: https://youtu.be/tOSA_XVGghI
In some ways, victims and survivors of impaired driving (and other motor vehicle crashes) benefit from a civil law process other victims of violent crime do not because they receive some financial assistance. For example, if a loved one is murdered, there is no insurance. But it also means victims and survivors of impaired driving have to endure a second legal process that can be difficult and painful.
Of course, no one should have to go through one legal process, let alone two.
- Quebec and Manitoba have government insurance so you may not be able to sue for more than what you are entitled to. In BC, victims/survivors of impaired driving may be able sue a convicted impaired driver. In Ontario, injured survivors have limited rights to sue if their injuries meet a certain threshold (i.e. catastrophic).
- It is possible to sue an offender if they have enough money to make it worth doing so.