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Copperlaw
Copperlaw, Lawyer
Category: Canada Law
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I was found guilty of a criminal charge, and am now facing

This answer was rated:

I was found guilty of a criminal charge, and am now facing a civil action from the same victim. I am completing a conditional sentencing, but would like to know if the victim is also entitled to pursuing a civil action against me?

Copperlaw :

Hi.

Copperlaw :

Yes, a victim of crime can seek damages against the perpetrator through the civil courts.

Copperlaw :

If they've sought compensation through the BC Criminal Injuries Compensation Act, they cannot also seek civil damages however.

Copperlaw :

So this is one aspect that you'll want to look into as it could negate their claim

Copperlaw :

Depending upon the extent of the violation, injury or loss, the damages that can be sought can vary wildly.

Customer:

Even if part of the conditional sentencing is restitution?

Copperlaw :

Please let me know if you require any further information

Customer:

Part of the conditional sentencing includes restitution, but with no set date. The victim's lawyers are requesting this, but through a civil action

Thanks for the additional info.

 

You'll note that I have switched the format of this conversation as the chat interface was causing some problems for me. This happens on occasion. We can continue to chat back and forth here however.

 

If there is already an Order through the Criminal Courts for restitution as part of your criminal disposition, then there is already a lawful Court Order.

 

If the civil action only seeks the restitution, as ordered by the criminal courts, and does not seek any additional damages or make any other claims, you can seek a motion to dismiss their civil action as a lawful order already exists.

 

Did you receive a "conditional sentence" or a "conditional discharge"?

If you received a conditional sentence, this is essentially a jail sentence consisting of house arrest. A Conditional discharge would be a finding of guilt, but no conviction, essentially a second chance, subject to compliance with a term of probation and any other conditions, such as restitution.

 

If the restitution ordered by the criminal court is for the same amount as being sought through the civil action, then again, as I indicated, the civil action is redundant and a civil judgment cannot be made in addition to the one already made by the criminal court, otherwise you'd essentially be ordered to pay twice

 

Please let me know if you require anything else or wish to chat further as I am happy to discuss this as much as you need.

Customer: replied 4 years ago.

I received a conditional sentence, which as part of the sentence was restitution. Upon examination of the documents sent to me by the victim's lawyers an Appointment to Examine in Aid of Execution. This document is not stamped by the courts. Again, I may be 'jumping the gun' so to speak. I believe it is to expedite the restitution. I was also informed by my Conditional Sentencing Officer that a Civil Action was being pursued. Additionally, I received an email from the victim's lawyer recommending that "I thought I should discuss with you the possibility of avoiding the need for further examinations of you if you are prepared to agree to a Payment Order by Consent. In essence, if we are able to agree on an appropriate repayment schedule of the obligation owed to my client it can be captured in an order. This means that both parties are able to avoid further steps in the enforcement process and it avoids increasing the cost of enforcement (which are then sought against you).


 


If you would like to discuss this further in advance of the examination please let me know."


 


I took the above to initially mean that civil action was being enforced, and the lawyer was trying to resolve this quickly to establish a payment schedule. Is the lawyer allowed to enforce a repayment? My Conditional Sentence Order states restitution, but no payment schedule was enforced.

The lawyer is within their rights to seek to have you agree to a payment plan to satisfy the restitution order. So they're not looking to file a new civil action against you, it sounds like they're looking to get an Order with a specific structured repayment plan set out.

 

The Examination would be a questioning under oath, which could be used in court in the future, in an effort to determine what means you have to pay, what assets you have, where you have accounts etc.

 

This would provide them with resources through which to seek enforcement of the restitution Order.

 

Ultimately however, I'm not so certain why they're taking this route at the moment, as although I haven't seen the terms of your sentence, I expect that the restitution Order was made in such a way that you could face a further criminal charge if you did not comply.

 

If you plan to comply with the restitution ordered by the court, then it's probably best to sit down with the lawyer and work out a plan of repayment that you can both agree to. This should satisfy them that they have something structured, and should prevent any further action against you.

 

 

Customer: replied 4 years ago.

That makes sense. I guess I needed some assurance that they were not trying to coerce me into paying restitution so quickly that I would be financially destitute. Would it be in my best interest to have a lawyer of my own present?

It wouldn't hurt, but it would also likely cost you. Ultimately, they can't force you to do anything that you don't agree to, so there's no harm in talking to them and trying to work things out and they'll give you time to seek independent advice before finalizing anything. You may also be able to talk to your probation officer about the matter and get some assistance from them in dealing with this, since the restitution forms part of your sentence and they'd ultimately be responsible for overseeing this and ensuring that you comply with the payment Order.

 

This question will remain in your "My Questions" area and know that you can come back in here at any time, whether it's tomorrow, next week, next month, whenever, and I'll be happy to chat with you further and provide additional guidance, at no additional cost to you. Even once you've provided a rating on the question, you can still come back into it so that we can chat some more.

 

I'm always happy to help and rest assured that I'll discuss this with you as much as you need so that your concerns are all addressed.

 

Regards

Jim

 

Copperlaw and other Canada Law Specialists are ready to help you
Customer: replied 4 years ago.

Thank you very much for all of your insight and assistance in this. It has certainly given me much to think about. I will certainly take your advice into consideration, and be in contact again. Again, I appreciate the advice.


 


Best Regards,


 


Michael

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