Ma v. Alberta (Criminal Injuries Review Board), 2011 ABQB 300

Court of Queen ’ s Bench of Alberta Citation: Ma v. Alberta (Criminal Injuries Review Board), 2011 ABQB 300 Date: 20110503 Docket: 1003 21095 Registry: Edmonton Between: Richard Foo Ma Applicant - and - Criminal Injuries Review Board Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Brian R.

Burrows _______________________________________________________ [ 1 ] Richard Foo Ma seeks judicial review of a decision of the Chair of the Criminal Injuries Review Board denying him a review of the dismissal of his claim for financial benefits under the Victims of Crime Act , R.S.A. 2000, c. V-3 by the Director under that Act. [ 2 ] The information which follows is derived exclusively from the Record which has been filed on this application. [ 3 ] The crime of which Mr. Ma claims he was a victim occurred on October 4, 2009. Mr. Ma’s application for financial benefits under the Act, which was filed by Mr.

Ma’s sister on his behalf on January 10, 2010, described the crime as follows:

Victim was leaving the lounge and in his vehicle when someone drove by and shot at him. He sustain few gun shots with the one shot at his head the most severe. [ 4 ] In the same document Mr. Ma’s injuries were described as follows: Victim is unable to move his right side of body efficiently. He is unable to care for himself such as going to the washroom/shower (needs support). [ 5 ] On March 3, 2010, the administrators of the Act, with Mr. Ma’s written authorization, obtained a copy of the police report relating to the incident from the Edmonton Police Service.

The report indicates that upon responding to a call to the crime scene, patrol officers found that Mr. Ma had gunshot wounds to his head and upper torso. He was transported to hospital by ambulance. From other persons who had been present in Mr. Ma’s car at the time of the shooting, police learned that while Mr. Ma and three others were visiting in his parked Mercedes at 1:20 a.m. on October 14, 2009: . . . a newer black Lexus four door pulls in front of Ma’s vehicle from the east. The vehicle stops facing west, adjacent to Ma’s front bumper. . . .

The front passenger window of the black Lexus rolls down and movement is observed by two males seated in the front. Moments later shots are discharged from the Black Lexus travelling through the windshield of Ma’s vehicle. Approximately five to six rounds are discharged before the vehicle is heard speeding away west bound from the parking lot. . . . Ma’s condition deteriorated upon his arrival at hospital. Ma was intubated and entered into Intensive Care Unit. [ 6 ] On March 16, 2010, a detective with the EPS wrote by e-mail to Ken Cherwinski, an “Eligibility Adjudicator” under the Act. Mr.

Cherwinski was the designate of the Director who was assigned to evaluate Mr. Ma’s application. The detective said in part: Ma was shot while inside his vehicle in the parking lot north of Diesel Ultra Lounge on the night of 09Oct14 . . . . Ma suffered extensive injuries as a result of this and at one point it was believed that he would die due to being shot in the head. Ma made a miraculous recovery and as of 09Dec29 was receiving treatment at the Glenrose Rehabilitation Hospital. I attended the Royal Alexandra Hospital to visit Ma on 09Nov19 for the first time after the shooting.

At this time, Ma was very uncooperative and refused to provide any information as to who would have shot him. He asked to be left alone and for police not to bother him anymore. He stated that he did not want the help of police in finding out who shot him and said it did not matter to him that he almost died that night. When I visited Ma at the Glenrose Hospital on 09Dec29 I once again asked Ma if he wanted police to find out who shot him and he said that he did not, and he just wanted to live his life.

He further advised that he would not come to court as a witness if police were able to figure out who had shot him and refused to help police as a witness. Ma was subsequently charged on 09Dec29 with 6 firearms related offences in relation to a handgun that was located hidden in the vehicle that he had been in at the time of the shooting. . . . I do not support any type of victims of crime compensation for Richard Ma at this time while this matter is before the courts.

[ 7 ] Mr. Cherwinski replied to the detective by e-mail the same day: Thank you guys very much for the speedy reply. Your follow-up was very important and answered the questions I had in relation to the incident, especially Ma’s involvement. [ 8 ] Notes made presumably by Mr. Cherwinski and included in the Record indicate that he spoke by telephone with EPS investigators in addition to communicating by e-mail. There is no record of what information he obtained by telephone. [ 9 ] An entry made after the e-mail correspondence in the Detail Case Report relating to Mr. Ma’s application indicates that Mr.

Cherwinski decided to deny Mr. Ma’s application on March 23, 2010. The note reads in part: Denial - Cooperation. EPS investigators provided greater detail as regards the VIC not wishing to assist in their investigation. VIC flatly refused to provide a statement and wanted them to leave him alone. VIC was visited on separate occasions just in case he changed his mind however he did not. Investigators reported that the VIC was also charged as a result of this incident since there was a handgun found inside his vehicle (which was present at the time of the incident).

This portion not used as part of denial letter. [ 10 ] On March 23, 2010, Mr. Cherwinski, as Designate of the Director, wrote to Mr. Ma. His letter said in part:

Section 13 of the Victims of Crime Act describes how financial benefits are determined. Section 13(3)(b)(

I) of the Victims of Crime Act states, “(3) the Director may dismiss an application made under subsection (1) (

b) if, in the opinion of the Director, the applicant or victim (

I) did not fully cooperate with any investigation into the events that resulted in the injury or death of the victim.” The police report indicates you refused to provide a statement and advised the police you wanted them to leave you alone. You further stated you did not wish police assistance and would not cooperate with them. As such, I have determined you did not fully cooperate with the investigation and your application is denied. [ 11 ] The Detail Case Report indicates that Mr. Cherwinski received a voice mail message from Mr. Ma on April 6, 2010. Mr.

Cherwinski noted: VIC called me and left a message requesting that I contact his sister Cory in relation to his file. . . . VIC stated in his message, “I got a letter saying I didn’t cooperate about the stuff that happened to me. Like I don’t even know what happened to me. And these cops kept coming to my room; like, in the hospital, like, asking me questions about what happened to me and stuff. I don’t even know what happened to me. Like I don’t remember nothing. I didn’t tell them nothing. I don’t remember nothing. [ 12 ] Mr.

Cherwinski also made the following note the same day: I then contacted Cory and she advised she was in touch with a Victim Services rep. Cory explained she already completed the appeal forms we sent to Richard. Cory asked if the appeal people will read the information and send her a cheque, “Is that how it works?” I said it may be that the “CIRB people” might need Richard to come in and tell his story before any cheque gets written. I said it might be better for Richard if he did that, so be prepared just in case they ask for that. Cory understood and was happy I called her back.

[ 13 ] Mr. Cherwinski also made a note of his

interpretation of Mr. Ma’s voice mail message: What I found interesting were Richard’s first remarks in his message. He claimed he didn’t cooperate “about all the stuff that happened to me”; then, in the next breath said he didn’t know anything. Richard’s audible tone indicated as though he was put out the police were even asking him questions. Richard is no stranger to a visit by the police. So how could he not expect them to ask questions in relation to any shooting situation whether he was involved or not. The fact remains, he was formally charged after a loaded handgun was found in his car that night.

And in his message, he somehow forgot about that too. [ 14 ] Mr. Ma’s request for a review of Mr. Cherwinski’s decision dated March 30, 2010 was received April 8, 2010. The grounds for review stated in this request were: I (Richard Ma) believe I have cooperated to the best of my ability with the police officers (I have met @ the Royal Alex and again at the Glenrose.) My injuries are pretty severe (bullet shot in the head – brain injury) and do not recall in detail what may have happened that night of the incident.

The events of that night have impacted my life enormously and is currently receiving therapy at the Glenrose Rehab Hospital (and is focussing most of my time there). [ 15 ] On July 12, 2010, Dr. Peter Allen, Chair of the Criminal Injuries Review Board, confirmed Mr. Cherwinski’s denial of Mr. Ma’s claim. In the letter the Chair quoted the part of Mr. Cherwinski’s denial letter which I have quoted in paragraph 10 above. He continued: Investigating police officers indicated that you were initially interviewed at the Royal Alexandra Hospital and later in the rehabilitation unit of the Glenrose Hospital.

The interviews at the Royal Alexander Hospital on November 19 and the Glenrose Hospital on December 29 were 1-2 months from the initial time of your injuries. It was stated that you did not wish to give information to the police at that time, and you further indicated that you would not testify as a witness in court should the police be fortunate enough to find the individual who had carried out the shooting. There is nowhere in the file information suggesting that you did cooperate with the police. Therefore, I must agree with the Director’s decision and dismiss your application.

Section 14(3) of the Victims of Crime Act indicates: “On receipt of an application for review, the chair of the Review Board or member designated by the chair must evaluate the application to determine whether there are grounds for the review or if the application is frivolous or vexatious, and if the chair or the designate is of the opinion that there are no grounds or that the application is frivolous or vexatious, the chair or the designate may dismiss the application.” I conclude this is an appropriate circumstance in which to invoke Section 14(3) and the application is dismissed. [ 16 ] Mr.

Ma seeks judicial review of the Chair’s decision. Procedural Fairness [ 17 ] Mr. Ma first submits that he was denied procedural fairness in the process which resulted in the dismissal of his application. Specifically he submits that the process was not procedurally fair because:

- He was given no opportunity to provide evidence on the point on which the determination of his application turned: whether ornot he had fully cooperated with the police investigation. - Evidence which was before the decider, Dr. Allen, had not been disclosed to him before the decision was made. This evidenceincluded: - the content of Mr. Cherwinski’s e-mail exchange with the EPS detective (described in paragraph 6 above) - Mr. Cherwinski’s

interpretation of Mr. Ma’s voice mail message (described in paragraph 13 above) [18] In relation to the second item, it may be observed that Mr. Cherwinski’s

interpretation (described in paragraph 13) misquotesMr. Ma (assuming Mr. Cherwinski’s note of Mr. Ma’s voice mail is accurate). Mr. Ma did not say that he had not cooperated with thepolice. Further, the source of Mr. Cherwinski’s information that Mr.

Ma is no stranger to police and that the firearm found in his vehiclewas loaded is not found or referred to in the Record. [19] In addition to these concerns, a review of the Record reveals the following additional possible fairness deficiencies in theprocedure which lead to the decision: - The Record included a submission from the investigating detective that he did not support Mr. Ma’s application. There isnothing in the Record to indicate that Mr. Ma was made aware of this submission. Indeed, the standing of the detective to make anysubmission as to the merits of Mr. Ma’s application is questionable.

Yet the detective’s opinion was included in the materials before theChair when he made his decision. - The Chair’s reasons do no more than repeat Mr. Cherwinski’s reasons. They do not explain why the “grounds” which Mr. Mahad raised in his application for the review - that he could not cooperate with police because he did not remember anything - were notgrounds for review. Indeed the Chair’s letter does not disclose whether he concluded that there were no grounds for review or whetherhe considered Mr. Ma’s application frivolous or vexatious.

The Chair’s reasons are completely silent as to why it would not amount togrounds for review of a decision denying Mr. Ma’s application on the ground that he had not cooperated with the investigation, that Mr.Ma had no memory of the events which resulted in his injury. [20] In Baker v. Canada (Minister of Citizenship and Immigration) (SCC), [1999] 2 S.C.R. 817 L’Heureux-Dubé J. said (at para. 20): . . . The fact that a decision is administrative and affects “the rights, privileges or interests of an individual” is sufficient to trigger theapplication of the duty of fairness.

There can be little doubt that the impugned decision of the Chair in this case affected Mr. Ma’s right and interest to receive a grant underthe Act. The duty of fairness was triggered. [21] Where the duty of fairness is triggered, it is necessary to determine the content of that duty in the specific context in which ithas arisen.

L’Heureux-Dubé said (at para. 21): The existence of a duty of fairness, however, does not determine what requirements will be applicable in a given set of circumstances. . . .“the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case”. All of thecircumstances must be considered in order to determine the content of the duty of procedural fairness. . . . Although the duty of fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and the

rights affected, it is helpful to review the criteria that should be used in determining what procedural rights the duty of fairness requires in a given set of circumstances.

I emphasize that underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker. (emphasis added) [ 22 ] L’Heureux-Dubé J. identified several factors which can affect the content of the duty of fairness as it applies in a given context.

Her non-exhaustive list of factors was: a. The nature of the decision being made and process followed in making it. The greater the resemblance to judicial decision making, the closer the process should adopt procedural protections of the trial model. b. The nature of the statutory scheme and the terms of the statute pursuant to which the body operates. In this context L’Heureux- Dubé J. said: The role of the particular decision within the statutory scheme and other surrounding indications in the statute help determine the content of the duty of fairness owed when a particular administrative decision is made.

Greater procedural protections, for example, will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requests cannot be submitted. c. The importance of the decision to the individual affected. The more important the decision in the life of the person affected, the more stringent the procedural protections required. In this context L’Heureux-Dubé J. cited R. v.

Higher Education Funding Council, ex parte Institute of Dental Surgery , [1994] 1 All E.R. 651 (Q.B.) where Sedley J. said: While the judicial character of a function may elevate the practical requirements of fairness above what they would otherwise be, for example by requiring contentious evidence to be given and tested orally, what makes it “judicial” in this sense is principally the nature of the issue it has to determine, not the formal status of the deciding body. d. The legitimate expectations of the person challenging the decision.

If the person affected has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness. e. The procedural choices made by the deciding agency. Where the statute leaves it to the decision-maker the ability to choose the procedure, or where the agency has particular expertise in determining what procedures are to be followed, the decision-maker’s choices in that regard should be taken into account and given important weight.

The nature of the decision being made and process followed in making it [ 23 ] An application by a victim of crime for a grant under the Act is first considered by the Director (or, as in this case, a delegate of the Director) who determines whether the applicant is eligible for a grant under the terms of the Act and if so, the amount of the grant. The Act gives the Director authority to require the applicant to provide information as to his injuries and how they came about and any other information which might assist in the assessment of the application.

Where an applicant is dissatisfied with the decision of the Director he may apply for a review of the Director’s decision by the Review Board. [ 24 ] Before an application for a review is put before the Review Board, the Act requires that the Chair of the Board “evaluate the application”. This aspect of the process is described in s. 14(3) of the Act, which is the only provision of the Act which says anything about it: On receipt of an application for review, the chair of the Review Board or a member designated by the chair must evaluate the application

On receipt of an application for review, the chair of the Review Board or a member designated by the chair must evaluate the application to determine whether there are grounds for the review or if the application is frivolous or vexatious, and if the chair or the designate is of the opinion that there are no grounds or that the application is frivolous or vexatious, the chair or the designate may dismiss the application. [ 25 ] Under this

section the Chair is a gatekeeper. He is to assess “whether there are grounds for review”. The

section says nothing about the test he is to apply in making that assessment. The function is perhaps similar to that of a court when it decides whether a pleading should be struck for not disclosing a cause of action or a defence, or whether a default judgment should be set aside, or whether leave to appeal should be granted, or whether a jury should be directed to acquit an accused person at the close of the Crown’s case.

It is an assessment of whether there are grounds worthy of consideration by the Review Board, of whether the applicant has raised in his grounds for review something which could conceivably move the Review Board to rescind or vary the Director’s decision, or whether the suggested grounds for review are so obviously without merit that the application for review should be dismissed summarily. [ 26 ] A distinction must be made between a determination as to whether the grounds for review are worthy of consideration by the Review Board, which is the role of the Chair under s. 14(3), and a determination as to whether the grounds for review justify rescinding or varying the decision of the Director, which is the role of the Review Board. [ 27 ] The judicial processes to which the gatekeeper role of the Chair is analogous involve significant procedural fairness protections.

In those processes the person affected is entitled to full disclosure of what the decider has before him or her when the decision is made. The person affected is entitled to make representations. The person affected is entitled to receive reasons for the decision which show at minimum that the proper question was asked and answered by the decider. The nature of the statutory scheme and the terms of the statute pursuant to which the body operates [ 28 ] As to the statutory scheme I note that s. 2 sets out several principles which “apply to the treatment of victims”. Expressly included are: (

a) victims should be treated with courtesy, compassion and respect (

i) the views, concerns and representation of victims are an important consideration in criminal justice processes and should be considered in accordance with prevailing law, policies and procedures (

j) the needs, concerns and diversity of victims should be considered in the development and delivery of programs and services and in related education and training Also expressly included in s. 2(2) is the principle that, “Victims should report the crime and co-operate with law enforcement authorities”. [ 29 ] In the context of applications under the Act, the role of the decision of the Chair under s. 14(3) is obviously significant. A decision that there are no grounds for review or that the application for review is frivolous or vexatious is final. It brings the application for benefits to an end.

There is no right of appeal even in respect of a point of law or a question of jurisdiction. [ 30 ] The absence of a right of appeal no doubt derives from the nature of the decision being made and the distinction previously described between what the Chair is to decide and what the Review Board is to decide.

There is a right of appeal from the Review Board on a question of jurisdiction or law. [ 31 ] The finality of the decision of the Chair under s. 14(3) justifies a requirement that greater regard be given to the protection of procedural fairness in the process by which that decision is made than would otherwise be the case.

The importance of the decision to the individual affected [ 32 ] The scale of relative importance of various administrative decisions is broad. Many administrative decisions, such as decisions that affect ability to earn livelihood, would be significantly higher on the importance scale than the impugned decision. There are probably many administrative decisions that would be lower on the importance scale as well.

That victims of crime should receive financial compensation has been considered sufficiently important for Parliament and the Legislatures to cooperatively create the legislative framework of which the Act is a part.

The highest award possible under the Act is $110,000. [ 33 ] While the correlation between importance of the decision and degree of procedural fairness protection is not scientific, the decision here is of sufficient importance, in my view, to justify the conclusion that at least the degree of procedural fairness protection afforded by a right to make representations after full disclosure of what the decider has before him and a right to receive reasons that show at least that the right question was asked and answered, is warranted.

The legitimate expectations of the person challenging the decision [ 34 ] The Record includes the explanations of the application and review process given to Mr. Ma. The procedures described in those explanations were followed. The procedural choices made by the deciding agency [ 35 ] Section 14(3) gives no direction as to the procedure the Chair is to use in his gatekeeper function.

The chosen procedure in this case appears to have been to give the applicant the opportunity to state his grounds of appeal in writing in his application for review, to review all the materials that existed in relation to the application, including correspondence from the police containing opinions as to the merits of the application, and including notes of the Director made after his decision concerning further communications with the applicant. (Counsel for the Respondent advised that the Chair would have had the entire Record before him when he made the decision.) [ 36 ] The Record does not disclose whether the failure to provide Mr.

Ma with copies of the materials that were before the Chair was deliberate. I can see no reason for such a choice being made if it was. Content of Procedural Fairness [ 37 ] In my view, consideration of the relevant features of the decision making process under s. 14(3) justifies the conclusion that the process was required to have at least these protections of procedural fairness: - Mr. Ma was entitled to receive copies of the materials that were to be placed before the Chair when he made his decision. - Mr.

Ma was entitled to an opportunity to make submissions and provide evidence concerning the issues to the Chair, at least in writing, after receiving that full disclosure. - Mr. Ma was entitled to receive reasons for the Chair’s decision which at minimum demonstrated that the Chair had dealt with the right question. Failure to Protect Procedural Fairness

[38] The protections of procedural fairness to which, in my view. Mr. Ma was entitled were not provided. He was not given the“evidence” of the detective as to what occurred when the detective visited him in hospital. He was not given the detective’s statement ofopinion as to the merits of Mr. Ma’s claim. He was not given the Director’s delegate’s post decision statement as to the credibility ofMr. Ma. [39] Mr. Ma was given no opportunity to make representations other than the opportunity to state his grounds for review. Avoice mail message he left for the Director after the Director’s decision along with the Director’s gratuitous

interpretation of it was putbefore the Chair without Mr. Ma’s knowledge. [40] Though Mr. Ma’s stated grounds for review included that he believed that he had cooperated with the police officers to thebest of his ability and that he had little memory of what happened, it is not possible to discern from the reasons given by the Chair thatthe question of whether those grounds for review were considered. Indeed the Chair in his reasons said, “There is nowhere in the fileinformation suggesting you did cooperate with police.” Clearly, in Mr.

Ma’s statement of his grounds for review there was such asuggestion. [41] In my view, the presence of these procedural fairness deficiencies require that the decision of the Chair in this case bequashed. Reasonableness of the Chair’s Decision [42] Mr. Ma submitted in the alternative that the Chair’s decision should be set aside for being unreasonable. [43] Counsel agreed that the standard of review was reasonableness and referred me to the decision of Read J. to that effect inAlberta (Solicitor General and Minister of Public Security) v. C.J., 2011 ABQB 192. [44] In Dunsmuir v.

New Brunswick 2008 SCC 9 , [2008] 1 SCR 190 the Supreme Court discussed the assessment ofreasonableness in the context of judicial review. It said at para. 47: A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the processof articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification,transparency and intelligibility within the decision-making process.

But it is also concerned with whether the decision falls within arange of possible, acceptable outcomes which are defensible in respect of the facts and law. [45] In my view, the Chair’s decision here was not reasonable. The grounds for review that Mr. Ma raised were that contrary tothe evidence of the police (which he had seen but which was described in the Director’s decision) he had cooperated with them to the fullextent of his capacity to do so.

His capacity to do so was limited because he had little memory of the events that lead to his injury,because of his injuries. [46] The Chair’s role was to decide whether that proposition was worthy of being considered by the Review Board, whether theReview Board might conceivably conclude after considering those grounds that the Director’s decision should be rescinded or varied. His role was not to determine the credibility of Mr.

Ma’s position, or whether it did or did not justify rescinding or varying the Director’sdecision. [47] The Chair’s decision offers no justification for his conclusion, if indeed he did so conclude, that the proposition wasunworthy of Review Board consideration. His reasoning as an explanation for why Mr. Ma’s grounds for review were not worthy ofconsideration by the Review Board is neither transparent nor intelligible. Indeed it does not appear that the Chair recognized his role asbeing different from the role of the Review Board itself.

[ 48 ] On this alternative basis, I conclude that the decision of the Chair is unreasonable and I set it aside. Heard on the 6 th day of April 2011. Dated at the City of Edmonton, Alberta this 3 rd day of May 2011. Brian R. Burrows J.C.Q.B.A. Appearances: Jordan J. Stuffco for the Applicant Fiona N. Moore for the Respondent