Corey Lee Bates Applicant - v. -, 2011 ABQB 762

Court of Queen ’ s Bench of Alberta Citation: Bates v. Alberta (Victims of Crime Act, Director), 2011 ABQB 762 Date: 20111212 Docket: 1101 08595 Registry: Calgary Between: Corey Lee Bates Applicant - and - The Director pursuant to the Victims of Crime Act Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice C.M. Jones _______________________________________________________ I. Introduction [ 1 ] The Applicant, Corey Lee Bates, seeks a declaration that s. 7 of the Victims of Crime Regulation , Alta.

Reg. 63/2004 (the “Regulation”) is ultra vires the Lieutenant Governor in Council and, therefore, may not be used to deny him benefits under the Victims of Crime Act , RSA 2000, c. V-3 (the “Act”). He seeks to have s. 7 of the Regulation struck down. In the alternative, he asks the Court to read down s. 7 of the Regulation to give it a “sufficiently narrow

interpretation” to bring it in line with the Act. In the further alternative, he asks for a declaration that s. 7 of the Regulation does not apply to him. II. Legislative Framework [ 2 ] As the legislation is integral to this matter, it will be convenient to set it out here. The relevant portions of the Act are as follows: 2(1) The following principles apply to the treatment of victims:

(

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

b) the privacy of victims should be considered and respected to the greatest extent possible; (

c) all reasonable measures should be taken to minimize inconvenience to victims; (

d) victims should promptly receive, in accordance with this Act and the regulations, financial benefits for the injuries that they have suffered; (

e) the safety and security of victims should be considered at all stages of the criminal justice process, and appropriate measures to protect victims from intimidation and retaliation should be taken when necessary; (

f) information should be provided to victims about the criminal justice system and the victim’s role and opportunities to participate in criminal justice processes; (

g) information should be provided to victims, in accordance with prevailing law, policies and procedures, about the status of the investigation, the scheduling, progress and final outcome of the proceedings and the status of the offender in the correctional system; (

h) information should be provided to victims about victim assistance services, including the Victim Impact Statement Program, requesting restitution, means of obtaining financial reparation and other assistance and programs; (

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; (

k) information should be provided to victims about available options to raise their concerns when they believe that these principles have not been followed.

(2) Victims should report the crime and co-operate with law enforcement authorities. 3(1) The Minister may designate an employee under the administration of the Minister as the Director to carry out the duties and functions of the Director under this Act.

(2) The duties and functions of the Director include ... (

c) in accordance with

section 13, evaluating applications for and making decisions respecting eligibility for financial benefits, and ... 12(1) Subject to subsection (4), the following persons may, in accordance with the regulations, apply to the Director for financial benefits if the injury to or death of a victim was the direct result of

an act or omission that occurred in Alberta and is one of the offences under the Criminal Code (Canada) specified in the regulations: (

a) in respect of the victim’s injury, the victim; ...

(4) The following are not eligible for financial benefits: (

a) a person who is convicted of a criminal offence arising from the events that resulted in the injury or death of the person; ... 13(3) The Director may dismiss an application made under subsection (1)

... (

c) for any other reason provided for in the regulations.

(4) Subject to the regulations, if, in the opinion of the Director, the victim’s conduct directly or indirectly contributed to the victim’s injury or death, the Director may, in accordance with the regulations, deny the payment of any financial benefits or reduce the amount of the financial benefits. ... 17 The Lieutenant Governor in Council may make regulations ... (

i) respecting applications for financial benefits and the evaluation of those applications; (

j) describing conduct for which and providing for amounts by which financial benefits are to be reduced for the purposes of section 13(4); ... (l.1) respecting other reasons for which the Director may dismiss an application made under section 12(1); [ 3 ] The relevant parts of the Regulation are ss. 4 and 7. At the time in question, those provisions were as follows: 4 If, in the opinion of the Director, the victim’s conduct directly or indirectly contributed to the victim’s injury or death, the Director may, depending on the conduct and how the conduct contributed to the injury, (

a) reduce the financial benefits payable in respect of that victim by 25%, 50% or 75% as the Director considers reasonable, or (

b) deny financial benefits in total in respect of that victim where the Director is of the opinion that the conduct warrants the denial of financial benefits. ... 7(1) In this section, ... (b) “conduct period” means the period commencing 60 months immediately proceeding the date of the offence in respect of which an application is made by or in respect of a victim and concluding not later than 60 months immediately following the date of the offence in respect of which the application was made; ...

(2) If a victim has been convicted of an offence within the conduct period, the Director shall assess against that victim 5 points for each offence for which the victim has been convicted during the conduct period. ...

(6) Where a victim has been assessed points under this section, the Director may, if the victim has been assessed 12 or more points in total for the conduct period, deny financial benefits payable in respect of that victim.

(7) This

section applies in respect of a victim even though the victim’s conduct may not or did not directly or indirectly contribute to the victim’s injury or death. [ 4 ] It is worth noting that s. 7(6) of the Regulation now provides that the Director shall deny financial benefits to a victim who has been assessed 12 or more points. However, at the time relevant to this matter, the Director had discretion. III. Facts

[ 5 ] The facts in this matter are not in dispute. On May 25, 2008, Mr. Bates was assaulted by Richard Barker. Mr. Barker hit Mr. Bates in the face with the butt of a gun. Mr. Bates suffered a broken nose and lacerations to his face requiring 25 stitches. [ 6 ] Mr. Barker was not a stranger to Mr. Bates. In 2005, Mr. Bates plead guilty to four counts under the Controlled Drug and Substances Act , SC 1996, c. 19 . He was sentenced to two years’ imprisonment, though he was paroled and released early. Mr. Bates met Mr. Barker in prison. Mr.

Bates stated in his application for benefits that he was standing in the lobby of a building when Mr. Barker demanded entry. When Mr. Bates refused, Mr. Barker used a screwdriver to enter the building. He then produced a gun, demanded money and hit Mr. Bates in the face. There is no evidence to contradict Mr. Bates’ description of these events. [ 7 ] Mr. Bates swore in his affidavit filed in this Court that, since his release from prison and including the date of the assault, he has been working in construction and has not been in any trouble with the law. Again, there is no evidence to contradict Mr.

Bates’ statement. [ 8 ] On April 29, 2009, Mr. Bates made application for benefits under the Act. On January 28, 2010, counsel for Mr. Bates received a decision (the “Decision”) of the designate of the Director under the Act denying such benefits. [ 9 ] The denial of benefits was based on the s. 7 of the Regulation. Mr. Bates was assessed five points for each of his four convictions, giving him 20 points in total. As Mr. Bates had more than 12 points within 60 months of the assault, the Director’s designate exercised her discretion to deny benefits. [ 10 ] Mr.

Bates made an application to the Criminal Injuries Review Board (the “Board”). Section 14(1) of the Act provides that a person may apply to the Board for review of a decision of the Director made under

section 13 or 15. However, rather than seeking review of the Decision, Mr. Bates argued that s. 7 of the Regulations was ultra vires . The Board advised Mr. Bates that it did not have jurisdiction to determine the vires of the Regulation and urged him to bring his application before this Court. The Board indicated that, if this Court did not grant Mr. Bates the relief he was seeking, it would be prepared to hear an application for review of the Director’s exercise of discretion in arriving at the Decision. IV. The Applicant ’s Argument [ 11 ] The substance of Mr.

Bates’ argument is that s.7 of the Regulation goes beyond the scope of the Act and is therefore ultra vires . He asserts that the policy underlying the Act is that a victim should be denied compensation for injuries only in circumstances where there is a causal connection, be it direct or indirect, between the victim’s injuries and his conduct. He points to excerpts from the Hansard of the Alberta Legislative Assembly in support of the proposition that only criminal activity of the victim that is related to the offence causing the injuries should affect the victim’s eligibility for benefits. [ 12 ] Mr.

Bates notes that ss. 17(

j) and 17(l.1) of the Act might provide the authority for the Lieutenant Governor in Council to enact s. 7 of the Regulation. However, he argues that s. 17(

j) refers to s.13(4) of the Act, which requires a causal connection. He then argues that s.17(l.1) refers to s.12(1) of the Act, which in turn refers to s.12(4). The latter provides for ineligibility only for a person convicted of a criminal offence in respect of the events giving rise to the injury. [ 13 ] Mr. Bates also refers to s.13(3)(

c) of the Act, which provides that the Director may dismiss an application for financial benefits for “any other reason provided for in the regulations”. However, he asserts that this

section cannot justify s.7 of the Regulation because there is no specific reference to it in s. 17 of the Act and, therefore, there is no linkage between s. 13(3)(

c) and the regulation- making power in s. 17. He also asserts that s.13(3)(

c) is inconsistent with the policy of the Act that benefits should be denied only when the victim’s conduct has contributed to his injuries. V. The Respondent ’s Argument

[ 14 ] The Respondent’s position is that subordinate legislation is ultra vires only if it conflicts with its parent legislation such that both cannot be enforced at the same time. In other words, the Regulation will be ultra vires only if compliance with it would lead to a breach of the Act. [ 15 ] The Respondent argues that s.7 of the Regulation is authorized by either s.17(

c) or s.17(

i) of the Act. The Respondent notes that s.17(

c) refers to s.10 of the Act and that s.10(

d) refers to the payment of financial benefits pursuant to ss. 13, 15 and 19(2). This, the Respondent argues, is sufficient to incorporate s.13(3)(

c) of the Act and to justify s.7 of the Regulation. [ 16 ] In addition, the Respondent argues that s.17(

i) of the Act, which allows the Lieutenant Governor in Council to make regulations respecting applications for financial benefits and the evaluation thereof, is sufficient justification for s.7 of the Regulations. VI. Analysis [ 17 ] The guiding principles governing the determination of the vires of subordinate legislation were helpfully summarized by Wittmann A.C.J., as he then was, in Kubel v. Alberta (Minister of Justice) , 2005 ABQB 836 , 58 Alta. L.R. (4 th ) 254 at para. 23 : The jurisprudence in this area has established a number of guiding principles in relation to this issue: (

a) Delegated authority must be exercised strictly in accordance with enabling legislation and cannot amend or conflict with the specific provisions of the enabling statute ... (

b) In determining the vires of subordinate legislation the court must ascertain the purpose and intent of the enabling statute in order to identify the scope of the regulation making power... (

c) A statutory delegate must not exceed the express terms of the delegating provisions and is confined by the object, purpose and terms of the enabling statute... (

d) When considering the validity of subordinate legislation, a court must proceed on the assumption that such legislation is within the authority conferred by the parent statute and will not declare it invalid unless there is clear evidence to support such a finding... (

e) If there is doubt as to the meaning of the words used, the court should prefer a construction which will promote the intention of the Legislature as opposed to one that would defeat it... [Citations omitted.] [ 18 ] In applying what I will call the Kubel Considerations, it is necessary to keep in mind this question posed by D.P.

Jones, Q.C. and A.S. de Villars, Q.C. in their text, Principles of Administrative Law , 5 th ed. (Edmonton: Carswell, 2009) at p. 131: Did the appropriate legislative body grant this particular power to this particular person to be exercised in this particular way? [ 19 ] For purposes of the matter before me, it will be most convenient to review the Kubel Considerations in a slightly different order. A.

Purpose and Intent of the Legislation [ 20 ] To apply Kubel Consideration (b), the Court must determine the purpose and intent of the Act in order to assess the scope of the regulation-making power conferred upon the Lieutenant Governor pursuant to s. 17 of the Act. [ 21 ] As a starting point, a review of the principles enumerated in s.2(1) of the Act suggests that the purpose of the Act is to, inter alia , provide victims of crime with compensation in accordance with the Act and the Regulations.

[ 22 ] Justice Wittmann noted at para. 26 of Kubel that “The language used in the enacting statute is informed by the legislative debates relating thereto.” The excerpts from the Hansard set forth in Mr. Bates’ brief appear to support his assertion that denial of benefits should be limited to situations where there is a causal connection between the injury and the victim’s conduct. The following passages appear in the Hansard for May 7, 2001: Society can and should help those who have suffered simply because they happened to be in the wrong place at the wrong time. ...

The proposed amendments also seek to address a concern that has arisen over the last several years. We all know that a great deal of crime in our society doesn’t always involve a purely innocent person and an unprovoked perpetrator. A criminal lifestyle is a dangerous one. It is often the case that criminals are victimized as a direct result of their own bad judgment. ... Considering the victims’ own behaviour as a [causal] link to the crime will help ensure criminals don’t profit from their reckless and thoughtless lifestyles. [ 23 ] Mr.

Bates asserts that these excerpts support his contention that the Act requires a causal connection for there to be a denial of benefits. Therefore, in his submission, s. 7 of the Regulation, particularly s. 7(7), is inconsistent with that alleged requirement and its enactment is an impermissible exercise of the Lieutenant Governor in Council’s regulation-making authority. [ 24 ] There is some initial attraction to Mr. Bates’ argument.

However, on further reflection, I conclude that the purpose and intent of the Act is to compensate victims of crime, not in all circumstances, but only in those circumstances prescribed by the Act. I note that the Act contemplates other circumstances in which benefits may be reduced or denied notwithstanding the absence of a causal connection between the victim’s behaviour and the offence. These include: - the applicant does not meet the eligibility criteria in ss. 12(1)(

a) and (

b) of the Act; - the applicant did not bring the application within the time limits set out in ss. 12(2)(

a) or (b); - the applicant is dependent upon a person who falls within s. 12(4)(a); and - the applicant does not cooperate fully with the investigation or does not provide information as contemplated by ss. 13(3)(b)(

i) and (ii). [ 25 ] This latter point is of particular importance and was referred to in the Hansard to which Mr. Bates refers. The following passages are relevant to this point: ...making co-operation mandatory will help further reduce incidents where victims are injured as a result of their own behaviour or lifestyles yet still seek compensation for their injury. ...

Requiring applicants to co-operate with police helps the program identify those applicants involved with criminal activity. [ 26 ] I am satisfied that the Legislature intended to restrict the payment of compensation not only to persons whose conduct directly or indirectly contributed to their injuries, but also to persons whose “lifestyles” or involvement with criminal activity place them at greater risk.

While it is true that the Regulation was not passed until a few years later, my reading of the Hansard satisfies me that the Legislature intended the Act to contemplate a more broadly conceived view of causal connection. [ 27 ] In the result, I find that the restriction on eligibility for benefits arising from criminal convictions within 60 months of a victim’s injury or death is consistent with the intent and purpose of the Act.

B. Delegate ’s Authority to Enact Regulations [ 28 ] I turn now to Kubel Considerations (

a) and (c). In enacting s. 7 of the Regulation, the Lieutenant Governor in Council must have exercised his authority strictly in accordance with the Act, must not amend or conflict with the specific provisions of the Act and must not exceed the express terms of the delegating provisions in s. 17 of the Act. [ 29 ] As discussed above, I have found that the intent and purpose of the Act allows for benefits to be denied in prescribed circumstances that are not limited to situations in which there is a causal connection between a victim’s conduct and injury.

Therefore, I find that s. 7 of the Regulation does not amend or conflict with the Act. [ 30 ] Further, I am satisfied that in enacting s. 7 of the Regulation, the Lieutenant Governor in Council acted within the delegating provisions of the Act, namely: - s. 13(3)(c), which provides the Director with discretion to dismiss an application for any reason provided for in the Regulations; - s. 17(i), which provides for the enactment of regulations respecting applications and the evaluation thereof; and - s. 17(l.1), which provides for the enactment of regulations respecting other reasons for which the Director may dismiss an application made under s. 12(1) of the Act. [ 31 ] With respect to s. 17(l.1), Mr.

Bates argues that the “reasons for which the Director may dismiss an application” are limited to the reasons set out in s. 12(1), the only one of which is the causal connection contemplated by s. 12(4). This argument fails to recognize that the reference to s. 12(1) in s. 17(l.1) is nothing more than a reference to “ an application made under s. 12(1)”. Therefore, s. 17(l.1) permits the Lieutenant Governor in Council to enact regulations setting out reasons that an application may be dismissed beyond those in s. 12.

In other words, s. 17(l.1) adds to s. 12, rather than simply reiterating it. [ 32 ] Therefore, I find that s. 7 of the Regulation was validly enacted pursuant to the power delegated to the Lieutenant Governor in Council. C. The Regulation Creates Arbitrary Results [ 33 ] Mr. Bates also argued that s. 7 of the Regulation gives rise to arbitrary results. He points out that had he plead guilty to only two charges rather than four, he would have been assessed less than 12 points and would have been eligible for benefits.

At the hearing, his counsel argued that the conduct period is also arbitrary and noted that if that period were two years rather than five, Mr. Bates would have been eligible. The Respondent counters by pointing out that Mr. Bates was facing fifteen charges. It says that the Director should not speculate as to how criminal charges are resolved, but should consider only any resulting convictions. [ 34 ] This argument, in my view, does not speak to the vires of the Regulation, but to its merits.

While the maximum number of points or the length of the conduct period may be arbitrary, the same could be said of virtually any limitation set out in legislation. That does not, in itself, undermine the authority to enact it. In arriving at this conclusion, I am mindful of Justice Wittmann’s caution at para. 32 of Kubel that “...it is not the function of the courts to assess the merits of subordinate legislation in a consideration of the vires of that legislation...”. Therefore, this argument fails. [ 35 ] Both parties also made submissions with respect to Mr. Bates’ lifestyle at the time of his injuries. Mr.

Bates asserts that he had “stayed away from a criminal lifestyle” and that his conduct was not related, directly or indirectly, to his injuries. The Respondent’s brief states that “The information from the Calgary Police Service relating to the incident of May 25, 2008, suggests that the opinion of the police is that despite Bates denying owing any money, that the incident was likely drug related.” This statement seems to me rather speculative and there is little evidence before me to support it, but, in the end, it matters not.

[ 36 ] Whatever the truth may be, the application before me is solely to review the vires of s. 7 of the Regulation. I have no jurisdiction to review the Decision or to determine Mr. Bates’ eligibility for benefits. Therefore, these arguments are not relevant. VII. Conclusion [ 37 ] I find that s. 7 of the Regulation is intra vires . Mr. Bates’ application is therefore dismissed. Therefore, I see no justification for striking down s. 7 of the Regulation, reading it down or declaring that it does not apply to Mr. Bates. [ 38 ] In addition to this finding, the Respondent asks that this Court confirm the Decision.

As noted above, I do not have jurisdiction to review the Decision. That is the province of the Board, pursuant to s. 14 of the Act. The Act provides for judicial review or appeal of a decision of the Board in certain circumstances, none of which is applicable here, given that the Board did not render a decision, but simply acknowledged that it lacked jurisdiction to address the question posed to it. Therefore, I decline to grant this relief to the Respondent. [ 39 ] If Mr.

Bates still wishes to seek review of the exercise of the Director’s discretion giving rise to the Decision, he has been invited to return to the Board for that purpose. [ 40 ] Notwithstanding that I have refused the Respondent’s request that I confirm the Decision, the Respondent has been largely successful in this application. It is trite to say that costs ordinarily follow the event. In some cases, however, the question raised is of sufficient importance that the Court will exercise its discretion differently.

In this case, the Board indicated that the validity of s. 7 of the Regulation “is discussed not infrequently” and that the Board “would like to see it settled”. The presiding member of the Board repeatedly invited Mr. Bates to bring the matter before this Court. (Parenthetically, I note that the Board referred to the “constitutionality” of the section.

That, of course, is not what is before me, but I take it as an expression of the Board’s desire to have the validity of the Regulation determined by this Court.) Consequently, I am satisfied that the vires of s. 7 of the Regulation is a matter of importance in the functioning of the Act and of the compensation program it governs. For that reason, I order that the parties bear their own costs. Heard on the 8 th day of November, 2011. Dated at the City of Calgary, Alberta this 12 th day of December, 2011. C.M. Jones J.C.Q.B.A. Appearances: Daniel J.

Aberle Aberle & Monaghan for the Applicant Christine Nugent Alberta Justice

Legal Services Division - Civil Law for the Respondent