2010 ONSC 2562, 2010 ONSC 2562

CITATION : S.D. v. Criminal Injuries Compensation Board, 2010 ONSC 2562 COURT FILE NO.: 349/09 DATE: 20100505 SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT RE: S. D., Appellant AND CRIMINAL INJURIES COMPENSATION BOARD, Respondent BEFORE: GREER, MOLLOY and SWINTON JJ. COUNSEL: S.D., in person David E. Fine, for the Respondent HEARD at Toronto: April 16, 2010 ENDORSEMENT BY THE COURT : Introduction [ 1 ] S.D. appeals from the order of the Criminal Injuries Compensation Board (“the Board”) dated July 7, 2000.

Ms D. had applied to the Board in 2007, for compensation for three incidents which occurred between September 2001 and December 2004. She alleged she had been the victim of criminal acts committed by her former boyfriend. The Board dismissed her claim. [ 2 ] An appeal lies to the Divisional Court from decisions of the Board pursuant to s. 23 of the Compensation for Victims of Crime Act [1] (“the Act ”), but only on a question of law.

The respondent concedes that the standard of review is correctness, which is consistent with the case authority. [2] [ 3 ] Ms D. submits that the Board erred in law by failing to find that she was a victim of three crimes perpetrated by her former boyfriend. Prior to the first occasion of her hospitalization in December 2001, Dr. D.S.

Heath on October 5, 2001, said she had a differential diagnosis which included “…bipolar disorder manic stage, and schizophrenic form psychosis paranoid type.”, Ms D. alleges that in her boyfriend forced her to use marijuana and that this either interacted badly with anti-psychotic medication she was taking or otherwise triggered an exacerbation of her disorder, causing her to be hospitalized for several days in 2004. The second incident occurred in 2002. Ms D. alleges that her boyfriend hugged her so forcefully that she could barely breathe and she had bruises on her back afterwards.

Finally, Ms D. alleges an incident of sexual assault in late 2004, which started out as consensual sex, but became so rough that she considers it was an assault. [ 4 ] We are all of the view that this appeal must be dismissed. We find no error of law by the Board, nor do we accept Ms D.’s submission that the Board discriminated against her because of her mental disability. The Marijuana Incident [ 5 ] In its reasons the Board makes no reference to the incident involving the marijuana. Ms D. argues that her boyfriend committed the criminal offence of trafficking when he gave her the marijuana.

However, even if all of the complainant’s evidence were accepted on this point, the Board would have no jurisdiction to award compensation. Not every crime that results in injury is covered by the legisation; it is only crimes of violence that can result in an award. [3] The Hugging Incident [ 6 ] With respect to the hugging incident, the Board held that there was no evidence that the alleged offender intended to hurt Ms D. when he hugged her and concluded that this was not an assault.

Even on Ms D.’s version of the event, the hug did not start as an assault and she objected only when her boyfriend was squeezing her too tightly. [ 7 ] There is no error of law by the Board. The Board correctly identified proof on a balance of probabilities to be the standard of proof that it must apply. The Board gave careful and thorough reasons. It concluded correctly that to constitute assault there would have to be an intent to injure. The Board’s conclusion that there was no evidence on this required element of the offence, was a finding of fact that was entirely open to it on the evidence.

It is not a conclusion that gives rise to an error of law and is not reviewable by this Court. Alleged Sexual Assault

[ 8 ] On the issue of sexual assault, the Board’s principal concern was on the element of consent. Ultimately, the Board was not satisfied that what occurred between Ms D. and her boyfriend on that occasion constituted sexual assault.

In coming to that conclusion, the Board took into account: the conflicts in various versions of this event given by Ms D. at different times (including statements that the incident started as consensual sex and that she did not object when her boyfriend got rough and hurt her); the fact that Ms D., at the time in question, had a mental illness that affected her ability to correctly perceive reality; the numerous incidents in which Ms D. made unsubstantiated complaints to the police in 2001 about threats, assaults, stalking and sexual harrassment; her history of paranoid delusions; and the fact that Ms D. only decided that she had been sexually assaulted after being “convinced” of that by support workers at a shelter in 2004.

The Board concluded that Ms D.’s allegations “were not reliable in light of her history of unsubstantiated complaints and her history of paranoid and delusional throught.” [ 9 ] This was a finding of fact by the Board. The Board took into account all of the evidence, not merely evidence that tended to undermine Ms D’s complaint. The conclusion that the Board reached was supported by the evidence before it. There was no error of law. The Board’s decision turned entirely on its assessment of the reliability of the evidence, which is a matter strictly for the Board. There is no basis for this Court to intervene.

Discrimination [ 10 ] The appellant is well-educated and says she qualified as an engineer in Turkey. She reports that her illness, which had been acute at times between 2001 and 2004, is now under control and has been since 2006. She believes that the Board discriminated against her by making credibility findings against her because of her mental disability. [ 11 ] First of all, we recognize that the Board is bound to comply with the Ontario Human Rights Code . We also agree that it would be discriminatory to conclude that a person is not credible because he or she has a history of psychiatric illness.

However, we do not agree with the appellant’s submission that the Board’s reasoning was tainted by discrimination. [ 12 ] Ms D. herself recognizes the difference in her ability to think logically now as compared to when she was in an acute stage of her illness. Unfortunately, at the time of these incidents, Ms D. was not as healthy as she is today. The Board was entitled, indeed required, to take into account any factor that could affect a witness’s ability to accurately perceive and recall the events in question.

At the time in question, Ms D. did not always perceive incidents around her in accordance with reality. This is a factor that the Board could reaonably take into account in determining the reliability of her evidence and her ability to recall it accurately. [ 13 ] The distinction between credibility and reliability must be noted. Credibility involves an assessment of whether a witness is telling the truth as opposed to lying. Reliability relates to whether an honest witness may nevertheless be mistaken in what he or she believes to be the truth.

The Board did not make an adverse finding of credibility against Ms D. and did not conclude that she had invented these events in order to get compensation. Ms D.’s genuine belief that she was sexually assaulted is not the issue. The Board’s concern was about the reliability of her evidence, in much the same way as one would be concerned about the reliability of an eye- witness who had poor vision. [ 14 ] The Board had before it copies of Ms. D’s medical reports relating to the incidents.

It also had copies of the Police Reports dated September 19 and 27, October 3, 2001 and July 14, November 10 and December 20, 2004. The December 20, 2004 report said the “Investigation has shown the sexual assault occurrence to be unfounded as the victim consented to the acts and did not tell her partner she did not want the act. A VICLAS Crime Analysis Report is not required to be submitted.” [ 15 ] Unfortunately, there were considerable problems with Ms D.’s ability to accurately perceive and recall what happened to her.

The Board concluded that those problems were such that it could not conclude on a balance of probabilities that the alleged offender had committed a sexual assault. The Board did not err in law in that regard, nor did it improperly apply the evidence with respect to Ms D.’s illness. [ 16 ] In the result, this appeal is dismissed. The Board does not seek costs. GREER J. MOLLOY J. SWINTON J. Released: May 5, 2010

CITATION: S.D. v. Criminal Injuries Compensation Board, 2010 ONSC 2562 DIVISIONAL COURT FILE NO.: 349/09 Date: 20100505 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT GREER, MOLLOY and SWINTON JJ. BETWEEN: S. D., Appellant - AND - CRIMINAL INJURIES COMPENSATION BOARD, Respondent ENDORSEMENT The Court Released : May 5, 2010