) ) S.D. Appellant – v. –, 2010 ONSC 5808

CITATION : S.D. v. CRIMINAL INJURIES COMPENSATION BOARD, 2010 ONSC 5808 DIVISIONAL COURT FILE NO.: 841-09 DATE: 20101207 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT MATLOW, C. MCKINNON, SHAW, JJ. BETWEEN: ) ) S.D. Appellant – and – CRIMINAL INJURIES COMPENSATION BOARD Respondent ) ) ) ) ) ) ) ) ))) Kari L. Barry, for the Appellant David E. Fine, for the Respondent ) ) ) HEARD: October 13, 2010 at Sudbury, Ontario. On Appeal from the Order of the Criminal Injuries Compensation Board dated November 27, 2009 C.

McKinnon J. [ 1 ] At issue in this appeal is whether the Criminal Injuries Compensation Board can take into account behaviour of a victim that occurred following the actions which caused compensable injury to that victim. Background facts [ 2 ] Between the ages of 11 and 14 S.D. was sexually assaulted on a number of occasions by a number of offenders. [ 3 ] The first instance of sexual abuse against S.D. occurred in 1980 at the hands of his brother’s godfather (“Offender 1”) when S.D. was 11 years old.

Offender 1 introduced S.D. and his brother to cannabis products leading to mutual masturbation and fellatio between the three of them. Offender 1 also abused the appellant on one other occasion when he was visiting the appellant’s family. He took S.D. for a drive in the woods where they engaged in oral sex and fondling. Offender 1 was convicted of gross indecency for these acts. [ 4 ] In September 1980 while S.D. was still 11 years old he was assaulted by two 15 year olds (the “Alleged Offenders”) in bushes alongside railway tracks in Streetsville, Ontario.

The appellant was forced to fondle one of the alleged offenders and one of them attempted anal intercourse with him. The alleged offenders were charged with indecent assault, though it is not known whether they were convicted. [ 5 ] When the appellant was 14 years old his uncle (“Offender 2”) resided with the appellant’s family in Sault Ste. Marie. At some point during this stay, Offender 2 placed his hand in the appellant’s underwear and fondled his penis while the appellant was sleeping on the couch. Offender 2 was convicted of sexual assault with respect to these acts.

S.D. suspects (although has no independent

recollection) that there were other incidents of abuse by Offender 2. S.D.’s mother indicated that Offender 2 frequently took theappellant for drives in his own vehicle. [6] S.D. testified that as a result of these acts he experiences anger toward the Offenders, Alleged Offenders and himself;bitterness and hatred; sexual identity issues; and a lack of trust in personal relationships. The appellant suffered years of taunting oncehis classmates learned about the abuse. He drank heavily from his early teens to his mid-twenties.

He stated that at times he felt like “analien to the human race.” He testified to promiscuity with male partners and has been chronically underemployed. On one occasion heattempted suicide with pills and a razor. [7] S.D. also testified that he himself abused others. His victims included young family members and neighbours. In 1990 hewas convicted in British Columbia of sexually assaulting an adult and sentenced to two years less a day in prison. He received sexoffender counselling while incarcerated but reoffended upon his release by sexually assaulting his three old niece.

He was sentenced toanother 18 months in prison. During testimony the appellant could not state that he would not reoffend. Findings of the Board [8] With regard to Offenders 1 and 2 the Board relied on s. 11 of the Compensation for Victims of Crime Act (the “Act”)providing that a conviction can be taken as conclusive evidence of a crime to find that those assaults were in fact committed. As such,the Board held that the appellant was a victim within the meaning of the Act.

With regard to the Alleged Offenders, the Board foundthat the appellant, on a balance of probabilities, was a victim of the crime of indecent assault, relying upon s. 16(1) of the Act whichprovides that an order for compensation is not contingent upon the perpetrator of the crime being convicted. [9] The Board accepted that S.D. was victimized at a young age by more than one offender and that, as a result, he sufferedpsychological scars.

The Board found that these scars could not be divided up and attributed to each individual act, but that “the harm ofbeing sexually assaulted at 11 and 14 years old had a cumulative effect on S.D.”. The Board cited the appellant’s anger and bitterness,his suicide attempt, his chronic underemployment, and his questioning of his sexuality in support of this finding. [10] Though the Board recognized generally that a child subjected to sexual assault may be more likely to victimize others in asimilar way, there was no evidence presented that this was the case for S.D..

The Board stated: Even if specific evidence could be adduced to show that, had he not been victimized, the applicant would not have made some of thedecisions that he has as an adult, none such evidence was presented here.

And while the Board can accept that a child who is subjected tosexual violence may be more likely to victimize others in a similar way than someone who never experiences it, we cannot ignore thefact that the applicant himself has committed sexual assault on a number of children. (Emphasis added) [11] Taking into account all the circumstances of the case, the Board awarded the appellant “up to $8,000 for counselling ortherapy costs to be paid to a qualified therapist.” The Appeal [12] Both parties agree that the appropriate standard of review is one of correctness: Dunsmuir v.

New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9; Liendo v. Ontario (Criminal Injuries Compensation Board), [2008] O.J. No. 4701 (Div. Ct.) [13] The appellant submits that the Board erred in law in considering the assaults committed by him subsequent to his ownvictimization as being irrelevant to his right to compensation for pain and suffering. [14]

Section 17 of the Act provides as follows: 17.

(1) In determining whether to make an order for compensation and the amount thereof, the Board shall have regard to all relevantcircumstances, including any behaviour of the victim that may have directly or indirectly contributed to his or her injury or death. [15] The appellant submits that “relevant” considerations are those pertaining to the victim’s injuries and the manner in which theywere sustained. There must exist a nexus and proportionality between the victim’s conduct and the offender’s conduct for the victim’sconduct to be deemed relevant: Simons v.

Ontario (Criminal Injuries Compensation Board, [1982] O.J. No. 1354 (C.A.); French v.Criminal Injuries Compensation Board (21 April 2004), Court File No. 1418 (Ont. Div. Ct.), p. 2; leave to appeal to C.A. refused, [2004]O.J. No. 3875. Though the Board has a very broad discretion to determine relevance, it cannot do so by simply stating that something isrelevant: Sheehan v. Criminal Injuries Compensation Board (1975), (ON CA), 5 O.R. (2d), 781 (C.A.). [16] The appellant submits that his subsequent behaviour is not relevant or proportional to the assaults committed against him.

Further, the Board did not provide any reasons for considering his subsequent behaviour relevant. Denying the appellant compensationfor pain and suffering penalizes the appellant twice for the same conduct.

He has already been penalized for this conduct throughcriminal proceedings and incarceration. [17] In addressing whether the wrong test was employed in denying compensation for pain and suffering, the appellant argues thatin exercising its discretion under s. 17(1) of the Act the Board must (1) weigh all the relevant circumstances; (2) consider whether anyconduct of the victim, directly or indirectly, contributed to his injury; and (3) decide whether to deny or grant compensation or whether itwill allow a reduced award: Dalton v.

Ontario (Criminal Injuries Compensation Board), (1982), (ON SC), 36 O.R.(2d) 394, (Div. Ct.).

[18] Some examples of weighing the relevant circumstances are whether the injury was severe or minor; whether surgery wasrequired or the victim treated and released with no further treatment required; whether hospitalization was required and whether thevictim has recovered from the injury or whether the injury is ongoing: Dalton, supra; Pavicevic v. Ontario (Criminal InjuriesCompensation Board), [2002] O.J. No. 2965 (Div.

Ct.) [19] The appellant relies on Simons, supra, in which the court held that the “relevant circumstances” under s. 17 “can only be thoserelevant to the injuries and the manner in which they were sustained.” It is an error of law for the tribunal to take into account irrelevantconsiderations in determining whether to exercise its statutory discretion: Pitters v. Ontario (Criminal Injuries Compensation Board),[1996] O.J. No. 4339 (Div.

Ct.) [20] The appellant further relies on the decision in Sheehan, supra, at para. 21 where the court stated: While even such a broad conferring of the power to act on what the Board considers relevant would not extend to authorize the Board tomake relevant a consideration which is patently irrelevant, simply by the act of the Board expressing that it considers it to be relevant... [21] The respondent submits that absent bad faith it is within the Board’s broad discretion to determine what are the relevantconsiderations for the purposes of s. 17(1) of the Act: Sheehan, supra; Dalton, supra.

The victim’s subsequent criminal activity is arelevant consideration because his victims would also be entitled to compensation under the Act. The Act contains a right of subrogationpursuant to s. 26(2) where an applicant admits to causing others harm for which they would be entitled to compensation under the Act.

Itis permissible for the Board to ensure that a wrongdoer is disentitled to receive funds that the Board would be entitled to reclaim fromhim. [22] The respondent also relies upon para. 14 of the Sheehan case, where the court stated: Apart from the obligation not to act arbitrarily or capriciously and to observe the principles of natural justice (and there is no allegationthat the Board offended in any of these regards) the jurisdiction of the Board to determine in each case what were the relevantcircumstances and to decide having regard to these circumstances is untrammelled. [emphasis added] [23] The respondent submits that in numerous cases the Board has fashioned awards exercising its very broad discretion, theawards being premised on the fact that compensation to a victim of crime is paid out of public funds.

Although the issue ofproportionality which the Board is required to consider under s. 17(1) involves a consideration of the damages suffered by the victimbalanced against the victim’s own conduct, either prior to or during the incidents for which compensation is sought, it does not precludethe Board from considering other conduct of the victim when applying the proportionality test if the other conduct is found to berelevant.

The respondent submits that the fact that the appellant caused harm to others, including children, was a relevant considerationand constituted a relevant circumstance because of the Board’s ability as granted by statute to seek subrogation against an offender. Denying the appellant compensation for pain and suffering was neither disproportionate nor arbitrary nor capricious. Analysis [24] The reasons of the Board do not disclose the principled basis upon which the conduct of the appellant can be viewed as arelevant circumstance within the meaning of s. 17(1) of the Act.

The argument with respect to subrogation advanced by counsel for therespondent is nowhere to be found in the reasons of the Board. In any event, the argument is flawed because subrogation rights wouldonly crystallize when a claim is actually made. In my view, it would be erroneous to limit recovery on a claim by speculating that theremay be future claims against an applicant. [25] In any event, no claims have been made by the victims of the appellant. It is questionable that such claims could be madebecause on the face of the record the crimes occurred outside Ontario.

Moreover, there is a two year limitation period for making claimspursuant to the Act which the Board has discretion to waive. Presumably, if claims were made by victims from another province theBoard might choose to invoke the limitation period. Indeed, it could have invoked the limitation period in the appellant’s case but choseto waive the period. There is no explanation in the Board’s decision as to why the limitation period was waived in favour of theappellant. Such an explanation would be helpful. [26] The character of the claimant can be a relevant consideration to recovery under the Act.

In Sheehan, supra, Sheehan and otherinmates of the Kingston Penitentiary claimed for injuries suffered during a prison riot, as a result of which the Board considered relevantthe fact that the prior criminal activity of the victims was the only reason they was in the penitentiary where the injuries occurred. Thisconsideration was held valid by the Court of Appeal. It is arguable that this is a different case than the case at bar where the appellantallegedly committed his crimes after being victimized.

In Sheehan there is a very clear relationship between the criminal activity of theclaimants and their subsequent injuries: but for their criminal activity, they would not have been in the penitentiary and therefore injured. It is arguable that such a causal relationship does not exist in the case at bar.

Although there may be a relationship between theappellant’s victimization and his subsequent crimes, it cannot be said that, but for his criminal activity, he would not have beenvictimized. [27] The scheme of the Act is to compensate victims of a crime and those who might be injured while arresting offenders orassisting police in arresting offenders. However, the Act does not require the victim to be lilywhite. In commenting on similarlegislation in Nova Scotia in the case of Poholko v.

Criminal Injuries Compensation Board, (NS CA), [1983] N.S.J.No. 413 (N.S.C.A.), Macdonald, J.A., speaking for the court stated: I cannot conceive that the legislature intended to enunciate any particular moral code when it enacted the relevant legislation but ratherhad in mind compensation to persons of all descriptions when they were injured by the act of another person resulting from or in thecommission of one of the relevant criminal offences listed in the Act...

[28] In that case a prostitute was granted compensation when she was attacked by a client.

The court noted that the act ofprostitution is not a crime. [29] Similarly, this court in French, supra, stated: The fact that a claimant may have engaged in illicit behaviour that gave rise to the injuries complained of does not necessarily disentitlethe victim from recovery under this Act. [30] In that case, the court found that the Board failed to apply the principle of proportionality and awarded the victim the sum of$15,000 for pain and suffering. [31] This court is mindful that the Board has very broad discretion to make awards and that its awards might be the subject ofpublic scrutiny.

During the course of arguments the examples of Mr. Olson, Mr. Bernardo and Mr. Pickton were raised. It wassubmitted that should individuals such as those make applications to the Board for compensation for victimization prior to their criminalactivity and the Board were to award money, there would be a public uproar. If this were the rationale for refusing compensation, then itis incumbent upon the Board to so state. [32] There is a significant aspect of the decision of the Board that requires clarification.

Although it appears from the argumentson appeal that the appellant became an offender following the abuse he suffered between the ages of 11 and 14, the Board in its decisionstated the following: The Applicant testified that as a result of being victimized he victimized others. He offended after the first instance of abuse... [emphasisadded] [33] This observation suggests that the appellant became an offender after the age of 11 but before the age of 14. There is notranscript of the testimony of the appellant that might assist this court in resolving the inconsistency.

Clarification of this point would behelpful in determining whether the ratio in Sheehan should be applied to deny the appellant recovery for damages for pain and suffering. [34] In the event the abusive conduct on the part of the appellant occurred after the age of 14, then some meaningful explanationfrom the Board is required justifying how the subsequent conduct of a victim is a relevant consideration when applying s. 17(1) of theAct.

It is arguable that the decision of the Court of Appeal in the case of Simons, supra, might close the door on subsequent conductbeing considered a relevant circumstance under s. 17. As the court stated, “such circumstances can only be those relevant to the injuriesand the manner in which they were sustained.” [35] This court is also mindful of the case of Lischka v. Ontario (Criminal Injuries Compensation Board) (1982), (ON SC), 37 O.R. (2d) 134 (C.A.) in which Galligan J., speaking for the court stated: I think it worth remembering two things about the Board and the nature of its duties.

The first is that the Board is made up of personswho are not legally trained and I think it is unfair to the members of that Board and to the spirit of this legislation to subject their reasonsfor judgment to the nice scrutiny to which reasons for judgments of judges are properly subjected. [36] Nonetheless, in dealing with the unique situation of the appellant, it is imperative that the Board give articulable reasons fordenying him compensation for pain and suffering. [37] For these reasons the case is remitted back to the Board, differently constituted, for a rehearing so that the Board may providereasons that would permit meaningful appellate review.

C. McKinnon, J. I agree: _______________________________ Matlow, J. I agree: _______________________________ Shaw, J.

Released: December 7, 2010. CITATION : S.D. v. CRIMINAL INJURIES COMPENSATION BOARD, 2010 ONSC 5808 DIVISIONAL COURT FILE NO.: 841-09 DATE: 20101207 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT MATLOW, C. MCKINNON, SHAW, JJ. BETWEEN: S.D. Appellant – and – CRIMINAL INJURIES COMPENSATION BOARD Respondent On appeal from the order of the criminal injuries compensation board dated November 27, 2009 Matlow J. C. McKinnon J. Shaw J.

Released: December 7, 2010.