) ) GEORGE MARK Appellant – v. –, 2010 ONSC 6540

CITATION : Mark v. Criminal Injuries Compensation Board, 2010 ONSC 6540 DIVISIONAL COURT FILE NO.: 483/10 DATE: 20101202 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT MOLLOY, SWINTON and HERMAN JJ. BETWEEN: ) ) GEORGE MARK Appellant – and – CRIMINAL INJURIES COMPENSATION BOARD Respondent ) ) ) ) ) ) ) ) ) ) Leslie M. Flemming , for the Appellant David E. Fine , for the Respondent ) ) ) HEARD: November 17, 2010 in Toronto MOLLOY J.: REASONS FOR DECISION A. INTRODUCTION [ 1 ] George Mark was assaulted in his home in 2007, sustaining serious injuries some of which have resulted in permanent disabilities.

He applied to the Criminal Injuries Compensation Board (“the Board”) for compensation. By a decision dated May 1, 2009, the Board dismissed his application, stating that because Mr. Mark had been a drug dealer, the inherent risks of violence associated with such behaviour significantly contributed to the assault. Mr.

Mark appeals to the Divisional Court from the Board’s decision. [ 2 ] Central to this appeal is the application of s. 17(1) of the Compensation for Victims of Crime Act [1] (“the Act”), which provides that in determining whether to make an order for compensation or in fixing the amount of compensation, the Board shall have regard to all relevant circumstances “including any behaviour of the victim that may have directly or indirectly contributed to” his injury.

That provision has been interpreted by the courts as requiring the Board to consider whether the injuries sustained were “proportional” to the contributory conduct involved. [ 3 ] In my view, the Board made two legal errors. First, although the Board referred to the “proportionality principle” in its reasons, it did not actually apply it. Instead, the Board concluded that because of Mr. Mark’s criminal lifestyle he should have foreseen he would be the victim of violence and found this to be a bar to his recovering any compensation.

Second, the Board failed to consider whether there should have been some reduction in compensation because of the applicant’s own conduct, as opposed to a complete denial of the application. Both errors, independently, warrant setting aside the Board’s decision. My reasons for reaching that determination are set out below. B. STANDARD OF REVIEW

[ 4 ] An appeal lies to the Divisional Court from a decision of the Board, but only on a question of law. The parties agree that the applicable standard of review respecting such decisions is correctness. [2] [ 5 ] The Board members are not lawyers. Their reasons for decision must be considered in that light and must not be subjected to the same level of scrutiny as would be applied to the reasons of a trial judge or a tribunal comprised of lawyers. [3] C. FACTUAL BACKGROUND Mr. Mark’s History as a Drug Dealer [ 6 ] Mr. Mark has no criminal record. [ 7 ] Mr. Mark was 49 years old at the time of the assault.

He lived with his wife and their adult daughter in an apartment in Parry Sound and their son also stayed with them sporadically. Mrs. Mark testified that both she and her husband were addicted to crack cocaine. Although she was somewhat evasive on the issue of drug dealing, she eventually admitted in her testimony that she was aware that drugs were being sold out of their apartment. She said that she did not sell drugs and she did not actually know who sold drugs out of the apartment because she did not actually see the transactions take place. She admitted that people would come to the door and give money to Mr.

Mark, but said she didn’t know what it was for and never saw a hand-to-hand transaction. [ 8 ] Mr. Mark denied being a drug dealer. He also denied having drugs in his system at the time of the assault, but the hospital records indicated he had cocaine in his system that night. The treating doctor also noted in the record that Mr. Mark admitted to selling drugs. [ 9 ] Mrs. Mark testified that the people in the apartment unit next to theirs were selling drugs out of their apartment. There was evidence before the Board that the police considered Mr.

Mark’s apartment building to be a “crack house.” The day before the assault, the police raided Mr. Mark’s apartment and another apartment in his building. Following the police raid, Mr. Mark was charged with both possession of cocaine and possession for the purposes of trafficking. Subsequently, the trafficking charge was dropped. Mr. Mark entered a guilty plea to simple possession of cocaine and received an absolute discharge. [ 10 ] Based upon this evidence, the Board concluded that Mr. Mark was a drug dealer.

This is a factual conclusion and one that is not subject to appeal unless it is completely unsupported by the evidence. There was some evidence before the Board upon which that conclusion could be reached and therefore no basis to intervene. Circumstances of the Assault [ 11 ] There is no question that Mr. Mark was the victim of a criminal assault that occurred on August 3, 2007. [ 12 ] Just before the assault occurred, Mrs. Mark was asleep in the bedroom of their apartment and Mr. Mark had fallen asleep on the couch. Mr. Mark testified that he has no memory of the incident. Mrs. Mark saw very little of it.

She testified that she heard the doorbell, but did not get out of bed until she heard a loud bang followed by her husband yelling. [4] When she went to the front door she saw Michael Moore (“the Offender”) in the doorway, with his girlfriend, engaged in an argument with her husband. She knew the Offender slightly as he was a friend of their son. Both the Offender and his girlfriend had been to the Marks’ apartment several times in the past, the girlfriend more frequently than the Offender. [ 13 ] Mrs. Mark testified that she saw the Offender push Mr. Mark to the ground.

When she attempted to intervene, the Offender pushed her to the ground. Mr. Mark got up and was struggling with the Offender. Mrs. Mark ran out and called the police. When the police arrived and entered the apartment, Mr. Mark was lying on the floor covered in blood. He was immediately taken to hospital. The Offender was apprehended on the third floor of the apartment building. He was subsequently charged with, and convicted of, assault causing bodily harm. [ 14 ] The investigating officer testified that when the Offender was questioned by the police, he admitted the assault.

He told the police that he and his girlfriend had come to the apartment so that his girlfriend could pay off a $20 drug debt to Mr. Mark. Apparently, Mr. Mark refused to take the money and there was an argument. The Offender said Mr. Mark pushed his girlfriend and that he intervened to protect her. He said that things escalated from there. [ 15 ] The Board accepted that the Offender had gone to the apartment so that his girlfriend could pay off a drug debt. The Board noted testimony from the police officer that Mrs.

Mark gave a statement to the police that night in which she said that she heard the Offender encouraging Mr. Mark to take a $20 bill. Also, the police found a $20 bill in the apartment. The Board recognized that the Offender’s statement to the police that he assaulted Mr. Mark to protect his girlfriend was self-serving, but found it had a “ring of truthfulness to it”, particularly since there was no history of animosity between them. [ 16 ] Again, these are factual findings for which there is some support in the evidence. They are not subject to appeal. The Serious Nature of the Injuries [ 17 ] Mr.

Mark sustained very serious injuries in the assault. These are detailed in the Board’s reasons. In

summary, they consisted of facial and scalp lacerations requiring stitches, eyes swollen shut, a torn left ear, blood clots in the left ear, and a fracture of the right zygomatic arch. Several teeth were loosened and had to be removed. Mr. Mark was in Intensive Care for 4 ½ days and in hospital for a total of 13 days. [ 18 ] Some of his injuries have resulted in permanent disability. He had some permanent hearing loss and requires hearing aids, although some of this hearing loss had been present before. He also has memory problems and other symptoms consistent with post concussion syndrome and brain injury.

He has emotional problems, is short-tempered and frustrated easily, and is on anti-depressants.

[ 19 ] Mr. Mark is unable to work and is receiving ODSP benefits. On a positive note, he reports being clean and sober from drugs since the time of the assault. D. ANALYSIS: THE APPLICATION OF THE PROPORTIONALITY PRINCIPLE [ 20 ] It is conceded by the appellant that in these circumstances, it was appropriate for the Board to consider the applicability of the proportionality principle. The question is whether that principle was properly considered and applied. The Decision of the Board [ 21 ] The bulk of the Board’s 14 pages of reasons is devoted to summarizing the evidence and making factual findings.

The analysis of the proportionality principle occurs at pages 13 and 14. [ 22 ] The Board was clearly aware that it was required to consider the proportionality principle in applying s. 17(1) of the Act and stated that it was doing so. The Board considered the application of two authorities: Dalton v. Criminal Injuries Compensation Board [5] and Re Jane Doe v. Criminal Injuries Compensation Board. [6] A brief

summary of the principles in Dalton is set out and Jane Doe was distinguished on the basis that the applicant’s contributing conduct was not criminal in nature. [ 23 ] The entirety of the Board’s analysis with respect to the application of proportionality in this case was as follows (at page 14 of the reasons): The Board finds that the Applicant knew, or ought to have known, that engaging in criminal activity, particularly in selling crack cocaine, brings with it an accepted, inherent risk of potential violence and injury. . .

The Board acknowledges that the Applicant suffered severe injuries during this incident but that his behaviour of being a drug dealer, with its inherent risks of violence, contributed significantly to this incident occurring. Accordingly, having taken into consideration all relevant circumstances the Board finds that section 17(1) of the Act applies and refuses to make an Order for compensation. Therefore, this claim is denied in its entirety. Applicable Case Authority [ 24 ] In Dalton , the Divisional Court pointed out the mandatory language in s. 17(1) of the Act . The

section states: In determining whether to make an order for compensation and the amount thereof, the Board shall have regard to all relevant circumstances, including any behaviour of the victim that may have directly or indirectly contributed to his or her injury or death. [ 25 ] Having noted this language, the court in Dalton went on to hold that the Board is required to follow two steps in applying s. 17(1) : (1) it must consider whether there was any conduct by the applicant that contributed to his injury; and (2) it must decide whether to grant compensation, deny compensation or allow a reduced award.

A failure to follow these two steps constitutes a reversible error of law. [7] [ 26 ] Further, the Court held in Dalton that where there is contributory conduct, the Board is required to consider the severity of the injuries suffered in the context of determining whether it will deny compensation totally or “merely rely on the conduct to cut the award by a suitable percentage.” [8] [ 27 ] In Dalton the applicant had met two men in a bar and after drinking with them for awhile accepted their offer to drive her home. She got into the back of a camper-style van with one of the men.

When she resisted the sexual advances of that man, she was pushed out of the back of the moving van on Highway 401. She was later found unconscious on the highway. She suffered severe injuries, including a ruptured spleen, a concussion, twenty different fractures to her feet and ankles, internal injuries, and multiple lacerations all over her body. She was in hospital for 57 days, and was later readmitted for a further four months. After three years she was still unable to walk normally.

The Board found that her judgment had been impaired by alcohol, that she was “imprudent” in getting into the van with two unknown inebriated men, and that she was “the author of her own misfortune.” The Board dismissed her application for compensation. [ 28 ] The Divisional Court set aside the Board’s decision, holding that it was an error of law to fail to consider the severity of the applicant’s injuries in relation to her contributory conduct.

The Court noted it might have been appropriate to deny recovery if the applicant’s injuries had been slight, but that the nature of her conduct could not have been sufficient to bar her from recovery. [ 29 ] Further, the Court found the Board erred by finding Mrs. Dalton to be the “author of her own misfortune,” which effectively disregarded the conduct of the two perpetrators who actually caused her injuries. Linden J. held at para 12: Further the Board did not properly consider the issue of the contribution to her injury by the behaviour of Mrs. Dalton.

It concluded simply that she was “the author of her own misfortune.” However, even though her conduct may have been a cause of her injury, it cannot be denied that the two unknown men also contributed to her injury – actually they were the major authors of her misfortune. By going with these two men in the circumstances she incurred a risk, that is true. But she surely could not have expected that, as a result, she would be pushed out of a moving truck on a highway so brutally.

Although the Board could properly find that her behaviour contributed to her injury, to hold that she was the exclusive cause of this particular injury was legal error. [ 30 ] The proportionality principle established in Dalton has been applied in many cases since, including in situations where the contributory conduct is itself a criminal act. [ 31 ] One particularly apt example is the case of French v. Ontario (Criminal Injuries Compensation Board) , which also involved illegal drug activities by the applicant contributing to his injuries. The applicant was 17 years old at the time he was assaulted and had

been partying at a motel with three friends – drinking, smoking marijuana, and taking Percocet over the course of the night. He also accompanied his friends several times that night to sell cocaine on the street. He was extremely intoxicated to the extent of being virtually “comatose.” Ultimately, his companions accused him of stealing cocaine from them, beat him severely, stabbed him, and left him bleeding in a hallway. One of the wounds lacerated his aortic artery and caused subsequent complications. He was in hospital for about a month.

He testified it was about two months before he could move around the house easily and one year before he could play sports again. He had long-lasting emotional effects. The applicant testified before the Board that he could not remember anything about that night, but he denied ever using cocaine or stealing cocaine from his associates. The Board did not find him to be credible in his account of the evening.

After recounting the facts of his involvement in the criminal activity and his extreme intoxication, the Board concluded that there was “concrete evidence that leads to the application of s. 17(1) ” and declined to award any compensation. [9] [ 32 ] On appeal, the Board’s decision was reversed by the Divisional Court.

The Court held that the fact that a claimant may have engaged in criminal conduct that gave rise to his injuries “does not necessarily disentitle the victim from recovery under the Act .” Cunningham, A.C.J. held, “The conduct of the victim, albeit illicit in nature, pales by comparison with the conduct of the offenders.” He also held that the Board “erred in concluding that the victim, by his conduct, was 100 per cent responsible for his injuries.” The Court awarded Mr.

French compensation of $15,000, notwithstanding his own criminal conduct that contributed to his injuries. [10] [ 33 ] To similar effect is the recent decision of this court in Smith v. Ontario (Criminal Injuries Compensation Board) [11] in which the Board denied the claim of a mother whose son had been shot and killed while sitting in his car. The Board accepted evidence from a police officer that the son was murdered as a direct result of his involvement in illegal drug transactions and, without further analysis, denied the applicant’s claim.

The Divisional Court held that the Board had denied the claim without any apparent analysis as to the proportionality between the alleged conduct of the victim and the acknowledged criminal conduct of the offenders. This was found to be an error of law and the decision of the Board was set aside. [ 34 ] It is evident from these cases that the Board is not entitled to begin and end its proportionality analysis simply by finding that the contributory conduct by an applicant was criminal in nature.

There must still be a consideration of the extent to which the applicant’s conduct contributed to his injury and a comparison between the nature of that conduct and the severity of the injuries inflicted. Criminal conduct by the applicant, whether in the past or at the time of the injury, may be a factor to be taken into account under s. 17(1) , but it is only one of the relevant factors. It is a legal error to treat the existence of criminality on the part of the victim as determinative of the issue of compensation. [ 35 ] This principle is well stated by the Nova Scotia Court of Appeal in Poholko v.

Nova Scotia (Criminal Injuries Compensation Board) . [12] The Nova Scotia legislation contained a provision virtually identical to s. 17(1) of the Ontario Act. The applicant in the case was a prostitute who was picked up on the street by a man who said he was taking her to his apartment. Instead, he forcibly took her into the woods to an isolated camp, where he held her captive for three days. In the course of this ordeal she was repeatedly raped, threatened, and beaten, including being hit in the face with a hammer.

The Nova Scotia Board denied her claim for compensation because she was engaged in her profession as a prostitute at the time she got in the car with the offender and must have realized that she was subjecting herself to extreme risk by engaging in that activity.

That decision was set aside by the Nova Scotia Court of Appeal. [ 36 ] First, the Court of Appeal held that even assuming the sole reason the applicant got into the offender’s car was for the purposes of prostitution, she could not be said to be engaging in prostitution when the offender hit her in the face, threw her into the trunk of his car and confined her in circumstances amounting to kidnapping. Second, the Court held that the Board erred by failing to consider factors other than the applicant’s profession, including the aggravating circumstances surrounding the injuries inflicted upon her.

Finally, the Court emphasized that it was improper to disqualify an applicant simply because she was a prostitute. Her conduct could be seen as contributing to her injuries, but she could not be said to be wholly, or even chiefly, to blame. MacDonald J.A. held at paragraph 20: Apart from the foregoing, it is also clear to me that [the majority members of the Board] declined to make an order for payment of compensation to the appellant because she was a prostitute.

If they are saying that a prostitute cannot, under any circumstances, qualify for compensation under the Act , then, in my view, they are wrong in law. [ 37 ] I consider the analysis of the Nova Scotia Court of Appeal in Poholko to be equally applicable to the Ontario legislation and to reflect the principles underlying the proportionality requirement imposed by our courts.

Thus, s. 17(1) of the Act does not contemplate an automatic exclusion for any category of individuals; it requires a proportionality analysis dependent upon the circumstances of each case, the injuries inflicted in each case, and the specific conduct that caused or contributed to those injuries. Did the Board Properly Apply the Proportionality Principle? [ 38 ] The main difficulty with the Board’s decision is that it is difficult to see the line of reasoning that brought the Board to the conclusion that it did on the application of s. 17(1) of the Act .

The Board’s factual findings are more explicit and easier to follow. However, when it came time to apply the proportionality principle to those facts, the Board simply announced its conclusion. It appears from the Board’s reasons that the logical process it followed was: (

a) this applicant is a drug dealer; (

b) drug trafficking involves an inherent risk of violence; (

c) therefore, this applicant should have known that he would be assaulted. In effect, the Board held that drug dealers need not apply for compensation under the Act, no matter what the circumstances of the crime against them, and no matter what the severity of their injuries in comparison to their own level of involvement in drug trafficking.

That is not a proportionality analysis. [ 39 ] Essentially, all the Board did was conduct a foreseeability analysis and conclude that because any drug dealer can expect to encounter violence, this drug dealer could have foreseen he would be attacked and is therefore barred from any compensation. [ 40 ] Foreseeability of injury is often a relevant consideration; but, it cannot be a complete substitute for the proportionality analysis. The Board was required to determine how the particular conduct of this offender contributed to the particular injury he

sustained on this particular occasion, bearing in mind the nature of his injuries when compared to the specific nature of his conduct. Upon concluding that the applicant’s activities as a drug dealer were a contributing factor to what occurred, the Board is then required to consider to what extent this is so and to determine whether some reduction in the award is appropriate or whether the conduct of the applicant was so extreme that he should be completely disentitled. [ 41 ] The Board does not appear to have addressed its mind to the possibility of a reduced award.

It simply stated that it acknowledged the injuries were severe, but that being a drug dealer carried with it inherent risks of violence and “contributed significantly” to the assault. The Board then merely stated that the claim was denied in its entirety. [ 42 ] Accepting that Mr. Mark did sell illegal drugs, there is certainly no suggestion that he did this at a high level. He was himself a drug addict, as was his wife. The dispute with the Offender and his girlfriend involved an alleged drug debt of $20.00.

He has no criminal record and received an absolute discharge in connection with the charges arising from the police raid relied upon by the Board. Can it be said that because he had previously sold drugs Mr. Mark was (in the words of the Divisional Court in French ) [13] “100 per cent responsible for his injuries” that night? I think not. [ 43 ] Can it be said (as was found by the Board in Dalton ) that Mr. Mark was the “author of his own misfortune?” Again, I think not. As was pointed out by the Divisional Court in Dalton , Mr.

Mark’s conduct might have been a cause of his injury, but “it cannot be denied that the [Offender] also contributed to [his] injury – actually [was] the major author of [his] misfortune.” [14] A complete denial of compensation for any criminal activity on the part of the applicant is to completely disregard the involvement of the Offender, who was the actual cause of the injuries.

In Dalton , the Court accepted that the Board could properly find the behaviour of the victim contributed to her injury, but held that “to hold that she was the exclusive cause of this particular injury was legal error.” [15] The same applies here. Mr. Mark’s conduct may be a contributing cause to his injuries, but it is certainly not the sole cause. [ 44 ] Although the Board mentioned that Mr. Mark’s injuries were “severe,” it failed to consider the proportionality between the seriousness of his conduct and the severity of his injuries.

Again the words of the Divisional Court in French are apt: “The conduct of the victim, albeit illicit in nature, pales by comparison with the conduct of the offenders.” [16] There are some parallels between the situation in French and the circumstances of Mr. Mark, although the conduct of Mr. French was more extreme than that of Mr. Mark. Mr. French was engaged in a night of drug and alcohol excess and was actively trafficking in drugs with his companions throughout the evening; Mr. Mark was asleep in his home when the Offender and his girlfriend barged in. Mr.

French was beaten and knifed because his associates believed he had stolen cocaine from them; Mr. Mark was beaten senseless ostensibly over $20.00. Mr. French had life- threatening injuries, but was back playing sports after one year; Mr. Mark sustained permanent injuries, will likely never work again and lives on a disability pension. It was suggested by counsel for the Board in argument that these two cases are distinguishable because Mr. French was 17 and Mr. Mark was 49.

While I accept that the impulsivity of youth can be a mitigating factor, it cannot be a complete explanation for departing from the legal principles established in French . I consider the Divisional Court decisions in French and Smith to be binding authority for the proposition that a history of drug dealing alone is not a complete bar to compensation under the Act . The decision of the Board in this case does not properly apply these binding precedents. E.

CONCLUSION AND ORDER [ 45 ] The failure of the Board to properly consider proportionality as between the conduct said to be contributory and the injuries sustained, and the failure of the Board to consider a reduced award as opposed to a complete denial of recovery are legal errors. Further, they are legal errors that go directly to the ultimate decision made. It cannot be said that the decision would have been the same if s. 17(1) had been correctly applied. Accordingly, the decision of the Board cannot stand. [ 46 ] This is not an appropriate case for this Court to substitute its decision for that of the Board.

There is evidence, which if accepted by the Board, might be relied upon to connect Mr. Mark’s actual conduct on the night in question to the assault upon him. The extent of Mr. Mark’s criminal activities is also subject to factual determination by the Board. The proportionality between Mr. Mark’s conduct and the degree of his injuries, and the determination of the degree to which his compensation should be reduced because of his conduct, involve, at least to some extent, considerations of policy and an exercise of discretion.

The Board is the proper decision-maker for these types of issues. [ 47 ] Accordingly, I would allow this appeal, set aside the order of the Board and remit the matter to the Board for a new hearing before a differently constituted panel. The parties are agreed that there should be no order as to the costs of this appeal. MOLLOY J. I agree:_______________________________ SWINTON J. I agree:_______________________________ HERMAN J. Released: December 2, 2010

CITATION : Mark v. Criminal Injuries Compensation Board, 2010 ONSC 6540 DIVISIONAL COURT FILE NO.: 483/10 DATE: 20101202 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT MOLLOY, SWINTON and HERMAN JJ. BETWEEN: GEORGE MARK Appellant – and – CRIMINAL INJURIES COMPENSATION BOARD Respondent REASONS FOR DECISION Molloy J. Swinton J. Herman J. Released: December 2, 2010