Criminal Injuries Compensation Board
Adjudicators: Julie Lassonde and Anne-Marie Langan
Indexed as: (Re) 1604-03103
INTERIM ORDER
Introduction
1This Application was originally scheduled to be heard on June 15, 2018. The allegations made by the Applicant concern sexual and physical abuse suffered at the hands of the Alleged Offender. On the date of the hearing counsel for the Alleged Offender made an adjournment request citing his own health issues. The request was uncontested. The Criminal Injuries Compensation Board (CICB) granted the adjournment.
2Counsel for the Applicant and counsel for the Alleged Offender also advised the CICB that they each intended to bring motions prior to the return of the hearing. The CICB requested that the parties file their motions in writing and provided them with timelines for service. The CICB has received and reviewed the parties’ respective motions and will render its decisions on these motions through this case assessment direction.
Applicant’s Motion
Cross-Examination Questions to be submitted in Writing to the CICB
3The Applicant brought a motion requesting that the Alleged Offender’s cross- examination questions be submitted in writing to the CICB, and that the CICB ask the questions to the Applicant on his behalf. Rule 14.8 of the CICB Rules of Procedure states:
Where the CICB considers it necessary to avoid potential re-victimization, the CICB will direct an alleged offender to prepare questions to be asked to the applicant/victim. If satisfied the questions are relevant and appropriate, the panel will ask the applicant/victim those questions on behalf of the alleged offender.
4The CICB considered the Applicant’s submissions about her experience of re- victimization at the June 14, 2018 hearing on a related matter, which involved a different Alleged Offender and his counsel. During cross-examination at that hearing, the CICB had to request that counsel not repeat questions that had already been asked and answered and some of the questions asked by the Alleged Offender’s counsel were not relevant to the subject matter before the CICB. In her affidavit in support of this motion dated June 22, 2018 the Applicant describes how she felt anxious and distressed throughout the cross-examination and that it had a negative impact on her overall mental health for some time following the hearing.
5The Alleged Offender responded by raising a concern that requiring his counsel to submit questions ahead of time would interfere with his right to make a full answer and defence with respect to the allegations made by the Applicant against him because requiring his counsel to submit questions ahead of time would interfere with the flexibility and fluidity of his counsel’s cross-examination.
6The CICB has considered and balanced the interests of the Applicant along with those of the Alleged Offender. In light of the Applicant’s negative experience at the June 14, 2018 hearing, the CICB believes that it is necessary to take measures to avoid any potential re-victimization of the Applicant in future. The CICB finds it appropriate for the Alleged Offender to provide the cross-examination questions in writing ahead of time. The CICB will ask the Applicant the questions. The Alleged Offender and his counsel will be listening by way of conference call to CICB members’ questions and to the Applicant’s responses. They will be given a further opportunity to provide any additional questions to the CICB arising out of the Applicant’s testimony during cross-examination.
7The CICB therefore grants the Applicant’s motion and orders the Alleged Offender to submit his cross-examination questions in writing to the CICB at least seven business days before the next hearing.
Alleged Offender’s Motion
Admission of documents filed late
8The Alleged Offender requested that the documents he filed late, less than 14 days before the June 15, 2018 hearing, be admitted as evidence for the next hearing. These documents include a letter, a copy of an envelope, and an email allegedly sent by the Applicant to the Alleged Offender. The Alleged Offender explained that he filed these documents as soon as he found them.
9The Applicant argues that these documents are not relevant because they do not relate to the incidents included in her Application and that the Alleged Offender intends to use them to discredit her by questioning why the Applicant applied for compensation to the CICB.
10The issue is whether these documents are relevant to the case and whether the CICB should use its discretion to admit them despite the fact that they were filed late. Under s. 15(1) of the Statutory Powers Procedure Act, the CICB can use its discretion to admit evidence that is relevant. The Alleged Offender is allowed to question the credibility of the Applicant with respect to the crime of violence and the reasons why she brought a claim to the CICB. These documents relate to the reason the Applicant filed the claim and so the CICB finds that they are relevant. While it may have been prejudicial for the Applicant to receive disclosure of these documents shortly before the June 15, 2018 hearing, this hearing has been adjourned and these documents have already been disclosed. The Applicant will have time to prepare a response to this disclosure prior to the next hearing.
11The CICB grants the Alleged Offender’s motion and will allow these documents to be admitted into evidence for this case.
Production of Additional Documents
12The Alleged Offender requests the production of documents related to the Applicant’s request for an extension of time. The CICB notes that the Applicant applied for compensation on April 5, 2016. At that point, pursuant to s. 6(2) of the Compensation for Victims of Crime Act there was no time limit to apply for compensation related to sexual or domestic violence. The CICB therefore considered the Applicant’s request for an extension of time unnecessary. As a result, there is nothing to disclose to the Alleged Offender.
13The Alleged Offender also requests the production of a copy of all documents submitted by his counsel. The Alleged Offender submits that he received a letter from the Freedom of Information Coordinator at the CICB, stating that this letter was a response to the Alleged Offender’s counsel’s fax sent on October 16, 2015. The Alleged Offender suggests that this would have been a year and a half prior to Applicant’s Application and therefore questions the integrity of the file. The CICB received confirmation from the Freedom of Information Coordinator that there was a mistake in the date of his letter. He was referring to a fax dated September 28, 2017, which he actually received from the Alleged Offender’s counsel on October 4, 2017. The CICB acknowledges that there was a mistake in the date mentioned in the letter but finds that this mistake does not justify production of all documents submitted by the Alleged Offender’s counsel. The CICB notes that the Alleged Offender’s request amounts to a request for his own counsel’s submissions and documentation, of which he likely already has a copy. The Applicant indicated that she did not consent to production of this correspondence or object to it. The CICB does not believe that this single mistake affects the integrity of the file and does not consider production of this correspondence relevant or necessary in this case.
14Finally, the Alleged Offender requests the production of the Applicant’s file at the [city] Anti-Violence Advisory Council. The Alleged Offender submits that these documents are important to determine the source and veracity of the Applicant’s allegations. The Applicant submits that these documents are irrelevant to the Alleged Offender as they relate only to the Applicant’s injuries and treatment. The CICB finds that, if these documents exist, they are not relevant to determine whether or not there was a crime of violence committed by the Alleged Offender. They relate to the Applicant’s injuries and treatment. Pursuant to the CICB’s Practice Direction on Alleged Offenders, the CICB does not disclose to Alleged Offenders documents related to Applicants’ injuries or treatment of injuries as this information is confidential in nature.
15The CICB partly grants this motion and orders production of the original fax received from the Alleged Offender’s counsel by the Freedom of Information Coordinator on Oct. 4, 2017, and denies the Alleged Offender’s request for any other documentary disclosure mentioned above.
DATED at Toronto this 18^th^ day of September, 2018.
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Julie Lassonde, Member
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Anne-Marie Langan, Member