Masakeyash, on behalf of Skunk v. Criminal Injuries Compensation Board

[Indexed as: Masakeyash v. Criminal Injuries Compensation Board]

80 O.R. (3d) 467

Ontario Superior Court of Justice, Divisional Court, Gravely, Crane and Donohue JJ.

April 12, 2006

Criminal law -- Compensation for victims of crime -- Claimant injured by act of child under 12 -- Criminal Code precluding child under 12 from being held criminally liable -- Compensation for Victims of Crime Act not displacing effect of Criminal Code provisions -- Compensation not available for injuries caused by conduct of child under 12 -- Criminal Code, R.S.C. 1985, c. C-46, s. 13 -- Compensation for Victims of Crime Act, R.S.O. 1990, c. C.24, s. 16(2).

The claimant was injured when she was struck by a stone from a slingshot shot by a child under 12. Her application to the Criminal Injuries Compensation Board under the Compensation for Victims of Crime Act was dismissed. The claimant appealed. The claimant argued that notwithstanding s. 13 of the Criminal Code that precludes a child under 12 from being convicted of an offence, the provincial compensation legislation displaced that provision and permitted compensation for injuries caused by children under 12.

Held, the appeal should be dismissed.

Section 13 of the Criminal Code provides: "No person shall be convicted of an offence in respect of an act or omission on his part while that person was under the age of twelve years." Section 16(2) of the Act provides: "Even though a person for any reason is legally incapable of forming criminal intent, the person shall, for the purposes of this Act, be deemed to have intended an act or omission that caused injury or death for which compensation is payable under this Act." There is no dissonance between s. 13 of the Code and s. 16(2) of the Act. It was not the intent of the legislature in enacting s. 16(2) to displace the effect of s. 13 of the Code that children under 12 are incapable of committing crimes. Section 13 of the Criminal Code is consistent with long standing common law principles that held that young children were deemed to be "morally innocent" and incapable of committing crimes as a result. Compensation, therefore, may not be awarded as a result of the conduct of children under the age of 12. [page468]

APPEAL from a decision of the Criminal Injuries Compensation Board dismissing a claim for compensation.

Cases referred to Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, [2003] S.C.J. No. 18, 223 D.L.R. (4th) 599, 302 N.R. 34, [2003] 5 W.W.R. 1, 2003 SCC 19, 11 B.C.L.R. (4th) 1; Lischka v. Criminal Injuries Compensation Board (1982), 1982 1840 (ON SC), 37 O.R. (2d) 134 (Div. Ct.); Marsh v. Loader (1863), 143 E.R. 555 (U.K. Common Pleas); Pitters v. Ontario (Criminal Injuries Compensation Board), [1996] O.J. No. 4339, 95 O.A.C. 325, 33 W.C.B. (2d) 115 (Div. Ct.)

Statutes referred to Compensation for Victims of Crime Act, R.S.O. 1990, c. C.24, ss. 5, 11, 16(1), (2), 23, 26(2) Criminal Code, R.S.C. 1985, c. C-46, s. 13

Ian Ritchie, for appellant. David E. Fine, for respondent.

The judgment of the court was delivered by

1GRAVELY J.:-- On September 27, 1998, the minor Jamie Skunk, was playing with other children at New Osnaburgh First Nation, when she was struck in the right eye by a stone from a slingshot, shot by one of the children. There appears to have been no evidence as to the precise age of the alleged offender but it is undisputed that, as found by the Board, he was under the age of 12.

2On behalf of Jamie Skunk, the appellant applied to the Criminal Injuries Compensation Board (the "Board") under the Compensation for Victims of Crime Act, R.S.O. 1990, c. C. 24 (the "Act") and now appeals from the decision of the Board dismissing her application.

3The Board concluded it could not grant compensation under the circumstances since the requisite intent was lacking:

There is insufficient evidence before the Board to establish any intent on the part of the Alleged Offender to commit a crime of violence. The Board finds that the evidence presented at the Hearing does not, on a balance of probabilities, establish that a crime of violence occurred.

4The appellant submits that the Board misinterpreted s. 16(2) of the Act, misconstrued the evidence, and misunderstood what constitutes "a crime of violence" which would give rise to a claim under s. 5 of the Act.

5The respondent submits that the minor was ineligible for compensation under the Act, because by the operation of s. 13 of [page469] the Criminal Code, R.S.C. 1985, c. C-46 the alleged offender was incapable of criminal responsibility and the Board made no error of law when it concluded that the injury was caused by an accident rather than by a crime of violence.

The Act

6Section 5 of the Act gives broad discretion to the Board to make an order for payment to compensate victims of crimes of violence. An applicant must establish entitlement on a balance of probabilities. While, by s. 11, a conviction is conclusive evidence of the commission of an offence, under s. 16(1) the Board may make a compensation order even if there is no prosecution or conviction or may adjourn its proceedings pending prosecution. The members of the Board are not legally trained and their reasons for judgment are not subject to the same degree of scrutiny as those of judges. [See Note 1 below] The statute is remedial, is designed to compensate victims of violent crime and any ambiguity should be resolved in favour of a claimant. [See Note 2 below]

7The Board has a wide measure of factual discretion. By s. 23 an appeal lies to the Divisional Court only on a question of law. The questions of law raised in this appeal are fundamental to the operation of the Act and the standard of review is correctness. [See Note 3 below]

Analysis

8While it may deviate from the Criminal Code in order to accomplish its purpose, the Act is intended to provide compensation only for crimes specified in s. 5 and not for civil accidents. Since the ingredients of the offences compensable are spelled out in the Criminal Code, I make the assumption that the Act intends that a board, in determining if a crime of violence has occurred, will be guided by the Criminal Code unless the Act clearly specifies to the contrary.

9Criminal Code, s. 13 provides:

13. No person shall be convicted of an offence in respect of an act or omission on his part while that person was under the age of twelve years. [page470]

10The Act, s. 16(2) provides:

16(2) Even though a person for any reason is legally incapable of forming criminal intent, the person shall, for the purposes of this Act, be deemed to have intended an act or omission that caused injury or death for which compensation is payable under this Act.

11Counsel for the appellant argues that s. 16(2) of the Act overrides Criminal Code, s. 13 and allows for compensation to be paid under the Act for what would be criminal acts by a person under 12, that there is a presumption of criminal intent and that the decision of a board should be based solely on the actus reus. Section 13, he suggests, can relate only to the mental element of an offence and when read together with the Act, s. 16(2), the result is that in relation to children under 12, not only is there no protection given by Criminal Code, s. 13, but the reverse is the case. Section 16(2) creates an irrebuttable presumption of intention. Since a claimant need only prove the actus reus the Board was wrong in law in dismissing the claim on the basis of an absence of intention on the part of the alleged offender.

12In my view, there is no dissonance between Criminal Code, s. 13 and the Act, s. 16(2). Section 16(2) confines itself to the intention to commit an act or omission. Section 13 is sweeping in its scope. It creates a blanket prohibition against conviction of an offence in respect to any act while under the age of 12. In effect, then, it eliminates criminal accountability for anyone below the age of 12.

13Criminal Code, s. 13 has a lengthy common law background. It essentially codifies the common law rule of doli incapax: that young children are incapable of committing crimes. Whatever the evidence of actus reus and mens rea, children are "morally innocent". They are deemed not to fully understand the nature of their conduct or the risks and dangers inherent in their actions or that their conduct is blameworthy. [See Note 4 below]

14There are practical difficulties in the interpretation of the Act put forward by appellant's counsel.

15Any violent act by a child would be deemed to be a crime, not an accident, and compensation would be payable, while the same act committed by an adult might amount to only civil negligence or pure accident. This would be contrary to the intention of the Act to compensate for crimes of violence.

16Theoretically at least, compensation would be awarded not only for the usual schoolyard confrontations and accidents but also as a result of innocent aggression by the youngest of infants. [page471]

17The results of a compensation order made in relation to an infant would not necessarily be benign. The infant would carry the stigma of having committed a crime of violence and by s. 26(2) of the Act the Board may pursue a subrogated proceeding against the "offender" to recover the compensation paid and the costs.

18I conclude it was not the intent of the legislature in enacting s. 16(2) to displace the effect of Criminal Code, s. 13 that children under 12 are incapable of committing crimes. Compensation, therefore, may not be awarded as a result of the conduct of children under the age of 12 years.

19The appeal is dismissed.

20There will be no costs.

Appeal dismissed.

Notes

Note 1: Lischka v. Criminal Injuries Compensation Board (1982), 1982 1840 (ON SC), 37 O.R. (2d) 134 (Div. Ct.).

Note 2: Pitters v. Ontario (Criminal Injuries Compensation Board), [1996] O.J. No. 4339, 95 O.A.C. 325 (Div. Ct.).

Note 3: Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, [2003] S.C.J. No. 18.

Note 4: Marsh v. Loader (1863), 143 E.R. 555 (U.K. Common Pleas).