Têtu v. Criminal Injuries Compensation Board, 2011 ONSC 782

CITATION: Têtu v. Criminal Injuries Compensation Board, 2011 ONSC 782

COURT FILE NO.: 10-DC-1582

DATE: February 2, 2011

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Raymond Têtu (Appellant)

AND:

The Criminal Injuries Compensation Board (Respondent)

BEFORE: Cusinato, Aston and Heeney JJ.

COUNSEL: Derek Van Dusen, for the Appellant

David E. Fine, for the Respondent

HEARD: February 2, 2011 at Ottawa

ENDORSEMENT

[1] This is an appeal of the decision of the Criminal Injuries Compensation Board of Ontario (“the Board”) dated January 5, 2010, which denied the Appellant’s claim for compensation. Although it was uncontested that the Appellant was a victim of a crime, in that he suffered a grievous beating at the hands of several assailants, compensation was denied pursuant to s. 17(1) of the Compensation for Victims of Crime Act, R.S.O.1990, c. C.24. It was held that, on a balance of probabilities, the Appellant entered the hotel room where the assault occurred for the purpose of selling drugs, and thereby contributed to his own injuries by knowingly and significantly participating in illegal drug-related activities within a culture that accepted violence as a consequence for transgressing known rules and boundaries.

[2] An appeal lies to this court on a question of law alone, pursuant to s. 23 of the Act. Counsel were both of the view that the standard of review on a question of law is correctness. We do not necessarily agree, since the standard of review depends on the nature of the question of law under consideration. Since Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the general rule now is that a standard of correctness will apply where the question is one of true jurisdiction or one of general law that is of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise. However, deference will usually be afforded where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity: First Ontario Realty Corporation Ltd. v. Liangrui Dent et al, 2011 ONCA 54.

[3] It is ultimately unnecessary to decide this point. Two alleged errors were argued by the Appellant: that inadequate notice was given as to the evidence that Sgt. Doyle was going to give concerning the Appellant’s involvement in the drug trade; and that the Board should have excluded the hearsay evidence of Sgt. Doyle on this issue. Both alleged errors have been framed as a denial of procedural fairness, resulting in a breach of natural justice. In such circumstances, it is not necessary for the court to engage in an assessment of the standard of review: Ahmed v. Criminal Injuries Compensation Board, 2008 30297 (Ont. S.C.J. Div. Ct.) at para. 18.

[4] For the reasons that follow, we are not persuaded that an error of law has been demonstrated, on either a standard of correctness or reasonableness, nor are we persuaded that there has been a breach of procedural fairness. The appeal is therefore dismissed.

[5] Central to the decision of the Board was their acceptance of the testimony of Sgt. Doyle over that of the Appellant, that he had entered the hotel for the purpose of selling drugs to his acquaintance. The testimony of Sgt. Doyle included hearsay: that a reliable informant advised that the Appellant was dealing in a large quantity of drugs on a significant basis within the local drug trade; and that the assault on the Appellant was precipitated by his sale of illicit drugs within the territory of a rival organization with links to a notorious motorcycle gang. The Board rejected the evidence of the Appellant that he visited his acquaintance in order to deal with a family matter.

[6] The Appellant argues that the Board erred in admitting this hearsay evidence. However, the Board is not bound by the strict rules of evidence, and may choose to accept and rely upon hearsay evidence: s. 15(1) Statutory Powers Procedure Act, R.S.O. 1990 c. S.22. Mr. Van Dusen, for the Appellant, argued that the hearsay evidence was so inherently unreliable that it amounted to a breach of procedural fairness and natural justice to admit it, since there was no way that the Appellant could refute it.

[7] We disagree. There was ample circumstantial evidence before the Board that supported the reliability of the hearsay evidence, and indeed would have supported the inference that the Appellant attended the premises for the purpose of selling drugs even without admitting the hearsay evidence. That evidence included the following:

• The Appellant admitted that had sold drugs to this same acquaintance in the past, approximately three times, in quantities of between 200 and 300 pills;
• He admitted that he had 50 illegal pills in his car;
• He admitted that when he had sold illegal drugs in the past to this acquaintance, he knew was encroaching on the territory of rival drug dealers;
• He had a list in his vehicle of people who owed him money, which is a classic indicator of a drug trafficker (despite his protestations that these were construction debts);
• Three of the offenders were well known to police for drug-related activity, and two of them were known to be extremely violent enforcers for the rival drug organization;
• The fact that a beating and a “fine” were administered to the Appellant is consistent with the scenario that he was being punished by these enforcers for selling drugs in their territory.

[8] The Appellant argues that he was denied natural justice in that he was not advised of the substance of Sgt. Doyle’s evidence in advance of the hearing, and was therefore unable to properly prepare for the case he had to meet. However, the Appellant was advised 8 ½ months before the hearing as to the terms of s. 17(1) of the Act, and was provided with a Police Questionnaire in which it was disclosed that his assailants believed that the victim was selling drugs without their permission.

[9] There is no requirement for full disclosure similar to that found in a criminal context, where the innocence of the accused is at stake. In an administrative law context, a fair hearing must include an opportunity for the parties to know the opposing party’s case so that they may address evidence prejudicial to their case and bring evidence to prove their position: May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809 at paras. 91-2.

[10] It is important to recognize that the Board is not an investigative agency nor an inquisitorial body, nor does it have a duty to search out evidence relating to the Appellant’s claim. If it attempted to do so, it would detract from its independent adjudicative function: Jocko v. Criminal Injuries Compensation Board, 2009 65807 (Ont. S.C. Div. Ct.) at paras. 13-14. The Board had possession of the Police Questionnaire, and it forwarded that document on to the Appellant, along with notice that s. 17(1) might be at issue. It did not have possession of Sgt. Doyle’s evidence prior to the hearing, and cannot be faulted for having failed to obtain and provide this disclosure.

[11] In our view, the allegation that the Appellant was present at the scene of the assault for the purpose of selling drugs was sufficiently disclosed by the material that was forwarded to him, so as to put him on notice that his behavior in this regard would be an issue at the hearing. This gave him ample opportunity to prepare his case to respond to this allegation.

[12] Mr. Van Dusen essentially conceded that the Board could not be faulted for having failed to make disclosure. Rather, he based his argument on a breach of s. 8 of the Statutory Powers Procedure Act, which reads as follows:

Where the good character, propriety of conduct or competence of a party is an issue in a proceeding, the party is entitled to be furnished prior to the hearing with reasonable information of any allegations with respect thereto.

[13] He argues that the notice the Appellant received, i.e. a copy of s. 17(1) of the Act and the Police Questionnaire, is not sufficient notice that Sgt. Doyle would be taking the witness stand and accusing him of being a drug dealer.

[14] We conclude that the notice given to the Appellant was sufficient to comply with s. 8. It is difficult to see how the evidence of Sgt. Doyle could have taken the Appellant by surprise. In the Police Questionnaire, it stated that the perpetrators of the assault believed that the accused was selling drugs without their permission. If the belief of the perpetrators was true, two facts which place the good character of the Appellant in issue emerge: first, that the Appellant is a drug dealer; and second, that he attended at the premises where the assault occurred for the purpose of dealing drugs.

[15] The testimony of Sgt. Doyle was directly relevant to the first fact, and showed the Appellant to be a drug dealer, albeit by hearsay evidence. The Appellant’s response was to take the witness stand in reply and confirm that he was, indeed, a drug dealer, in that he had previously sold illegal drugs to his acquaintance at least three times. He could hardly be said to have been taken by surprise by an allegation that he knew to be true. As to the second fact that emerged from the Police Questionnaire, i.e. that he was present at the apartment that night for the purpose of dealing drugs, he denied that allegation. However, the Board was entitled to make a negative credibility finding against him and reject his evidence on that point, and to rely on the circumstantial evidence noted above to conclude on a balance of probabilities that he did attend the scene of the assault for the purpose of selling drugs. The Board did not make a clear and identifiable error of fact in its appreciation of the evidence, tantamount to a clear and identifiable error of law.

[16] If, contrary to all logic, the testimony of Sgt. Doyle did take the Appellant by surprise, he could have sought an adjournment to marshal further evidence, but did not do so. Instead, he chose to testify in reply. He suggests in his factum that if he had had a lawyer representing him at the hearing, he probably would have sought an adjournment. In our view, the decision of the Board ought not to be overturned because the Appellant chose to be self-represented.

[17] As a matter of housekeeping, the Respondent was initially named in the title of proceedings as “Her Majesty the Queen in Right of Ontario”. We have amended the title to correctly name the Respondent. The Board is not seeking costs, and there will be no order as to costs.

Mr. Justice A. Cusinato

Mr. Justice D. Aston

Mr. Justice T. Heeney

Date: February 2, 2011