B.C. v. Criminal Injuries Compensation Board, 2014 ONSC 7860

CITATION: B.C. v. Criminal Injuries Compensation Board, 2014 ONSC 7860

DIVISIONAL COURT FILE NO.: DC-000000509-0000

DATE: 20140130

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MATLOW, TALIANO AND WILTON-SIEGEL JJ.

B E T W E E N:

B. C.

Applicant (Appellant)

• and –

THE CRIMINAL INJURIES COMPENSATION BOARD

Respondent in Appeal

Julie M. Kirkpatrick, for the Applicant

David Fine, for the Respondent

HEARD at Oshawa: September 20, 2013

THIS DOCUMENT IS SUBJECT TO A NON-PUBLICATION ORDER.

MATLOW J. :

This appeal

[1] This is an appeal by the applicant, B.C., from an order of the respondent (the “Board”) denying her claim for compensation made pursuant to section 5 of the Compensation for Victims of Crime Act, R.S.O. 1990, c. C.24 (the “Act”).

[2] For the reasons that follow, the appeal is allowed, the order in appeal is set aside and the applicant’s claim is remitted to the Board for a new hearing before a panel differently constituted.

The principal issues in this appeal

[3] The Board’s combined order and reasons are set out in full in paragraph 24, below. The rationale for the Board’s decision to deny the applicant’s claim are summarized at the conclusion of the Board’s reasons as follows.

Generally speaking, minor inconsistencies in witnesses (sic) different accounts of the same incident are hallmarks of the truth. However in this case the contrasts are so stark that the Panel views the testimony and information from the Applicant as unreliable. As a result the Applicant has not discharged the burden of proof upon her to prove that she was the victim of non consensual sex. (emphasis added) (page 7)

[4] Counsel for the applicant submits that the Board’s order was based on a faulty legal foundation, that the Board misunderstood the evidence and that the Board’s reasons do not provide a rational explanation for the Board’s order.

[5] Counsel for the Board, in contrast, submits that the Board’s findings of fact are supported by the evidence and that the Board’s reasons reasonably explain the order made. Moreover, its counsel submits that this appeal is really a challenge of the Board’s findings of fact and, therefore, not within the jurisdiction of this Court.

[6] I will return to these issues below.

Procedural fairness and the principles of natural justice – the requirement of cogent reasons that explain the decision

[7] The requirement of cogent reasons was described by this Court in C.P. v. Ontario (Criminal Injuries Compensation Board), 2004 48671. Lane J., for the Court, stated, in part, as follows:

7. An appeal lies from the order of the Board to this Court on a question of law pursuant to section 23 of the Act. We acknowledge at the outset that the decisions of Boards such as this one, composed of lay persons, are not to be scrutinized with the same scrutiny as is given to the reasons of judges. Nevertheless, there is a minimum level to which such Boards must be held and which this Board, in this case, has failed to meet.

8. The question of law, which arises from the facts before us, is whether the hearing was conducted in accordance with procedural fairness, and the principles of natural justice. These principles include the right to have disclosure of the case to be met, and the right to have reasons given which explain the basis for the decision. In Baker[2] the Supreme Court said:

[43] In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required. …. It would be unfair for a person subject to a decision such as this one, which is so critical to their future not to be told why the result was reached.

9. In the present case, there is a statutory right of appeal, which is a right which cannot be exercised fully in the absence of reasons which explain, rather than merely state, the outcome of the hearing. The stakes for the appellants are not the continuation of their livelihood, as in Megens[3] or admission into this country, as in Baker, but they are far from trivial. The appellant C.P. was charged with serious sexual offences against a child in his care at the time of the alleged acts. He was acquitted, but an adverse result at the hearing of this Board has at least the potential of damaging, if not destroying, his reputation. The appellant J.G. has a similar interest at stake.

10. As in Megens, in the present case there was a sharp conflict in the evidence. The complainant, S.G., said that she had been the victim of sexual touching in Mr. C.P.’s car en route to Cambridge in August and November, 1991. There was evidence at the trial and before the Board that showed that the trip to Cambridge in August was on August 14 and the return trip was on August 25. This evidence showed that on those trips Mr. C.P. and S.G. were accompanied, on the 14th by J.P., age 21 and T.P., age 12; and on the 25th by those relatives and also by Mrs. P. and their children. There was thus no evidence of any opportunity for these alleged events to occur. The other occasions alleged were in November 1991. There was evidence from several witnesses that S.G. did not go to Cambridge at all during that month.

11. As to the allegations against J.G., there was evidence before the Board that S.G. had entered a turbulent period of her young life and had recently experienced sexual intercourse for the first time; that there was trouble with the boy involved and resulting trouble between J.G. and S.G.; and that S.G. had a desire to live free of the rules that J.G. sought to impose. There was evidence in the papers before the Board that others who lived in the house denied that S.G. had been mistreated, beaten or denied food; rather, she had gone on a hunger strike to protest restrictions on her activities.

12. Regrettably, the Board did not weigh any of this evidence in its reasons or otherwise disclose how it reached the decision to prefer the uncorroborated evidence of S.G. over the other evidence. The Board certainly had the right to accept that evidence, but it ought to have explained how it came to that conclusion. Instead, it merely stated that it had reviewed the evidence and found the allegations established. With great respect, those are not reasons. They are the conclusions which should flow from the missing reasons. The absence of reasons was discussed by Bastarache J., then of the New Brunswick Court of Appeal, in Boyle[4], where, at 156, he said:

I am of the view that, in the absence of a true analysis of the evidence, the appeal process is frustrated and that the duty to give reasons cannot be met simply by listing the evidence considered.

and at page 158:

As mentioned in De Smith at p. 467[5] a consideration of the purpose of the duty [to give reasons] is sufficient to establish the nature of the requirement. Reasons must explain to the parties why the Tribunal decided as it did; it must avoid the impression that its decision was based on extraneous considerations or that it did not consider part of the evidence. Reasons must also be sufficient to enable the Court of Appeal to discharge its appellate function; the Tribunal must therefore set out the evidence supporting its findings in enough detail to disclose that it has acted within jurisdiction and not contrary to law.

13. These comments describe what is missing in the present case. Without more, neither the parties nor this court can understand the way in which the decision was reached.

[8] In my view what was said in this extract from C.P. applies, in the same way and for the same reasons, to this appeal. I will now endeavor to demonstrate, in the discussion that follows, that the Board’s reasons did not meet the requisite standard and that its order was unreasonable.

The standard of review

[9] I agree that the right of appeal from a decision of the Board to this Court is confined to questions of law. This Court cannot interfere with an order of the Board unless there is an error of law that warrants our intervention. In Tatti v. Criminal Injuries Compensation Board, 2013 ONSC 4320, I wrote on behalf of another panel of this Court, the following statement:

[3] Although both parties agree that the standard of review applicable to this appeal is correctness. I do not agree. It is my respectful view that the proper standard is reasonableness. The Supreme Court of Canada has determined that, “when considering a decision of an administrative tribunal applying its home statute, it should be presumed that the appropriate standard of review is reasonableness (Alberta Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C. R. 654 at para. 39). This applies to both issues of fact and, as in this case, to issues of law.

[10] This statement from Tatti is applicable to this appeal. However, because the issue of whether or not the Board gave adequate reasons is an issue of procedural fairness and natural justice, no standard of review is applicable to the determination of that issue in this appeal.

The compensation claims process

[11] The Act provides, in part, that the Board, in its discretion exercised in accordance with the Act, may by order provide for payment of compensation to a person who is injured as a result of the commission of a crime of violence. (emphasis added)

[12] Although the Board has a wide discretion whether or not to grant an application for compensation, it must conduct its hearings and make its decisions in compliance with the statutory provisions referred to above and other rules and principles of law.

[13] The process by which hearings of the Board are conducted is also governed by various statutory provisions including the Board’s own rules and the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22. Prior to the commencement of a hearing, the Board conducts its own investigation of the claim under consideration that usually includes the gathering of medical and hospital reports and, for that purpose, usually engages the assistance of the police department most closely related to the claim. The documentary evidence gathered is then inserted into a compilation that, in this case, included approximately 150 pages composed of the Applicant’s Claim Package and the Board’s own Hearing Brief (the “Brief”). This compilation was placed before the Panel of the Board conducting the hearing as evidence for their consideration. Both the applicant and the Board were entitled to require witnesses to give evidence at the hearing but the strict rules that regulate the admissibility of evidence in a court proceeding do not apply to hearings before the Board. The Board was not required to record the evidence given at a hearing so a transcript of the evidence could be prepared for use in any appeal that might follow the Board’s decision. In this case no transcript of the evidence was filed or referred to by either party for use in this appeal.

[14] It is noteworthy that, unlike most other tribunals, the Board was not only the recipient of the applicant’s claim but it was also the investigator, prosecutor and judge of her claim and, if the determinations had been made in favour of the applicant, the Board would have been the governmental body that would have made the payment to her.

An overview of the factual and evidentiary background

[15] The applicant’s claim for compensation was based on her allegations that she was sexually assaulted in two incidents that occurred at an end of school graduation party that took place at the farm of a male student. The alleged assailants in the first incident, which took place in an outdoor shed, were two unnamed male students. The alleged assailant in the second incident, which took place inside the home, was the male student who lived there.

[16] The evidence before the Board in support of the applicant’s claim consisted of the viva voce evidence of the applicant, who stated that the sexual activity that took place in both incidents was non consensual. Her evidence was supported by the expert evidence of two sexual assault nurses, at least one of whom gave viva voce evidence, who examined and treated the applicant shortly after the incidents. It was their evidence, based strongly on the injuries to the applicant, that the sexual activity was non consensual.

[17] The only other witness who gave viva voce evidence was a police officer, Rick Surette. Surette also submitted a memorandum of his investigation to the Board that was included in the Brief before the Board. Surette was not present at the scene when the two incidents occurred and did not see or hear any part of the incidents. Accordingly, his evidence was entirely hearsay or double hearsay evidence based on what 83 witnesses, presumably attendees at the party, who were interviewed by him or other police officers, stated to them.

[18] The Board referred to Surette’s evidence in its reasons, in part, as follows:

The OPP witness stated that, after a detailed investigation, in which 83 witnesses were interviewed, contradictions among the Applicant’s version of events and other party goers are apparent. He states that he does not have the necessary grounds to lay a charge, although one of the alleged offenders has been identified. (pages 1-2)

Constable Rick Surette stated that he is a member of the Peterborough Major Crime Unit and the investigating officer. He stated that he has investigated in excess of one hundred sexual assaults. He stated the investigation into this matter was intense and involved the taking of witness statements and forensic examination of the scene. Upon completion of the investigation he did not have the reasonable grounds to lay a charge and did not consult with a Crown Attorney. When asked about the Applicant’s statement to police he referred to it as “disingenuous”. In relation to the Applicant’s consumption of alcohol, he stated that the Applicant was observed by witnesses drinking to excess and at one point drinking directly from a 26 ounce liquor bottle. Other party goers describe her as being intoxicated. (page 2)

Constable Surette stated that the police investigation contradicted the Applicant’s account. She was observed in the garage walking hand in hand with W.D. and that both W.D. and his father provided statements to police about what occurred at the farm. (page 4)

[19] These and other excerpts raise important issues about the basis on which the Board’s order and reasons are based. I will return to them in paragraphs 25 below, and following.

The applicant’s claim in her own handwriting

[20] In the claim form that the applicant submitted to the Board, she described what had happened to her as follows.

A group of friends and I went to Wils fathers farm for an “after formal” party around 4 PM May 14/10. There were a lot of people around 150. It was a prearranged field type party. Our entire group had been drinking alcohol, myself included. I hadn’t had excessive drinks, I was going on a camping/wilderness trip with my school the next a.m. and wanted to be prepared and feeling fine for it. My last recollection was talking with friends and hanging out by the bonfire. I started coming to and into focus in a shed type building. There were 2 possibly 3 males already raping me upon complete consciousness. I had no control over my body or voice. I must have fought as my hands and knuckles were bruised. I remember punching the walls, the windows, but was after they left me there. I was sodamized and I remember the pain, how much it hurt. I was raped vaginally as well at the same time. One male behind one at the other. They forced me to perform phalatio. They cut my left forearm with a knife and bit my shoulder blades and back where teeth marks and bruising were left. They forced me to do whatever they demanded. They held me down and did whatever they wanted to my body. They laughed and ridiculed me talking obscenely. My head hit something – I believe a shelf and I blacked out again. I cannot remember leaving the shed and walking to the house. I made it to the garage and remember people there. Just a few people. They were shocked by my appearance. I was bleeding - a lot from the knife wound. I had pants on but not a top. Just a sports bra and t-shirt so I must have dressed myself. My friend Wil grabbed me and said we had to clean up the blood – what happened, he would look after me. He took me in the house, I was crying, telling him what I could remember, he cleaned up my arm tried to stop the bleeding. After that was under control he told me my recollection of events turned him on, me battered and bleeding turned him on. He was going to “fuck” me and there was nothing I could do about it. I blacked out again this time due to trauma. I remember thinking this can’t be happening and I remember him telling me he was in me and there is nothing you can do about it. I woke up on a couch everything was fuzzy. woke up again in a different room. My pants were undone but on and I had no shirt. I was in a haze for sometime. I found a shirt and put it on. I called a girlfriend and she came and picked me up. We went to her house first and decided later on that I should go to the hospital – around lunch, 1 pm. I was traumatized and didn’t want to go she convinced me to. I was scared and embarrassed and felt dirty.

The evidence of Mary Waters and Carol Aird, sexual assault nurses to the Board

[21] The Brief before the Board included a letter dated May 30, 2012 from Mary Watters, one of the two sexual assault nurses who gave evidence before the Board. It reads as follows.

I am writing this letter on behalf of and at the request of the Sexual Assault/Domestic Violence Program at the Peterborough Regional Health Centre. Our manager and our team have reviewed this case and we would like to be able to either accompany (B. C.) or to be able to address the CICB independently at the oral hearing. The person best able to do this is Carol Aird, RN EC, our nurse practitioner.

This case has troubled us from the onset. The nature of the injuries, the complexity of medical treatment, the length of time required to provide medical follow up, and the long term impact on her overall/quality of life is rarely seen by sexual assault care providers. If this case had proceeded through the criminal justice system we would have had it reviewed formally by our experts in order to adequately inform the court. Our responsibility to this Board is the same. Our individual reports, submitted to the best of our ability, collectively do not adequately reflect all of the medical information needed for informed decision making. While (B. C.) is the best person to speak to her own experience and injuries, as a lay person it is beyond her ability to answer questions that relate to a clear understanding of the significance and impact of these medical injuries. Our goal here is simply to ensure that as care providers we have fulfilled our obligation to the best of our ability.

Thanks you for considering this request. We look forward to hearing from you. Your reply can be addressed to our program manager, Roberta Martin-Haw, at this same address (letterhead) or through this contact number as signed.

Sincerely,

Mary Waters, BScN

Sexual Assault Nurse Examiner

(705) 743-4132

[22] The Brief also included a follow up letter from Ms. Waters to the Board. It reads as follows:

As per our phone conversation I am forwarding some information on this case, information that we did not completely address in our initial report.

1. In respect to the number and types of injuries, we are forwarding 2 documents from two expert court witnesses (Deidre Bainbridge, Cathy Carter-Snell) in respect to evidence regarding consensual vs. non consensual injuries.

2. With respect to drug facilitated sexual assault we did not explain that the toxicology report done at the hospital could neither confirm nor deny that (B.C.) was drugged with alcohol or any other drug. (B.C.) presented to ER almost 48 hours after the assault so a blood alcohol level was never done (the kit was never processed to our knowledge) and at the time frame most if not all date rape drugs would have cleared her system. Also the toxicology screen was done only using community hospital resources. It was not tested at a formal toxicology lab where more sensitive and detailed testing was available. Her history and her behaviour was certainly consistent with a drug facilitated assault.

3. Even if this was self induced intoxication with drugs or alcohol by (B.C.), then there can be no consent according to the Criminal Code of Canada.

4. With respect to bite marks, they are always assaultive and intentional in nature. While sometimes given in self defense (i.e. an attacker has his/her hands about your neck and you bite to have the attacker let go) bites to the back of the body are hard to explain as a defense from an attacker, they are most likely to be intentional. They carry many risks of diseases.

5. The long term impact of genital warts and the HPV virus can be addressed to Carol Aird our nurse practitioner who will attend the hearing with (C.B.). (C.B.) may not be able to adequately explain these implications to the board if required.

Sincerely,

Mary Waters, BScN

Sexual Assault Nurse Examiner

(705) 743-4132

Officer Surette’s memorandum to the Board

[23] Surette’s memorandum reads as follows:

The complainant described attending a high school after formal party at a rural home. She consumed only a couple of drinks.

The complainant describes sporadic memory recall because she was under the influence of some sort of drug. She felt loopy and groggy and had never experienced this sort of sensation. She did not knowingly consume any drugs. She recalls seeing a knife and being in bed with two males, unknown description, sexually assaulting her vaginally and orally. She described penises being inside her vagina and anus simultaneously. She thought she got cut by the knife.

Shortly after the shed incident, she advised having intercourse with another male in the home. She describes feeling groggy and would not have consented to the act. She stated she did not feel strong enough to stop the act. She was not mentally or physically capable of pushing him away.

Police subsequently obtained 83 statements from witnesses. Several inconsistencies were identified with respect to the complainant’s version of events. Several witnesses described her as drinking heavily that night. Two witnesses observed a consensual 3 way sexual act involving the complainant and two other males.

The incident in the home was interrupted by the boy’s father who observed the kissing and portions of naked flesh. He observed the complainant pull a blanket over her head in embarrassment and after an awkward introduction by the father, they exchanged pleasantries. The boy advised police the sex was consensual.

Statements from numerous witnesses described the complainant angrily smashing glass inside the shed sometime between both sexual events. Police also observed smashed windows in the shed and the presence of blood in the interior of the shed, in addition to blood present on pieces of broken glass.

Medical reports stated: “reddened and slightly abraised areas @ clitoris. “Left vaginal wall approx. 1 cm – 1.5 cm tear L (left) vaginal wall w/ evidence of bloody discharge. Within the physical diagram portion of the SAK, the following is noted: abrasion at 9 o’clock w/evidence of dk red bleeding/2 abrasions at 3 o’clock 9 o’clock each side of introitus and evidence of bleeding/abrasion at 630 o’clock posterior fourchette with evidence of old bleeding. 2 “bite marks” on right ant shoulder. Numerous injuries are noted on the hands and arms. The toxicology screen was negative for the following drugs: Methamphetamine, cocaine, THC screen, barbiturate, amphetamine, oxycodone, beta hcg serum. The follow up medical report stated: “no evidence of the 2 “bite mark” shaped abrasions. “hickey” shaped bruise healed. Nurse AIRD: “the abraised area about the clitoris and the 2 abrasions on either side of introitus are healed. Laceration healing along the edge of the posterior fourchette remains visible. Internal examination noted that abrasions L vaginal wall healed and evidence of 2 reddened area N vaginal wall not noted on initial examination.

Due to the results of statements, police were not in a position to proceed with criminal sexual assault charges.

Rick SURETTE #9688

The order in appeal and the Board’s reasons

[24] The following is a reproduction of the entirety of the Board’s order and reasons. I have copied it and have inserted paragraph numbers so I could refer below to specific statements made by the Board in its reasons. Its inclusion is essential to an understanding of this appeal.

Introduction:

1. The Applicant, who was 19 years of age on the date of the incident, claims compensation in the forms of pain and suffering, medical expenses, treatment expenses, loss of wages/income and travel to treatment expenses as a result of being sexually assaulted by three individuals at an end of school graduation party. The Applicant believes she was drugged making her incapable of consenting to the sexual acts. The Applicant suffered injuries consistent with a sexual assault as well as a laceration to her arm.

2. The OPP witness stated that, after a detailed investigation, in which 83 witnesses were interviewed, contradictions among the Applicant’s version of events and other party goers are apparent. He states that he does not have the necessary grounds to lay a charge, although one of the alleged offenders has been identified.

Issues:

3. The issue before the Panel is whether the Applicant suffered injuries as a result of a crime of violence making her a victim within the meaning of section 5(a) of the Act.

Analysis and Decision:

4. Constable Rick Surette stated that he is a member of the Peterborough Major Crime Unit and the investigating officer. He stated that he investigated in excess of one hundred sexual assaults. He stated the investigation into this matter was intense and involved the taking of witness statements and forensic examination of the scene. Upon completion of the investigation he did not have the reasonable grounds to lay a charge and did not consult with a Crown Attorney. When asked about the Applicant’s statement to the police he referred to it as “disingenuous”. In relation to the Applicant’s consumption of alcohol, he stated that the Applicant was observed by witnesses drinking to excess and at one point drinking directly from a 26 ounce liquor bottle. Other party goers describe her as being intoxicated.

5. The Applicant states that she recalls being in a shed with two males. She was sexually assaulted by both people. The assault consisted of vaginal and anal penetration and oral sex. She states that she did not know the men. She states that one was tall and one was short. She states that she was incapable to (sic) consenting due to her drowsiness. When the assault was over she attempted to leave the shed but the offenders held the door closed. When she attempted to force the door open one of the offenders stabbed at her with a knife and slashed her across the forearm. She stated that prior to being slashed she yelled and screamed and smashed a window out. At the hearing the Applicant displayed a horizontal scar to her left forearm. She states she eventually put the knife in her pocket (it has not been recovered by police) and its destination is unknown.

6. Constable Surette testified that two witnesses observed the Applicant involved in sexual acts with two males. One of the witnesses had not been drinking the other had. Both witnesses said that what was happening among the three individuals was consensual. This was based upon body movements, sounds, and kissing. The officer testified that the two males involved with the Applicant have not been identified. The police witnesses stated that the recurring theme from witnesses was that the Applicant was angry and intoxicated and punching a glass window. A crime scene examination revealed blood on the broken glass. One witness stated that the Applicant told him/her that she had cut her arm in a fight. The officer stated that when he interviewed the Applicant, information concerning the knife was almost an afterthought. He stated that one of the partygoer’s mothers arrived to pick her child up. When she observed the injuries to the Applicant’s arm she offered her a ride to the hospital. The Applicant declined stating that she was fine.

7. The Applicant states that she went to a garage on the property, in hysterics (in her written documentation she states that she was trying to act like nothing happened). The host of the party (W.D.) saw the injury to her arm and offered to help her. She stated that she knew him from school and trusted him. They went into the house so he could clean her arm. She testified that while he was cleaning her arm W.D. used crude language to indicate he wanted to have sex with her. She states that she blanked out and the next thing she knew she was having sexual intercourse with him. She recalls waking up in an upstairs bedroom. She states that she eventually called a friend to come and get her. While in the friend’s car she stated she had been raped. She stated that after waking up she told her father and stepmother what had taken place. She went to a rugby game and eventually attended hospital for treatment.

8. Constable Surette stated the police investigation contradicted the Applicant’s account. She was observed in the garage walking hand in hand with W.D. and that both W.D. and his father provided statements to police about what occurred at the farm. W.D.’s father told police that when he walked in the house he observed his son and the Applicant kissing. He also saw portions of naked flesh. The Applicant pulled a blanket over her head and after an awkward introduction they exchanged pleasantries. Both W.D. and his father were interviewed separately and had a consistent version of events. W.D. told police that they had sex but it was consensual. The officer stated that while in the house another individual offered her a ride home but she refused preferring to sit in the kitchen.

9. When cross questioning the officer, the Applicant asked if the police had used a breathalyzer on the witness who was purported to be sober and had observed the sex with the two males. The officer replied negative. The Applicant also suggested to the officer that the police investigation was biased and did not include interviewing her friends who had a contrary view of what had taken place. The constable replied that the investigation was more thorough than most homicide investigations.

The Injuries:

10. The Applicant underwent a forensic sexual assault examination at the Peterborough Regional Health Centre. She advised hospital staff that she had six to eight drinks during the course of the evening. She vaguely remembered a knife with no recollection of how things happened. Medical reports state the Applicant suffered:

a) a scratch to her forehead

b) two “bite” marks to her upper chest

c) a red abrasion mid chest

d) a deep laceration to the left forearm

e) bruising to the rear of the neck

f) red abrasions on the left upper buttock

g) injuries to both hands including bruising and swollen fingers

h) internal injuries to the vagina including tearing.

11. The Panel has also received a report from Ms. Mary Waters who is a Sexual Assault Nurse Examiner. She states that her and her team spoke to police on two occasions to point out, in their opinion, the injuries were clearly non consensual. This was due to the number and types of injuries. At the Hearing this opinion was reinforced by the testimony of Ms. Aird. Ms. Aird is also a nurse practitioner who has a wealth of experience in her field.

Decision:

12. In order to be compensable the Applicant has to establish, on a balance of probabilities, that she is a victim within the meaning of section 5(a) of the Act.

13. In this case the Applicant states that she was drugged and sexually assaulted by two men, after which she was slashed with a knife. She testified that she went to the house where the party’s host, W.D. sexually assaulted her. Once more she states she “blanked out” and the next thing she knew she was having sexual intercourse with W.D. She suffered a number of injuries that, in the opinion of two nurse practitioners, resulted from non consensual sex.

14. The police investigation, which the Panel finds was thorough, contradicts the Applicant’s version of events in most material aspects, for instance:

a) The Applicant states she did not drink to excess and believes she was drugged. Witnesses at the party describe her as angry, intoxicated and at one point drinking from a 26 ounce liquor bottle. The Applicant’s degree of sobriety is relevant as a result of the theory being advanced that she was drugged and incapable of consenting to the sexual acts which would make them sexual assaults. Due to the detail and preponderance of evidence the Panel accepts the police evidence that the Applicant was intoxicated and angry during the evening.

b) The Applicant stated she had non consensual sex with two males, who she did not know. She states that they would not let her leave a small shed and lashed (sic) her with a knife. The police officer testified that two youths observed the sexual act among the three. Both, one of whom was sober, described the act as consensual. This was due to the body movements, arm movements and kissing. The Panel accepts that these acts/gestures were by all three individuals. For the Applicant’s complaint that she was drugged to advance the Panel would have to accept she suffered a certain degree of incapacity. That is not what was described by the two witnesses. The Panel finds that the Applicant was capable of consenting to these acts. As it relates to the Applicant’s statement that she was slashed with a knife, the Panel notes that the witnesses describe her as intoxicated and angry and punching a window. The police officer testified that he observed blood on broken glass. Based on this conflicting evidence the Applicant has not discharged the burden of proof that she was slashed with a knife.

c) As it relates to the alleged sexual assault by W.D., the Panel notes that the Applicant claims she was incapable of consenting to the sexual acts. Witnesses describe the Applicant walking hand in hand with W.D. W.D. and his father both state that the sex was consensual, with the father walking in on the sex act. At this time the Applicant was lucid enough to exchange awkward pleasantries with the father. Based on the description of the Applicant the Panel finds that the Applicant was capable of consenting to the sexual acts with W.D.

d) A troublesome issue for the Panel is the degree and nature of the Applicant’s injuries. Two medical practitioners have rendered an opinion that the injuries were not consensual. Ms. Aird candidly testified that she has not previously tendered this type of opinion in a legal proceeding. It is not known whether Ms. Waters’ opinion has been accepted in a legal proceeding. The Panel accepts that the Applicant suffered a number of injuries that are a result of sexual conduct. However, the Panel disregards the evidence of the medical practitioners based on a preponderance of evidence to the contrary. The Panel thusly concluded that the injuries alone are not determinative on whether or not a sexual assault has occurred.

15. Generally speaking, minor inconsistencies in witnesses’ different accounts of the same incident are hallmarks of the truth. However in this case the contrasts are so stark that the Panel views the testimony and information from the Applicant as unreliable. As a result the Applicant has not discharged the burden of proof upon her to prove that she was the victim of non consensual sex.

16. Accordingly the Applicant’s claim for compensation and expenses is denied.

An overview of the evidence before the Board

[25] The applicant gave viva voce evidence at the hearing before the Board. Her evidence, including that she had not consented to the sexual activity, was direct eyewitness evidence.

[26] The evidence of the two sexual assault nurses who examined the applicant at the hospital was a combination of eyewitness and expert evidence. (I add, parenthetically, that although counsel for both parties agree in their respective facta that the nurses gave viva voce evidence in addition to written evidence, the footnote references do not appear to support that agreement.)

[27] The only other witness to give viva voce evidence at the request of the Board was Constable Rick Surette of the Peterborough Major Crime Unit. He was not present during any part of the subject incidents and could not provide any eyewitness evidence. Rather, his evidence was based entirely on what persons who may have been present and what other officers told him.

[28] As well, counsel for the applicant set out in paragraphs 3 and 4 of her factum the following facts that were admitted by counsel for the Board (to the extent that this was the applicant’s memory) and the facts set out in paragraphs 6, 8, 9, 10 and 15 without any such qualification:

3. The Board made the above finding (that the Applicant had not discharged the burden of proof upon her to prove that she was the victim of non-consensual crime) following a hearing in which four witnesses gave viva voce evidence: the appellant, a police officer, and two sexual assault nurses. (Portion in brackets added.)

4. The appellant’s evidence was that she had a spotty memory and thought she may have been drugged at the party. She described being in a shed with two males and having memories of being sodomized and forced to perform fellatio. She described being assaulted simultaneously by both males in her vagina and rectum. She described punching the windows of the shed to get out and one of the boys slicing her left forearm with a knife. The appellant then described going into the house to clean up her arm with the son of the property owner, her friend, and subsequently being sexually assaulted by him as well.

5. The police officer provided a questionnaire and a letter which referred to two witnesses who “observed a consensual three-way sexual act” involving the complainant and two other males. The police officer referred to the son of the property owner, and the property owner, stating that the sexual intercourse was consensual. The police officer also referred to numerous witnesses who described the appellant as smashing glass inside the shed and confirmed that there was the presence of blood.

6. According to the Board’s reasons, in his viva voce evidence at the hearing the police officer stated that he had investigated over 100 sexual assaults and the investigation in this case was intense and more thorough than homicide investigations. He concluded that he did not have reasonable grounds to lay a charge and did not consult with a Crown Attorney in making this determination. The police officer stated that the Applicant’s statement to police was “disingenuous”. He further stated that during her interview, information concerning the knife was almost an afterthought.

7. The Board heard evidence from two sexual assault nurses regarding the appellant’s injuries which included bite marks, bruising, several genital tears and labial bruising, a significant tear inside the vaginal wall and evidence of bloody discharge at the site of the injury.

10.The sexual assault nurse advised the Board that her team at the Peterborough Regional Health Centre had contacted police on two occasions to advise of their strong opinion that the injuries were clearly non-consensual.

15.On the weight of the police officer’s evidence the Board made a finding of fact that “the Applicant was capable of consenting to these acts”.

Analysis - the weaknesses inherent in Surette’s written and viva voce evidence

[29] Because the Board’s order and reasons rest heavily on the hearsay evidence given by Surette, the credibility and reliability of:

1. Surette

2. the police officers who informed him about what the eyewitnesses had reported them, and

3. the eyewitnesses who informed Surette and the other police officers

were critical factors that the Board was required to consider and address in its reasons.

[30] However, because of numerous significant gaps in the totality of the evidence before the Board, it was impossible for the Board to make any rational findings on these issues. Despite this impossibility, the Board decided to accept Surette’s hearsay and double hearsay evidence and reject the evidence of the applicant and the two sexual assault nurses who supported the applicant’s evidence.

[31] The result of these gaps can be illustrated by the following examples of critical evidence that the Board required but did not have or apparently seek:

1. the names or other identifying characteristics of the 83 witnesses to whom Surette and the Board specifically referred;

2. the names or other identifying characteristics of the remainder of the 83 witnesses to whom Surette and the Board did not refer;

3. the names and number of the 83 witnesses who were actually interviewed by Surette himself;

4. the names and number of the 83 witnesses who were actually interviewed by other officers and the names of those officers;

5. what each of the 83 witnesses who was interviewed by Surette actually reported that they saw or heard that was of relevance to the applicant’s claim without Surette’s subjective assessment of their evidence;

6. what each of the 83 witnesses who was interviewed by another officer reported that they saw or heard that was of relevance to the applicant’s claim;

7. which of the 83 witnesses were actually interviewed by police officers and how many simply completed written questionnaires;

8. where are those questionnaires that were not included in the Brief and why they were not included;

9. whether the officers, including, made notes of the interviews conducted by them so the Board could compare them with what the officers reported to Surette and with what Surette stated to the Board;

10. why none of the 83 witnesses was called to give viva voce evidence;

Analysis – Do the Board’s reasons adequately explain why the Panel concluded that the applicant had failed to meet the required civil burden of proof?

[32] The applicant was entitled and the Board was required to know who gave evidence against her.

[33] The applicant was entitled and the Board was required to know what the eyewitnesses reported that they saw or heard in as close as possible in their own words.

[34] Although I have carefully examined all of the evidence that was before the Board that was placed before this Court, it would have been impractical to attempt to copy all of it in these reasons. For obvious reasons, I have not examined other evidence that may have been before the Board but not placed before us.

[35] It is important to observe that very little of the evidence attributed by the Board to Surette throughout its order and reasons was included in Surette’s memorandum to the Board. Accordingly, if there was additional viva voce evidence from Surette to support the Board’s references, there is nothing in the record placed before us to show what that evidence was.

[36] As stated in paragraph 3, above, (taken from paragraph 15 of the Board’s order and reasons), the Board’s order rested on what it described as “stark” inconsistencies between the applicant’s evidence and the evidence of other witnesses that led the Board to conclude that the applicant’s evidence was unreliable.

[37] The search for those “inconsistencies” must, in the circumstances of this case, focus on the differences between the applicant’s evidence and what some of the 83 witnesses said to Officer Surette or to other officers and later included in Surette’s written or viva voce evidence.

[38] The role of Surette in gathering evidence and presenting it to the Board was, in my view, problematic because of the procedure adopted by the Board. According to Surette’s evidence, he and other police officers interviewed 83 witnesses. For reasons unknown, none of those witnesses was called to give viva voce evidence at the hearing before Board. The inherent difficulties in calling such a large number of witnesses are obvious and the failure to have all of the witnesses give evidence could readily be overlooked. However, the failure to call any of the 83 witnesses to give viva voce evidence and the decision to adduce the evidence of some through Surette is remarkable.

[39] As well, by the Board accepting their evidence as hearsay through Surette, the integrity and reliability of Surette and others were inevitably placed in issue. Unless he was a reliable investigator who had been given accurate information by persons who were able to do so, and an honest witness, the evidence of the eyewitnesses could not have been placed before the Board accurately.

[40] In paragraph 2 of the Board’s reasons, the Board refers to four contradictions between the applicant’s “version of events” and what an unspecified number of 83 unidentified witnesses said to Officer Surette. As elsewhere, no details of what those contradictions are given. Moreover, in Surette’s memorandum to the Board, set out in paragraph 19, below, Surette stated only the following:

Police subsequently obtained 83 statements from witnesses. Several inconsistencies were identified with respect to the complainant’s version of events. Several witnesses described her as drinking heavily that night. Two witnesses observed a consensual 3 way sexual act involving the complainant and two other males. (emphasis added)

[41] This is a good illustration why it was necessary for the Board to have the information described in paragraph 31, above. The Board’s order and reasons could not reasonably have been based on Surette’s hearsay evidence from, as the Board stated, only “several” or “two” unnamed witnesses out of a total of 83. This leaves open the possibility that as many as about 80 of the unnamed witnesses might have given evidence that was consistent with the applicant’s evidence and that the Board rejected all of it. If it is the case that all but a very few of the 83 unnamed witnesses saw anything and that the only witnesses of any actual activity were the two observers of activity in the shed, the host and his father, that would be highly relevant to an assessment of the Board's decision.

[42] The weight that the Board gave to Surette’s evidence was further complicated by what the Board had to say in paragraph 4 of its reasons, namely, that Surette said that “he did not have the reasonable grounds to lay a charge and that he did not consult a Crown Attorney”. This statement by Surette was totally irrelevant. It is worthy of note that Surette was not able to identify the two males in the shed so that his comment was limited to the alleged activity of the host. In any event, Surette’s perceived difficulty in proving the criminal guilt of the applicants’ assailants beyond a reasonable doubt had nothing to do with the ability of the applicant to prove, on a balance of probability, that she had been sexually assaulted. In any event, the problem that Surette had in identifying the applicant’s assailants was not a problem with respect to the applicant’s claim.

[43] As well, the problem of what weight the Board should give to Surette’s evidence was further complicated by the evidence of Surette, referred to in paragraph 4 of the Board’s reasons, that the applicant’s statement to the police was “disingenuous”. The determination of the weight to be given to the evidence of the applicant was for the Board, alone, to make on all of the evidence. Moreover, it is not clear on what basis Surette concluded that her statement was “disingenuous” so it is not possible to assess whether that judgment was supportable. In adopting and relying on that statement, the Board abdicated its responsibility and failed to provide an adequate explanation of its decision.

[44] Central to the Board’s reasons was the issue of whether or not the applicant consented to the sexual activity that occurred. In paragraph14(a) of the reasons, the Board referred to the applicant’s evidence that “she did not drink to excess and “believes she was drugged” and the conflicting evidence of the police that “Witnesses at the party described her as angry, intoxicated and at one point drinking from a 28 ounce liquor bottle”. The Board then went on to state that “The applicant’s degree of sobriety is relevant as a result of the theory that being advanced that she was drugged and incapable of consenting to the sexual acts which would make them sexual assaults. The Board continued, saying that “Due to the detail and preponderance of evidence the Panel accepts the police evidence that the Applicant was intoxicated and angry during the evening”.

[45] The Board did not, however, state who those witnesses were, what they saw or heard or what they reported to the police but it accepted the hearsay or double hearsay of Surette on this issue without details of the “body movements, arm movements and kissing” on which the evidence was based. Moreover, the Board was content to accept this evidence despite finding, in paragraph 14(b), that “The police officer testified that the two youths observed the sexual act among the three. Both, one of whom was sober, described the act as consensual”.

[46] It follows, from the language used by the Board, that it accepted this evidence even though it was based on the evidence of one witness who was sober and one who was not. Further, these witnesses were outside the shed. There is no evidence that they could hear anything from inside the shed, which makes their interpretation of what they saw highly suspect.

[47] In paragraph 14(b) , the board went on to state that “For the Applicant’s complaint that she was drugged to advance the Panel would have to accept a certain degree of incapacity. That is not what was described by the two witnesses. The Panel finds that the Applicant was capable of consenting to these acts”.

[48] From this language, it is evident that the Board did not find that the applicant had failed to prove that she did not consent to the sexual activity but only that she was capable of consenting to it. And, based on distorted logic, the Board held that, because she had that capacity, it was likely that she had consented. In addition, the Board failed to explain how it could find that the applicant was capable of consenting to these acts after having found that she was intoxicated.

[49] As well, this evidence, too, was based on the evidence of the two witnesses of which only one was sober.

[50] In paragraph 14(d), the Board addressed the second incident that involved W.D. and stated that, “Based on the description of the Applicant the Panel finds that the Applicant was capable of consenting to the sexual acts with W.D.”

[51] The “description” referred to was not described in the reasons and, once more, the Board’s finding was limited to the applicant’s capacity, not what actually occurred.

[52] I turn, finally, to the Board’s rejection of the evidence of both sexual assault nurses.

[53] In paragraph 14(d), the Board also addressed the applicant’s injuries and the evidence of the sexual assault nurses.

[54] The Board began by stating that “A troublesome issue for the Panel is the degree and nature of the Applicant’s injuries. However, pages 42 to 148, inclusive, of the Brief contain medical reports and records from various sources, including the sexual assault nurses, describing the applicant’s injuries and their impact on the applicant. They reveal that the applicant’s injuries were more extensive than the list of injuries set out in paragraph 10 of the Board’s reasons. The evidence in these reports and records is entirely consistent with the applicant’s own evidence and the Board did not refer to any medical evidence that challenged the applicant’s evidence in any way.

[55] Accordingly, there was no explanation given by the Board why the applicant’s injuries raised a “troublesome issue”. The Board correctly recognized that the nurses “have rendered an opinion that the injuries were not consensual”.

[56] The Board then went on to explain why it rejected the evidence of the sexual assault nurses.

[57] It observed that one of them, Carol Aird, “candidly testified that she has not previously tendered this type of opinion in a legal proceeding.” and that “It is not known whether Ms. Waters’ opinion had been accepted in a legal proceeding”. However, neither of these factors could properly have affected the weight that the Board should have given to this evidence.

[58] The Board then stated its conclusion on this issue that “The Panel accepts that the Applicant suffered a number of injuries that are a result of sexual conduct. However, the Panel disregards the evidence of the medical practitioners based on a preponderance of evidence to the contrary. The Panel thusly concluded that the injuries alone are not determinative of whether or not a sexual assault has occurred”. (emphasis added)

[59] As stated in paragraph 54, above, in attempting to explain its conclusion regarding the evidence of the sexual assault nurses, the Board did not refer to any evidence that conflicted with it, presumably because there was none. Nor did it otherwise attempt to describe the “preponderance of evidence to the contrary” on which it relied.

[60] And, although the Board was correct in stating that “the injuries alone are not determinative of whether or not a sexual assault has occurred”, it lost sight of the fact that the applicant’s claim did not rest solely on the evidence of the sexual assault nurses. It rested primarily on the applicant’s own evidence and the evidence of the sexual nurses and the other medical evidence that was before the Board.

[61] Any evidence that might have challenged the applicant’s evidence, and that of the sexual assault nurses, had to come from Surette. It is not clear that there was any such evidence but, if there were, it would have to be viewed in light of the frailties in all of Surette’s evidence to which I referred above.

[62] In summary, the Board appears to have accepted Surette's conclusions based on his experience and his description of the investigation as "intense" notwithstanding that, among other things, Surette was unable to identify the two males in the shed and accepted, without explanation, the evidence of the host and his father despite their obvious conflict of interest. In doing so, the Board rejected the viva voce evidence of the applicant and of the two sexual assault nurses without any adequate explanation or reason for rejecting such evidence in the face of the significant gaps in Surette's report and without providing an adequate basis for the Board’s conclusion that the applicant consented to the sexual acts that is acknowledged occurred.

Conclusion

[63] The Board’s reasons fail to give an adequate explanation for its order. Neither the applicant nor this Court could reasonably understand why the Board made its findings of fact and why it issued the order in appeal. This failure thereby resulted in a denial of procedural fairness and natural justice as described in C.P., quoted in paragraph 7, above.

[64] To the extent that the Board’s reasons can be understood, they demonstrate that the Board’s order was based on a faulty legal foundation, that the Board misunderstood the evidence and that the Board’s reasons and order are both unreasonable.

[65] For either of these reasons, the Board’s order cannot be sustained.

Matlow J.

Taliano J.

Wilton-Siegel J.

Released: January 30, 2014

CITATION: B.C. v Criminal Injuries Compensation Board, 2014 ONSC 7860

DIVISIONAL COURT FILE NO.: DC-000000509-0000

DATE: 20140130

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MATLOW, TALIANO AND WILTON-SIEGEL JJ.

B E T W E E N:

B. C.

Applicant (Appellant)

• and –

THE CRIMINAL INJURIES COMPENSATION BOARD

Respondent in Appeal

REASONS FOR JUDGMENT

MATLOW J.

RELEASED: January 30, 2014