Desmoulin v. Criminal Injuries Compensation Board, 2015 ONSC 3696

CITATION: Desmoulin v. Criminal Injuries Compensation Board, 2015 ONSC 3696 DIVISIONAL COURT FILE NO.: 349/14 DATE: 20150619

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

MARROCCO A.C.J., LEDERER & D.F. FITZPATRICK JJ.

BETWEEN:

FRANK DESMOULIN Appellant

– and –

CRIMINAL INJURIES COMPENSATION BOARD Respondent

COUNSEL: David E. Fine & Stephen Thiele, for the Appellant Christa Big Canoe, for the Respondent

HEARD at Toronto: March 13, 2015

REASONS FOR JUDGMENT

LEDERER J.:

Introduction

[1] This is an appeal from a decision of the Criminal Injuries Compensation Board (the “Board”).

Background

[2] The applicant, Frank Desmoulin, is an aboriginal man. From September 1965 to July 1966 (11 months), he was a resident at St. Joseph’s Training School in Alfred, Ontario. He was thirteen-years-old. While there, he was a victim of crime. Among other things, he was punched and beaten. In the years since, Frank Desmoulin has accumulated an extensive criminal record. He has been addicted to alcohol, substances, and homeless throughout his years as an adult. His record includes a number of charges for which he was never convicted. There are 38 charges that have been withdrawn or stayed.

[3] Relying on the criminal treatment he suffered while a resident at the training school, Frank Desmoulin applied for compensation, pursuant to the Compensation for Victims of Crime Act[^1]. The Board conducted a hearing. It weighed the compensable abuse suffered by Frank Desmoulin, factors which exacerbated that mistreatment and the nature of the injuries he suffered against the victimization of others that was the result of the criminal activities of Frank Desmoulin. It concluded that, in the circumstances, it would not be reasonable to provide compensation to Frank Desmoulin either for pain and suffering or for counselling expenses. It denied the application.

[4] An appeal lies from a decision of the Board to the Divisional Court but only on a question of law.[^2]

The legislation

[5] The parameters for an application for compensation are both set and constrained by s. 5 of the Act. Insofar as it applies to this case, that section states:

Where any person is injured…by any act or omission in Ontario of any other person occurring in or resulting from,

(a) the commission of a crime of violence constituting an offence against the Criminal Code (Canada), including poisoning, arson, criminal negligence and an offence under section 86 of that Act but not including an offence involving the use or operation of a motor vehicle other than assault by means of a motor vehicle;

the Board, on application therefor, may make an order that it, in its discretion exercised in accordance with this Act, considers proper for the payment of compensation to,

(d) the victim;

[6] Section 7(1) of the Act outlines what harms or damages are compensable under the regime the legislation puts in place. To the extent it is relevant to this case, it says:

Compensation may be awarded for,

(a) Expenses actually and reasonably incurred or to be incurred as a result of the victim’s injury . . .

(d) Pain and suffering;

[Emphasis added]

[7] For the moment, I observe only that these sections, while allowing for an application to be made, do not provide or imply that the receiving compensation is a right that one obtains on becoming a victim of crime; that determination is left to the Board, in its discretion in accordance with the principles of natural justice[^3] (and procedural fairness).

[8] Section 17 of the Act demonstrates that the actions and circumstances of the victim can impact on a decision of the Board as to whether an award should be made and, if so, its value. To the extent it bears on this case, it provides:

(1) 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.

[Emphasis added]

[9] It is important to note that the words “shall have regard to” obliges the Board to take into account “all relevant circumstances”. The Board is required to balance the merits of the claim and the amount of any prospective award against “all relevant circumstances”. In this case, the measure of the balance is the criminal acts taken against and suffering of Frank Desmoulin weighed in relation to his victimization of others. The Board found the latter was a “relevant circumstance”.[^4] It has been found to be such by this court.[^5] For the Board, the contribution of the harm Frank Desmolin caused others was sufficient to set aside his own suffering and find that no compensation should be awarded.

Standard of Review

[10] Counsel for Frank Desmoulin observed that an appeal from the Board is limited to a question of law. She went on to say that such decisions are reviewed on a standard of correctness. This is wrong. Where the issue relates to a tribunal’s application of its home statute the standard of review is reasonableness.[^6] This has been said specifically with respect to the Board.[^7] Application of the reasonableness standard conforms to the settled view that since the jurisdiction given to the Board is very broad, its discretion should not be interfered with unless an error of law is plainly demonstrated.[^8]

[11] In this case, the overarching issue is the interpretation and application of s. 17(1) of the Compensation for Victims of Crime Act. At each step in the analysis, there is a preliminary issue. Do the questions asked raise questions of law or leave the court with questions of fact or concerns for the exercise by the Board of its discretion? Could any of these amount to an error of law?

Analysis

[12] Any analysis of this case must centre on the considerations that are part of the balancing undertaken pursuant to s. 17.

[13] I begin with the victimization of the applicant, Frank Desmoulin. He was a resident of St. Joseph’s Training School for eleven months or, to put it differently, for less than a year. While there, he suffered all measure of indignity.

[14] Frank Desmoulin told the Board that he had been punched in the jaw and the head and was struck throughout his body, particularly on his arms and legs. He was smacked in the face and made to kneel all afternoon. He was handcuffed and, during recess, forced to stand facing the wall. Frank Desmoulin said he was “repeatedly” beaten for running away. He was prevented from going to the washroom, causing him, on two occasions, to pee himself; he was “in segregation” approximately six times and forced to sleep on the floor, stand to eat and scrub the floor on his knees with a toothbrush. On one occasion, he was elbowed while playing sports.

[15] All of these are findings of fact. They do not raise a question of law. There is no suggestion that any of these findings was not supported by the evidence or not open to the Board to make.

[16] Section 43 of the Criminal Code was raised before the Board. It presents a possible defence for those who committed what might otherwise be crimes that victimized Frank Desmoulin. It states:

Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.

[17] The force used by anyone to whom s. 43 applies may avoid sanction under the Criminal Code where two requirements are met: first, the force must be “by way of correction”; and second, it must be “reasonable under the circumstances”. The purpose of the section is to avoid criminalizing reasonable corporal punishment meted out by a parent, teacher or person in charge of a child to correct the child’s inappropriate or improper behaviour.

[18] The Board heard submissions as to the impact of s. 43 of the Criminal Code in this case.

[19] The incidents at issue occurred in 1965 and 1966. The views of society with respect to the need for corporal punishment may have changed over the course of the intervening 50 years. Nonetheless, any assessment of whether the treatment of Frank Desmoulin was protected under s. 43 must be made from the perspective of whether, at the time it was administered, it was reasonable.[^9] Counsel for Frank Desmoulin submitted that it cannot be that permitting staff of the St. Joseph’s Training School to punch or hit this student, to handcuff him, to have him witness sexual assaults of other students or to be forcibly confined in solitary would have been accepted as reasonable or for corrective purposes. Counsel proposed that although, at the time, there would have been very few charges or convictions for abuse of this kind, the alleged abuses committed against Frank Desmoulin were chargeable offences. The Board took account of these submissions. It undertook an analysis of what or which of the acts of the staff of the school would have been outside the scope of s. 43 of the Criminal Code. It found:

The Board agrees that on the occasions when the Applicant was punched, the use of the defence under section 43 would not have been accepted in 1965 or 1966, and so that on those particular occasions when the Alleged Offenders punched him, the Applicant was a victim within the meaning of section 5(a) of the Act. The Panel was not convinced, however, that being handcuffed for short periods, or put in isolation cells after running away, or being made to sleep on the floor, forced to scrub a floor with a toothbrush, or to stand against a wall, or ribbed with an elbow during a sports game, or being slapped, or being exposed to sexual abuse, would have been chargeable offences in 1965 and 1966 when committed against youth in a facility like St. Joseph’s. As a result, these other incidents will not be considered for compensation.[^10]

[20] In this way, the Board took into account the evidence and the impact of s. 43 of the Criminal Code.

[21] It may offend our present day senses to consider that such action taken against a student would not have properly been the subject of criminal charges and accepted as criminal behaviour. Surely, some things like allowing a student to witness the sexual abuse of others would be wrong now and should be accepted as having been wrong then. The problem is plain. These concerns do not raise an issue of law. The determination of whether Frank Desmoulin was a victim of crime falls squarely within the discretion of the Board, as provided for in the Compensation for Victims of Crime Act at sections 5 and 17(1). This determination is left to the discretion of the Board.

[22] The Board went on to consider other aggravating factors:

The Board agrees with the Applicant’s lawyer’s oral submissions that the seriousness of the compensable incidents is exacerbated by the Applicant’s young age, the Alleged Offenders’ position of authority and trust, and that the abuse lasted over several months.[^11]

[23] The Board reviewed the extent of the damage or harm suffered by Frank Desmoulin as a result of the crimes visited on him by the staff at St. Joseph’s Training School. It considered the evidence and concluded:

The Board accepts that the Applicant suffered bruising as a result of the assaults, but the Panel did not receive medical corroboration that any ongoing discoloration of his legs was the result of the incidents in question.

The Board accepted that some of the Applicant’s emotional injuries can be attributed to the compensable abuse he suffered while at the school, particularly his anger at, and mistrust of, authority figures. The Board was mindful that the Applicant reported never having suffered any physical or sexual abuse prior to going to St. Joseph’s, and that his anger mismanagement and resulting violent conduct is wholly the result of his experience there, and the Board accepts that some of the foregoing can also be attributed to his time at St. Joseph’s.

[24] What is demonstrated is that the Board took the measure of the nature and degree to which Frank Desmoulin was a victim of crime. The Board acted within its discretion. There was no error of law.

[25] It remains to examine the other side of the balance provided for in the application of s. 17(1) of the Victims of Crime Compensation Act. What other relevant circumstances should be brought to bear in considering if or what amount of compensation should be awarded? There is the criminal record of Frank Desmoulin. His counsel expressed the concern that, having regard to this record, it would be wrong to take into account charges as opposed to convictions. So far as I can see, there is no suggestion that the Board failed to appreciate or bear in mind this distinction. In its decision, it clearly differentiates between the two. The Board begins:

In this context, the Board has considered the Applicant’s criminal history as an adult for violent crimes dating back to 1972 and which record includes 7 convictions for assault, 5 convictions for assault causing bodily harm, 2 convictions for possession of a weapon, 2 convictions for assault with a weapon, 2 convictions for uttering threats and 1 conviction for forcible entry.[^12]

[Emphasis added]

[26] The Board goes on:

…During the same period, the following charges against the Applicant were levied and eventually withdrawn: 4 counts of assault, 1 count of armed robbery, 1 count of dangerous use of firearm, 3 counts of assault cause bodily harm, 1 count of sexual assault, 5 counts of robbery, 1 count of assault with a weapon, 2 counts of uttering threats, 2 counts of first-degree murder, one count of possession of a weapon, 1 count of forcible confinement, 1 count of carry concealed weapon.[^13]

[Emphasis added]

[27] The Board explained how it applied this evidence to its consideration and determination:

As a result, in following the broader instructions of the Court, the Board considers not only circumstances related to the incident but also any convictions for crimes of violence committed by the Applicant.[^14]

[Emphasis added]

[28] What follows from this is that the Board weighed the convictions but did not take into account circumstances where charges were laid, withdrawn and no conviction registered. There was no error of law in the Board’s consideration of the criminal record of Frank Desmoulin.

[29] Finally, counsel raised the question of whether the fact that Frank Desmoulin is a member of a First Nation was a factor that should be part of the balancing directed by s. 17(1) of the Compensation for Victims of Crime Act. In making this submission, she referred to the case of R. v. Gladue.[^15] That case and s. 718.2 (e) of the Criminal Code[^16] demonstrate the requirement that, when sentencing, particular attention should be paid to the circumstances of Aboriginal offenders because of the uniqueness of that experience and its difference from that of non-Aboriginal offenders. The case and the section specifically apply to sentencing. They are directed to the concern that the Aboriginal population of Canada has come to represent a disproportionate and identifiable group of all those who are incarcerated in Canadian prisons. Subsequent cases have suggested that the Gladue principles may be extended beyond sentencing.[^17] Generally, the principles that are involved respond to circumstances where the personal freedom of those involved is at issue. There is nothing in the Gladue principles or the caselaw applying them which suggests it would be appropriate to traverse these ideas to a determination of the Board, which is a form of civil remedy.

[30] To put it another way, the Board has no criminal law function. It exists for no purpose other than to determine whether a person has been a victim of a crime of violence and, if so, whether the person should receive public compensation for pain and suffering.

[31] This is not to say that the Board should not consider the impact of the cultural background and travails of our aboriginal population in considering the role that a criminal record should play in undertaking the balance outlined in s. 17(1) of the Compensation for Victims of Crime Act or that the Board failed to do so in this case. The Board noted:

The Applicant’s lawyer urged the Panel to consider the Applicant’s conduct within the exacerbating context of his having been sent to St. Joseph’s for a minor incident (involving property damage) in which he denied any direct involvement, that the Alleged Offenders disparaged the Applicants’ [sic] parents and Aboriginal community while he was at the institution, and that while the Applicant should bear some responsibly for his subsequent criminal conduct, the state was also partly responsible for the Applicant’s criminal conduct.[^18]

[32] There is nothing to suggest that the Board erred in principle by failing to refer specifically to the so-called Gladue principles. Any such failure is not an error of law and cannot support granting this appeal. In any event, the Board was aware of cultural background of Frank Desmoulin. It considered the submissions of counsel in coming to its decision. It concluded:

As urged by the Applicant’s lawyer, in determining whether to refuse or reduce an award the Panel balanced the proportionality of the compensable abuse suffered by the Applicant, and the physical and emotional injuries he suffered and the factors which exacerbated the severity of the abuse and the nature of his injuries, against the Applicant’s victimization of others, which is a ‘relevant circumstance’ as per section 17(1) of the Act. In weighing these factors, the Board finds that the extent of the Applicant’s extensive convictions for very violent crimes (and his creation of unknown numbers of victims thereof) outweighs the relatively moderate crimes of violence committed against him and injuries which can reasonably be attributed thereto. As a result, the Board does not consider the provision of compensation to the Applicant out of public funds for a pain and suffering award, or for any counselling expenses, to be reasonable under the Act and this claim is denied in its entirety.[^19]

[33] There is nothing in any of this to suggest that the Board did anything other than consider the evidence and properly apply its discretion as it is required to do. It properly applied the facts to the requirements of s. 17(1) of the Compensation for Victims of Crime Act. There is nothing to suggest an error of principle or any other error that would elevate the concerns expressed to an error of law that could lead to a successful appeal.

[34] For the reasons referred to, the appeal is dismissed.

[35] Pursuant to the agreement of the parties, no order is made as to costs.

___________________________ MARROCCO A.C. J.

LEDERER J.

D.F. FITZPATRICK J.

Released: 20150619

[^1]: R.S.O. 1990 c. C24. [^2]: Compensation for Victims of Crime Act, supra, (fn. 1), s. 23: Subject to section 25, a decision of the Board is final except that an appeal lies to the Divisional Court from any decision of the Board on any question of law. [^3]: Sheehan v. Ontario Criminal Injuries Compensation Board, 1974 CarswellOnt 552 (C.A.), at paras. 13 and 14. [^4]: Re: Frank Desmoulin (Reasons of the Criminal Injuries Compensation Board: Case File No. 0807-72030), at p. 8. [^5]: Sweet v. The Attorney General of Ontario 106 O.R. (3d) 420, 2011 ONSC 2650. The court specifically considered whether the Board was entitled to consider the applicant’s subsequent criminal behaviour, which included a conviction for rape. The answer was “yes” and the appeal, accordingly, dismissed (see: paras. 2 to 4, 8, 13, 23 and 26). [^6]: Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, 2011 SCC 61, [2011] 3 S.C.R. 654, 2011 S.C.C. 61, 339 D.L.R. (4th) 428; [2012] 2 W.W.R. 434, at paras. 30, 34, 39 and 43. [^7]: Tetu v. Criminal Injuries Compensation Board, 2011 ONSC 783, at para. 2; and, Tatti v, Criminal Injuries Compensation Board, 2013 ONSC 4320, at paras. 3 and 25. [^8]: Batic v. Ontario (Criminal Injuries Compensation Board), [1983] O.J. 1910, at para. 1. [^9]: R. v. Baptiste, 1980 CarswellOnt 1436 (Prov. Ct.), at para. 16. [^10]: Re: Frank Desmoulin (Reasons of the Criminal Injuries Compensation Board: Case File No. 0807-72030), at p. 4. [^11]: Ibid, at p. 4. [^12]: Ibid, at p. 6. [^13]: Ibid, at p. 6. [^14]: Ibid, at p. 7. [^15]: 1999 679 (SCC), [1999] 1 S.C.R. 688. [^16]: 718.2(e) says: …all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [^17]: See for example: R. v. Kokapenance 2013 ONCA 389, at para. 142-145. [^18]: Re: Frank Desmoulin (Reasons of the Criminal Injuries Compensation Board: Case File No. 0807-72030), at p. 7. [^19]: Ibid, at p. 8.