Sweet v. The Attorney General of Ontario et al. [Indexed as: Sweet v. Ontario (Attorney General)]

106 O.R. (3d) 420

2011 ONSC 2650

Ontario Superior Court of Justice,

Divisional Court,

Hackland R.S.J., Ferrier and Bryant JJ.

May 12, 2011

Criminal law -- Compensation for victims of crime -- Criminal Injuries Compensation Board entitled to take into account claimant's own subsequent criminal conduct when considering "all relevant circumstances" under s. 17(1) of Act -- Compensation for Victims of Crime Act, R.S.O. 1990, c. C.24, s. 17(1).

The appellant was subjected to egregious physical and sexual assaults by staff members while residing in a training school for truancy. In the following years, he committed a number of criminal offences, including rape, for which he was serving a life sentence. He claimed compensation under the Compensation for Victims of Crime Act for the abuse he had suffered in the training school. The Criminal Injuries Compensation Board found the appellant to be a victim within the meaning of s. 5(a) of the Act and accepted that psychological trauma may have contributed to his life of crime. However, the Board denied the claim, taking into account the appellant's subsequent criminal behaviour. The appellant appealed.

Held, the appeal should be dismissed.

Subsequent criminal conduct by the complainant does not bar recovery under the Act. However, the Board may take into account conduct of the victim occurring subsequent to the crimes committed against him, including his own criminal conduct, when considering "all relevant circumstances" under s. 17(1) of the Act. [page421]

APPEAL from the denial of a claim under the Compensation for Victims of Crime Act.

Cases referred toD. (S.) v. Ontario (Criminal Injuries Compensation Board), [2010] O.J. No. 5722, 2010 ONSC 5808, 328 D.L.R. (4th) 561 (Div. Ct.); Poholko v. Criminal Injuries Compensation Board, 1983 5103 (NS CA), [1983] N.S.J. No. 413, 58 N.S.R. (2d) 15, 123 A.P.R. 15 (C.A.); Sheehan v. Ontario (Criminal Injuries Compensation Board) (1974), 1974 439 (ON CA), 5 O.R. (2d) 781, [1974] O.J. No. 2129, 52 D.L.R. (3d) 728, 20 C.C.C. (2d) 167, 1974 CarswellOnt 552 (C.A.); Simons v. Ontario (Criminal Injuries Compensation Board), [1982] O.J. No. 1354 (Div. Ct.), consd Other cases referred to Athwal v. Canada (Minister of Citizenship and Immigration), 1997 6365 (FCA), [1997] F.C.J. No. 1183, [1998] 1 F.C. 489, 220 N.R. 355, 40 Imm. L.R. (2d) 160, 73 A.C.W.S. (3d) 1008 (C.A.) [Leave to appeal to S.C.C. refused [1997] S.C.C.A. No. 567]; French v. Ontario (Criminal Injuries Compensation Board) (April 21, 2004), Court File No. 1418 (Ont. Div. Ct.) [Leave to appeal to C.A. refused [2004] O.J. No. 3875 (C.A.)]; Lischka v. Ontario (Criminal Injuries Compensation Board) (1982), 1982 1840 (ON SC), 37 O.R. (2d) 134, [1982] O.J. No. 3288 (Div. Ct.) Statutes referred to Compensation for Victims of Crime Act, R.S.O. 1990, c. C.24 [as am.], ss. 5, (a), 17 [as am.], (1), (2), 23 Compensation for Victims of Crime Amendment Act, 1986, S.O. 1986, c. 37

John L. Hill, for appellant. David E. Fine, for respondent Criminal Injuries Compensation Board.

The judgment of the court was delivered by

[1] FERRIER J.: -- The appellant claimed compensation under the Compensation for Victims of Crime Act, R.S.O. 1990, c. C.24 (the "Act") for the crimes committed against him while a youth at the Cobourg Training School.

[2] The Criminal Injuries Compensation Board (the "Board") denied the claim, taking into account the appellant's subsequent criminal behaviour, including his conviction for rape. The appellant appeals to this court.

[3] The issue before the court is whether the Board is entitled to consider an applicant/victim's subsequent criminal behaviour when deciding entitlement to compensation[.]

[4] The answer to the question is yes and the appeal is dismissed for the reasons following. Facts

[5] From 1954 to 1960, when the appellant was ten to 16 years old, he resided at the Cobourg Training School for truancy. During this period, he was subjected to egregious physical and [page422] sexual assaults by several members of the staff at the institution. As found by the Board, he suffered physical and emotional injury.

[6] Throughout the years following, the appellant has been in and out of prison. He was convicted of break and enter, car theft, theft, assault and rape. He has been incarcerated for over 30 years serving a life sentence for raping an adult. The appellant attributes his life of crime to the abuse suffered by him as a youth. The Board's Decision

[7] The Board found the appellant to be a victim within the meaning of s. 5(a) of the Act. The Board accepted that psychological trauma may have resulted in the appellant's criminal conduct during his adult life. The Board noted that the appellant's criminal behaviour had caused significant financial expense and emotional harm to the state and his victims of crime.

[8] The Board found that for the purpose of considering the appellant's entitlement to compensation, his subsequent behaviour was a relevant circumstance within the meaning of s. 17(1) of the Act.

[9] The Board further found that the severity of the appellant's injury as a youth was not so disproportionate to his conduct that compensation should be awarded. The Board held that in the circumstances, an award for pain and suffering was inappropriate and inconsistent with the spirit and intent of the Act. Relevant Sections of the Act

[10] Where a person is injured resulting from the commission of a crime of violence constituting a criminal offence, the Board may order the payment of compensation if "it considers it proper" to do so, "in its discretion exercised in accordance with this Act": s. 5(a).

[11] Section 17 of the Act provides as follows:

17(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.

(2) The Board may, in its discretion, refuse to make an order for compensation or order a reduced amount of compensation where it is satisfied that the applicant has refused reasonable co-operation with, or failed to report promptly the offence to, a law enforcement agency.

(3) In assessing compensation, the Board shall take into consideration any benefit, compensation or indemnity paid or payable to the applicant from any source other than social assistance. [page423]

[12] An appeal lies to the Divisional Court from a decision of the Board on any question of law: s. 23. Issue

[13] The sole issue is whether the Board may take into account conduct of the victim occurring subsequent to the crimes committed against him when considering "all relevant circumstances" under s. 17(1). Standard of Review

[14] The issue is one of law attracting a standard of review of correctness. Analysis

[15] In the recent judgment of this court in D. (S.) v. Ontario (Criminal Injuries Compensation Board), [2010] O.J. No. 5722, 2010 ONSC 5808 (Div. Ct.), a case having some similarities to the case at bar, C.D.A. MacKinnon J. provides a helpful review of the law concerning the granting of awards under s. 17(1) of the Act. Furthermore, the submissions of the parties in D. (S.) mirror those in the case at bar.

[16] In D. (S.), the claimant/victim had been sexually assaulted when a youth by his brother's godfather, his uncle and others. The victim also had abused other persons as an adult. His victims included young family members and neighbours. He was convicted of sexually assaulting an adult and was sentenced to two years less a day in prison. He re- offended upon his release by sexually assaulting his three- year-old niece and was sentenced to a further period of 18 months.

[17] The Board granted the victim an award for counselling or therapy expenses but denied any award for pain and suffering. The Divisional Court in D. (S.) held [at para. 24] that the reasons of the Board did not "disclose the principled basis upon which the conduct of the appellant can be viewed as a relevant circumstance within the meaning of s. 17(1) of the Act". The court held that the reasons of the Board did not reflect articulable reasons for denying compensation for pain and suffering, thereby preventing meaningful appellate review and the court remitted the matter back to the Board for a rehearing.

[18] Some aspects of the application of s. 17(1) noted by MacKinnon J. include the following.

[19] The Board has a very broad discretion to determine relevance: Sheehan v. Ontario (Criminal Injuries Compensation Board) (1974), 1974 439 (ON CA), 5 O.R. (2d) 781, [1974] O.J. No. 2129, 1974 CarswellOnt 552 (C.A.). [page424]

[20] The character of the claimant can be a relevant consideration to recovery under the Act: Sheehan, supra. Sheehan and other inmates of a penitentiary claimed for injuries suffered during a prison riot. The Board considered relevant the fact that the prior criminal activity of the victims was the reason they were in the penitentiary where the injuries occurred. The Court of Appeal held this to be a valid consideration. As noted by MacKinnon J., but for their criminal activity, the victims would not have been in the penitentiary and injured.

[21] In Poholko v. Criminal Injuries Compensation Board, 1983 5103 (NS CA), [1983] N.S.J. No. 413, 58 N.S.R. (2d) 15 (C.A.), a prostitute was granted compensation when she was attacked by a client. As was stated by MacKinnon J., the Act does not require the victim to be lily white. The fact that a claimant may have engaged in illicit behaviour that gave rise to the injuries complained of does not necessarily disentitle the victim from recovery under the Act: French v. Ontario (Criminal Injuries Compensation Board) (April 21, 2004), Court File No. 1418 (Ont. Div. Ct.), leave to appeal to C.A. refused [2004] O.J. No. 3875 (C.A.).

[22] A claim under the Act is not one in which the court is assessing civil liability for specified damages. The court is obliged to consider, having regard to all of the circumstances, whether it is an appropriate case for someone who is a victim to be compensated out of public funds: Lischka v. Ontario (Criminal Injuries Compensation Board) (1982), 1982 1840 (ON SC), 37 O.R. (2d) 134, [1982] O.J. No. 3288 (Div. Ct.).

[23] Referring to Simons v. Ontario (Criminal Injuries Compensation Board), [1982] O.J. No. 1354 (Div. Ct.), MacKinnon J., writing in D. (S.), said [at para. 34], "It is arguable that the decision of the Court of Appeal in the case of Simons, supra, may close the door on subsequent conduct being considered a relevant circumstance under s. 17. As the court stated, 'such circumstances can only be those relevant to the injuries and the manner in which they were sustained.' "

[24] In Simons, supra, the Board held that the applicant was a victim but had made no effort to report the occurrence. In this circumstance, the Board reduced the amount of the award. At the time of the decision, what is now s. 17(2) permitted the Board to refuse to make an award where no effort to report the occurrence had been made. The section did not provide for a reduction in the amount of an award as it does now. The section was amended to its present wording by the Compensation for Victims of Crime Amendment Act, 1986, S.O. 1986, c. 37.

[25] It was argued that the lack of reporting was a circumstance which the Board could take into account under s. 17(1) to [page425] reduce the amount of the award. The Court of Appeal held otherwise, stating that by virtue of s. 17(2) the only options open to the Board in the case of a failure to report was to exercise its discretion to grant or refuse, but not to reduce an award.

[26] The Court of Appeal in Simons, supra, dealt with a provision different from the current provision. Furthermore, the issue of whether other subsequent conduct of a victim (other than a failure to report or co-operate with an investigation) was a "relevant circumstance" which could be taken into account was not before the Court of Appeal. The statement quoted by MacKinnon J. as noted above must be read in the context of the issue before the court. It is not appropriate to read that statement as an indication that the court had in mind the kind of circumstances existing here. Accordingly, I do not see Simons, supra, as standing for the proposition that subsequent conduct may not be taken into consideration.

[27] The appellant relies on Sheehan, para. 16, in which the court indicates that the legislation has "conferred upon the Board a discretion expressed in the broadest terms".

[28] The respondent relies on Sheehan, para. 14, in which the court states, ". . . the jurisdiction of the Board to determine in each case what were the relevant circumstances and to decide having regard to those circumstances is untrammeled".

[29] The respondent also notes para. 13 of Sheehan:

It should be emphasized that this is not an instance where the Board has a precise jurisdiction within which it may by its decisions, hold that an applicant is one entitled to the rights granted under a statute, Regulation or contract. The applicant has, under this legislation, no right to compensation, his right being limited to making an application therefor to the Board.

[30] I now return to the words of the legislation. Under s. 17(1), the Board is required to have regard to all relevant circumstances. The section specifically includes within that phrase behaviour of the victim that may have contributed to his or her injury as something that the Board is required to consider in its determination.

[31] Section 17(2) gives the Board discretion to refuse to make an order or order a reduced amount where the applicant has refused to co-operate with, or failed to promptly report the offence to, a law enforcement agency.

[32] The question then becomes whether the expression of the broad general discretion in s. 5 of the Act is limited by the words of s. 17(1) and (2). In my view, the answer to that question is clearly no. [page426]

[33] Section 17(1) clearly states that any behaviour of the victim that may have contributed to his injury must be considered as a relevant circumstance. That requirement does not in any way limit the meaning of "all relevant circumstances".

[34] In enacting s. 17(2), the legislature specifically addresses, to some extent, post-occurrence conduct of the victim. In my view, taking the provisions of the Act as a whole and the provisions of ss. 5 and 17 specifically, s. 17(2) cannot be said to have the effect of limiting the broad meaning of "all relevant circumstances".

[35] If it were otherwise, the phrase would not have its ordinary meaning. It would have a meaning limited to the circumstances of the occurrence -- but the legislation does not say that. Furthermore, the case law supports the proposition that it is a relevant circumstance to consider that the awards, when granted, are made from public funds and that the function of the legislation is not to assess civil liability for damages. These are circumstances which are relevant and yet do not relate to the injury itself.

[36] Finally, the interpretation as advanced by the appellant could lead to an absurd result. As one example, if Mr. A. was assaulted by Mr. B. and a year later Mr. B. was murdered by Mr. A., Mr. A. would be free to apply for an award as a victim of assault -- and his murderous conduct would be an irrelevant circumstance for the Board to consider. Where there are two competing interpretations of a provision, one of which gives rise to an absurdity and the other does not, then it is only just and logical that the former be rejected: Athwal v. Canada (Minister of Citizenship and Immigration), 1997 6365 (FCA), [1997] F.C.J. No. 1183, [1998] 1 F.C. 489 (C.A.), at para. 12, leave to appeal to S.C.C. refused [1997] S.C.C.A. No. 567.

[37] The appeal is dismissed. Costs

[38] As the Board did not seek costs in the event of a dismissal of the appeal, there shall be no order [as] to costs.

Appeal dismissed.