X v. R.D.M., (2008) 370 N.R. 365 (SCC)

• Judge: McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
• Court: Supreme Court (Canada)
• Case Date: February 08, 2008
• Jurisdiction: Canada (Federal)
• Citations: (2008), 370 N.R. 365 (SCC);2008 SCC 4;290 DLR (4th) 219;76 BCLR (4th) 1;250 BCAC 3;53 CCLT (3d) 161;370 NR 365;[2008] 1 SCR 27;[2008] SCJ No 4 (QL);[2008] 4 WWR 381

X v. R.D.M. (2008), 370 N.R. 365 (SCC)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2008] N.R. TBEd. FE.002

Her Majesty The Queen in Right of the Province of British Columbia (appellant/respondent on cross-appeal) v. Dean Richard Zastowny (respondent/appellant on cross-appeal)

(31552; 2008 SCC 4; 2008 CSC 4)

Indexed As: X v. R.D.M.

Supreme Court of Canada

McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.

February 8, 2008.

Summary:

The plaintiff brought an action for damages against the correctional officer who allegedly sexually assaulted him in 1989, when the plaintiff was an inmate at the Lower Mainland Regional Correctional Centre.

The British Columbia Supreme Court, in a judgment reported [2004] B.C.T.C. 1273, allowed the action. The plaintiff was awarded, inter alia, $150,000 for past wage loss and $50,000 future loss of income. The Crown appealed the damage awards, submitting that they were contrary to the decision of the Supreme Court of Canada in H.L. v. Canada (Attorney General) et al. The Crown also claimed that since the plaintiff was convicted and imprisoned subsequent to the trial, he was barred from receiving damages for lost past or future income while he was incarcerated. The Crown also claimed that social assistance benefits received by the plaintiff while he was unemployed should have been deducted from the award for past wage loss.

The British Columbia Court of Appeal, Finch, C.J.B.C., dissenting, in a judgment reported (2006), 225 B.C.A.C. 191; 371 W.A.C. 191, allowed the appeal in part. The court reduced the damage award for past lost income by 40% and the award for future loss of earnings by 30%. The Crown appealed the awarding of damages for lost past wages while the plaintiff was incarcerated. The plaintiff cross-appealed the reduction of lost future income by 30% to reflect the high risk of him being re-incarcerated in the future.

The Supreme Court of Canada allowed the appeal and dismissed the cross-appeal. The court stated that "except for exceptional circumstances such as a person having been wrongly convicted, he or she is not entitled to compensation for periods of unemployment due to incarceration for conduct which the criminal law has determined worthy of punishment and the consequences of that punishment. To hold otherwise would create a 'clash' between the criminal and civil law which would compromise the integrity of our justice system". The court affirmed the 30% reduction of damages for future income loss.

Editor's note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Damage Awards - Topic 627

Torts/Quebec responsibility - Injury to the person - Sexual assault - In 1989, while incarcerated for offences resulting from his drug addiction, the plaintiff was sexually assaulted by a correctional officer - The plaintiff was incarcerated for 12 of the 15 years between 1989 and the trial and had a high recidivism risk - The trial judge, having found a causal connection between the sexual assault and the plaintiff's subsequent criminal conduct and incarceration, awarded damages for lost past and future income without reduction for the period of time that the plaintiff was incarcerated or might be incarcerated in the future - The Supreme Court of Canada held that the ex turpi causa non oritur actio doctrine precluded the plaintiff from recovering damages for wages lost while incarcerated - The court stated that "when a person receives a criminal sanction, he or she is subject to a criminal penalty as well as the civil consequences that are the natural result of the criminal sanction. The consequences of imprisonment include wage loss. ... the judicial policy that underlies the ex turpi doctrine precludes evasion or a rebate of the consequences of the criminal penalty, both direct and indirect. ... [The plaintiff] cannot attribute part of his lawfully imposed sentence to someone else in order to obtain a partial rebate of the consequences of his criminal conduct." - This rule applied universally absent exceptional circumstances, such as where the plaintiff was incarcerated as a result of a wrongful conviction - The Court of Appeal did not err in reducing the trial judge's damage award for lost future income by 30% to account for the high risk of the plaintiff re-offending and being re-incarcerated - See paragraphs 18 to 42.

Damages - Topic 508

Limits of compensatory damages - General - Causes independent of wrongful act - [See Damage Awards - Topic 627 ].

Damages - Topic 1550

General damages - General damages for personal injury - Prospective loss of wages or earnings (incl. formula) - [See Damage Awards - Topic 627 ].

Damages - Topic 1550.1

General damages - General damages for personal injury - Pre-trial loss of wages or earnings - [See Damage Awards - Topic 627 ].

Torts - Topic 6995

Defences - Particular defences - Ex turpi causa non oritur actio - [See Damage Awards - Topic 627 ].

Torts - Topic 6995

Defences - Particular defences - Ex turpi causa non oritur actio - The Supreme Court of Canada made the following statements respecting the doctrine of ex turpi causa non oritur actio: "1. Application of the ex turpi doctrine in the tort context invalidates otherwise valid and enforceable actions in tort. 2. Therefore, its application must be based on a firm doctrinal foundation and be made subject to clear limits and should occur 'in very limited circumstances'. 3. The only justification for its application is the preservation of the integrity of the legal system. This concern is only in issue where a damage award in a civil suit would allow a person to profit from illegal or wrongful conduct or would permit evasion or rebate of a penalty prescribed by the criminal law. 4. The ex turpi doctrine generally does not preclude an award of damages in tort because such awards tend to compensate the plaintiff rather than amount to 'profit'. 5. The ex turpi doctrine is a defence in a tort action. The plaintiff's illegal conduct does not give rise to a judicial discretion to negate or refuse to consider the duty of care which goes to the relationship between a plaintiff and a defendant. It is independent of that relationship. The defendant may have caused harm by acting wrongly or negligently, but the 'responsibility for this wrong is suspended only because concern for the integrity of the legal system trumps the concern that the defendant be responsible'. 6. Treating the ex turpi doctrine as a defence places the onus on the defendant to prove the illegal or immoral conduct that precludes the plaintiff's action. And as a defence, it allows for segregation between claims for personal injury and claims that would constitute profit from illegal or immoral conduct or the evasion of or a rebate of a penalty provided by the criminal law." - See paragraph 20.

Cases Noticed:

P.A.B. v. Children's Foundation et al., [1999] 2 S.C.R. 534; 241 N.R. 266; 124 B.C.A.C. 119; 203 W.A.C. 119, refd to. [para. 9].

Hall v. Hebert, [1993] 2 S.C.R. 159; 152 N.R. 321; 26 B.C.A.C. 161; 44 W.A.C. 161, refd to. [para. 19].

Commission des droits de la personne et des droits de la jeunesse (Qué.) v. Maksteel Québec Inc., [2003] 3 S.C.R. 228; 311 N.R. 313; 2003 SCC 68, refd to. [para. 22].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 23].

State Rail Authority of New South Wales v. Wiegold (1991), 25 N.S.W.L.R. 500 (C.A.), refd to. [para. 25].

Clunis v. Camden and Islington Health Authority, [1998] Q.B. 978 (C.A.), refd to. [para. 27].

Worrall v. British Railways Board, [1999] E.W.J. No. 2025 (C.A.), refd to. [para. 28].

Authors and Works Noticed:

Banakas, E.K., Tort Damages and the Decline of Fault Liability: Plato Overruled, But Full Marks to Aristotle!, [1985] Cambridge L.J. 195, p. 197 [para. 30].

United Kingdom, Law Commission, The Illegality Defence in Tort, Consultation Paper No. 160 (2001), § 4.100 [para. 27].

Counsel:

Keith L. Johnston and Karen Horsman, for the appellant/respondent on cross-appeal;

Megan R. Ellis, for the respondent/appellant on cross-appeal.

Solicitors of Record:

Attorney General of British Columbia, Vancouver, B.C., for the appellant/respondent on cross-appeal;

Megan Ellis & Co., Vancouver, B.C., for the respondent/appellant on cross-appeal.

This appeal and cross-appeal were heard on December 14, 2007, before McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada.

On February 8, 2008, Rothstein, J., delivered the following judgment in both official languages for the Supreme Court of Canada.