Administrative Law Markus Dubber

Administrative Law in Action: Crime Victim Compensation Compensation for Victims of Crime Act, Where any person is injured or killed by any act or omission in Ontario of any other person occurring in or resulting from, (a) the commission of a crime of violence …, 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 …. 12. All hearings shall be held in public except where, in the opinion of the Board, it is necessary to hold a hearing that is closed to the public … 13.(1) The Board may make an order prohibiting the publication of any report or account of the whole or any part of the evidence at a hearing where the Board considers it necessary … (2) Any person who publishes a report or account of any evidence at a hearing contrary to an order of the Board under subsection (1) is guilty of an offence and on conviction is liable to a fine of not more than $5,000 or to imprisonment for a term of not more than one year, or to both. 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. 23. [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. 28. The Lieutenant Governor in Council may make regulations, (a) prescribing rules of practice and procedure in respect of applications to the Board and proceedings of the Board; … (d) respecting any matter necessary or advisable to carry out effectively the intent and purpose of this Act.

Victim Compensation: The Problem What is the purpose? – Compensation for Victims of Crime Act? Need (what?) (McMurtry Report) (i) financial assistance, (ii) counselling, (iii) acknowledgment of victimization, (iv) an opportunity to relate what happened to an official decision-maker, and (v) individual assistance in navigating through the network of victim services and programs.

The Problem (cont’d) Policy Rationales (why?) (McMurtry cont’d) (a) Criminal injuries financial assistance reflects society’s compassion for innocent victims and a collective desire to help those who have been harmed as a result of violent crime. (b) Governments fund a number of programs that are designed to promote the welfare of its citizenry and financial assistance for victims of violent crime is a reasonable extension of these kinds of state funded programs. (c) Similarly, governments provide several insurance-like programs such as health care insurance, unemployment insurance and workplace injury insurance that spread certain inevitable risks in society. Victim financial assistance is seen, again, as a reasonable extension of these kinds of programs.

The Solution Who? – Courts (criminal law; restitution) – Administrative body Board, commission, tribunal – No one (private law)

Courts I: R. v. Cuerrier Public law (?); “victim” as witness (“offender” as defendant) Sexual assault: crime; failure to reveal HIV status – Consent? Vitiated by fraud? L’H-D – No: Fraud = fraud Cory – No: Fraud if dishonesty & deprivation (commercial law) McLachlin – No: Fraud if venereal disease

Courts II: N.C. v. W.R.B. Private law (no one?); “victim” as plaintiff; “offender” as defendant Sexual assault: tort Damages – Harm: mental distress, anguish, dignity, self- esteem Punitive (exemplary) vs. aggravated vs. compensatory (general) damages

Administration: Jane Doe Public law: “victim” as claimant; “offender” as participant Sexual assault: crime (HIV nondisclosure) (= criminal injury for CICB compensation claim) Offender dies of AIDS Direct or indirect contribution? (s. 17) – Yes: reduce from max 25k to 15k Court: overturns CICB and awards full 25k – No rationale; negligible contribution