Judgment Released in British Columbia v Zastowny

The Supreme Court of Canada (“SCC”) released its decision in British Columbia v Zastowny, [2008] 1 SCR 27, this morning. The judgment, written by Rothstein J. for a unanimous Court, deals with the issue of when, if ever, an individual may be awarded damages for past wages lost due to his or her incarceration. Rothstein J. held that to allow individuals serving time for criminal conduct to nonetheless collect damages for wages lost during that time would create a ‘clash’ between the criminal and civil justice system which would compromise the integrity of the justice system. An exception to this general rule could be allowed for someone who was wrongfully convicted, but that was not the case here.

Mr. Zastowny was imprisoned at age 18 for breaking and entering, a crime he committed to support a crack cocaine addiction. While incarcerated, he was twice sexually assaulted by a prison official named Roderick David MacDougall. Following his release, Mr. Zastowny continued to struggle with drugs and the law: he became addicted to heroin and spent 12 of the next 15 years in prison for a variety of offences.

While in prison in 1996, Mr. Zastowny learned of an investigation into Mr. MacDougall’s conduct as a prison official. He revealed that Mr. MacDougall had sexually assaulted him, and Mr. MacDougall was subsequently convicted of the crime. A psychologist testified at Mr. MacDougall’s crime that Mr. Zastowny’s anti-social behaviour and criminality were direct consequences of the sexual assault. The province of British Columbia (“BC”) was held vicariously liable for Mr. MacDougall’s conduct and Mr. Zastowny was awarded general and aggravated damages of $60,000, $15,000 for future counselling costs, $150,000 for past wage loss and $50,000 for future income loss. The award of past and future income was appealed by the Crown. The BC Court of Appeal split on the appeal, but ultimately reduced the past wages award by 40% and the future income award by 30%. The issue before the Supreme Court was whether Mr. Zastowny was barred from receiving compensation for loss of wages during time that he was unable to work due to incarceration.

The Ex Turpi Causa Non Oritur Actio Doctrine

The SCC clarified the application of the ex turpi doctrine in its judgment: specifically, as set out in Hall v Hebert, [1993] 2 SCR 159, “under what circumstances should the immoral or criminal conduct of a plaintiff bar the plaintiff from recovering damages to which he or she would otherwise be entitled.”

Rothstein J. held that the doctrine operated to bar Mr. Zastowny’s recovery for past wages while incarcerated (note that it did not apply to damages awarded for the assault and counselling costs). Mr. Zastowny’s wage loss was the result of the illegal acts for which he was incarcerated. An award in damages for past damages would be, in the words of McLachlin J. (as she was then) in Hall: “giving with one hand what it takes away with the other.” A criminal sentence includes criminal penalty in addition to whatever civil consequences are the natural result of that sentence; this includes wage loss. The only exceptional circumstances which would not undermine a lawfully imposed criminal sanction would be a wrongful conviction.

The appeal was therefore allowed, and Mr. Zastowny did not receive damages for lost wages. In addition, the SCC agreed with the decision of the BC Court of Appeal to reduce the damages for future income by 30% to reflect the very high likelihood identified by the psychologist that Mr. Zastowny would re-offend and be sent back to prison.

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