The Assessment of Tort Law Damages for Incarcerated Litigants in Zastowny

Crime doesn’t pay, but should criminals serving time get paid?

No, according to a Supreme Court of Canada judgment, British Columbia v Zastowny, [2008] 1 SCR 27. Writing for a unanimous court, Rothstein J. held that “a person is not entitled to compensation for periods of unemployment due to incarceration for conduct which the criminal law has determined worthy of punishment, except for exceptional circumstances such as a wrongful conviction.” To provide such compensation, he explained, would occasion a “‘clash’ between the criminal and civil law which would compromise the integrity of our justice system.”

The facts and holdings in Zastowny have been canvassed by TheCourt.ca‘s Julie Lanz, here. In sum, though, Dean Richard Zastowny was imprisoned when he was 18 years old for a break and enter offence that he committed to support a drug addiction. While incarcerated, Zastowny was sexually abused by Roderick David MacDougall, a prison official who was subsequently arrested on that charge. Zastowny spent 12 of the next 15 years of his life in prison on a variety of charges. In 1996, while in prison, Zastowny became aware of an investigation underway into MacDougall, and volunteered that he had been sexually abused by him.

At Trial

In the aftermath of MacDougall’s conviction, Zastowny brought a civil law action for damages. At trial, Cohen J. awarded him general and aggravated damages due to the assaults, including loss of wage damages which included compensation for his time spent in incarceration. Zastowny relied on expert testimony from a psychologist, Dr. Robert Ley which identified one source of his anti-social behaviour and criminality as the assaults he experienced at the hand of MacDougall. Specifically, Dr. Ley found that Zastowny’s alcohol abuse and his selection of heroin as his drug of choice was a product of a “need to obliterate himself to the assaults.” The psychologist concluded that Zastowny’s substance abuse as well as his criminality were exacerbated by the sexual assaults.

Relying on Dr. Ley’s evidence, Cohen J. held that the tenure of Zastowny’s prison term was substantially elongated by the abuses, both in terms of his likelihood to engage in criminal behaviour, and in consideration of the fact that — likely as a result of his alienation from justice authorities — Zastowny served most of his prison terms to the mandatory release date.

Cohen J.’s decision hinged on his interpretation of the doctrine of ex turpi causa non oritur actio, the idea that no right of action arises from a base cause. He found ex turpi not to apply in the present case because the wages claimed did not constitute profits from Zastowny’s illegal activity or evasion. As such, they were not tantamount to a “rebate” of Zastowny’s criminal conviction.

On Appeal

The British Columbia Court of Appeal divided in three on the issue of whether or not to compensate for wage loss due to incarceration. Smith J.A. altogether rejected the idea of compensation for loss of earnings, invoking the doctrine of novus actus interveniens to argue that intervening acts upset the causal connection between the assaults and Zastowny’s subsequent criminal acts. Finch C.J.B.C., by contrast, upheld Cohen J.’s decision.

Striking the compromise that carried the day was Saunders J.A., who concluded that Zastowny should recover some damages for the period during which he was imprisoned. Saunders J.A. made the distinction between “core time” (i.e. the period of imprisonment before parole eligibility) and “extra time” (post parole). In Saunders J.A.’s view, Zastowny was eligible for wage loss damages for “extra time,” but not “core time.”

The Supreme Court

Drawing on Hall v Hebert, [1993] 2 SCR 159, a case that circumscribed the limits of the ex turpi doctrine, Rothstein identified its purpose as preventing the provision of a “rebate of a penalty prescribed by the criminal law” to a litigant in a civil action. As a defence in a tort action, the ex turpi doctrine is independent of the relationship between plaintiff and defendant. Its purpose is to suspend responsibility for a tort with an aim to preserving the integrity of the legal system.

Applying this to the present case, Rothstein J. found that the provision of damages to Mr. Zastowny for the period during which he was incarcerated was barred by the doctrine of ex turpi. “When a person receives a criminal sanction,” Rothstein J. explained, “he or she is subject to criminal penalty as well as the civil consequences that are the natural result of the criminal sanction.” In Rothstein J.’s view, one such consequence was wage loss. As such, he concluded, “in asking for damages for wage loss for time spent in prison, Zastowny is asking to be indemnified for the consequences of the commission of illegal acts for which he was found criminally responsible.”

Rothstein J. also took issue with the distinction drawn by Saunders J.A. of the B.C. Court of Appeal, between “core” and “extra” time. “To award damages for any period of incarceration pursuant to a lawfully imposed sentence” Rothstein J. held, “would create that conflict between the criminal and civil law which the judicial policy underlying the ex turpi doctrine requires be precluded.” This he likened to a “partial rebate.”

Is there a Conflict Between Criminal Sanctions and Civil Damages?

I am uncomfortable with the notion that incarceration can be prima facie dispositive of damages awarded to a person for a period during which they were incarcerated. This seems to be the implication of the Supreme Court’s finding in Zastowny.

In the context of a civil proceeding characterized by allegations that tortious conduct causally contributed to a person’s incarceration, I do not see how the integrity of the justice system is undermined, and by extension, how an ex turpi defence is triggered. In my opinion, damages arising out of a tort are just that — they do not provide a “rebate” for a criminal conviction, but rather address a civil wrong.

Leaving aside the issue of whether or not Mr. Zastowny ought to be awarded compensation in this case, a more appropriate doctrine in the present case was applied by Smith J.A. of the B.C. Court of Apppeal. Instead of ex turpi, Smith J.A. opted for the doctrine of novus actus interveniens to attack the causal connection between the sexual assaults Zastowny experienced, and his incarceration. In Mr. Zastowny’s case however, the trial judge’s acceptance of the causal link between the assaults and the conviction counsels against finding that novus actus interveniens is applicable.