Ex Turpi Causa Non Oritur

On Friday the Supreme Court of Canada released its decision in British Columbia v. Zastowny, 2008 SCC 4 (Many thanks to Jamie Trimble, President Elect of the Ontario Bar Association for alerting me to this important case). The case deals with a novel claim for loss of income during a term of incarceration. In the decision the Court made a solid review of the concept of the ex turpi doctrine.

Mr. Zastowny was sexually assaulted by a guard while an inmate in correctional facility. After his release he committed further crimes and spent many years in prison. Mr. Zastowny sued British Columbia which admitted liability for the sexual assault. At trial Mr. Zastowny was awarded loss of income for time that he spent in jail, and future loss of income. The trial judge found that his criminal behaviour was caused or materially contributed to by the assault: 2004 BCSC 1273 (CanLII). The trial court held that Mr. Zastowny’s mistrust of the criminal justice system and his alienation from justice authorities led Mr. Zastowny to conceal his abuse and led to greater sentences than he would have received had he disclosed the abuse. Further, Mr. Zastowny’s stance in prison in regards to prison authorities meant that he served most of his sentences to his mandatory release date. He held it was unlikely that Mr. Zastowny would have been sentenced as he was or served his sentences to their maximums had the courts and prison officials known that he had been sexually assaulted by a prison officer. There was a solid evidentiary basis for these findings of fact.

The British Columbia Court of Appeal, in a split decision, reduced the award of past loss of income for the "core" time that Zastowny was in prison because of his crimes, but upheld the loss of income for "extra" time that he served because of poor behaviour in jail. The Court of Appeal reduced the award for future loss of income because there was a high risk that Mr. Zastowny would reoffend and go back to jail.

The Supreme Court of Canada applied the ex turpi causa non oritur doctrine to set aside the past loss of income for all of the time that Mr. Zastowny was in jail. It also upheld the reduction in future income loss attributable to time that Mr. Zastowny would spend in jail. The Court said that with the exception of unusual circumstances like wrongful conviction, responsibility for a mens rea offence remained with the offender and that to allow recover of loss of income while a person was in jail for the commission of such a crime would create a conflict between the criminal and civil law. This result is very sensible because otherwise the very foundation of criminal law – that is that criminals are punished for the wrongs they do because they are responsible independent actors – would fail. How can we justify punishment (as opposed to, say, separation) if persons who commit crimes do so because of their history?

It may be that a sociological analysis of why people offend would focus on their history and background (and eliminate or reduce their personal responsibility), but such a change in the law would be a massive shift in the underlying concepts of the Common Law.

The Ex Turpi Causa Non Oritur Actio Doctrine

19 The ex turpi doctrine, as applied in tort, has not historically been well understood. In Hall v. Hebert, 1993 CanLII 141 (S.C.C.), [1993] 2 S.C.R. 159, McLachlin J. (as she then was) says that its application in tort, “in both Canada and elsewhere, has had a chequered history” (p. 171). The seminal case explaining the judicial policy underlying the ex turpi doctrine and its application in the context of tort law is the majority judgment of McLachlin J. in Hall v. Hebert.

20 The question is, “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” (p. 169). The following principles and approach are established in Hall v. Hebert and are applicable in the present case.

1. Application of the ex turpi doctrine in the tort context invalidates otherwise valid and enforceable actions in tort (p. 169).

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” (p. 169).

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 (p. 169).

It would, in short, introduce an inconsistency in the law. It is particularly important in this context that we bear in mind that the law must aspire to be a unified institution, the parts of which – contract, tort, the criminal law – must be in essential harmony. For the courts to punish conduct with one hand while rewarding it with the other, would be to “create an intolerable fissure in the law’s conceptually seamless web”: Weinrib, supra, at p. 42. We thus see that the concern, put at its most fundamental, is with the integrity of the legal system. [p. 176]

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”:

Such damages accomplish nothing more than to put the plaintiff in the position he or she would have been in had the tort not occurred . . . . [A plaintiff should get] only the value of, or a substitute for, the injuries he or she has suffered by the fault of another. He or she gets nothing for or by reason of the fact he or she was engaged in illegal conduct. [pp. 176-77]

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” (pp. 181-82).

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.

21 In the case at bar, there is no challenge to the awards made for the personal injury suffered by Zastowny from the sexual assaults, namely the awards of general and aggravated damages and for future counselling. Nor is there a challenge to the award of past wage loss for the period when Zastowny was not incarcerated. The sole issue on the appeal is whether Zastowny is entitled to compensation for wage loss while he was incarcerated.

22 Zastowny’s wage loss while incarcerated is occasioned by the illegal acts for which he was convicted and sentenced to serve time. In my view, therefore, the ex turpi doctrine bars Zastowny from recovering damages for time spent in prison because such an award would introduce an inconsistency in the fabric of law. This is because such an award would be, as McLachlin J. described in Hall v. Hebert, at p. 178, “giving with one hand what it takes away with the other”. 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. As Deschamps J. found in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Maksteel Québec Inc., 2003 SCC 68 (CanLII), [2003] 3 S.C.R. 228, 2003 SCC 68, at para. 33, “[e]very incarcerated offender must suffer the consequences that result from being imprisoned, namely loss of employment for unavailability.” An award of damages for wages lost while incarcerated would constitute a rebate of the natural consequence of the penalty provided by the criminal law.

23 Preserving the integrity of the justice system by preventing inconsistency in the law is a matter of judicial policy that underlies the ex turpi doctrine. “Judicial policy” was this Court’s justification for barring a similar claim for past wage loss due to incarceration in H.L. v. Canada (Attorney General), 2005 SCC 25 (CanLII), [2005] 1 S.C.R. 401, 2005 SCC 25. In that case, the plaintiff was a resident of a First Nations reserve. When he was 14 years old he joined a boxing club on the reserve that was operated by the Department of Indian and Northern Affairs and administered by William Starr. Starr sexually assaulted the appellant by subjecting him to two acts of masturbation. H.L. became addicted to alcohol, had emotional difficulties, and engaged in criminal conduct. He claimed damages from the Government of Canada, including loss of income both past and future, as a consequence of the sexual assaults. The claim included loss during periods of time for which he was incarcerated. His claim succeeded at trial, but was overturned by the Saskatchewan Court of Appeal on the awards for loss of income.

24 This Court allowed the appeal to the extent of restoring the award for past wage loss while H.L. was at liberty, but excluding recovery for the periods of time he was incarcerated. Fish J. for the majority concluded that an award for wage loss due to incarceration was not only unsupported by the evidence, but was, in any event, contrary to judicial policy:

In calculating H.L.’s loss of past earnings, the trial judge did not reduce the damages awarded to reflect the time H.L. spent in prison. The Court of Appeal intervened in this respect — quite properly, in my view. As Cameron J.A. noted, to compensate an individual for loss of earnings arising from criminal conduct undermines the very purpose of our criminal justice system . . .; an award of this type, if available in any circumstances, must be justified by exceptional considerations of a compelling nature and supported by clear and cogent evidence of causation.

Thus, on any view of the matter, the trial judge’s finding that Mr. Starr’s sexual abuse of H.L. caused his loss of income due to imprisonment is both contrary to judicial policy and unsupported by the evidence. [Emphasis added; paras. 137 and 143.]

25 Bastarache J. dissented in H.L. but his views on the specific issue of awarding damages for wage loss for periods of incarceration were similar to those of

Fish J. In writing for himself and three other judges, he found that to compensate a plaintiff for lost wages due to incarceration would “undermine the principles of our criminal justice system” (para. 344). In concluding as much, Bastarache J. pointed to Samuels J.A.’s reasons in the Australian case State Rail Authority of New South Wales v. Wiegold (1991), 25 N.S.W.L.R. 500 (C.A.), at p. 514:

If the plaintiff has been convicted and sentenced for a crime, it means that the criminal law has taken him to be responsible for his actions, and has imposed an appropriate penalty. He or she should therefore bear the consequences of the punishment, both direct and indirect. If the law of negligence were to say, in effect, that the offender was not responsible for his actions and should be compensated by the tortfeasor, it would set the determination of the criminal court at nought. It would generate the sort of clash between civil and criminal law that is apt to bring the law into disrepute. [Emphasis added.]

26 H.L. is authority for the proposition that 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.

27 The ex turpi doctrine has been applied by the courts of the United Kingdom on a basis similar to that found appropriate in Hall v. Hebert and H.L. In Clunis v. Camden and Islington Health Authority, [1998] Q.B. 978 (C.A.), the plaintiff had been discharged from a hospital where he had been detained under the U.K.’s Mental Health Act 1983. His mental condition deteriorated and two months later he stabbed a stranger to death. He pleaded guilty to manslaughter. He subsequently brought an action against his local health authority for negligence. He claimed that in consequence of the health authority’s breach of duty he would be detained for longer than he otherwise would have been and was unlikely to regain his liberty for many years. The Court of Appeal found that he had no cause of action because his claim was “essentially based” on an illegal act. Lord Justice Beldam stated, at p. 990:

[T]he plaintiff’s claim is essentially based on his illegal act of manslaughter; he must be taken to have known what he was doing and that it was wrong, notwithstanding that the degree of his culpability was reduced by reason of mental disorder. The court ought not to allow itself to be made an instrument to enforce obligations alleged to arise out of the plaintiff’s own criminal act and we would therefore allow the appeal on this ground.

As pointed out by the United Kingdom Law Commission, Consultation Paper No. 160, The Illegality Defence in Tort (2001), at — 4.100:

Clunis v. Camden and Islington Health Authority . . . seems entirely justifiable if the rationale of consistency is accepted: it would be quite inconsistent to imprison or detain someone on the grounds that he was responsible for a serious offence and then to compensate him for the detention.

28 A similar conclusion was reached in Worrall v. British Railways Board, [1999] E.W.J. No. 2025 (QL) (C.A.), in which Lord Justice Mummery stated, at para. 34:

Having been convicted of those offences the plaintiff must be treated in this action as fully and personally responsible in law for his deliberate criminal acts and for the consequences of them, including financial loss resulting from the criminal conviction. It would be inconsistent with his criminal conviction to attribute to the negligent defendant in this action any legal responsibility for the financial consequences of crimes which he has been found guilty of having deliberately committed.

29 Cohen J. rejected the application of the ex turpi doctrine because he found that “compensation for lost wages . . . [was not] an evasion or ‘rebate’ of the plaintiff’s criminal punishment” (para. 245); that the criminal penalty was a term of confinement and he was not making an award to compensate for confinement. Although he had the benefit of the United Kingdom and Australian precedents that denied compensation for the civil consequence of incarceration, he did not have the decision of this Court in H.L.

30 The judicial policy that underlies the ex turpi doctrine precludes damages for wage loss due to time spent in incarceration because it introduces an inconsistency in the fabric of the law that compromises the integrity of the justice system. 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. Zastowny was punished for his illegal acts on the basis that he possessed sufficient mens rea to be held criminally responsible for them. He is personally responsible for his criminal acts and the consequences that flow from them. He cannot attribute them to others and evade or seek rebate of those consequences. As noted by Samuels J.A. in State Rail, to grant a civil remedy for any time spent in prison suggests that criminally sanctioned conduct of an individual can be attributed elsewhere. E. K. Banakas discussed this issue in “Tort Damages and the Decline of Fault Liability: Plato Overruled, But Full Marks to Aristotle!”, [1985] Cambridge L.J. 195, at p. 197:

Although it is morally irrational to punish a person unable to account for his actions, it is even less rational to compensate such a person for his punishment following his unchallenged conviction for a mens rea offence; if the conviction stands, punishment is a lawful injury, if not, there should be no punishment at all and no injury of the kind compensated in this case. Tort law has enough on its plate without having to play criminal law’s conscience; besides, if lawful injury, inflicted by the courts themselves, starts being compensated in negligence, where will it all end? [Underlining added.]