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Supreme Court of Canada: No Wage Loss Compensation While in Prison Caused by Sexual Assault by Staff

Supreme Court of Canada: No Wage Loss Compensation While in Prison Caused by Sexual Assault by Staff

On February 8, 2008, the Supreme Court of Canada ruled that a prisoner cannot recover damages for lost wages that occurred while he was incarcerated.

Dean Richard Zastowny was 18 when he committed burglaries to support his crack cocaine habit. Convicted of breaking and entering, he was sent to Oakalla prison in British Columbia where Roderick David MacDougal worked as a classification officer. MacDougal twice sexually assaulted Zastowny by forcing oral sex on him, using threats and inducements.

Zastowny was released from prison a year later, became addicted to heroin, and maintained a criminal lifestyle that resulted in his incarceration for 12 of the next 15 years. While serving time for robbery seven years after his initial release, Zastowny learned that MacDougal was being investigated. He contacted the police and MacDougal was subsequently convicted of the sexual assaults.

Zastowny then filed suit against British Columbia, alleging that the government was vicariously responsible for the emotional injuries he suffered due to MacDougal’s sexual abuse. A psychologist who was also an expert on heroin addicts testified that Zastowny exhibited low self-esteem, anti-social behavior and sexual anxiety as a result of the abuse, and that his resentment, rebelliousness, alcohol use, heroin addiction and poor work record stemmed from MacDougal’s sexual assaults. The psychologist concluded that Zastowny would have spent much less time in prison but for the sexual abuse.

Relying heavily on the psychologist’s testimony, the trial court awarded Zastowny $60,000 in general and aggravated damages; $15,000 for future counseling; $150,000 in past lost wages, which included the time he spent in prison; and $50,000 in future lost wages. The defendants appealed.

The British Columbia Court of Appeals held that Zastowny could not receive compensation for lost wages for the time he was incarcerated. However, the appellate court settled on the theory that Zastowny would have made parole sooner had it not been for his bad conduct which had its genesis in the sexual assaults.

Therefore, the Court held that Zastowny could recover lost wages for the time he spent in prison after becoming eligible for parole, reducing the past lost wages award by 40%. The Court of Appeals also reduced the future lost wages award by 30% because the psychologist had opined Zastowny was at high risk of returning to prison. The defendants appealed again, and Zastowny cross-appealed.

The Supreme Court of Canada held that the doctrine of ex turpi causa non oritur action (no right of action arises from an immoral cause) prevented the recovery of damages for any period of incarceration except one caused by wrongful conviction. The ex turpi doctrine is only applied to preserve the integrity of the legal system.

In this case, the forfeiture of all wages a prisoner could have earned but for his imprisonment, which is a consequence of his criminal conduct, clashes with the civil law’s allowance for recovery of past lost wages. The ex turpi doctrine operates to prevent recovery of past wages for any legitimate period of incarceration, regardless of whether the prisoner was eligible for parole or not. Under this analysis, the Supreme Court held the reduction in past lost wages should have been 80%.

Furthermore, the Court of Appeals was correct in reducing future lost wages based upon the psychologist’s belief that Zastowny had a high risk of being returned to prison.
Therefore, the award for past lost wages was reduced to $30,000 and the award for future lost wages was reduced to $35,000. The other awards were unaffected, for a total judgment of $140,000. See: British Columbia v. Zastowny, Supreme Court of Canada, Case No. 2008 SCC 4.

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