A Grotesque Miscarriage of Justice

The shock is over an investigative report by David Bruser, wherein he exposed the following fact;
"The provincial agency that is supposed to compensate crime victims has denied pain and suffering payments to three grieving mothers because they did not witness the killing of their children."

Where does this level of cruelty come from?

Background Report: The provincial Criminal Injuries Compensation Board was set up to help victims of violent crime and their families with payouts for psychological trauma, funeral costs and other expenses. Liz Hoage is one of these victims. Her 16-year-old son Joey was stabbed to death and he was pronounced dead at a Barrie hospital.

Instead of acknowledging the trauma Liz Hoage experienced when her son was stabbed to death, the lawyers who work for the Criminal Injuries Compensation board have evidently discovered a way to deny payment. According to the agency, the trauma that Liz Hoage experienced, "is a legal finding, not a medical diagnosis." Trauma is neither a legal finding nor a medical diagnosis, it is something that Ms. Hoage has been forced to live with, and the failure to compensate her accordingly is a grotesque abdication of responsibility. The failure to provide adequate, monetary compensation has psychic as well as financial consequences, and if the Criminal Injuries Compensation board is too incompetent to acknowledge the obvious, the members ought to resign.

Like Liz Hoage, Wendy Flanagan has been a living nightmare since her daughter disappeared. The repeated mantra from the cops was "no foul play suspected", but that proved to be wrong when a woman walking her dog found part of a human leg bone in a field known as Lackie's Bush. One bone had been sawed through. The provincial Compensation board refused to compensate Wendy Flanagan for the trauma she experienced, but they had no trouble awarding $5,000 to a police officer who tore a bicep tendon during a foot pursuit. He returned to duty without problems several months later but was distressed that he could not help his pregnant wife while injured. I certainly do not begrudge the fact that the board awarded him $5,000, but one would have to be out of touch with reality to suggest that it is even remotely plausible to manufacture a credible reason to deny Ms. Flanagan a compensation award for the trauma she experienced when the pain and suffering of relatively minor traumatic experiences is recognized.

The questions that beg attention are very, very clear. What is behind this culture where the truth is distorted so completely, that it loses all semblance to reality? The answer is crystal clear.

Most people are quite ignorant about the process. They do not understand the behind-the-scene agreements that are really behind the failure to compensate victims like Liz Hoage and Wendy Flanagan. To be brief, in actual practice, the phrase "pain and suffering" is like a non-compensable, pre-existing condition where denial is arbitrarily imposed and it has absolutely nothing to do with truth, justice, the law, or any other democratically endowed principle. It has to do with the arbitrary, unreasonable exercise of brute force and power and it is time to lift the veil of secrecy behind the ignorant gimmicks that are routinely deployed to deny warranted compensation.

A key factor that scripts the carefully molded mindset that is responsible for denying adequate compensation is nourished by the oxymoron, "no-fault insurance" culture. We tend to implicitly ignore the trauma of the individual when nobody is supposed to be at fault, and the consequence is that the victim ultimately subsidizes the cause of the accident, encouraging unaccountability on the part of those who are in fact negligent. Similarly, the Criminal Injuries Compensation board is dismissing the consequence of the trauma of grieving mothers and that is not acceptable.

Unfortunately, lawyers are highly compensated by corporations and government agencies that routinely fail to compensate victims like Liz Hoage because they are more obsessed by what they perceive to be their own, narrow special interests than they are about doing what the law prescribes. To be sure, they pretend to be following the letter of the law because if they did not manufacture a “legitimate” excuse to justify their indefensible, imbecilic, “legal opinions” they would not be able to pretend to have the authority to abuse the rights of victims like Liz Hoage.

The needs and interests of Liz Hoage are being ignored because most "respectable" lawyers essentially exercise what is called a win-win performance agreement on behalf of clients with bottomless pockets. The interdependent reality of the fact that most lawyers work for the government and for large corporations is that vulnerable people like Liz Hoage are taken advantage of, and that is not acceptable. The government is supposed to protect victims like Liz Hoage, not rob them of their dignity, and that is clearly the consequence of arbitrary denial masked by the grotesque misrepresentation that the law is on their side. It is not.

Lawyers fail to acknowledge the rights of victims like Liz Hoage because it is much easier for them to manage what is essentially the win-win performance agreements (clients and lawyers win) that are the major source of their bread and butter. Why rock the boat when they can charge corporations $750 an hour to draft legislation to make it easier for their clients to stack the deck against victims like Liz Hoage?

If lawyers are currently failing to stand up for the rights of victims like Liz Hoage, it is because ignorance is bliss. Did anybody stand up for the victims of disgraced pathologist, Dr. Charles Smith, until he was publicly exposed? Do you actually think that Dr. Charles Smith was an all-powerful monster who had the power and the authority to pervert the entire judicial process? He was not and he did not. He was merely a tool of a corrupt culture which invariably perverts the judicial process when people are not trustworthy and accountable, and in the final analysis, denying Liz Hoage the compensation she deserves is no less of a travesty of justice.

Without adequate oversight and accountability, reason is routinely ignored or hijacked by lawyers who finance their expensive habits ($750 an hour whether they are as credible as Dr. Charles Smith or not) by taking advantage of the most vulnerable in our society, and that is not acceptable.

In the civil litigation context, when lawyers become advocates of special, narrow interests, those who do not abandon their prejudices when they become judges pervert the judicial process through asinine judgements that are quite easy to identify because they are scripted and prescribed even before a problem is adequately diagnosed.

In a democracy, the repressive exercise of power is always the consequence of a cruel masquerade that is spawned by inadequate oversight and inadequate accountability and even the courts, which are supposed to be the guardians of individual rights, are subject to be corrupted. The non-criminal consequence of the "Smith factor" (using experts to misrepresent) is thus; When lawyers constantly tinker with legislation on behalf of clients with deep pockets and erect imbecilic barriers to justice, they essentially facilitate miscarriages of justice.

You have to chuckle nervously, when you hear the preposterous claim that victims like Liz Hoage are being denied as a matter of law. Canadians understand the law, and they also know that even the Nazis came to power through legal means. Canadians also understand the miscarriages of justice that would not be repeated like clockwork, if the law was as responsive as it should be.

The psychology of the massive rape of human dignity is more common than we would like to think. Carl Jung stressed the importance of individual rights in a person's relation to the state and society. He saw that the state was treated as "a quasi-animate personality from whom everything is expected" but that this personality was "only camouflage for those individuals who know how to manipulate it" and referred to the state as a form of slavery.

Jung essentially denounced the arrogance and the psychology of the Nazis, and when you unveil the camouflage, the practice of destroying human dignity is clearly thriving.

Jung said "Hitler seemed like the 'double' of a real person, as if Hitler the man might be hiding inside like an appendix, and deliberately so concealed in order not to disturb the mechanism ... You know you could never talk to this man; because there is nobody there ... It is not an individual; it is an entire nation."

If we misrepresent or conveniently misinterpret legislation, we can even legitimize Hitler and that is why it is vital to make it very clear that justice and freedom is ultimately about non-negotiable, individual dignity. Compensate victims like Liz Hoage and Wendy Flanagan, because the failure to do so is not appropriate.

It is necessary and important to stand up for your own rights and those of others because, as Chief Justice Beverley McLachlin indicated on February 10, 2011, there is a crisis of access to justice in Canada. In her own words, she said;

"Do we have adequate access to justice? Well, I think the answer is no. We have better access than in many countries. But it is still not what it should be. Among those hardest hit are middle class and poor. We have wonderful justice for corporations, for wealthy. But the middle class and the poor may not be able, in many situations we have found, to access our justice system. They may earn too much for legal aid or have too many assets but have too little to retain a lawyer at the average billing rate -the last figure I got for 2009 was $338 an hour."

If the lawyers who charge $750 an hour worked for victims like Liz Hoage instead of the government and for corporations that like to dictate policy, they would emphasize the fact that the provincial Criminal Injuries Compensation Board is mandated by law to provide compensation to victims like Liz Hoage and Wendy Flanagan, and they would not fabricate legal cover, to deny them compensation.

UPDATE: Ontario PC Leader Tim Hudak, did not waste any time turning Liz Hoage into a photo opportunity. On March 18, 2011, he was joined by Liz Hoage and the founders of the Canadian Crime Victims Foundation to announce that at an Ontario PC Government will make significant changes to ensure that victims of violent crime receive the support that they need and deserve. The preposterous suggestion that Liz Hoage will get the compensation she deserves when Tim Hudak is elected, is absolutely silly. The guy must be a deluded

THE LAW: You really have to be seriously disturbed to claim that Liz Hoage has been denied, as a matter of law. This is how the legislation reads, as it applies to “pain and suffering.” (d) "Pain and Suffering" [CVCA s.7(1)(d)]
Pain and suffering compensation has the same meaning as damages under common law (eg. Negligence).
If that is the standard, then Liz Hoage clearly deserves to be compensated because it is well established in English law that a person who has intentionally and without good reason caused another emotional distress deserves compensation for any psychiatric injury that follows. And why did the Board deny payment? Let me quote directly:

“the Board finds that the applicant has failed to establish that he/she suffered the injury known as mental or nervous shock and therefore compensation for pain and suffering and income loss is therefore denied… In order to meet the threshold of mental or nervous shock, the Applicant’s emotional impact must have been prompted by actually witnessing the actual incident or the immediate aftermath. The evidence clearly indicates that this was not the case. The applicant was informed of the incident after the fact and in the surroundings of his/her home.”

The author of that nonsense has some very deep-seated, psychological problems to contend with. It is simply not possible to credibly undermine “pain and suffering” in Liz Hoage’s case because the trauma that is experienced by the sudden, unexpected death of someone close is not subject to dispute.

POSTSCRIPT: On March 21, 2011, in response to criticism from opposition justice critic MPP Ted Chudleigh, regarding the "compensation policy" of the provincial Criminal Injuries Compensation Board, McGuinty said: “We think there’s something fundamentally wrong. ... We think we need to work together to resolve that. ... We think we can and ought to bring about changes to ensure that this does not happen again.” Moreover, he said, “I think there is a real case to be made here for these families who lost children, and we think that we can do something.”

That is the encouraging part. But he also said, “We have asked the Criminal Injuries Compensation Board and officials to come up with options on how to address the very issues raised by the leader of the opposition.” You do not ask a Board that has proved to be totally ignorant, incompetent and corrupt, to do anything. You fire them outright because what they have done is not subject to any excuse. The last thing you need or ask for is "their options." Unless they involve their resignations.

The only way to fix the problem is to get rid of the disease.

ANALYSIS: People are extremely disturbed and offended by the actions of the Criminal Victims Compensation Board. In particular, contrary to their own claim that they abide by the principles of the Victims’ Bill of Rights, 1995, they have made an absolute mockery of that piece of legislation as well. The preamble to that act is the following: "The people of Ontario believe that victims of crime, who have suffered harm and whose rights and security have been violated by crime, should be treated with compassion and fairness" and the Criminal Injuries Compensation Board has clearly shredded the spirit of legislation that recognizes the following principles:

2. (1) The following principles apply to the treatment of victims of crime:

1. Victims should be treated with courtesy, compassion and respect for their personal dignity and privacy by justice system officials.

The failure to acknowledge emotional distress is equally unacceptable because legislation acknowledges the following presumption: "The presumption of the act is that victims and family members suffer emotional distress." Why does the Criminal Injuries Compensation Board think that it can breach this legislated presumption?

Clearly, a policy of draconian rules and regulations designed to control a situation is no excuse for failing to treat victims of crime with the humanity and dignity they deserve, and the current breach of these common standards of human decency is not only intolerable but contrary to the rule of law mandated by legislation that is currently ignored by the Criminal Injuries Compensation Board.

I spoke with the Criminal Injuries Compensation Board on March 29, 2011 and they blame legislation for all this denial. How can legislation possibly be so draconian? Who drafted it and can somebody please quote the legislation that has denied Liz Hoage because I am tired of this ignorant deception?

To sustain the false impression that legislation is responsible for this travesty of justice, the Board makes claims like “nervous shock is not a medical diagnosis.” Do they actually think that any intelligent person will think that this irrelevant disinformation is credible? Under the law, “nervous shock” has been deemed to be compensable whether it is a medical diagnosis or not. Moreover, case law is constantly evolving, it is not selective fodder for the justification of abuse.

The fact of the matter is, the Board could not provide a single good reason to justify their decision to deny Liz Hoage the compensation she deserves, and since the Criminal Injuries Compensation Board has encountered a barrage of widespread condemnation over the matter, if a good reason existed, I would have certainly heard about it today.

In the final analysis, the suggestion that the Criminal Injuries Compensation Board has any meritorious legal standing to deny Liz Hoage compensation is totally ludicrous. Blaming case law and legislation is merely code for protecting the special interests that routinely manipulate the judicial process to deny injured victims the compensation they deserve.

Footnote: When I spoke to the Criminal Victims Compensation Board, on March 29, 2011, they cited a single case, Dube vs. Penlon Ltd., to justify the denial of payment to Liz Hoage. At the very least, this single-minded focus on a single Tort case is very interesting because it betrays the intention of the Criminal Victims Compensation Board. To be brief, in negligence law, compensation for psychiatric damage, or nervous shock has often posed a challenge for common law courts. The concerns are numerous. They range from the danger of false claims, to the belief that a single accident will lead to a mass of claims and thus unfairly burden the tortfeasor, to the possible burden on the insurance industry should liability be unduly extended. Incomprehension of the true nature of mental illness is also a factor.

Again, these preoccupations have nothing to do with Liz Hoage or the legislation that applies to Liz Hoage, they have to do with obsessive special interests that conspire to pervert the judicial process.

TACTICS: The tactics that the Criminal Compensation Board has routinely deployed to deny entitled benefits to victims like Liz Hoage are getting stale. The Board simply proclaims that “the law” is the selective precedent they choose to accept and, in essence, they manufacture definitions to enforce their will.

If you are a reasonable person who believes in justice, you would clearly reject the bias that a selective interpretation of case law produces.

Judges contradict themselves all the time, one case is not the law. It is merely a single link in a chain that is always expanding, and the suggestion that an extremely complicated process can be reduced to one or two cases is absolutely preposterous.

The following is an actual definition of “the law.”

Legal: Regimen of binding rules of conduct (whether written or not) meant to enforce justice and prescribe duty or obligation, and derived largely from custom or formal enactment by a ruler or legislature. These rules (laws) carry with them the power and authority of the enactor, and associated penalties for failure or refusal to obey. The law, however, is not just a list of 'do's and don'ts,' but a system of primary and secondary rules which derive their legitimacy ultimately from universally accepted principles such as the essential justness of the rules, or the sovereign power of a parliament to enact them.

The key to legitimacy is that it is derived from universally accepted principles, not selective advocacy.

Clearly, manifest delusions aside, the Board is in violation of the law, especially legislation which pertains to the rights of victims of crime. In essence, the Board has managed to overrule parliament through their deceptive tactics, and they will continue to do so as long as they can get away with it.

VERDICT: The fact of the matter is, it is not legislation, but empathic listening, which provides the opportunity to extract reliable data. Lawyers and judges who merely talk with themselves about themselves, do not produce reliable verdicts. The so-called precedents they rely upon to create the impression that their decisions are grounded in law are therefore frequently irrelevant because they have absolutely nothing to do with the particular case that is before the court.

Incompetent lawyers and incompetent judges do nothing beyond project their own home movies onto other people's behavior. They invariably find the precedent they seek to justify a perversion of justice, but they do not have the vaguest idea what they are talking about because they merely prescribe the same pair of glasses to every single person they interact with, and that is not what the law is about. The law is about treating victims like Liz Hoage with the dignity and the respect they deserve. Reasonable people reject the collective, imbecilic monologues of those who are seeking to justify the denial of compensation because they merely mimic lunacy. Reflective judgement clearly illustrates the need to compensate victims like Liz Hoage, and every Canadian who is objective and reasonable, denounces every miscarriage of justice.

Next: Will the new, summary judgment rules be used or abused?

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