A Grotesque Miscarriage of Justice
By Mat Wilson

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 ignorance and 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." Whether it is a legal finding, a medical diagnosis or a common understanding it is clearly something that Ms. Hoage has been forced to live with, and the failure to compensate her accordingly is a grotesque, inexcusable abdication of responsibility. Moreover, failure to provide adequate, monetary compensation has psychic as well as financial consequences, and the Criminal Injuries Compensation ought to be held accountable for ignoring the clear mandate to compensate these victims of violence.

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. 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. Clearly, if the board could award him $5,000, it could also acknowledge the trauma of victims like Ms. Hoage and Ms. Flanagan.

The questions that beg attention are very clear. What is behind this culture where the truth is distorted so completely that it loses all semblance to reality? What is the root of this virtual psychosis?

Most people are quite ignorant about the process. They do not understand the behind-the-scene agreements that are really responsible for the failure to compensate victims like Liz Hoage and Wendy Flanagan. To be brief, in actual practice, the phrase "pain and suffering" has become 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 these ignorant gimmicks that are routinely deployed to deny warranted compensation.

A key factor which scripts the carefully molded mindset that is responsible for denying adequate compensation is nourished by the oxymoronic, "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 victims are ultimately forced to subsidize the routine evasion of warranted compensation.

Clearly, when lawyers are highly compensated by corporations and government agencies that routinely fail to compensate victims like Liz Hoage, they pretend to be follow the letter of the law when in fact, they simply tinker to manufacture “legitimate” excuses to justify indefensible, imbecilic, “legal opinions” which are used to inappropriately claim the authority to abuse the rights of victims like Liz Hoage.

Lawyers simply 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?

The government is supposed to protect victims like Liz Hoage, not rob them of their dignity, and we should all denounce the ugly consequences of arbitrary denial masked by the grotesque claim that such outrageous miscarriages of justice are prescribed by law. They are not.

How long will such grotesque miscarriages of justice be tolerated? Did anybody stand up for the victims of disgraced pathologist, Dr. Charles Smith until he was publicly exposed? How many authorities used Dr. Charles Smith to promote their interests? Did any of them get prosecuted for the miscarriages of justice they facilitated?

Does anybody actually think that Dr. Charles Smith was an all-powerful monster who had the power and the authority to pervert the entire judicial process? In fact, like the lawyers who currently deny victims of crime, Dr. Charles Smith was merely a tool of a corrupt culture which invariably perverts the judicial process because when people are not forced to be accountable, victims like Liz Hoage and Wendy Flanagan are routinely denied the compensation they deserve.

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. Lawyers constantly tinker with legislation on behalf of clients with deep pockets in effort to derail access to justice, but they merely facilitate miscarriages of justice becuase the rights of every single individual in Canada are protected by the Charter.

You have to chuckle nervously, when you hear the preposterous claim that victims like Liz Hoage are being denied as a matter of law. On some base level, they are certainly correct because even the Nazis came to power through legal means. The bottom line, however, is very clear. If the law was as responsive as it should be, these miscarriages of justice would not repeat like clockwork, and that is the entire point of standing up for all victims of crime.

The psychology of this massive yet still unacknowledged rape of human dignity is more common than we would like to think.

Psychologist, 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 such Nazi-like conduct, and when you unveil the camouflage, there is absolutely no excuse for the fact that the practice of destroying human dignity is indeed 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. Consequently, the failure to compensate victims like Liz Hoage and Wendy Flanagan, speaks for itself.

As Chief Justice Beverley McLachlin indicated on February 10, 2011, there is a crisis of access to justice in Canada, and that is not acceptable;

"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."

When she suggests that governments and corporations pay lawyers $750 for their wonderful access to justice, does she mean they fund their cottages in Muskoka on the backs of people like Liz Hoage and Wendy Flanagan?

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 they need and deserve.

Tim Hudak is essentially clueless because victims of crime are not 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 clearly not subject to dispute.

On March 21, 2011, Ontario's premiere 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.”

And then he 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.”

The only way to fix the problem is to get rid of the disease, and like Mr. Hudak, McGuinty proved to be equally clueless. 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." The Criminal Injuries Compensation Board clearly shredded the spirit of that legislation yet they have not been held accountable for this grotesque violation of the rule of law.

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." Without any authority, the Criminal Injuries Compensation Board breached this legislation and that is not acceptable.

I spoke with the Criminal Injuries Compensation Board on March 29, 2011 and they blame legislation for all this denial. (I am not kidding.)

To sustain the false impression that legislation is responsible for this travesty of justice, the Board said “nervous shock is not a medical diagnosis.” Looks like the lawyers have reinforced the disinformation but under the rule of 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.

Clearly, in the final analysis, the suggestion that the Criminal Injuries Compensation Board has any meritorious legal standing to deny victims like Liz Hoage compensation is totally ludicrous.

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. The single-minded focus on a single Tort case is very interesting. To be brief, in negligence law, compensation for psychiatric damage, or nervous shock has often posed a challenge for common law courts and the concerns are certainly 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. But it is absolutely ludicrous to reduce all these preoccupations to a single case which was used for the purpose of denying people like Liz Hoage the compensation they deserve.

That is clearly not justice.

Manifest delusions aside, the Criminal Injuries Compensation Board is in violation of the law, especially legislation which pertains to the rights of victims of crime. In essence, the Board managed to overrule parliament through their deceptive tactics and like Dr. Stuart Smith, they will continue to do so as long as they can get away with it.

Why are miscarriages of justice a common and daily occurrence?

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