Supreme Court of Canada Denies Compensation for Abused Inmates Lost Income

by John McKiggan

A man who was sexually abused by a prison guard will not receive compensation for lost wages during subsequent imprisonments according to a report in the Halifax Chronicle Herald.

When he was 18 years old, Dean Zastowny was sexually abused by former prison guard and convicted sex abuser, Roderick MacDougall. MacDougall was described in the Statement of Claim as:

“…a sexual predator who singled out teenagers.”

Zastowny claimed his subsequent criminal misconduct was due, in part, to the psychological effects he suffered as a result of the sexual abuse by MacDougall. At trial he was awarded $150,000.00 in past lost wages and $50,000.00 for future income losses. The total award was $250,000.00.

But on Friday the Supreme Court of Canada ruled that:

“Zastowny’s wage loss while incarcerated is occasioned by the illegal acts for which he was convicted and sentenced to serve time,” and awarding damage for wages lost while in jail “would introduce an inconsistency in the fabric of law.”

Justice Rothstein said lost wages are a consequence of imprisonment.

“An award of damages for wages lost while incarcerated would constitute a rebate of the natural consequence of the penalty provided by law.”

The decision is not likely to be one that generates a great deal of controversy, because the plaintiff, Zastowny, is a life long criminal, and thus not a particularly sympathetic plaintiff.

That being said, while people who commit criminal offences must be held accountable for their actions, the decision doesn’t seem to address the well established rule of law, restitutio in integrum: injured persons are entitled to be compensated for any loss they have suffered that was caused, or contributed to, by the defendant’s misconduct.

If Zastowny’s criminal misconduct was caused or contributed to by his sexual abuse doesn’t justice demand that he be compensated for the losses he suffered during his subsequent imprisonment?

You can read the Supreme Courts whole decision here.

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