The Power of Perspectives

The Canadian Bar Association

Kerri Froc

Tapping the assailant's pension

March 18 2014 18 March 2014

Last month, one of the women sexually assaulted by former Canadian Forces colonel, Russell Williams, was due to appear in a Kingston court, requesting permission to amend her civil claim to allege a violation of her rights under the Canadian Charter of Rights and Freedoms.  In one of those claims, she argues that the federal government violated her rights by having legislation on the books that protects federal military pensions from all creditors, including women who have been sexually assaulted by the pension holders.  Protections for pensions are ubiquitous across the country, usually because, as a public policy matter, we do not want creditors to negatively affect the ability of elderly Canadians to support themselves in retirement.  As a constitutional matter, does this rationale continue to make sense when the creditor is a woman who the pensioner sexually assaulted?

The crimes Williams committed against women were notorious and horrific.  The plaintiff was beaten, restrained and blindfolded, recorded, and sexually assaulted by Williams in her own home. She claimed against Williams damages for suffering severe psychological trauma.  She has a separate claim against Williams’ wife, and the Ontario police (due to an alleged failure to warn the women in the neighbourhood after Williams’ first sexual assault).   If she succeeds in her action for damages, her best shot at receiving compensation for the crimes he committed is finding a way to access his assets (namely his home and his pension, both of which he attempted to transfer to his wife within weeks of being charged).   

Under federal law military pensions are “exempt from attachment, seizure and execution,” meaning that creditors cannot require the government to pay them the pension benefits.  There are exceptions, however.  In the case of a marriage breakdown and a court order for pension division, the Pension Benefits Division Act requires the government to transfer up to half of the pension credits to another party Where the creditor is owed money for family support, the Garnishment, Attachment and Pension Diversion Act also permits pension benefits to be diverted to satisfy the debt.  The government also is entitled to pay themselves from pension benefits, when a pensioner owes a tax debt.

Media reports have pegged Williams’ pension at roughly $60,000 per year.  In 2010, a source in the government said that it was looking into “civil remedies that could assist the families” in accessing his pension, suggesting that it was considering its own legal action. So far, it does not appear to have done anything of the sort. A legislation amendment to allow Williams’ victims payment from the pension also did not seem to be in the cards.

Even without the federal legislation standing in her way, there are still technical impediments under the common law that her lawyer may need to address.  But it is hard to dispute that the explicit prohibition in the federal law materially contributes to the plaintiff’s predicament.  Therefore, the plaintiff wants to claim that by blocking seizure of the pension, the government deprived her of her “right to be indemnified for physical and psychological losses” contrary to section 7 of the Charter.  Section 7 includes the right not to be deprived of one’s physical and psychological integrity “except in accordance with fundamental justice.”  This ordinarily means that these deprivations cannot be caused by laws that are arbitrary, overbroad, or have effects that are “grossly disproportionate” to the law’s objectives.

It’s been traditionally thought that because property rights were excluded from the Charter that “economic claims” (like the one here) are outside its scope.  But, violations of women’s rights to life and security of the person are very often intertwined with their economic vulnerabilities.  This fact was recently recognized by the Supreme Court of Canada in Bedford, where the impact of Criminal Code prostitution prohibitions particularly on some of the most economically marginalized women, contributed to its finding that the provisions violated women’s security of the person by hampering their ability to protect themselves from the risk of harm.  In light of this recent ruling, among other reasons, I think her claim raises serious issues that the government should heed. 

Suing for sexual assault usually means suing the individual perpetrator.  Making additional claims against institutional defendants, requires claimants to jump additional hurdles.  For instance, in the case of suing a perpetrator’s employer, a claimant must show a sufficiently strong connection between an employer’s enterprise and the sexual assault committed by its employee to have a court impose “vicariously liability.”  It is notable that the plaintiff’s case against Williams does not include a claim against the Canadian Forces as his employer.  Insurance policies usually have exclusions for criminal or intentional conduct, for obvious reasons. Therefore, the ability to collect upon the assets of individuals is particularly important to women (and it usually is women) who have been sexually assaulted.

Women have limited economic resources to hunt down the assets of individual perpetrators and collect upon their judgements.  Legislative provisions that block access to a perpetrator’s assets will thus, undoubtedly, have a disproportionate impact on them as a group.  The federal government, by blocking sexually assaulted women’s ability to seize the pensions of their perpetrators, is implicated in the violations of their section 7 rights to security of the person.  It is preventing women from having access to resources that could be used to provide income support and psychological therapy for their recovery, thereby increasing the risk that they will be unable to lessen the serious, lingering effects of sexual assault.   These women accordingly do not have substantively equal access to their rights to physical and psychological integrity, which is guaranteed to “male and female persons” under section 28 of the Charter.  It is fundamentally unjust, grossly disproportionate and discriminatory to deny women this remedy so male perpetrators like Williams can be assured of a financially secure retirement. 

It shouldn’t take a court to tell that to the federal government.  At the very least, the government should add sexual assault victims to other creditors who are exceptionally allowed access to government pensions.

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