(Re) 1609-04679, 2017 ONCICB 113

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Keith Forde Date: May 03, 2017 Indexed as: (Re) 1609-04679

ORDER

Introduction

1The Applicant who is correctional officer at [Name] asks the Criminal Injuries Compensation Board (CICB) to compensate him for injuries resulting from a crime of violence which occurred on [date], 2016 in accordance with the Compensation for Victims of Crime Act, RSO 1990, c. C.24, as amended (the “Act”). He is seeking compensation for pain and suffering incurred from one act of assaulting a peace officer, perpetrated by the Alleged Offender who was an inmate at [Name] at the time.

2The Alleged Offender was charged with assaulting a peace officer and the charge is still pending in court awaiting the completion of his parole in [another province].

Decision

3The CICB awards the Applicant $6,000.00 for pain and suffering for the reasons set out below.

Issues

4The Applicant is required to prove, on a balance of probabilities, not only that he was a victim of a crime of violence, but also that as a result of this crime of violence, he suffered an injury pursuant to section 5(a) of the Act;

a) The CICB must assess all relevant circumstances and whether or not compensation should be awarded and if so, the amount.

Evidence

The Applicant’s Evidence

5The following is a summary of the facts and circumstances taken from the Applicant’s Application information and from the [Name] Police correspondences to the CICB.

6The Alleged Offender was a first time federal offender serving a 7 year, 2 month sentence after being convicted of robbery, possession under and unlawful possession of a firearm. The Alleged Offender commenced his sentence on [date], 2011, and was incarcerated at [Name] at the time of the incident. [Name] is located in [Municipality].

7On [date], 2016, the Nurse at [Name] was conducting rounds in the segregation unit, when she attended the cell housing the Alleged Offender. At this time, the Alleged Offender advised the Nurse that he had swallowed a razor blade which was within his pencil sharpener. The Institutional Doctor and the Correctional Manager were notified. As a result, the Alleged Offender was moved to segregation cell and placed on a modified suicide watch. A security gown was provided to the Alleged Offender and two additional health care assessments were conducted on him. The Alleged Offender was scheduled for an involuntary transfer to a maximum security prison in [another province] the following day [date], 2016, which was causing an escalation in his behaviour.

8On [date], 2016, the Alleged Offender was being assessed medically and psychologically in the segregation unit prior to his scheduled transfer out to [another province]. The Alleged Offender had recently been placed on suicide watch and a medical assessment was conducted which found that he was fit for transfer.

9At approximately 9:00 am, the Alleged Offender met with the Psychologist as a follow up meeting. Correctional Officers remained outside the door with a view within the interview room for privacy. During this meeting, the Alleged Offender suddenly, without warning, jumped up from his seat and lunged towards a shelf in the interview room. He took a hold of a bottle of hand sanitizer and turned his back to the Psychologist. He then opened the hand sanitizer and made attempts to consume the contents of the bottle. The Psychologist reacted making efforts to secure the Alleged Offender from behind to prevent the ingestion of the bottle contents. The Correctional Officers outside the door responded immediately entering the room. Physical handling was utilized to retrieve the bottle from the Alleged Offender, as he was unable to consume very much of the liquid sanitizer prior to the physical intervention. The Alleged Offender was placed in restraints and removed from the interview room.

10At this point, the Officers secured the Alleged Offender in an examination room and waited for the Institution Doctor to attend to assess him. The Alleged Offender learned that his transfer to Edmonton Institution may be changed and he started to settle down. The Alleged Offender remained calm in the examination room during this time.

11The attending Doctor, who assessed the Alleged Offender, told him that the decision was to prepare for his scheduled transfer to [another province]. Upon hearing this news, the Alleged Offender's behaviour immediately spiked again and he began to flail and kick at the Correctional Officers. Physical intervention was again required by Officers to prevent the Alleged Offender from seriously harming himself or others. Upon seeing this, the Applicant got behind the Alleged Offender on the medical table and held him so that the Doctor could complete a medical check. The examining Doctor confirmed that the Alleged Offender was medically fit to travel to [another province]. Officers began to remove the shackles and coveralls from the Alleged Offender. The Applicant was still holding the Alleged Offender’s head and he could feel him starting to strain and flex his body towards his legs. The Alleged Offender was told to stop resisting and to relax, when all of a sudden, he flung his head back at the Applicant, striking the Applicant in the chest area, causing him to hit the back of his head off the cement wall several times.

12After the assault, the Applicant felt nauseous, light-headed and dizzy and advised his supervisor that he needed to seek medical attention. The Applicant attended [Name] Memorial Hospital where he was diagnosed with a concussion.

13Investigators from the [Police] attended the Institution and conducted an investigation. Statements were obtained from all of the witnesses to the incident and a video of the incident was downloaded. The video did not capture the assault but shows the Applicant coming out of the examination room where the assault took place. He is seen on video holding the side of his face and talking to the Correctional Manager.

14The Alleged Offender was subsequently charged with assaulting a peace officer, 270(1)(a) of the Criminal Code. The charge is still pending in Court.

15The Applicant also provided the CICB various documents in support of his claim.

16The CICB was in receipt of a medical report from [Name] Memorial Hospital which noted that the Applicant was seen in the emergency department and complained of his head being struck on the wall two times and being nauseous. The Applicant was diagnosed with a head injury/concussion. The Applicant was prescribed medication and instructions on concussions.

17The CICB was also in receipt of a medical report from Dr. [Name] of the [Name] Walk in Clinic. He noted that the Applicant complained of headaches and short term memory loss.

18The CICB was also in receipt of a medical report from Neurologist, Dr. [Name], who noted that the Applicant presented with headaches and complaint of head injury. Dr. [Name] noted that the Applicant’s prognosis was good and that there has been significant improvement and that the residual headaches are likely to be resolve within several months.

Injuries

Physical

19The Applicant noted to the CICB that as a result of the assault, he suffered from the following: headaches; blurred vision; short term memory loss; sensitivity to light; poor memory; dizziness; nauseous; and concussion.

Psychological/Emotional

20After the incident, the Applicant was afraid that his daughter could not be left alone with him. He suffered from flashbacks of the incident and fearful of another concussion.

Analysis

21The fact that there has not been a conviction does not mean a denial of this Applicant’s claim. Section 16(1) of the Act provides that compensation may be awarded whether or not a person has been prosecuted or convicted of the offence giving rise to the injury. The CICB must determine whether the Applicant was the victim of a crime of violence when the Alleged Offender assaulted him.

22In this matter, the Applicant alleges that he was assaulted by the Alleged Offender who was an inmate of the same correctional institution the Applicant was working at as a correctional officer. The Applicant was in the lawful execution of his duties on [date], 2016 when he was violently head butted several times. The CICB finds this to be the case on a balance of probabilities. The CICB accepts the Applicant’s written evidence which was corroborated by the [Police] investigation and resulted in the Alleged Offender being charged with assaulting a peace officer.

23For the reasons detailed above, the CICB is persuaded that the Applicant was a victim of a crime of violence, specifically, assaulting a peace officer, which caused physical and psychological injuries to the Applicant. The CICB therefore concludes that the Applicant is a victim under section 5(a) of the Act and is entitled to compensation.

24In assessing compensation for pain and suffering, the CICB has considered all of the documentary evidence that was presented. The CICB was mindful of the circumstances of this incident and physical injuries suffered by the Applicant and considered the following aggravating facts:

a) That the Applicant was a correctional officer and was in the lawful execution of his duties;

b) That the assault occurred in the correctional institution;

c) That the Alleged Offender was an inmate of the said correctional institution;

d) That the Applicant required medical intervention;

e) That the Applicant suffered a concussion; and

f) The impact the assault has had on the Applicant; general well-being, relationships and emotional/psychological state.

25Having considered these factors, the CICB now awards the Applicant $6,000.00 for pain and suffering.

Award

26The CICB orders payment as follows:

Section 7(1) (d) Pain and Suffering $6,000.00

TOTAL CURRENT AWARD $6,000.00

27The CICB recognizes that no amount of money can adequately compensate victims for the injustice they have suffered but also finds the amount of the award to be reasonable within the context of the Act.

Payment

28THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $6,000.00