(Re) 1608-04272, 2017 ONCICB 122

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: M. Saleem Akhtar

Date: May 11, 2017

Indexed as: (Re) 1608-04272

ORDER

Introduction

1This is an Application by the Applicant seeking compensation for physical and emotional injuries arising from the commission of a crime of violence in accordance with the Compensation for Victims of Crime Act, RSO 1990, c. C.24, as amended (the “Act”). The assault was committed against the Applicant by the Offender on [date], 2015 in the Province of Ontario.

Decision

2The CICB approves the claim made by the Applicant in relation to an assault committed against him on [date], 2015 by the Offender mentioned above and awards him the sum of $3,000.00 as compensation for pain and suffering, for the reasons set out below.

Evidence

Applicant’s written submissions regarding the incident

3In his Application, the Applicant described the incident under the heading “Details of the Crime” as follows:

On [date], 2015, I had stopped a motor vehicle regarding a traffic complaint, possibly the impaired driving…I attempted to arrest the male at which point he attempted to run away. Once, I grabbed the male by the shoulder, he turned around, lunged at me, biting first my left and then my right bicep. The bites penetrated my long sleeve police shirt and undershirt ripping the skin and causing great pain. I was able to take the male on the ground after pulling my arm from his mouth. Once on the ground, the male continued to bite my hands and arms only making contact briefly but I was able to pull my hands free before the male was able to bite down. Once I called for the TZER, the male stopped fighting, was rolled over, handcuffed and placed in the rear of my police vehicle. I received medical attention once I transported the male to the [Police] by EMS…

Applicant’s written submissions regarding his injuries

4The Applicant described his injuries under the heading “Details of Injuries” as follows:

I received bites to both biceps breaking the skin, several bumps bruising to the back and left side of head accompanied by two days of headaches due to punches thrown by the male, scrapes, cuts and bruising to both knees, legs, right elbow and swelling due to striking the ground when taking the male to the ground…I was unable to continue work until May 2015…To this day, I still have scarring on both biceps and continue to wake at night with thoughts of the incident. For several days after the incident, I was an emotional wreck, crying at the drop of a hat, not sleeping and wondering what I could have done different to avoid such an incident from reoccupying…I still have trouble speaking about the issue and still have scaring on both arms.

Police Report

5The Police Report, on file, corroborates the Applicant’s version of the incident. The Report adds that a second officer had to attend the location to make the Offender comply with the command of the police officer. “Once, at the detachment, the [Offender] again became actively resistant and eight police officers were required to conduct a safe search and processing.” As per Police Report, the Applicant “sustained multiple minor injuries during the incident, i.e. bruising, swelling etc.”

6After due investigation, Police charged the accused with dangerous driving, driving while ability impaired, resist peace officer, assault peace officer cause bodily harm, refuse to provide breath sample contrary to the provisions of sections 249(1) (a), 253 (1) (a), 129 (a), 270 .01(1) (b) and 254 (5) respectively of the Criminal Code of Canada RSC 1985, c.C-46. Later, the Offender was convicted of driving while impaired, refuse to provide breath sample and assault peace officer with a weapon.

Issue

7Pursuant to subsection 5 (a) of the Act, the CICB must determine on a balance of probabilities,

a) Whether a crime of violence occurred against the Applicant that caused him injuries; and, if so;

b) The nature and extent of the injuries sustained;

c) Whether compensation should be awarded and if so, determine the amount;

Analysis and Decision

8The CICB must determine on a balance of probabilities if the applicant is a victim of violent crime under subsection 5(a) of the Act. This subsection provides that the Applicant’s injury must have resulted from a “crime of violence” constituting an offence against the Code.

9In this claim, the CICB must be able to conclude that the Applicant was probably injured as a result of an intentional assault as opposed to being injured in some other way.

Crime of Violence

10Section 11 of the Act provides that proof of conviction shall serve as conclusive evidence that the offence has been committed. Therefore, in light of Section 11 of the Act, there is no question that the Applicant was a victim of a crime of violence involving the Offender as proven through the conviction described above.

11Hence, the remaining issues to be decided by the CICB in this matter are as follows:

a) The nature and extent of the physical and emotional/psychological injuries sustained by the Applicant as a result of the foregoing assault, and

b) Having regard to the relevant circumstances, whether compensation should be awarded and, if so, determine the amount.

Nature of Injuries

12The Applicant has claimed that he sustained broken skin, which was swollen and bruised. In addition, there were scrapes, cuts and bruising to his both knees and legs and his right elbow. These injuries caused him “great pain.”

13In terms of emotional injuries, he claimed that he was “an emotional wreck.” He had disturbed sleep and was wondering what he could have done differently to avoid the incident.

14In support of his physical injuries, the Applicant has provided Assessment and Treatment Reports from [Name] Memorial Hospital, his Family Physician and photos of his injuries. The Police Report also mentions that the Applicant “sustained multiple minor injuries during the incident, i.e. bruising, swelling etc.” These Reports corroborate the Applicant’s account of his physical injuries, as described above. The CICB accepts these reports for the purpose of compensation in this matter.

15With regards to his psychological injuries, the Applicant has claimed that he became an emotional wreck, and thought about the incident a lot, particularly at night and had trouble sleeping. However, the Applicant has not submitted any treatment report, and/or any professional advice from a physician or a therapist/counsellor or a social worker, which might have discussed the emotional impact that the assault may have had on him.

16In the absence of any relevant supporting medical documentation, it is difficult, if not impossible, to gauge the extent of the psychological/emotional impact that the assault might have had on the day-to-day life of the Applicant. Despite that, the CICB understands that such traumatic incidents do leave emotional scars on applicants’ minds, at least to some degree and for some amount of time.

Compensation

17In every case before it, the CICB is required to determine what the relevant circumstances are and to decide whether to grant or deny compensation having regard to those circumstances on a balance of probabilities. There is no automatic right to compensation under the Act. There is only a right to apply for compensation, which may be granted or refused at the discretion of the CICB, in accordance with natural justice. (Sheehan and Criminal Injuries Compensation Board (1975), 1974 439 (ON CA), 5 O.R. (2d) 781. As such, not all injuries warrant compensation. As was noted by the Divisional Court in Pitters v. Ontario (Criminal Injuries Compensation Board), [1996] O.J. No. 4339 (Div. Ct):

The nature of the dispositive authority conferred upon the Board by the Act evidences a legislative intention to accord to the Board substantial measure of discretion. Under section 5 of the Act, the Board "... may make an order that it, in its discretion exercised in accordance with this Act, considers proper." The breadth of the statutory discretion is underscored by the use of the permissive "may" and "in its discretion". The only substantive qualifier on the exercise of discretion by the Board is that it must be "in accordance with this Act". No enumerative list of factors informs the exercise by the Board of its discretion.

18Section 5 of the Act states:

The Board, on application therefor, may make an order that it, in its discretion exercised in accordance with this Act, considers proper for the payment of compensation to,

(d) The victim

19Based upon a careful review of the documentation, on file, the CICB finds the applicant not only a victim of a crime of violence within the meaning of and pursuant to subsection 5(a) of the Act but also accepts that he sustained both physical and emotional injuries, as described and claimed by him in his Application.

20In assessing compensation for pain and suffering, the CICB has considered:

a) The nature of the unprovoked assault and the extent of the physical injuries sustained;

b) The emotional/psychological impact of the assault;

c) The CICB has also taken into account that the Applicant was assaulted causing him injuries while he was on a line of duty as a uniformed police officer.

d) The ongoing impact on the Applicant’s overall health, relationships and productivity.

21It is important to note that the CICB has wide discretion to determine whether or not to award compensation to a victim from public funds (Leung v Ont. (Criminal Injuries Compensation Board) 1995 10629 (ON CTGD), 1995 OJ 1464 (Div. Ct) at para 5). The Act is not intended to make a victim for compensation whole or to provide full indemnity to a victim. Awards are not paid by the wrongdoer as would be the case if a victim pursued compensation through a civil action. The CICB also considers previous awards made by it in similar fact cases/situations in order to determine a reasonable amount of compensation.

22After reviewing the evidence in its totality and having regard to all of the above mentioned circumstances of this case as well as considering previous awards made by the CICB in similar fact cases/situations in order to determine a reasonable amount of compensation, the CICB awards the Applicant $3,000.00 as compensation for pain and suffering.

AWARD

23The CICB now orders payment as follows:

Section 7 (1) (d) Pain and Suffering $3,000.00

TOTAL CURRENT AWARD: $3,000.00

24The 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

25THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $3,000.00