(Re) 1511-01535, 2017 ONCICB 131

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicators: Keith Forde, Kirsten Kurzuk Date: May 29, 2017 Indexed as: (Re) 1511-01535

ORDER

Preliminary Issues

1The subject matter of this Application relates to an alleged assault by police officers. In an attempt to address any perception of an apprehension of bias, prior to the commencement of the hearing, the Panel Chair advised the Applicant and his legal representative of the following:

• The Panel Chair was formerly employed as a high ranking police officer by a police service in the province of Ontario;
• The Panel Chair is still a member of the Canadian Association of Chief of Police (CACP); and,
• The Panel Chair has relatives actively working in policing in the province of Ontario.

2The Panel Chair then offered the Applicant and his legal representative time to consult and to make any submissions on the information provided. The legal representative spoke to the Applicant briefly and declined the opportunity for an adjournment advising that he had no submissions with respect to the Panel Members’ impartiality and no objections to proceeding with the hearing before the Panel as it was constituted. With no issue being raised as to the constitution of the Panel, the hearing proceeded.

Introduction

3The Applicant asks the Criminal Injuries Compensation Board (CICB) to compensate him for injuries resulting from an alleged crime of violence which occurred on [date], 1984, 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 assault causing bodily harm, perpetrated by the Alleged Offenders. The Applicant is also seeking reimbursement for dental treatment.

4The incident allegedly involved police officers from [Name] Police Services, [Name] Police Services and the [Name] Police. The Applicant did not lodge a public complaint against the police officers.

Decision

5The CICB denies the Applicant’s claim for compensation for the reasons set out below.

Issues

6The 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;

• If the Applicant was a victim of a crime of violence causing injury, the CICB must determine whether to make an order for compensation having regard to “all relevant circumstances” and if so, the amount; and
• The CICB must also determine whether the Applicant’s expense claim for dental treatment is reasonable within the scope of the Act.

Evidence

The Applicant’s Evidence

7The Applicant appeared at the hearing and gave the following affirmed testimony.

On October 13, 1984, sometime in the early morning, he and his older brother (the witness) were in the [Town] Ontario. The Applicant was driving another brother’s vehicle and the witness was seated in the passenger seat. The Applicant and the witness were travelling northbound on Highway [Number] and observed a [Town] police cruiser following their motor vehicle. The Police Officer, later observed to be [Name] who was known to the Applicant and his family from prior dealings, initiated a stop of the motor vehicle in a [Name] gas station. The Police Officer approached the driver's side of the motor vehicle with his "Billy" club in his right hand. The Applicant exited the driver's side door before the Police Officer reached the motor vehicle. The witness remained in the passenger's seat but he could observe and hear the interaction between the Applicant and the Police Officer because the back window of their motor vehicle was previously smashed out. The Applicant asked the Police Officer why he had stopped their motor vehicle. The Applicant assumed the stop was premised on the smashed out back window. The Applicant said that the Police Officer became angry and aggressive and replied in a heated tone that the reason for the stop was that the "back window was smashed out." The Applicant said that while speaking in his view, the Police Officer's voice was raised as was the "Billy" club, which was being waved around in a threatening manner.

8At this time, the witness having observed the aggressive actions of the Police Officer, as well as hearing the tone of the police officer's voice, decided to exit the passenger's side of the motor vehicle in fear of his brother's safety. The witness walked around the front of the motor vehicle and approached the Applicant and the Police Officer. The Police Officer told the witness to "stay back or you are next." As the Police Officer was saying this, he further raised the "Billy" club in an aggressive manner, moving it back and forth. At this time the witness kicked the Police Officer's “Billy” out of his right hand. The "Billy" club fell out of the Police Officer's hand to the pavement. The Police Officer retrieved the "Billy" club and ran to his police cruiser, at which time he locked the doors and radioed for more police officers. At this time the Applicant and the witness remained standing near the driver's side door of the motor vehicle and the Police Officer remained in the police cruiser.

9Within a few minutes, two police cruisers arrived with two Police Officers in each cruiser, one police cruiser from [another Town] Police and the other cruiser from the detachment out of [another Town]. Upon the arrival of the additional Police Officers, the witness ran from the scene because he had an outstanding warrant for unpaid fines. The Applicant told the witness not to run, however the witness proceeded to run. The witness was chased by Police Officer and arrested.

10The Applicant told the Panel Members that two Police Officers approached him and asked him if he wanted some too and began to assault him with their “Billy” sticks. The Applicant said that he was knocked unconscious and awoke in the [Town] police station, after which he was taken to [Name] Hospital by the police. After examination and treatment, the Applicant was released from the Hospital and walked home.

11The Applicant informed the CICB that about two weeks after the incident, the Police charged him with obstruct peace officer. The Applicant confirmed that he eventually pled guilty in provincial court to the charge and was offered 30 days in jail or $500.00 fine. He decided to serve 30 days in jail.

12When the Panel Chair inquired of the Applicant as to why he did not lodge a public complaint against the police, he said that he did not know what to do back in 1984. When the Applicant was asked why he pled guilty to obstructing a peace officer, he said that he wanted to fight the charge; however, his lawyer advised him to plead guilty as the evidence would show in a trial that it would be his word against six police officers. When the Applicant was asked if he had been consuming alcoholic beverages earlier, he said that he had alcohol on his breath that evening as he had a couple of beers at his mother’s home. When the Applicant was asked if he defended himself when he was being assaulted by the Police Officers, he said that he did not, he just put his hands up to block the hits.

13The Applicant also provided the CICB with various documents in support of his claim.

14The CICB was in receipt of medical reports from [Name] Hospital which noted that the Applicant presented on the day in question with a one inch laceration to his head. The Applicant told the Hospital emergency staff that he was in a fight with the Police and was struck on the left side of his head. He had a sore left jaw and claimed also that he was knocked out for 5-10 minutes. In addition to the above injuries, Hospital Records noted the following:

• There is an undisplaced fracture of the junction of the horizontal with vertical ramus and mandible on the right side passing into the third molar tooth socket. Some absorption is seen around the third molar tooth posteriorly and the fracture line passes into this small cystic area. The necks of the mandible appear intact on both sides
• The fracture through the angle of the mandible on the right side remains united in good position. There is no radiological evidence of any other bony abnormality or osteomyelitis
• HISTORY OF PRESENT COMPLAINT: On the [date], 1984, this young man was apparently involved in a fight with the police. He says that he was struck repeatedly by the police, sustaining a laceration of the forehead and a fracture of the left lower jaw.
• Clinical records from that time give a similar history; clinical and radiological examination show that he had a laceration of the left frontal zygoma area which was sutured and he also had a fracture of the left mandible which appeared to be clinically stable. The laceration of the scalp was repaired uneventfully. The fractured jaw followed-up and radiological reports on the [date], 1984 showed an undisplaced fracture at the junction of the horizontal with the vertical ramus of the mandible passing into the third molar tooth socket; some absorption was seen around the third molar tooth posteriorly and the fracture line passed into this small cystic are. The necks of the mandible appeared intact.

15The CICB was also in receipt of a Dental Report from the Applicant’s family Dentist, the report noted that tooth #34 had to be extracted due to trauma and that prognosis in the area of tooth #34 had been good. The Dentist also provided the CICB with an estimate for possible future dental treatment.

16The CICB was in receipt of a letter dated [date], 2005 signed by a doctor, who noted that the Applicant was seen by a Doctor at the Regional Evaluation Centre on [date], 2004, and at that time the Applicant was placed on the following restrictions:

• Limited repetitive bending;
• Limited lifting to 20 pounds;
• Limited lifting above shoulder level: and
• Alternate sit, stand and walk.

17The CICB was also in receipt of a Psychological Assessment done by a Psychologist dated [date], 2005.

The Witness’s Evidence

18The witness in this incident is the biological brother of the Applicant and the person that was in the vehicle as a passenger on the day in question.

19The witness attended the hearing and attempted to give affirmed testimony. However, part way during his testimony, the witness became emotionally overwhelmed and had to leave the hearing. Upon his return, the legal representative and the Panel members decided to rely on the witness’s written statement that was on file with the CICB.

20At the hearing, the witness testified that he wrote his statement while he was in jail in [date] 2016. He alerted the Panel Members that he gets nervous and does not think right. The witness admitted he was the passenger in the car which his brother was driving on the day in question and said that the car was in good shape but the rear window had been smashed out. He confirmed that the [Town] Police pulled them over and when the Police Officer got out of his cruiser, he took his “Billy” stick out also. He said his brother also got out of his vehicle and wanted to know why they were pulled over. The witness said that the Applicant and the Police got into a confrontation and he saw the Police waving the “Billy” club in the Applicant’s face, about a foot away from his face. He said that when he saw what the Police was doing with his “Billy” stick, it ticked him off. (It was at this time the witness became emotionally overwhelmed and the hearing was recessed for a short period of time.)

21The CICB was in receipt of a hand written signed statement from the witness dated [date], 2016. In the written statement the witness admitted to leaving the vehicle and kicking the Police Officer’s hand in which the “Billy” stick was held and to observing the Police Officer running to his police cruiser and locking the doors. The witness stated that the Applicant told him to leave after he assaulted the Police before back up police officers arrived as he had outstanding warrants on him. The witness also noted that he saw [Town] Police Officers and [other Town] Police Officers assaulting the Applicant with their night sticks and heard the Applicant telling the Police Officers to stop, that they were hurting him. The witness said that he was leaving the scene but turned back to the Applicant when he was jumped by the Police Officers and he defended himself.

Oral Submissions of the Applicant’s legal Representative

22The legal representative submitted that while the police are permitted to use reasonable force, the evidence is that the Applicant did not act in a way that would allow the police to use the force they did in this case. There is nothing in the Applicant’s conduct that would permit the Officer to use any force at all. Therefore, the force that was used was not reasonable.

Analysis

23The fact that there has not been a conviction is not fatal to the 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 that gives rise to the injury or death.

24The onus is on the Applicant to prove, on a balance of probabilities, that (a) he was the victim of a crime of violence; and (b) this crime of violence caused him to suffer an injury.

25In reaching its decision in this matter, the CICB has considered all of the evidence presented, including the oral evidence of the Applicant, the partial oral evidence of the witness, the documentary evidence from the Applicant and the witness, the available Medical Reports from the [Name] Hospital, the Report from the Dental Surgeon and the Applicant’s legal representative submissions.

26The CICB is in receipt only of the Applicant’s version of events and that of his brother. The Applicant was clear that he was stopped by the Police driving the motor vehicle with the rear window smashed out. The Applicant admitted to getting out of his vehicle before the Police reached his vehicle. He actually agreed he met the Police outside of his vehicle. The Applicant informed the Panel Members that the Police Officer knew his family from previous interaction and he believed that is why the Police Officer came out with his “Billy” stick in his hand. Further, the Applicant admitted the Police Officer asked him a series of questions and he remained calm, never raising his voice. There is no dispute or inconsistency about the above facts.

27However, from that point going forward the evidence becomes somewhat unusual and difficult to follow. The evidence shows that when the witness exited the car, the police stop escalated to a higher level. On the Applicant and witness’ own admission, the witness kicked the police “Billy” out of his hands, thereby provoking the situation and making the exchange physical.

28The allegations of assault that followed cannot be verified as there are no police records, no injury reports, and no complaints to the police complaint bureau or any court documents to support the Applicant’s allegations.

29Some of the medical documentation dates to almost 30 years after the incident is alleged to have occurred and was prepared 10 years prior to this hearing date. While there may be evidence of an injury, the CICB is not satisfied that it was as a result of the alleged assault.

30The Applicant admitted that he was charged with obstructing a peace officer and actually pled guilty to the charge and served thirty days in jail. The witness, his brother, was also charged and convicted. The CICB, in this case only has one set of allegations from individuals who were both convicted as a result of these incidents which date back to 32 years ago and are also uncorroborated. The CICB finds that there is not enough clear, cogent and convincing evidence to satisfy it, even on a balance of probabilities, that these assaults took place in 1984.

31Even if the CICB finds that the Officers used force against the Applicant, the determinative issue before the CICB is whether the force was justified. The Panel Members must decide when police use of force is no longer justified and becomes a crime of violence bearing in mind that the Alleged Offenders were at the time of the incident serving police officers in the province of Ontario.

32In certain circumstances the Criminal Code of Canada (“Code”) gives persons administering and enforcing the law authority to use reasonable force in the form of a wide range of techniques in order to maintain order, prevent offences, protect life, enforce the law and apprehend suspects.

33Specifically, section 25 provides the scope of the authority to use force for police officers. It reads: “everyone who is required or authorized by law to do anything in the administration or enforcement of the law….. is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.” It goes on to explain that a person is not justified in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person, etc. A police officer is therefore protected if using force to arrest someone. The amount of force used must be judged by an objective standard. Section 26 of the Code imposes criminal responsibility for the use of excessive force, and defines in general, its extent.

34In this case, the Panel Members find that the Alleged Offenders use of force was reasonable and therefore within the boundaries protected under Code. Specifically the CICB considered the nature of the force, the Officer’s role in the incident, the fact that the witness kicked the Officer’s weapon and then fled from police, the nature of the exchange and relationship between the parties and the fact that the Officer’s actions were likely in response to a use or threat of force by the Applicant and witness.

35Accordingly, based upon the review of the totality of the evidence, the CICB cannot conclude that the Alleged Offenders assaulted the Applicant, thereby committing a crime of violence against the Applicant. The Application must be denied.

36It is therefore unnecessary for the CICB to address the claim for dental expenses as the Applicant is not a victim under section 5(a) of the Act, as such, he is not entitled to reimbursement for dental expenses.

Award

37It is the CICB’s practice to contribute up to a maximum of $400.00 towards legal fees incurred to assist an Applicant with his application where it is satisfied that legal representation was reasonably necessary in the circumstances of the case. The CICB so finds with regard to Mr. Blain Colquhoun’s assistance in this case no compelling reason to deviate from that practice. Accordingly, the CICB awards $400.00 in respect of this expense and orders that it be paid directly to the Applicant’s legal representative.

Section 22 Legal contribution $400.00

TOTAL CURRENT AWARD $400.00

38The 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

39THE CICB ORDERS that the following sums be paid forthwith to:

Grineage Paralegal Services $400.00