(Re) 1610-00283, 2017 ONCICB 149

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: M. Saleem Akhtar

Date: June 09, 2017

Indexed as: (Re) 1610-00283

ORDER

INTRODUCTION

1The Applicant is seeking financial compensation from the Criminal Injuries Compensation Board (CICB) in accordance with the Compensation for Victims of Crime Act, RSO 1990, c. C.24, as amended (the “Act”). The Applicant is seeking compensation for pain and suffering for the physical and emotional/psychological injuries sustained by him, as a result of the assault committed against him on [date], 2016, in the Province of Ontario. The Offender was charged with assault peace officer. He was given a suspended sentence.

DECISION

2The CICB approves the claim made by the Applicant in relation to an assault committed against him on [date], 2016 by the Offender, as mentioned above, and awards the Applicant the sum of $3,000.00 as compensation for pain and suffering, for the reasons set out below.

ISSUES

3Pursuant 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;

EVIDENCE

Written submissions regarding the incident

4In his Application before the CICB, the Applicant described the incident under the heading “Details of the Crime” as follows:

On [date], 2016, at approximately 4:40 p.m., I was off-duty [Police] operating my personal vehicle (…) I observed a white Ainsworth van in the ditch facing westbound, having struck a pole. There was a pedestrian in the roadway (…) The pedestrian advised that the male operating the van was drunk and had hit the pole and was fleeing (…)I called 911 and reported that I was an officer with the [Police] and would keep a visual observation of the male until police arrived (…) I called the male subject and told him to come back for his own safety. His speech was extremely slurred (…) I approached the male party and told him to stop as the police had been called. I showed the male my police badge and told him that I would arrest him if he didn’t stop. He told me he would sue me if I touched him. I told him again I was the police and placed my right hand on his shoulder and told him he was under arrest. He struck my hand off and bladed himself into a fighting stance with hands raised. I reached out to grab him with both hands and tripped him to the ground. He grabbed my left hand and fingers with his right hand and twisted it. I had to tell him several times to let go off my left hand as it was painful…the Offender had broken my left hand, requiring a cast for 6-8 weeks…the Offender pled guilty and received a jail sentence for Assault Police Cause Bodily Harm.

Written submissions regarding his injuries

5In his Application, under the heading “Details of Injuries”, the Applicant described his injuries as follows:

I would like to comment upon the impact this incident had on my family (…) my girls were concerned when I attended the hospital and received a cast. This has caused them to question my safety as a police officer (…) my left hand was in a lot of pain and I treated it with Ibuprofen to reduce swelling and pain. The pain in my left hand affected my sleep for the first week after the assault (…) I attended the [Name] General Hospital and received an x-ray and the break was splinted and a cast provided. I was referred to a plastic surgeon. The doctor advised that I had “avulsion” fracture. This was described as a break, whereby the tendon of my finger was violently twisted and pulled which created a splinter break on the last meta-carpal bone of my left hand (…) After three weeks, my cast was removed and it was found to be healing very well. I attended physiotherapy required to assist in range and proper recovery (…) Shortly after the arrest, I began to suffer from lower back pain (…) However, I have had back pain prior to this incident and believe that this incident has exacerbated a previously identified injury (…) this injury prevented me from my usual workout routine.

Police Report

6The Police Report, on file, corroborates the Applicant’s version of the incident. After due investigation, the Police charged the Offender and he was convicted for assault peace officer with intent to resist arrest contrary to the provision of section 270(1)(b) of the Criminal Code of Canada RSC 1985, c.C-46 (the “Code”).

ANALYSIS AND DECISION

7The 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.

8In 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

9Section 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.

10Hence, 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

11The Applicant sustained physical and emotional/psychological injuries, as described above.

12In support of the Applicant’s injuries claim, he has submitted treatment and assessment reports from the Hospital [Name] and his Chiropractor, which corroborate Applicant’s claim of his stated physical and emotional/psychological injuries. The CICB accepts these Reports for the purpose of compensation in this matter. However, the CICB also notes that the Applicant had pre-existing health issues such as back pain, unrelated to this incident, which had an impact on his overall health and productivity.

Compensation

13In 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 a substantial measure of discretion. Under section 5 of the Act, the CICB "... 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 CICB is that it must be "in accordance with this Act". No enumerative list of factors informs the exercise by the Board of its discretion.

14Section 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

15Based 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 physical injuries, as described and claimed by him in his Application.

16In assessing compensation for pain and suffering, the CICB has considered:

a) The nature of the assault;

b) The emotional/psychological impact of the assault;

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

17It is important to note that the CICB has wide discretion to determine whether or not to award compensation to an applicant 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 an applicant 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.

18After 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

19The CICB now orders payment as follows:

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

TOTAL CURRENT AWARD: $3,000.00

20The 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

21THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $3,000.00