CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Pamela Arnott, Anne-Marie Langan
Indexed as: (Re) 1512-01692
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 an award for pain and suffering and for related property expenses as a result of 3 assaults that occurred on various dates in 2015 as a result of which she suffered property losses, physical injuries and psychological injuries. Two of the incidents were not reported to the Police.
DECISION
2The CICB approves the claim and awards the Applicant the sum of $4,422.00 for the reasons set out below.
ISSUES
3The onus is on the Applicant to prove, on a balance of probabilities, that she was a victim of a crime of violence and that she suffered injury as a result pursuant to section 5(a) of the Act.
4In this Application, there are two incidents where no charges were laid and one incident where a conviction was obtained. A conviction may be taken as conclusive evidence that an offence has been committed pursuant to section 11 of the Act and the Applicant will need to prove, on a balance of probabilities, she was injured as a result of the offence. Similarly, the Applicant will need to prove, on a balance of probabilities, that she was injured as a result of being a victim of a crime of violence for the remaining two incidents.
5In regards to the two incidents where no charges were laid, the absence of a conviction does not mean that the CICB is precluded from making an order of compensation. Subsection 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.
6If the Applicant has met the above threshold, in deciding whether or not to exercise our discretion to award compensation and the amount thereof, we must consider:
a. all the relevant circumstances, including whether the Applicant’s behaviour may have directly or indirectly contributed to the injuries pursuant to subsection 17(1) of the Act.
b. whether the Applicant has refused reasonable cooperation with, or failed to report promptly the offence to a law enforcement agency pursuant to subsection 17(2) of the Act.
HEARING
7The Applicant appeared and provided oral testimony and submissions. She was accompanied by her legal representative, Charles Thompson. The Applicant also brought a witness,[Name].
8Detective [Name] from the [Name] Police also participated by phone. Detective [Name] investigated one of the incidents and reviewed the reports from his colleagues in regards to the other incidents. The Detective indicated that he had difficulties hearing counsel and the Applicant. The CICB took several measures to remedy this problem including turning off all electronic devices, moving the phones closer to the people giving evidence and asking the parties to speak louder. The Detective indicated that he could hear the CICB members well. However, it was not clear to the CICB that the Detective was reliably able to hear the evidence of the Applicant and therefore to address any inconsistencies when providing his own to provide his opinion on the evidence of the Applicant. For this reason, the CICB has put less reliance on the Detective’s oral evidence than it might otherwise have done.
9At the beginning of the hearing, the CICB confirmed the Applicant was aware of subsection(s) 17(1), and 17(2) of the Act and that the CICB would consider those parts of the Act when deciding the Application. These subsections read as follows:
17(1) In determining whether to make an order for compensation and the amount thereof, the Board shall have regard to all relevant circumstances, including any behaviour of the victim that may have directly or indirectly contributed to his or her injury or death.
17(2) The Board may, in its discretion, refuse to make an order for compensation or ordered a reduced amount of compensation where it is satisfied that the applicant has refused reasonable co-operation with, or failed to report promptly the offence to, a law enforcement agency.
10The Applicant confirmed that she understood the meaning of the above sections and the Applicant and her Counsel indicated that she was prepared to proceed with the hearing as scheduled. Counsel also indicated that he had done research about section 17.
11The CICB also clarified that the Application under consideration relates only to the incidents which occurred in 2015.
Applicant’s Testimony
Incident 1
12The Applicant sustained property damage to her apartment during a police drug raid on [date], 2015. The Applicant indicated that, prior to this raid, the Offender would come to her apartment alone and offer her free samples of crack cocaine. She willingly allowed him access to her apartment at first and accepted the free samples of crack cocaine from him. She then began to allow him to come to her home with his friends and continued to accept drugs from him in return for the use of her apartment. An increasing number of the Offender’s friends began coming to her apartment. The Offender and his friends would threaten the Applicant and forcibly confine her in various rooms in the apartment. The Applicant testified that she would be slapped or hit by the Offender and his friends. They also damaged to her property.
13The Applicant testified that when she expressed concern to the Offender about the number of people that were coming in and out of the apartment and the damage they were doing to it and to her, he would threaten her and her family members. When the CICB asked the Applicant why it took her several months to alert the Police about this situation, she testified that she was afraid of what the Offender and his friends would potentially do to her and her son, who lives with her. She testified that she declined to assist the Police after the [first] incident due to her continued fear of retaliation from the Offender and his friends.
14The Applicant testified that she collaborated with Police in providing keys to her apartment to enable the [date], 2015 raid but was insistent that she would not further assist the Police.
15The Police Report of this incident notes that multiple charges could have been laid against the Offender but were not laid as the Applicant refused to cooperate with Police. There is no record of any injuries to the Applicant in the Police Records of this incident.
Incident 2
16On [date], 2015, the Applicant invited the Offender to her apartment. He arrived with a friend, Alleged Offender 1. When the Applicant asked him to leave, the Applicant was punched in the face. As the Applicant began to yell to get the neighbours to call the Police, she was pushed across a coffee table and was slapped, and kicked in the legs and back. However, it is unclear from her testimony who pushed or slapped her.
17Eventually, the Police were called. The Applicant initially expressed reluctance about the Police laying charges. However, as a result of a photo line-up held at the Applicant’s home, the Offender was charged with aggravated assault causing bodily harm and was eventually convicted of one count of assault.
Incident 3
18On [date], 2015, the Offender’s cousin or friend, Alleged Offender 2, was at the Applicant’s apartment. The Applicant indicated at one point in her testimony, that the Offender was not there during this event, and at another point in her testimony, that the Offender was there with the Alleged Offender 2.
19On this occasion, the Alleged Offender 2 stayed over at her apartment for the night. The Applicant testified that he forced her to have vaginal intercourse and ejaculated over her face. When she asked him to leave, he was holding a coffee mug and hit her in the head at least 12 times. She was bloodied, her ears were ringing and she had a bruise on her head. The Applicant could not call an ambulance because the Alleged Offender 2 took her phone and smashed it on the patio outside. The Applicant testified that she was able to contact the ambulance by going door to door to her neighbours. However, it is not clear to the CICB how she was able to do so in her wheelchair without the Alleged Offender 2 stopping her.
20The [Name] Police with the paramedics attended to find the Applicant bloodied from a cut on her head. The Applicant indicated to the Police that a relative of the Alleged Offender 2 lived in a nearby apartment but declined to cooperate further with Police in this investigation.
21The Applicant does not recall that the Police contacted her further in regards to this incident.
22She does not recall what Police contact information she had despite testifying that she called the Police and left messages. She recalls that she received a letter that the investigation had been dropped due to “lack of something”.
23Given this incident, the Applicant testified that she expressed her desire to leave this apartment to her case worker who assisted her to be placed on the [Name] Housing waiting list for an emergency move. She believes that she moved in [month] 2015.
24The Applicant also provided the following additional information in her oral testimony.
a. The Applicant indicated that she didn’t accept money from the Offender or the Alleged Offenders and, in fact, incurred charges for them such as video rentals. The Offender or the Alleged Offenders would take her disability checks and spend it on drugs. However, she would also buy drugs from them to add to drugs that they gave to her for using her apartment.
b. The Applicant sustained a number of injuries from various incidents that were previously considered and compensated by the CICB. The Applicant confirmed that she had been compensated for two previous incidents involving abuse from drug dealers in her acquaintance.
c. The Applicant is bi-polar and was diagnosed with post-traumatic stress syndrome in 2012. She also suffers from depression. The Applicant is an addict who admitted that she still uses. She began using crack cocaine in her first marriage and has been clean three times since her first use. She was never accused of violent crimes but was accused of 2 property crimes (trespassing, theft under $5,000).
d. The Applicant was approached by drug dealers when she first moved into the apartment. Initially she said no to the drugs, but began using drugs when she was offered “free samples” by these drug dealers. The Applicant began letting people into her house. Normally the Offender, the Alleged Offender 2 or other people would stay in the apartment for several hours or overnight.
e. The Alleged Offender 2 would hide weapons in her home and would sell crack from her home. She consumed crack from the Alleged Offender 2 when they were in the home or bought crack from the Alleged Offender 2.
f. Initially, the Applicant could recall no specific occasion when she was threatened but believed strongly that the Alleged Offender 2 asserted that her grandchildren or children would be hurt or the building would be bombed. Later in her testimony, the Applicant asserted that she and her family had been threatened.
25The Applicant indicated in her testimony that she provided keys to the [Name] Police in order for them to enter the apartment in [first incident]. She later indicated that she provided keys to the Offender or that the Offender had taken her keys and made copies without her knowledge in order to gain access to her apartment without her consent.
Police Evidence
26The Reports from [Name] Police add the following to the Applicant’s testimony: “it appears that her home is being used as a crack house”. The Applicant “uses an electric wheel chair and is of diminished mental capacity through still high-functioning.”
27In his oral evidence, Detective [Name] indicated that he had two phone numbers for the Applicant but was never able to get an answer at either one. He met the Applicant in person on [date], 2015.
28The Detective gave evidence that, in his opinion, the Applicant was sometimes complicit, and sometimes not complicit, in the crack business. The Detective believes that the Applicant was pressured into this use of her apartment in exchange for drugs.
29The Detective testified that drug dealers such as the Offender and Alleged Offender 2 typically would prey on vulnerable people. This neighbourhood of social housing is often used by crack dealers and is subject to this cycle of home invasion and crack use. The officer indicates that the Applicant fits the profile of a vulnerable person.
30The Detective testified that the Applicant gave some assistance but did not cooperate fully with his investigation. He further testified that the Applicant did not actively circumvent the investigation but could have provided useful and helpful information. For example, she could have completed a photo identification, or provided a written statement or a video statement in relation to the [first] or [third] incidents. He understands that she is and was fearful. He testified that he did safety planning with the Applicant.
31Detective [Name] indicated that the Applicant told him that she wouldn’t come in for a video statement as she was moving. The Detective indicated that her statement would have been useful and important to be provided early in their investigation. The Detective indicated that the identity of the Alleged Offender 2 was one of the “insolvability factors” which led to the closing of his investigation into the assaults and home invasions involving the Applicant.
Hospital Record
32Seven days after the [second] incident, the Applicant attended the [Name] Hospital regarding rib pain which was subsequently diagnosed as a partial compression fracture of a rib. She was prescribed Tylenol and Advil for the pain. This Hospital Report indicates that the Applicant had pre-existing conditions of anxiety, bi-polar disorder and other physical conditions such as asthma and muscular-skeletal conditions.
33No medical reports were provided in relation to the [first] incident.
Paramedic Report
34The Applicant provided a paramedic report for [date] 2015 where she received treatment for a 1 cm laceration to her head. She refused any further medical treatment at the time of the paramedics’ attendance at her home.
Injuries and Losses
35The Applicant provided the following information about her injuries in her Application:
a. In the [first] incident, she suffered head and facial trauma and psychological injuries such as post-traumatic stress, depression, anxiety, fear, suicidal ideation.
b. With respect to the [second] incident, the Applicant testified that she suffered bruises to her side and to her head, a partial rib fracture.
c. In regards to the [third] incident, the Applicant testified that she suffered swelling to her head, cuts to her head, bleeding lips and face, depression, anxiety, a misshapen head, and suicidal ideation.
36With respect to her injuries, the Applicant testified that, near to or during the [third] incident, when she asked the Offender or the Alleged Offender to leave, they held a steak knife to her face to threaten her and she was cut on the lip. She never received medical care for this injury which remains a scar on her lip.
37The Applicant indicated that there was significant property damage to her apartment as a result of the three incidents. Her sofa was slashed. Her remote controls for her hospital bed were broken. She believes that damage was caused both by the Offender, Alleged Offenders and the Police.
38The Medical Reports indicate that, after the [second] incident, the Applicant had a partially fractured rib, sore face, sore back and leg. She indicated that she can’t wear a bra due to her rib injuries. She continues to have pain as a result of her rib injuries.
Mental Health / Counselling Evidence
39The Applicant provided two Reports from a mental health case management officer and from a crisis officer. The Applicant called the author of one of the reports, [Name], who is a support worker at the Canadian Mental Health Association. She indicated that her job is to help clients to achieve their goals which may include housing, physical health, navigating social systems (ODSP, OW) and assisting with other life goals. The Witness does not have a degree in psychology but took courses in Poland in psychology 30 years ago.
40The Witness indicated that she has known the Applicant for 14 years. It is her professional opinion that the Applicant, in [date] 2015, had the following challenges:
a. Psychological: Depression, emotional sensibility, interpersonal effectiveness and relationships, sleeping problems
b. Physical : mobility
41Prior to moving her apartment, the Witness saw the Applicant weekly. To her knowledge, the Applicant was not using drugs at that time. Her mental status was generally well but she was struggling with her physical mobility. She had depression and irritability. She had some contact with her family and with the Witness. In the Witness’ view, the Applicant has had regular difficulties in coping with her life. She couldn’t specify whether there have been changes when she first knew the Applicant and her current state of the Applicant.
42At the time of the abuse, the Witness helped with medical appointments and groceries and would see her several (2-3) times per month. The Applicant would tell the Witness about the problems when they were in the car together but wouldn’t tell her a lot on the phone. The Witness saw one of the cell phones which had been destroyed at the apartment.
43The Witness recalls (without specificity) that the Applicant expressed fear for her safety on several occasions The safety concerns were expressed in relation to the Applicant and to her children and grandchildren. The Applicant also indicated to the Witness that she had been punched and saw the cut lip. The Witness didn’t see any other injuries, partially due to her limited contact with the Applicant.
44The witness recalls that the Applicant was fearful of reporting to the Police as she believed that the Offender, the Alleged Offenders and their friends were dangerous. During the period that the Applicant lived in the apartment in question, the Applicant and the Witness would speak less frequently on the phone than they had done in the past.
45The Witness indicated that, in situations where there is abuse, a person can apply for an emergency transfer or can move to a shelter. The Witness told the Applicant on several occasions that she needed to move out and offered help and advice about moving out. The Applicant eventually told the Witness that she wanted to move.
46The Witness believes that the Applicant was ashamed about some of the incidents which was the reason why she didn’t speak to the Witness about these problems. The Witness believes that the Applicant began limiting her contact with the Witness, for example, by cancelling appointments. After the Applicant disclosed the events occurring at the apartment, the Witness had safety concerns about entering this apartment. She noticed that things were “different” and didn’t want to stay in the apartment without knowing who was in the apartment. The Witness is habituated to safety precautions in her work over the past 15 years.
47The Witness noticed that the apartment was messy and had broken items. This was out of character for the Applicant.
48The Witness indicated she helped to get a new residence for the Applicant by making calls, making appointments, going to appointments, going to the review hearing at [Name] Housing and making calls to ODSP. The Applicant was able to get an emergency transfer from [Name] Housing based on whether there was a genuine emergency. The Witness believes that there are, generally, few vacancies at [City] shelters and fewer wheelchair accessible vacancies.
49She believes that the incidents caused stress to the Applicant which showed with crying, withdrawal, irritability, fearfulness. She believes that the Applicant’s depression and sleeplessness were aggravated by the incidents. She believes that fearfulness was a new condition for the Applicant which was brought on by the incidents in [dates] 2015.
ANALYSIS AND DECISION
50In regards to the [first] incident, the CICB finds that the Applicant was the victim of a crime. However, as the Applicant declined to provide evidence to the Police of the extent of the actions committed against her and there is no contemporaneous evidence of injuries from any medical professionals or the Applicant’s caseworker, the CICB finds that the injury to the Applicant as a result of this incident is fearfulness.
51In relation to the [second] incident, the existence of a conviction is conclusive evidence that the Applicant was a victim of crime in relation to that incident. The CICB finds that the Applicant suffered a partially broken rib as a result of this incident.
52Finally, the CICB finds that the Applicant was the victim of crime in regards to the [third] incident where she was hit on the head by the Alleged Offender 2 and suffered cuts to her head and face.
53In total, the CICB finds that the injuries to the Applicant as a result of the incidents are the following:
a. A scar on her lip;
b. One partially broken rib and on-going rib pain;
c. A 1cm cut on her scalp;
d. Increased vigilance for her safety and that of her family;
e. Increased fearfulness;
f. Sleeplessness.
54The CICB notes that the Applicant made no mention of the sexual assaults to the Police who attended her apartment for any of the 3 incidents or in other conversations with Police. This fact also did not appear in the Application nor was mentioned by her case worker. The CICB does not find it credible that such a significant injury would not previously have been mentioned to the Police, her counsel or her support worker. For these reasons, the CICB does not accept that sexual violence was part of the injuries of the Applicant.
55On the totality of the information before it, the CICB finds the Applicant to be a victim within the meaning of subsection 5(a) of the Act as a result of multiple acts of physical assault that occurred over a period of several months and were committed by the Offender, Alleged Offender 2 and other persons.
Section 17(1)
56The CICB has considered section 17(1) of the Act which requires that the CICB take into consideration “all relevant circumstances,” including any contributory behaviour on the part of the Applicant. The Act gives the CICB broad discretion to determine whether compensation ought to be awarded in any given case and, if so, the amount.
57In Sweet v. Ontario (Attorney General), 2011 ONSC 2650, the Ontario Divisional Court stated that the requirements of 17(1) does not in any way limit the meaning of “all relevant circumstances”. In following the broader instructions of the Court, the CICB therefore finds that it is not limited to considering only circumstances related to the incident but also other circumstances including the prior events for which the Applicant received compensation. All “relevant circumstances” can also include willing participation in dangerous or illegal activities, wanton disregard for one’s own safety, predatory behaviour by alleged offenders, directly or indirectly contributing to actions which are harmful to society and to other individuals (such as drug trafficking) or exploitation by offenders of the vulnerabilities of applicants (such as disability or other personal characteristics) – to give a few examples.
58In addition, the Court states at para. 35,
Furthermore, the case law supports the proposition that it is relevant circumstances to consider that the awards, when granted, are made from public funds and that the function of the legislation is not to assess civil liabilities for damages. These are circumstances which are relevant and yet do not relate to the injury itself.
59The CICB notes that the Police Report indicates that the Applicant declined to answer the Police about what she was providing in exchange for receiving crack cocaine. The Police Report of [date], 2015 stated:
[The Applicant] admitted that [the Offender] comes into her unit to give her small amounts of crack cocaine; when I asked what this was in exchange for, she declined to answer.
60The Police Report also noted that the Applicant let the Offender and Alleged Offenders into her home on numerous past occasions. The Applicant’s evidence was that she continued to let the Offender and Alleged Offenders into her apartment even after the [first] incident and after the [second] incident. In the Report of [date], 2015 the Officer notes that the Applicant would leave her door deliberately unlocked.
61The CICB also notes that the Applicant testified to the CICB that the door would be locked such that the Offender or the Alleged Offender would bang relentlessly on the door. The CICB finds that the Applicant was not credible in her descriptions of her actions in regards to how the Offender and Alleged Offender gained access to her apartment.
62The CICB finds that the Applicant knowingly let drug dealers into her dwelling in order to continue to obtain crack cocaine for her own use.
63Given the Applicant’s past history of drug use, it was a foreseeable event that the dealers would expect some payment or compensation for their “free samples”. The Applicant was able to recall phone numbers used to contact the Police but was unable to explain why she had multiple (4) phone numbers, particularly when she indicated that she is agoraphobic. The CICB finds that the Applicant was complicit in allowing her apartment to be used as a crack house based on the evidence of the Police Witness, on the Applicant’s evidence that she used the crack cocaine provided to her by the Offender and the Alleged Offender as well as purchasing additional drugs from them, and the Applicant’s inability to explain why she had multiple phone numbers over the period of her tenancy.
64The CICB also finds that the Applicant’s explanation for her actions in regards to her contact with Police and in regards to her safety concerns is lacking in reliability and credibility in particular, in regards to her actions regarding the Police investigation in [third incident]. The Applicant was deliberately vague in her account of any contact or communications with police in [third incident]. Given that the Applicant was willing to cooperate with the police in their police action on [first incident] and [second incident] 2015, the CICB finds that the Applicant could have taken additional actions to prevent future access to her apartment after [first incident] 2015 and to begin the arrangements to find alternative or emergency housing.
65The CICB notes that the Applicant mentioned that she was fearful of a bombing of the building by the Offender, the Alleged Offender or their friends, but this critical detail of public safety is not included in the Applicant’s written Application, was not mentioned to her caseworker nor was included in any of the Police Reports. The CICB finds that this threat of bombing of a multi-unit apartment building in an urban centre did not occur.
66The CICB notes that the Applicant was able to leave her apartment within 2 months of putting forward her application for emergency housing. The CICB finds that the Applicant was able to seek help from Police, neighbours and her mental health worker and chose not to avail herself of this help until after the third incident occurred.
67The CICB finds that the Applicant assumed a risk of violence when she began accepting drugs and subsequently purchasing drugs. The Applicant testified that, initially, she refused the offers of the drug dealers, but eventually made the choice to accept “free samples”. The Applicant testified that she had been an addict two or three prior times but was clean when she began living at the apartment in question. Given that the Applicant had previous experience with illicit drugs, she knew or ought to have known that there would be consequences to any offer of free drugs. She also knew the risks to herself if she resumed using illicit drugs. She knew or ought to have known the risk of physical violence associated with the drug trade. The Applicant’s behaviour was not only illegal, but also an activity that directly contributed to the injuries that she sustained.
68The CICB finds that the Applicant was willingly contributing to an illegal activity which harmed other people in her community. The Applicant testified that she had been an addict 2 or 3 times prior to the incidents in question. She knew or should have known the harms of illicit drug use on individuals in her community.
69The CICB also finds that the Offender and the Alleged Offenders exploited the personal vulnerabilities of the Applicant. The Offender and the Alleged Offenders took advantage of her limited mobility in confining her to rooms within her apartment. They also took advantage of her past drug abuse in offering her drugs. The Offender and the Alleged Offenders took advantage of the Applicant’s wheelchair-accessible ground floor apartment to use as a crack house. The CICB finds that the Applicant was the victim of predatory behaviour by the Offender, Alleged Offenders and their friends.
70Finally, the CICB has considered the principles in Lischka v. Criminal Injuries Compensation Board, 1982 1840, and relied upon in Sweet v. Ontario (Attorney General), 2011 ONSC 2650. In Lischka, the Divisional Court indicated that it is a relevant circumstance that CICB awards are paid out of public funds. The Divisional Court stated:
The Board by its statute is obliged to consider, having regard to all of the circumstances, whether it is an appropriate case for somebody who is injured to be compensated out of public funds.
The CICB has noted that this is the third Application to the CICB from the Applicant for injuries resulting from her interaction with illicit drugs and drug dealers.
71Having considered the evidence, the CICB is satisfied that the Applicant’s behaviour did contribute, either directly or indirectly, to the incident/injury and consequently her claim for compensation shall be adversely affected.
Section 17(2)
72Section 17(2) permits the CICB to refuse to make an order or reduce an amount of compensation where it is satisfied that the victim has refused reasonable co-operation with, or failed to report promptly the offence to a law enforcement agency.
73The CICB received testimony from the Applicant and from [Name] Police Services about the degree of her cooperation in apprehending the suspects with respect to all three incidents. With respect to the [first] incident, the Applicant testified that she was afraid to advise the Police about the regular presence of the Offender and several of his friends at her apartment. The Applicant later indicated in her testimony that she provided keys to the [Name] Police.
74When the CICB asked the Applicant why it took her several months to alert the Police about this situation, she testified that she was afraid of being labelled a “rat” by the Offender and his friends and of the potential repercussions, particularly for her son, who lives with her.
75Up to this point in her testimony the Applicant’s version of events is consistent with the police report of [date], 2015 in which Detective [Name] notes that the Applicant was the victim of an “apartment takeover” and that when the Police arrived at her unit the “apartment was heavily damaged”. At the end of his Report he notes that “the tenant refused to provide a written statement or proceed with any criminal charges out of extreme fear of retaliation”. As a result no charges were laid against any of the people the Applicant had identified to the Police as having invaded her apartment.
76The CICB finds that the Applicant failed to co-operate with the Police on two occasions by refusing to assist the Police by providing a photo identification, a written statement or a video statement to the Police. The Police had previously made arrangements to accommodate the Applicant and obtain her cooperation, for example, by holding a “line-up” at her home. The CICB finds that the Applicant did not cooperate with the Police during the second and third incidents which lead directly to the closing of those Police investigations. The Applicant, as a matter of public policy, had an obligation to co-operate with Police so that the Alleged Offenders could be apprehended.
77The Detective as well as both of the Applicant’s support workers spoke to the Applicant about safety planning and alternative living arrangements and offered to assist her in finding options to address her safety concerns. The CICB finds that the Applicant was unwilling to lose her access to “free samples” by collaborating with the Police. The CICB finds that the Applicant was aware of the harmful impact of her return to using crack cocaine and this was the reason that she was ashamed to seek assistance or to collaborate with Police. Accordingly, the CICB also concludes that the award to the Applicant should be reduced under Section 17(2).
78Having considered the evidence, the CICB finds that the Applicant provided less than reasonable cooperation to law enforcement authorities and consequently the Applicant’s claim for compensation shall be adversely affected.
Proportionality
79In regards to the injuries suffered by the Applicant, the CICB finds that the Applicant had several pre-existing conditions including bi-polar disorder, depression, anxiety, agoraphobia, and asthma. In addition, the Applicant has received previous awards from the CICB in relation to past victimizations and several of her existing conditions such as post-traumatic stress disorder, social anxiety, hyper-vigilance, and fearfulness of men. The CICB accepts that the Applicant had these pre-existing conditions prior to the incidents being considered in this Application and is therefore not considering these conditions in making its award.
80The CICB finds that the injuries to the Applicant as a result of the incidents are the following:
a. A scar on her lip;
b. One partially broken rib and on-going rib pain;
c. A 1cm cut on her scalp;
d. Increased vigilance for her safety and that of her family;
e. Increased fearfulness;
f. Sleeplessness.
81In this context the CICB has also considered the proportionality of the injury in determining whether to refuse, award or reduce an award. The CICB must also weigh the proportionality of the injury with the circumstances that it has found to be relevant. Therefore the CICB has considered the nature of this injury against a number of other relevant factors such as the predatory behaviour of the Offender and Alleged Offenders, the Applicant’s voluntary involvement with criminal activities and her past history of involvement in the drug culture.
82On the totality of the information before it, including the information concerning the Applicant’s contribution to the crack house, the CICB considers the provision of compensation to the Applicant out of public funds for a reduced award for pain and suffering to be reasonable under the Act.
83The Applicant’s case was presented in such a way that there is no evidence before the CICB in the Applicant’s oral testimony and in the documentary evidence, which establishes separate injury for each occurrence. The CICB accepts that there were 3 incidents, but for the reasons set out above, makes a global assessment of $4,000 for pain and suffering, taking into account the cumulative effect of all the occurrences on the Applicant. In assessing compensation for pain and suffering the CICB has considered:
a. The vulnerability of the Applicant as a person using a wheelchair;
b. The vulnerability of the Applicant as a person with a cognitive impairment;
c. The contributory behaviour of the Applicant consuming and purchasing illicit drugs;
d. The contributory behaviour of the Applicant in continuing to let dangerous people into her home over a period of months;
e. The aggravating factors of the Applicant’s previous traumas;
f. That there were multiple offenders;
g. The predatory behaviour of the Offender, Alleged Offenders and their friends;
h. That there were physical injuries as well as psychological injuries;
i. That this is the third time that the Applicant has requested compensation for her implication in drug activities; and
j. That this award is made from public funds;
PROPERTY LOSSES
84The CICB generally awards compensation only to cover expenses related to treatment of the injuries sustained (i.e. hospital, medication or therapy expenses) and not for expenses related to personal items and property. Having found no compelling reasons to deviate from its usual practice in this instance, the CICB declines to award compensation for the Applicant’s claims in respect to furniture and leasing costs.
TRAVEL COSTS TO HEARING
85The CICB has considered the Applicant’s claim in relation to the costs associated with travelling to the Hearing site. In accordance with CICB practice, the CICB awards the Applicant the sum of $22.00 for her costs for wheelchair accessible transportation to the Hearing.
LEGAL FEES
86It is the CICB’s practice to contribute up to a maximum of $400.00 towards legal fees incurred to assist an applicant with her application where it is satisfied that legal representation was reasonably necessary in the circumstances of the case. We find no compelling reason to deviate from that practice under the circumstances. The CICB awards $400.00 in respect of this expense and orders that it be paid directly to the Applicant’s counsel. The CICB thanks counsel for his helpful contributions to the presentation of the Applicant’s case.
87The 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.
AWARD
88The CICB orders payment as follows:
Subsection 7(1)(d) Pain and Suffering $4,000.00
Section 22 Costs (travel to hearing) $ 22.00
Section 22: Costs: Legal Fees $ 400.00
TOTAL AWARD (AND COSTS) $4,422.00
PAYMENT
89THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $4,022.00
Quinn Thiele Mineault Grodzki LLP $ 400.00
DATED at Toronto this 31st day of August, 2017
Pamela Arnott, Member
Anne-Marie Langan, Member