(Re) 1608-04408, 2017 ONCICB 247

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Janet MacEachen Louise Charette

Date: September 12, 2017

Indexed as: (Re) 1608-04408

ORDER

Preliminary Issues

1At the outset of the Hearing, the Panel Chair read sections 17(1) and 17(2) of the Act. The Chair advised that these sections would be considered by the Panel. The sections 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.

(2) The Board may, in its discretion, refuse to make an order for compensation or order 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.

Introduction

2This Application was brought with respect to an incident that occurred on [date], 2014.

3The Applicant claims that he was attacked with a knife and a machete by strangers late at night. He indicated that he suffered serious physical injuries as a result. According to the Applicant, the attack was unprovoked and he does not know the Alleged Offender or Offenders. He did have a vague recollection that one was about 50 years old but he had no recollection of the other.

4The Applicant claims compensation for pain and suffering and loss of employment income.

5The Police investigated the incident and eventually charged 2 Offenders. They did this “knowing that ‘John Doe’ had been a party to the offence of assault with a weapon causing bodily harm, assist that person for the purpose of enabling him to escape, contrary to section 463(a) of the Criminal Code of Canada”. The two Offenders were convicted and were given suspended sentences with 12 months of probation.

6The main Alleged Offender was never apprehended. It is the view of the Police that the Applicant knows his assailants but refused to disclose that information to Police. The police investigation could go no further without his cooperation.

Issues

7The Panel must make a finding with respect to the following:

1. Section 5(a) – Was the Applicant a victim of a crime of violence, and if so, was he injured as a result?

2. Section 17(1) - Are there relevant circumstances affecting whether or not compensation should be denied and if awarded, are there circumstances affecting the amount?

3. Section 17(2) - Did the Applicant cooperate with the police investigation and should any lack of cooperation impact on giving an award or the amount of an award?

4. Is the Applicant’s claim for loss of income supported?

Analysis and Decision

Was the Applicant a victim of a crime of violence and injured as a result?

8There is no dispute with respect to this issue. There is considerable information that the Applicant was attacked with a machete or knife or both. A friend of the Applicant who was in the residence at the time said he witnessed part of it. And the couple, who owned the residence where the attack took place, assisted the Applicant on the scene and arranged for assistance. No weapons were recovered and the Alleged Offenders were never identified. A number of Medical Reports have been filed, confirming that the Applicant received multiple stab wounds to the neck, chest and abdomen. He was in the Hospital for 8-10 days. He suffered a left facial artery laceration, an auditory canal laceration, an anterior orbital wall fracture and a retroperitoneal hematoma. He later developed bilateral pulmonary embolisms.

9The facial laceration required a cable nerve graft using a sural nerve. According to a report by Dr.[Name], dated [date], 2015 and written on behalf of Dr. [Name], one of the Applicant’s treatment providers, the “facial nerve function has been slowly returning according to the patient. Otherwise he is also doing quite well.”

10The Applicant testified that he can still feel twitching in in his face. He continues with arm therapy and has 2 screws in his elbow. He has scarring on his face, neck arm and side. Generally, he said he feels OK He indicated that he has become less sociable as a result of the incident.

Are sections 17 (1) and (2) factors for the CICB to consider in whether to award compensation or to award a reduced amount of compensation?

11The Applicant, in his Application to the CICB, related the following narrative.

On [date], 2014, he was sleeping on the couch at the home of his friends [husband] and his wife, [wife]. His friend, [friend], was sleeping at the other end of the couch. The Applicant kept getting phone calls from [friend's] girlfriend, [girlfriend]. At about 4 a.m. the Applicant received a call from [girlfriend], telling him that she was downstairs at the door. The Applicant went down, looked through the peephole and opened the door for [girlfriend]. She asked if [freind] was there. The Applicant said [friend] was upstairs sleeping. [Girlfriend] asked the Applicant to go and get him. The Applicant said she should go and wake him up herself. While they were talking, two men came through the door and attacked the Applicant. According to the Applicant, one of them had a machete and one had a knife. The Applicant was able to fend them off to the extent that they did not gain entry into the main part of the house. After a brief period, they fled. He does not recall what happened with [girlfriend].

12The Applicant managed to get up the stairs to the living room. His friends, [husband], [wife] and [friend] assisted him and called 911. He passed out and woke up in the Hospital.

13The Applicant’s testimony was similar to the information provided in the Application.

14He added that earlier in the day, he and [friend] had been at [girlfriend’s] house where [they] were arguing. The Applicant and [friend] left and went to [husband's] house where they watched T.V., had some beers and went to bed around 2:30-3:00 a.m. Then the Applicant began getting the phone calls from [girlfriend]. The Applicant believes that [friend] was the target.

15According to information received from the [Name] Police Service dated [date], 2016, the Applicant has 4 aliases including the name on this Application. The Police documentation refers to him as [FR]. Much of the police documentation was redacted and not helpful.

16Officer [Name], the Officer in Charge of the investigation, provided further information from the results of the police investigation. Officer [Name] was the Officer in Charge of the case.

17He testified that the Applicant’s narrative of events is not consistent with the information he received through the investigation.

18Officer [Name] took written statements from [friend], [husband] and [wife]. Their description of the events is as follows:

[Friend], [husband] and the Applicant had been drinking during the day. It appears there was a street party. [Girlfriend] was also in attendance and she and [friend] got into an argument. [Friend], [husband] and the Applicant went to [husband]’s place and continued drinking. At approximately 9 p.m. the three men went out for more drinks and later attended a private party. They returned to [husband]’s place at 12:30 a.m. The Applicant left the residence. [Friend] went to sleep on the couch. [Husband] and [wife] slept upstairs. The Applicant returned at 4:00 a.m. and [friend] let him in.

Later, [friend] heard a knock on the door and recognized [girlfriends]’s voice. He got up and looked down the stairwell and observed the Applicant being beaten up. He went to get [husband] and [wife] and they returned to assist the Applicant. [Wife] called 911.

On August 12, 2012, Officer [Name] got a video statement from the Applicant at the Hospital. His narrative is quite different than that of [friend], [husband] and [wife].

He said he did not see [friend] at all that day. He said he was with [husband] and [wife.]. That they went to the [Name] Pub and stayed until 2:00 a.m. when they returned to [husband] and [wife]’s residence. He said [friend] was there. He then reported on [girlfriend]’s arrival and the attack by the 2 males. He said there were no words spoken and he has no idea of the identity of the attackers.

19On being asked direct questions, Officer [Name] said that the Applicant complained of pain. Officer Stevenson offered to let the Applicant rest and he would come back the next day to complete the statement. He returned to the Hospital the following day and met with the Applicant and his brother. The Applicant refused to continue with his statement, saying it was in “God’s hands”. Officer [Name] emphasized the importance of the Applicant’s statement to the investigation of the case. He provided the Applicant and his brother with his card and encouraged the Applicant to make contact. The Applicant refused to provide anything further.

20When it was pointed out to the Applicant at the hearing that the others lost track of him between 12:30 and 4:00, the Applicant said he went to visit a girlfriend, [Name]], who lived in the area.

21This was the first mention of [Name] and the first acknowledgement that he was absent from [husband] and [wife]’s home during that time period. The visit with [Name] was not mentioned to the Police nor was it included in the Application. Officer [Name] testified that this was the first he heard of the visit to [Name].

22Officer [Name] said that the story the Applicant told did not line up with the other narratives. Officer Stevenson is of the view that the Applicant knows the Alleged Offenders. Without further cooperation from the Applicant, the investigation could go no further.

23With respect to section 17(1), the Panel has no specific evidence to point to that suggests that the incident was the result of any behavior of the Applicant. There are inconsistencies with respect to what the Applicant told the Police and the CICB, and there are details missing, but there is nothing that would support an adverse finding under section 17(1).

24With respect to section 17(2), the Panel does find that the Applicant’s lack of cooperation with the Police is a factor to consider in assessing whether to compensate the Applicant, and if the Panel compensates the Applicant, whether the amount should be reduced.

25The Panel accepts that the Applicant was not cooperative with the Police. He refused to follow up with his statement at the Hospital when Officer [Name] returned the following day. He told Police he had not seen [friend] the day prior to the incident. In his Application and in his testimony he said he had spent a good deal of time with him. He did not provide Police with an account of where he was between 2:30 and 4:00 when he returned to his friends’ residence and [friend] let him in. When confronted with that at the hearing, he testified he had been with his girlfriend, [Name]. This was the first mention of [Name] to the Police or to the CICB.

26The Applicant’s lack of cooperation with Police effectively ended that investigation although Officer [Name] said it remains open.

27The Panel considered whether it was appropriate to deny compensation to the Applicant or to reduce it. The Panel considered the matter of proportionality. On the one hand, the Applicant’s lack of cooperation possibly leaves the Alleged Offenders on the street. It is impossible to tell whether the investigation might have been successful had the Applicant been more forthcoming, but without his cooperation, there was little likelihood of the Police succeeding in making an arrest.

28At the same time, the Panel must consider the nature of the crime and the severity of the injuries. The medical information is clear that the injuries were severe, requiring surgical interventions. Although he appears to be doing well, he still carries the scars, literally and figuratively, from the event. And the Panel must consider that the Applicant did give a partial statement, although it may have been more confusing than helpful as it did not line up with the information gathered from the investigation. In considering section 17(2), the Panel finds that while the Applicant was not cooperative, the severity of his injuries precludes the Panel from denying compensation. The Panel will, however, reduce the amount it would otherwise award.

Loss of employment Income

29The Applicant worked as a labourer for a landscape firm. He claimed $8,000.00 in lost wages. There is no explanation for that calculation. The Employer’s Report indicates that the work was seasonal, beginning in [month] and concluding in [month]. The Applicant testified that he would usually get Employment Insurance benefits in the off season. He indicated this would not have been the case with respect to 2014 as he left the job.

30Income Tax Returns have been provided for the years 2011 to 2015. The information in the returns is insufficient to arrive at a calculation. According to the returns, the Applicant was working in 2015. Neither of the 2 Medical Reports provided to the CICB indicated a specific time period when the Applicant was unable to work. This information is generally required.

31Although there is information lacking to support this claim for lost wages, the Panel accepts that the Applicant was unable to work for a period of time and although the Panel has no confirmation of the time frame, the Panel will make a contribution to lost wages for a period of 3 months, at the usual CICB rate of $1,000.00 per month (3 months X $1,000.00 = $3,000.00).

32Based on the Applicant’s stated intention to enter into therapy in the near future, the CICB authorizes up to $2,400.00 (exclusive of any applicable taxes) for counselling expenses to be paid directly to a qualified treatment provider upon receipt of a Curriculum Vitae outlining the credentials of the service provider (unless the CICB already has a copy on file). These sessions can only be accessed when the therapy sessions are not covered by other sources, such as the Applicant’s place of employment or insurance benefits. Therapy sessions must be completed within 36 months of receipt of this Order. It is the CICB’s practice to award up to $100.00 per session for therapy, or up to $125.00 per session for registered psychologists. Payment may be made directly to the treatment provider on a monthly basis, upon submission of an invoice and the required verification from the Applicant. The CICB may also consider therapy expenses that were incurred between the time that the Applicant submitted his final set of documents to the CICB and the receipt of this Order. If there are such expenses, the CICB will deduct these from the pre-authorized $2,400.00 amount described above

Award

33The CICB orders payment as follows:

Section 7(1) (a) Future Pre-Authorized Expense $ 2,400.00

Section 7(1) (b) Income Loss $ 3,000.00

Section 7(1) (d) Pain and Suffering $ 8,000.00

TOTAL AWARD (AND COSTS) $13,400.00

Less: Preauthorized treatment costs $ 2,400.00

TOTAL CURRENT AWARD $11,000.00

34The 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

35THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $11,000.00