Re 1512-01757, 2017 ONCICB 255

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Guy Savoie
Date: September 20, 2017
Indexed as: (Re) 1512-01757

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, R.S.O. 1990, c. C.24, as amended (the “Act”). The Applicant is seeking lost income, expenses and pain and suffering as a result of a physical assault that occurred on [date], 2013. The Applicant was shot in the right leg and struck with the butt of a gun by two unknown Alleged Offenders. The Applicant says the assault occurred in his car while he was parked outside his condominium during an attempted robbery and carjacking.

PRELIMINARY MATTERS

2Counsel for the Applicant advised the CICB that the Applicant was seeking the CICB’s permission to amend the Application to limit the compensation being sought to pain and suffering. I granted this request.

3The Applicant and his counsel were advised of the potential issues with this Application in light of subsections 17(1) and 17(2) of the Act. The provisions 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 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.

4The Applicant confirmed that he understood the meaning of the above sections and declined an offered adjournment. The Applicant and his Counsel indicated that they were prepared to proceed with the hearing as scheduled.

DECISION

5The CICB approves the claim and awards the Applicant the sum of $2,000.00 for pain and suffering for the reasons set out below.

ISSUES

6The principle issue for the CICB to determine is whether the Applicant’s injuries resulted from a crime of violence within the meaning of subsection 5(a) of the Act. The CICB must also determine whether there are any issues with respect to subsections 17(1) and 17(2) of the Act that would affect the awarding of compensation.

HEARING

Incident

The Applicant

7The Applicant provided oral evidence that on the day of the incident he had arranged the sale of 5 pounds of marijuana. The Applicant acknowledges this was not the first time that he had supplied drugs to the Alleged Offenders. They are his customers.

8The Applicant testified that he asked Alleged Offender 1, known to him only by his nickname [Name], to meet him in his car which was parked outside his condominium complex. He had something to tell him. When Alleged Offender 1 got into the car the Applicant informed him that he did not have the drugs but was confident that he would have them in the near future. The conversation that followed was amicable but Alleged Offender 2, known only to the Applicant as [Name], entered the car through the rear passenger door and pulled a gun. At that point the Alleged Offender 1 in the front seat also pulled out a gun and demanded the Applicant’s jewelry and cash; the Applicant was told to drive. Instead of driving away, the Applicant attempted to reach for his cellphone to call 911. One of the Alleged Offenders hit the Applicant with the butt of his gun and then one of them shot the Applicant in the right leg severing an artery. The Alleged Offenders got out of the car and entered the condominium building through the front doors.

9The Applicant drove away without realizing he had been shot. He drove to a nearby gas station to get something to drink because he was thirsty. When he arrived he noticed the blood on his leg. When he attempted to exit the car he collapsed on the pavement. Someone at the gas station called the Police.

10The Applicant was transported to Hospital by ambulance where he underwent surgery which involved an arterial transplant and skin grafting. The Applicant testified that when he got out of surgery he was too “dazed” to speak to the Police Officers or answer their questions regarding the incident.

11The Applicant says that when the Police returned in the days that followed he was shown the surveillance video from the condominium building. He testified that he informed the police of the Alleged Offenders’ nicknames and pointed them out in photographs provided by Police. He declined to participate any further in the investigation. He says it was for fear of reprisals to him or his family.

The Police Witness

12The Police Witness, a police constable with the [Name] Police Service for 12 years and the lead investigator of the incident, provided testimony that was somewhat different than the Applicant’s evidence in chief.

13The Police Witness says that prior to the shooting the Applicant can be seen on the condominium’s surveillance cameras with one of the Alleged Offenders walking around the complex, in the lobby, and going up and down in the elevators together talking for approximately 20 minutes. The Police Witness testified that it is clear from the video there was no animosity between the two. At 3:41 p.m. the surveillance camera located in the lobby captures the Applicant in the company of an Alleged Offender entering the lobby. The Alleged Offender can be seen holding a bag which clearly has something in it. At 3:43 p.m. the garage video camera picks up the same Alleged Offender and the Applicant getting into a black or grey four door Chevrolet (not the Applicant’s car) and exiting the parking garage. At 3:52 p.m. the Police received a call that someone had been shot.

14The Police Witness testified that based on the video and physical evidence he believes the actual shooting did not occur in the Applicant’s car at the front of the condominium complex as the Applicant asserts. The physical evidence is consistent with the Applicant being shot while sitting in his car (there was a bullet found on the floor board next to the driver’s seat); however, there is no corroborating evidence consistent with the shooting taking place outside the condominium building as opposed to somewhere else.

15The Police Witness testified that no one in the condominium complex or surrounding townhomes heard the shot being fired. The surveillance footage does not capture the Alleged Offenders entering the lobby at the time of the shooting. In addition, a 40 caliber shell casing, the same caliber as the bullet found in the Applicant’s car, was found outside the car at the gas station where the Applicant collapsed. However, the Police Witness was unable to conclude whether the shell casing fell out of the car when the Applicant got out or fell to the ground at the gas station because that is where he was shot.

16As a precautionary measure two Police Officers were stationed outside the Applicant’s Hospital room around the clock because the Police were unaware of the circumstances surrounding the shooting.

17The Police Witness testified that he and his partner attended the Hospital the day after the incident to speak to the Applicant. The Police Witness advised the Applicant of the investigation. The Applicant apologized to the Officers and informed them that he did not want to say what happened on the day he was shot because it was a tight knit community and he did not want to put either himself or his family in jeopardy. The Applicant then informed the Police that he did not want the Police stationed outside his room as he felt safe from any retaliation. The Applicant also declined to sign a medical release form which would allow the Police to have access to his medical records to assist in the investigation.

18The Police Witness returned to the Hospital on [date] to speak to the Applicant. Through their investigation the Police were able to identify potential persons of interest and proceeded to show the Applicant pictures. The Police Witness says he refused to confirm or deny whether they were the ones involved in the shooting.

19The Police Witness testified that at no time during the investigation did the Applicant provide the Police with the “nicknames” of the two Alleged Offenders contrary to the Applicant’s evidence. The Police Witness testified that he did not show the Applicant the surveillance footage that the Applicant claims he viewed. In response to a question on cross-examination as to whether it was possible that some other Officer could have shown him the video, the Police Witness replied that it would be highly unlikely given that he was the Officer in charge of the case.

20The investigation was closed because the Applicant would not cooperate.

21In light of the Police Witness's testimony and the different versions of the events, the Applicant was given an opportunity to clarify the inconsistencies in the evidence.

22The Applicant acknowledges he met Alleged Offender 1 outside the complex prior to both of them entering his car; he denies walking around or inside the complex with the individual. It is the Applicant’s position that it was a case of mistaken identity; the two individuals seen walking together on the surveillance footage are the two Alleged Offenders.

23The Applicant did not rebut the Police Witness's evidence about his decision to decline access to his medical records or provide any further assistance to the police.

24The Applicant did not address the issue as to why the Alleged Offenders were not captured on the surveillance video when they allegedly entered the condominium complex immediately after the shooting.

Injury

Documentary Evidence

25The CICB is in receipt of the Medical Reports from the Hospital where the Applicant was taken immediately after the shooting.

26On [date], 2013, the day of the incident, the Applicant underwent surgery for a right femoral below the knee popliteal bypass using the left leg vein with medial and lateral lower leg fasciotomies. On [date], 2013, the Applicant underwent a second surgery for skin grafting to the fasciotomy sites. The Applicant was released [date], 18 days after being admitted.

27The Applicant advises that in addition to 45% diminished use of his leg, he has significant scarring on both legs, ongoing pain, and he currently walks with a limp. He is physically unable to stand for more than 2 hours at a time.

Subsections 17(1) and 17(2) of the Act

28As stated above, subsection 17(1) of the Act requires the CICB to take into consideration all relevant circumstances including any contributory behaviour on the part of the Applicant. In addition, subsection 17(2) permits the CICB to exercise its discretion to refuse to award compensation or reduce the amount ordered where it is satisfied that the victim has refused reasonable co-operation with law enforcement, or failed to report the offence promptly.

29The Applicant submits that although he has been involved in the drug trade, the CICB should take into account a number of relevant factors in determining whether there are any issues that would affect the awarding of compensation.

30There is no evidence that the Applicant actually had any drugs in his possession at the time of the incident. It was his evidence that he was merely informing his buyer of this fact.

31Further, the Applicant argues the CICB should also consider the type of drug in question and the law with respect to that drug. The Applicant sold marijuana, not hard drugs like cocaine or heroin, and marijuana will soon be legalized.

32The Applicant also submits that the Alleged Offenders have never previously threatened the Applicant. They do not have a known reputation for violence nor is there any indication they used or brandished any weapons before this incident. There was no indication that the Applicant might be shot in response to informing the potential buyer that he did not have any drugs to sell. In other words, being shot in the leg and suffering the wounds he did outweighed his involvement and was unforeseeable.

33With respect to subsection 17(2) the Applicant submits he co-operated with police by providing the nicknames of the Alleged Offenders and identifying them from photographs. He also submits he declined to make a video statement or sign a release for his medical records because he genuinely feared for himself and his family.

ANALYSIS AND DECISION

34Pursuant to subsection 16(1) of the Act the CICB may make an order for compensation whether or not any person has been prosecuted for or convicted of the offence giving rise to the injury.

35Having considered the evidence, the CICB finds that the Applicant is, on a balance of probabilities, a victim within the meaning of subsection 5(a) of the Act in that he sustained injuries as a result of a crime of violence. I am satisfied that subsections 17(1) and 17(2) are not a bar to the Applicant being awarded compensation for the following reasons.

36When determining whether to refuse or reduce an award the CICB must also weigh the proportionality of the injury with the circumstances that it has found to be relevant. The existence of criminality on the part of the Applicant should not be determinative of the issue of compensation. See Mark v. Criminal Injuries Compensation Board, 2010 ONSC 6540.

37At the time of the incident the Applicant was informing his prospective buyer that he did not have the 5 pounds of marijuana that he promised. Although on the day in question he was not actually engaged in selling illegal narcotics the Applicant assumed a significant element of risk by putting himself in harm’s way. Illegal activity often if not always brings with it some risk of harm.

38The CICB has considered the severity of this injury against a number of other relevant factors. The Applicant was engaged in a meeting involving the potential sale of 5 pounds of marijuana and knew or ought to have known that drug-related activity includes a risk of some violence.

39In the CICB’s view, despite the fact that he ought to have known there was a risk of injury due to the violence associated with drug activity, the injury sustained by the Applicant was not a foreseeable consequence given that past nature of the transactions between the parties. This is a situation in which the severity of the injury experienced by the Applicant is disproportionate to the Applicant’s conduct. Compensation should still be awarded albeit reduced to reflect that his conduct indirectly contributed to his injury.

40The other issue before the CICB is the level of cooperation provided by the Applicant to the police in their investigation. There was conflicting evidence presented by the Applicant and the Police Witness regarding whether the Applicant had in fact provided police with the nicknames of the Alleged Offenders and positively identified them from the photographs shown to him by Police. The Applicant also claimed that he declined to make a video statement or sign a release for his medical records allegedly because he genuinely feared for himself and his family.

41I do not find the Applicant to be credible in this regard.

42The Applicant states that he was fearful of reprisals from the Alleged Offenders. That statement is contradicted by his behaviour. He informed Police that he did not want them stationed outside his hospital room because he felt safe.

43During the hearing when asked simple yet relevant questions the Applicant would pause and not reply. For example, the CICB asked the Applicant had he spoken to or seen either of the Alleged Offenders prior to the shooting. This was done in light of the PW’s evidence that he was seen on surveillance footage with Alleged Offender 1 within the complex. Instead of simply answering the question the Applicant repeated the question back and paused without answering. I informed him that his failure to reply promptly to a straight forward question was raising concerns about his credibility and reliability. The question was repeated and he then indicated he did not talk to or see either of the Alleged Offenders prior to the meeting in the car.

44He later contradicted his previous testimony and said that he had called Alleged Offender 1 for a meeting and had met him outside the condominium complex and then proceeded to his car.

45Given the Applicant’s lack of credibility described above, I am not satisfied it is more likely than not that the Applicant identified the Alleged Offenders for the police or gave them their nicknames. Given the credibility problems with the Applicant’s evidence, I accept the Police Witness’s evidence in this regard over that of the Applicant.

46Having considered all of the evidence the CICB is not satisfied on the balance of probabilities that the Applicant reasonably cooperated. The CICB concludes that this is an appropriate case for the CICB to exercise its discretion to further reduce the amount of compensation to the Applicant under subsection 17(2).

47In assessing compensation for pain and suffering the CICB has considered the nature of the injuries sustained by the Applicant. The bullet severed the popliteal artery in his right leg. The Applicant underwent 2 surgeries and was hospitalized for 18 days. As of the day of the hearing he continues to experience numbness, pain, significant scarring and 45% diminished use of his right leg. Having regard for all the evidence and subsections 17(1) and 17(2), the CICB awards $2,000.00 for pain and suffering.

PAYMENT

48The CICB orders that the following sums be paid forthwith to:

The Applicant $2,000.00