(Re) 1605-03354, 2017 ONCICB 275

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Keith Forde

Date: October 04, 2017

Indexed as: (Re) 1605-03354

ORDER

Introduction

1The Applicant asks the Criminal Injuries Compensation Board (CICB) to compensate him for injuries resulting from a crime of violence which occurred on [date], 2016 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 an act of attempt murder by the Offender. The Applicant is also seeking reimbursement for ambulance, prescription medication, elbow brace hinge, thermoplastic custom splint, travel to treatment and loss of income/wages.

2The Offender was charged with attempted murder and discharged firearm. The Offender entered a guilty plea of aggravated assault and discharge firearm and was sentenced to eight years in jail.

Preliminary Issue

3Prior to the commencement of the hearing, the Applicant and his legal representative were alerted to potential difficulties faced by his application under section 17 (1) and 17 (2) of the Act. The Member offered the Applicant an adjournment but both he and his legal representative stated that he understood the potential problems and was prepared to proceed with the hearing.

Decision

4The CICB approves pain and suffering compensation to the Applicant in the amount of $8,000.00, $205.76 for the medication cost, $189.12 for travel to treatment costs, [Name] Health Sciences $305.00 for the cost of the braces and splint, and $400.00 to Nate Legal Services Professional Corporation for the reasons set out below.

Issues

• In this case, with respect to section 5(a) of the Act; there is no question that the Applicant was a victim of a crime of violence as proven through the conviction described above. As a result, the CICB does not have to make a finding as to whether a crime of violence occurred.

• Whether the behaviour of the Applicant may have directly or indirectly contributed to his injury under section 17(1) of the Act.

• Whether the Applicant refused reasonable co-operation with, or fail to report promptly the offence to a law enforcement agency under section 17(2) of the Act.

• The CICB shall make an assessment of the severity of injuries caused by the attempted murder.

• The CICB must assess all relevant circumstances and whether or not compensation should be award and, if so, the amount.

• The CICB must decide if the request for ambulance, prescription medication, and elbow brace hinge, thermoplastic custom splint, travel to treatment and loss of income/wages is reasonable within the scope of the Act.

Evidence

Applicant’s Evidence

5The Applicant appeared before the CICB and provided the following sworn evidence.

6On the morning of the incident, the Applicant testified that he was with a female friend in a car pool parking lot at [location] and an unknown street. He said that he was driving his vehicle and they were parked awaiting a friend of his female companion who was coming to meet her in a white [vehicle].

7Upon repeated questioning by the Member, the Applicant denied any intimate relationship with his female companion. The Applicant did admit that he picked his female companion up from home late in the evening of [date], 2016 and drove her to [City] where they rented a motel room. At one point the Applicant admitted that he and his female companion were going to spend the weekend together and later he said that after she met with her friend, he was going to drive her back to the motel and then drive home to [City] as he had to work later in the day.

8Upon further questioning, the Applicant admitted that his female companion was in fact an escort. When the Applicant was asked if his female companion was working for him, he responded, “Definitely Not, I have never received a dollar from her, definitely not.” The Applicant further stated that he did not know if his female companion was honest with him.

9The Applicant informed the Member that as they were waiting for this white [vehicle], a black [vehicle] drove up and blocked his vehicle. He saw the Offender exit his vehicle with a big gun and shot his engine and then shot him three times in his left arm, once in his chest and two times in his right arm. As the Offender was shooting into the Applicant driver’s side of his vehicle, he said he hid under the steering wheel of his vehicle and began to pray.

10The Applicant’s female companion called 911 and the Police and ambulance arrived and transported the Applicant to [Name] Memorial Hospital first where he was then transferred to [Name] General Hospital.

11In repose to questions from the Applicant’s legal representative, the Applicant confirmed that he has never had any involvement with the Police, he was not a member of any gang and that he had no enemies. The Applicant also stated that it was the first time he saw the Offender when he shot him and that he usually works six to seven days a week.

Evidence of the Police Witness

12The Police Witness appeared before the CICB by way of teleconferencing and gave the following affirmed evidence. He indicated that at the time he was an experienced police officer with 20 years’ service. At the time of the incident, the Police Witness was a detective in the homicide squad of the [Name] Police Service and was the lead investigator in the investigation.

13The Police Witness said that the Applicant’s testimony was not consistent with what was reported to the police on the morning in question, nor was it consistent with their investigation. The Police Witness then testified to their investigative findings as follows.

14The Applicant and his female companion, who was an underage female, checked into a motel in [City] on [date], 2016 at 10:00 pm and at this time the female listed her services on Back Pages using a telephone provided to her by the Applicant for that purpose. While the Applicant and his female companion waited for customers to call the number provided, they engaged in sexual intercourse on two occasions. This was corroborated by the finding of two used condoms in the motel room after the Police received a search warrant to search the room.

15Contrary to what the Applicant testified in his hearing, the Police Witness said that the Applicant admitted that his female companion was his girlfriend and he did have sexual intercourse with her in the motel room.

16The Applicant’s female companion only did out-calls, either to the customer’s home or in the customer’s vehicle. She never did in-calls where the customer would come to the motel room. She charged $120.00 for a half hour of sexual services.

17Sometime later the Applicant’s female companion received a message for sexual services from a customer. She was driven to the location where she performed her services and returned to the motel. The arrangements were usually made by way of text messages or by phone, but mostly by text messages. Police were in receipt of the phone used and provided by the Applicant for his female companion to conduct her business.

18At 12:26 am on [date], 2016, the Applicant’s female companion received a text message for her sexual services and was dropped off by the Applicant at an apartment building in [City] at 1:12 am. The female proceeded to the Offender’s apartment. While there the customer who had contracted her services for a half hour, had difficulty performing sexually. After 25 minutes elapsed, the female convinced the Offender that she had to go to her vehicle to get another condom. The Offender was expecting the female to return as he did not receive sexual satisfaction; however, the female went to the Applicant’s vehicle and they drove away from the scene awaiting another customer.

19The Offender, realizing that the female was not returning, began to text her asking her if she was returning. There were text exchanges between the Applicant’s female companion and the Offender who said that he was ripped-off. During the text exchanges, the Offender believed that the female was making fun of him and texted her saying, “I hope you find that funny, LOL….”

20Unbeknownst to the Applicant and his female companion, the Offender used another phone and texted the female pretending to be another customer and arranged another meeting in the car pool lot at [location] in [City]. The female and the Offender negotiated terms and they agreed to meet at the car pool parking lot, situated at [location] to have sex. The Offender texted the female companion of the Applicant, that he would be driving a white [vehicle].

21As arranged, the Offender showed up, not in a white [vehicle], but in an old model [vehicle]. He blocked the Applicant’s vehicle which was parked at the pre-arranged location with the Applicant in the driver’s seat and the female in the passenger front seat. The Offender exited his vehicle, took out an AK-47 style assault rifle and pointed it at their vehicle. The Offender then fired two shots through the front window of their vehicle and four additional shots at the driver's side of the vehicle. The Applicant placed his vehicle in drive and tried to get away, in doing so he was involved in a collision with the Offender’s vehicle. The Offender got back into his vehicle and fled the scene.

22The Police Witness informed the CICB that the Applicant drove the female to her calls and when the female was investigated she only had half of the money she made from the two calls. The inference being that the Applicant received half of the female’s earnings.

23When the Police Witness confronted the female, she readily confessed to working as an escort and that the Applicant was her boyfriend. When the Applicant was first confronted, he said that he was tired and pulled into the parking lot to sleep. However, he later admitted to Police the nature of the calls and claimed to be the female’s boyfriend and that he knew the nature of the female’s business and the reason he was in the parking lot.

24The Police Witness said that the Applicant’s involvement in criminal activity contributed to his injury and that he only offered reasonable cooperation after he was confronted with the truth.

25Police noted that the Applicant was struck with multiple rounds in both shoulders and the left forearm. Bullet fragments also caused minor injuries to his chest and upper left arm.

26The Applicant also provided the CICB various documents in support of his claim. The CICB was in receipt of medical reports from [Name] Memorial Hospital, [Name] Health Sciences and [Name] Health System.

27The Applicant concurred that the various Medical Reports received by the CICB showed that following the attack by the Offender, he suffered the following injuries:

• Gunshot wounds to left arm with multiple avulsion/laceration to right and left arm;
• Gunshot wound with exit wound to upper left arm/shoulder, left forearm;
• Laceration to left elbow
• Avulsion to right forearm;
• Abrasion with swelling to right shoulder; and
• Strong bilateral radial pulses.

28[Name] Health Sciences noted the following:

• PREOPERATIVE DIAGNOSIS:
  • Left arm high radial nerve injury from shotgun injury; and
  • Right volar forearm soft tissue injury from shotgun injury.
• POSTOPERATIVE DIAGNOSIS:
  • Left arm high radial nerve injury from shotgun injury; and
  • Right volar forearm soft tissue injury from shotgun injury.
• TYPE OF PROCEDURES:
  • Exploration radial nerve, left arm;
  • Reconstruction, left radial nerve defect with left sural nerve cable grafts;
  • Harvest sural nerve graft from left leg; and
  • Tertiary closure right volar forearm wound.

29The CICB was also in receipt of a medical report from Dr. [Name] of [Name] Medical Centre who saw the Applicant on [date], 2016 for his gunshot wounds and nerve injury. He noted that surgery was performed on [date], 2016, and physiotherapy was recommended.

30The CICB was also in receipt of a medical report from the Applicant's Family Physician that also confirmed the above diagnoses and described the Applicant’s prognoses as poor.

31The Applicant received physiotherapy from [Name] Hospital for his right forearm and left and right shoulder as a result of gunshot wounds.

Injuries

Physical

32The Applicant noted to the CICB in his Application the following:

• Gunshot wounds to right shoulder and right forearm;
• Six or seven inches of medal in his left arm after surgery;
• Significant damage to radial nerves on left arm;
• Nerve graft from left leg to left arm;
• Constant pain; and
• Daily taking of pain medication.

Psychological/Emotional

• The incident has significant affected his daily living;
• Haunted by the shooting;
• Unable to focus or receive adequate sleep;
• Recurring flashbacks;
• Sour mood;
• Depression;
• Loss of appetite;
• Unhappy outlook for the future;
• Impacted personal relationships; and
• Angry demeanour.

33The Applicant testified at his hearing that he is still very depressed, and that he was going through the toughest time of his life, he became a dependant person and is suffering from suicidal ideation. He also testified that he is still recovering from the incident, loss nerve in left shoulder and have to wear a splint and have another surgery in late [month]. The nerve came out the left leg; he sleeps on his side due to chest pain; he still has much pain in right arm; he has a metal plate in left shoulder and forearm. The Applicant still has bullet fragments in his left shoulder and he is unable to lift his right arm.

Analysis

34Section 11 of the Act states proof of conviction shall be taken as conclusive evidence that the offence has been committed. The CICB now finds that the Applicant was a victim of an attempted murder with a weapon and therefore a victim of a crime of violence within the meaning of section 5(a) of the Act.

35At the outset of the hearing, the CICB informed the Applicant and his legal representative that section 17(1) and (2) of the Act had been identified as possibly being relevant in his claim and that the said 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.

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 victim has refused reasonable co-operation with, or failed to report promptly the offence to, a law enforcement agency.

36The Member confirmed that the Applicant and his legal representative understood the meaning of the provisions and offered an adjournment. However, the Applicant and his legal representative elected to proceed.

37In relation to section 17(1) of the Act, the CICB has considered the relevant evidence, including the evidence of both the Police Witness and the Applicant. In order to properly consider the provision of the Act, the CICB must:

• Weigh all the relevant circumstances; and
• Consider whether the conduct of the victim directly or indirectly contributed to his injury.

38Following these steps, the CICB must decide whether to grant compensation, deny compensation or to allow a reduced award under section 17(1). In deciding this aspect, the CICB should have regard to proportionality between any criminal act against the Applicant and any behaviour of the Applicant that directly or indirectly contributed to his injury.

39The relevant circumstances here start with the evidence of the Applicant and the Police Witness that the Applicant’s female companion was an escort, selling sexual acts for money. Although the Applicant was evasive and not credible in his testimony, he did admit to the Police Witness that he drove his female companion from client to client and knew the business she was engaged in. Further, the Applicant was not forthcoming at first to the Police Witness as to the reason he was in the car pool lot at [location] at 3:00 a.m. on the day in question. At first, the Applicant said that he was tired and pulled over in the lot to take a sleep. Only when the Police Witness confronted the Applicant with the facts as related to the Police by the Applicant’s female companion, did he come true and admitted his involvement. In this respect, the CICB accepts the Police Witness’s evidence that:

• The Applicant provided a phone for his female companion to ply her trade;
• That the Applicant registered his female companion services on Back Pages;
• That the Applicant was well aware of what his female companion was doing and that he was part of the criminal activity;
• That the Applicant’s female companion was a young person not of age; and
• That the Applicant drove his female companion from client to client.

40In the CICB’s view, the Applicant knew or ought to have reasonably known that the criminal activity he was involved in carried with it the risk of violence against him and his female companion. Supporting this conclusion is the fact that the Applicant’s evidence was evasive and self-serving. Under oath, he denied knowing his female companion, stating that she was not forthcoming to him with what she was doing. The Applicant testified that he was in the car pool lot waiting for a female friend of his female companion to meet her, knowing full well that this information was not truthful. The Applicant knew that he was there waiting for a client for his female companion to engage in sexual acts for a fixed fee and that this client was driving a [vehicle].

41However, the Police Witness’s evidence shows that the Offender’s motive for an attack on the Applicant was related to his female companion not complying with her sexual agreement of sexual activity for 30 minutes with the Offender.

42Here the Applicant sustained the multiple gunshot wounds in both shoulders and the left forearm. Bullet fragments also caused minor injuries to his chest and upper left arm which were not life threatening. It is clear to the CICB that the Applicant was engaged in some kind of criminal activity which resulted in him being shot.

43All of these factors are relevant circumstances under section 17(1) of the Act. Furthermore, the conduct of the Applicant as set out above was such that it was reasonable foreseeable that he would become a victim of the crime committed against him.

44The CICB has carefully considered the non-life threatening injuries suffered by the Applicant against these relevant circumstances to determine whether compensation ought to be awarded to the Applicant, whether a reduced award of compensation should be granted or whether compensation ought to be denied. The CICB has concluded that the Applicant engaged in conduct of a nature that, although his non-life threatening injuries were not proportional to those activities, they nevertheless were a contributing factor to the Applicant’s non-life threatening injuries. Accordingly, the CICB found that the Applicant’s behaviour indirectly contributed to his injury, the CICB believes this is an appropriate context in which section 17(1) of the Act should be invoked to reduce the award subject to its analysis under section 17(2) of the Act as stated below.

45In respect to section 17(2) of the Act, upon a review of the totality of the evidence, the CICB notes that at first the Applicant was not forthcoming with the police investigators. However, when the Police Witness confronted the Applicant with the truth and the facts to support their allegations, the Applicant then offered reasonable cooperation.

46Although there was difference between the statement given to the Police and the testimony given by the Applicant to the CICB, when the Applicant was confronted with the Police Witness’s testimony, he readily admitted that the Police Witness’s testimony was true.

47Having considered the evidence presented, including the Applicant's evidence and the testimony of the Police Witness, the CICB finds that the Applicant provided reasonable cooperation to law enforcement authorities and consequently the Applicant’s claim for compensation shall not be adversely affected by section 17(2) of the Act.

48In assessing compensation for pain and suffering, the CICB has considered that the Applicant was violently shot multiple times while he was seated at the wheel of his vehicle. The Applicant suffered serious physical injuries requiring surgeries and hospitalization, that a weapon was used in the commission of a crime. That the Applicant had reconstructive surgery to left radial nerve defect with left sural nerve cable grafts. That the Applicant needed sural nerve graft from his left leg and that he now has six or seven inches of metal in his left arm after surgery. After the shooting, the Applicant now suffers from recurring flashbacks, suicidal ideation, unable to focus or receive adequate sleep, sour mood, depression, loss of appetite, has an unhappy outlook for the future, the incident has impacted his personal relationships and he now has an angry demeanour.

49Having considered all of the relevant circumstances, the CICB orders $8,000.00 to be paid to the Applicant for pain and suffering.

50The CICB considered the Applicant’s claims in respect to medication and elbow braces and splint costs, for which receipts were provided. The CICB finds such costs to be both reasonable and within the context of the Act and will therefore award the Applicant $205.76 for the medication cost and [Name] Health Sciences $305.00 for the cost of the braces and splint.

51The CICB awards travel to treatment costs in the amount of $189.12, calculated at the CICB’s standard rate of 40¢ per kilometre (4 trips @ 118.2 kilometres per trip @ 40¢ per kilometre).

52The CICB generally requires original receipts and/or other supporting documentation for any expenses that are claimed, both to verify the amount claimed and to confirm that such costs were not covered by other sources, such as private insurance. In the absence of such evidence, and having found no compelling reason to deviate from its usual practice in this instance, the CICB denies the expense claims for ambulance costs.

53With respect to the Applicant’s claim for income loss, the CICB notes that it generally requires supporting documentation (i.e. employer’s report, pay stubs or Income Tax records in order to verify an applicant’s employment status and average net earnings at the time of the incident, and to determine whether any income-replacements benefits were received during the period being claimed. In the absence of the below noted described information and having found no compelling reasons to deviate from its usual practice in this instance, the CICB finds that the Applicant has failed to establish his claim for income loss and the claim in that regard is hereby denied for the below noted reasons:

• The CRA information on file - from 2013 and 2014 only - confirms that the Applicant was earning more than $1,000/month, the CICB’s maximum contribution.
• The Employer’s report indicates that the Applicant was earning more than $1,000 at the time of the incident.
• The Applicant’s legal representative was reminded in a CICB letter dated June 12, 2017, that the CICB needed the CRA documentation from 2015 and 2016 to be able to calculate wage loss. This information was still outstanding at the time of the Applicant’s oral hearing.
• The CICB is not in receipt of documentation to confirm the Applicant’s income for 2015.
• The CICB in not in receipt of documentation to confirm the Applicant’s source of income for 2016. The CICB noted from the Applicant’s testimony that he is still unable to work and may have received EI and/or ODSP benefits.

54It 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. 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 legal representative Nate Legal Services Professional Corporation.

Award

55The CICB orders payment as follows:

Section 7(1) (a) Travel to treatment $ 189.12

Section 7(1) (a) Braces and splint $ 305.00

Section 7(1) (a) Prescription medication $ 205.76

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

Section 22 Legal contribution $ 400.00

TOTAL AWARD $ 9,099.88

56The 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

57THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $8,394.88

Nate Legal Services Professional Corporation $ 400.00

[Name] Health Sciences (Account [Numbers]) $ 305.00