(Re) 1702-00466, 2017 ONCICB 282

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Keith Forde

Date: October 13, 2017

Indexed as: (Re) 1702-00466

ORDER

Introduction

1The Applicant asks the Criminal Injuries Compensation Board (CICB) to compensate him for injuries resulting from a crime of violence which occurred between 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 assault causing bodily harm, committed by both Offenders, who were his friends.

2Offender 1 was convicted on [date], 2016, of assault causing bodily harm and sentenced to three days in custody, in addition to 60 days pre-sentenced custody. He was placed on probation for 18 months, a DNA order was made, and he was prohibited from owning or possession a firearm for 10 years.

3Offender 2 was convicted on [date], 2017 for assault causing bodily harm and was sentenced to 30 days custody, placed on probation for one year, and a firearm prohibition was ordered. Offender 2 was also order to make restitution of $237.50 to the Applicant.

Decision

4The CICB approves compensation to the Applicant in the sum of $7,000.00 for pain and suffering 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 of both Offenders as described above. As a result the CICB does not have to make a finding as to whether a crime of violence occurred;
• The CICB shall make an assessment of the severity of injuries suffered by the Applicant as a result off the crime of violence; and
• The CICB must assess all relevant circumstances and whether or not compensation should be awarded and if so, the amount.

Evidence

Evidence of the Applicant

5The following is a summary of the facts and circumstances taken from the Applicant’s Application information and from the [Name] Police correspondence to the CICB.

6The Applicant noted to the CICB that both Offenders were his friends. Four days prior to the date of the offence, the Applicant allowed both Offenders to stay at his place until they were able to find a place of their own. Offender 1 and Offender 2 were intimately involved as boyfriend and girlfriend at the time.

7The Applicant believed that Offender 1 assumed that he was having an affair with Offender 2. As the Applicant and the Offenders were together consuming alcoholic beverages on the day in question, Offender 1 became angry and accused the Applicant of hitting on Offender 2 and trying to sleep with her. This infuriated Offender 1, who began to fight with the Applicant. As they were physically fighting, Offender 2 jumped in and began to punch the Applicant as well.

8The fight then went outside with the Applicant fighting both Offenders. While the Applicant was on the ground fighting with Offender 1, Offender 2 struck the Applicant in his head with a brick. The Applicant believed that Offender 1 also struck him with a brick.

9The Applicant stated that when the fight was over, he went inside his home and told both of the Offenders to leave, which they did. While the Applicant was inside his home, he heard his front door smash and found that a brick had been thrown through his front door, shattering the glass. The brick also went through the drywall and landed in the Applicant’s bathroom.

10Police were called and the Applicant was transported to [Name] Memorial Hospital by ambulance where he received six staples to the left side of his head to close a wound. The Applicant also received a cast on his right arm for his broken arm.

11The Applicant also provided the CICB various documents in support of his claim.

12The CICB was in receipt of a medical report from [Name] Memorial Hospital which showed that the Applicant presented with a crepitus forearm, laceration to left temple which was bleeding, abrasions to knees and elbows. The Applicant was examined, treated for his injuries and released with instructions.

13The CICB was in receipt of several Medical Reports from [Name] General Hospital; one of the reports noted the following:

He underwent initial open reduction and internal fixation and was discharged home the day of surgery which was on [date], 2016. He was subsequently seen the next day in the emergency room with concerns regarding tightness and query compartment syndrome of his right upper extremity. He was admitted for observation overnight and discharged home the following day with no concerns regarding his pain. This can be managed with prescriptions provided.

14A Medical Report also noted that the Applicant presented with comminuted radial shaft fracture with butterfly fragment and open reduction and internal fixation surgery was performed. The CICB was also in receipt of several follow-up Medical Reports from [Name] General Hospital.

Injuries

Physical

15The Applicant noted in his Application to the CICB that after the incident he suffered the following injuries:

• Fractured right arm – requiring open reduction with internal fixation surgery;
• Numbness in the right hand;
• Laceration to the left temple area;
• Abrasions to face, chest, knees and elbows; and
• Short and long term memory issues.

Psychological/Emotional

• Trouble remembering things;
• Frustration from loss of memory; and
• Repeats himself when engage in conversations

Analysis

16Section 11 of the Act states that proof of conviction shall be taken as conclusive evidence that the offence has been committed. The CICB finds that the Applicant was subjected to a crime of violence as defined by section 5 (a) of the Act as a result of an act of assault causing bodily harm committed on [date], 2016 in the town of [Name].

17Having considered the evidence presented in the Applicant’s application and the police information, the CICB is persuaded that the Applicant suffered both physical and psychological injuries as a result of a crime of violence. The CICB finds the Applicant to be a victim within the meaning of section 5(a) of the Act.

18The CICB accepts that the Applicant suffered physical and psychological injuries and the related symptoms that are described by the Applicant in the documentary information submitted to the CICB. The CICB also accept that the Offenders’ crime was the contributing factors to the Applicant’s physical and psychological injuries.

19In assessing compensation for pain and suffering, the CICB was mindful of the circumstances of this incident and the physical and psychological injuries suffered by the Applicant and considered the following aggravating facts:

• The Applicant was assaulted in his own home;
• that he was assaulted by two Offenders, that the assault was unprovoked, that the Offenders were his friends;
• that he suffered physical injuries requiring surgery and that there has been a considerable impact on the Applicant’s health, relationship and general emotional psychological state.

20Having considered all the relevant circumstances, the CICB orders $7,000.00 to be paid to the Applicant for pain and suffering.

Award

21The CICB orders payment as follows:

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

TOTAL CURRENT AWARD $7,000.00

22The 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

23THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $7,000.00