Re 1605-03649, 2017 ONCICB 305

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Jo-Anne Hughes Date: October 27, 2017 Indexed as: (Re) 1605-03649

ORDER

Preliminary Matter

1Prior to this hearing, the CICB contacted the Applicant to see if he could obtain an updated report on the injuries to his eyes.

Introduction

2In this case, the Applicant claimed he was assaulted by a community police officer (the Offender) while he was being held in a jail cell.

3In this case, the CICB is required to determine whether a crime of violence has occurred as per section 5(a) of the Act, what injury, if any, arose from it, and the relevant circumstances affecting whether or not compensation should be awarded and, if so, the amount.

Incident

4In his May 2016 submission to the CICB, the Applicant wrote that he was arrested for being too drunk at his dad’s house and not wanting to leave. When he was taken to the [Name] Police Detachment, he didn’t want to remove his jacket so the Offender decided to punch him, hit him with his baton and pepper spray him in the face. The Applicant did not resist or fight back – he just wanted to keep his coat on so he would not feel cold overnight.

5With a statement from the Offender, Police initially charged the Applicant with assaulting a peace officer and resisting arrest. The incident was captured on a closed circuit surveillance camera and an investigation revealed several issues with the Offender’s account of the incident. About a month later, the Offender was charged with assaulting the Applicant in the jail cell and he was suspended from his job. Charges against the Applicant were withdrawn.

Police Report

6Police Reports show that the Offender punched the Applicant at least five times while the Applicant was passive and showed “no assaultive or actively resistant behaviour”. Then the Applicant is pepper sprayed several times and hit with the Offender’s baton - three times on his upper thigh and shins. The Offender made a false statement about the incident. The Applicant was then falsely arrested, unlawfully confined and taken to [City] for bail processing. During the incident, the Applicant was left for over an hour without being medically checked and he was not decontaminated for his exposure to the pepper spray.

7The Offender was charged with uttering threats, assault with a weapon (pepper spray), assault with a weapon (baton), assault causing bodily harm and unlawful confinement.

8On [date], 2013, the Offender was found guilty of assault and assault with a weapon. On [date], 2014, the Ontario Court of Appeal dismissed the Offender’s appeal of those convictions.

Injuries

9The Applicant wrote that as a result of this incident, his nose was broken and he claimed that he had “permanent eye damage” because of the pepper spray which “practically melted his contact lenses onto his eyes. (Mostly his right eye)”

10The Applicant wrote that he lost trust in the local police services and in the justice system. He felt he was improperly labeled as “a criminal” and he turned to drugs and alcohol. After a few years, he began treatment for his drug abuse and turned his life around.

Medical Reports

11The CICB received a Report from the Nurse who saw the Applicant after the incident in the jail. He had bruises to the right side of his head and ear as a result of being struck by the Offender’s baton. He had a “superficial laceration” on his lower lip, minor swelling to his nose and his eyes were a bit red. A few days later, the Applicant had an x-ray of his face and nose.

12An x-ray confirmed the Applicant had a “major depressed fracture, right lateral nasal bone and deviation of bony nasal septum to the left”

13On May 12, 2017, the CICB received a report from the Applicant’s Optometrist, Dr. [Name] who had not seen the Applicant since 2010 (before the incident). However, he provided information from Dr. [Name] who saw the Applicant a year after the incident and the uncorrected vision in his right eye was five times worse than it was beforehand. Dr. [Name] anticipated that this would be a “permanent impairment” of the Applicant’s vision.

Analysis and Decision

14Section 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 is a victim within the meaning of section 5(a) of the Act as a result of a single incident of assault and assault with a weapon.

15In assessing compensation for pain and suffering, the CICB has considered the nature of this incident and how it affected the Applicant. In this case, the Applicant was violently assaulted, pepper sprayed, struck with a heavy baton and left for over an hour without medical attention. As a result, the Applicant suffered from a broken nose, a cut lip and injuries to his eyes from the pepper spray. An Optometrist determined that the uncorrected vision in the Applicant's right was five times worse than it was before the incident.

16The Applicant’s claim was supported with reports from Police, the Courts, a Nurse and two Optometrists. Considering this evidence and the submissions by the Applicant, the CICB assesses this award at $10,000.00.

Award

17The CICB orders payment as follows:

Section 7(1)(d) Pain and Suffering $10,000.00

TOTAL AWARD $10,000.00

18The 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

19THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $10,000.00