(Re) 1608-04383, 2017 ONCICB 89

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Keith Forde

Date: April 10, 2017

Indexed as: (Re) 1608-04383

ORDER

Introduction

1The Applicant asks the Criminal Injuries Compensation Board (CICB) to compensate him for injuries resulting from an incident which occurred on [date], 2016 in accordance with the Compensation for Victims of Crime Act, RSO 1990, c. C.24, as amended (the “Act”). The Applicant is seeking compensation for pain and suffering for an injury incurred when he was attempting to place handcuffs on an arrested party (the Alleged Offender) and the Applicant slipped on the ice injuring his ankle and lower back. The Alleged Offender was arrested pursuant to the Liquor Licence Act, R.S.O. 1990, c. L.19.

Decision

2The CICB denies the Applicant’s claim for the reasons set out below.

Issues

3In order to be compensable, the Applicant is required to prove, on a balance of probabilities, that he suffered an injury pursuant to section 5(a), (b) or (c) of the Act;

Evidence

4This was a written hearing. The following is a summary of the facts and circumstances taken from the Applicant’s Application information and from the Police synopsis to the CICB.

5The Applicant is a Police Officer with the [Name] Police. The Applicant’s claim relates to an incident which occurred on [date], 2016 while he was working.

6The Applicant described that on the day in question he was advised by his partner that there was a domestic in progress between the Alleged Offender and a male person. The Applicant arrived on scene and observed the Alleged Offender and the male party yelling at each other from across the street.

7The Applicant then arrested the Alleged Offender for breach of peace and placed her in the rear seat of the police cruiser. He commenced his investigation in relation to the alleged domestic fight between the Alleged Offender and the male person.

8The Applicant placed handcuffs on the male person and also placed him in the rear of the police cruiser. He then took the Alleged Offender out of the back seat of the police cruiser and was in the process of placing handcuffs on her when she pulled her arm back. As a result of the Alleged Offender pulling her arm back from the Applicant, the Applicant slipped on the icy roadway and fell, injuring his right ankle and lower back. The Applicant was then transported to the nursing station and later flown to [City] for treatment.

Injuries

9The Applicant noted in his application to the CICB that as a result of the incident he suffered the following physical injuries: two torn ligaments in right ankle and pain to lower back. The Applicant says with regard to psychological and emotional injuries, he suffered conflict in family and was easily frustrated.

10The Applicant also provided the CICB with various documents in support of his claim.

11The CICB was in receipt of a Medical Report which noted that on [date], 2016 the Applicant presented with a twisted right ankle from slipping on ice and a mild soft tissue swelling overlying the lateral malleolus. The Applicant was x-rayed and a fracture was ruled out as his alignment was normal. The Applicant suffered the following injury: “injury to the anterior talofibular and tibiofibular ligaments, as described. The most prominent injury is the anterior tibiofibular ligament.”

12The CICB was also in receipt of a Medical Report from the Applicant’s Family Physician, who noted that the Applicant presented with an injured right ankle.

13The CICB was in receipt of a report from a Chiropractic Clinic, where the Applicant attended for treatment. The Applicant was seen by a doctor at the clinic who noted that the Applicant suffered an acute right ankle inversion sprain and mechanical lumbar strain with referral. The Chiropractor noted that the Applicant’s injuries were temporary and that he was presently fully recovered.

14The CICB was also in receipt of an assessment report from [Name] for the Workplace Safety Insurance Board (WSIB) dated [date] and [date], authored by an orthopaedic surgeon and a physiotherapist.

Analysis

15The CICB has carefully considered the available evidence (including the documentation from the Applicant, the [Police] and the relevant medical, hospital records) in relation to section 5 of the Act, which reads:

Where any person is injured or killed by an act or omission in Ontario of any other person occurring in or resulting from,

(a) the commission of a crime of violence constituting an offence against the Criminal Code of Canada, including poisoning, arson, criminal negligence and an offence under Section 86 of the Act but not including an offence involving the use or operation of a motor vehicle other than assault by means of a motor vehicle;

(b) lawfully arresting or attempting to arrest an offender for an offence against a person other than the applicant or his or her dependent or against such person’s property, or assisting a peace officer in executing his lawful duties;

(c) preventing or attempting to prevent the commission of an offence against a person other than the applicant or his or her dependent or against such person’s property.

16In relation to section 5(a) of the Act, the fact that there has not been a conviction for a crime of violence is not fatal to the applicant’s claim. Section 16(1) of the Act provides that compensation may be awarded whether or not a person has been prosecuted or convicted of the offence that gives rise to an injury or death.

17While the CICB acknowledges that the Alleged Offender may have pulled her arm back when she was being handcuffed, the CICB finds that the Alleged Offender did not commit an assault against the Applicant. The CICB has no evidence to show that the Applicant was injured as a result of crime of violence. Compensability under section 5(a) of the Act requires both a crime of violence and a resulting injury. Accordingly, the Applicant is not compensable under section 5(a) of the Act.

18In relation to section 5(b) of the Act, the CICB acknowledges that the Applicant’s injury occurred in the context of attempting to place handcuffs on the Alleged Offender. To be compensable under this provision of the Act, an applicant must be “arresting or attempting to arrest” an individual “for an offence against a person or property other than the applicant or his or her dependent.” In this case, the Applicant has indicated that he was injured while he was attempting to handcuff the Alleged Offender, by slipping on the icy roadway and falling. The Alleged Offender was arrested for being intoxicated in a public place. This offence is neither a crime against a person nor against property but rather an offence against public order. Accordingly, the CICB finds that the Applicant is not compensable under section 5(b) of the Act.

19Similarly, section 5(c) of the Act allows for an applicant to be compensated where he/she is injured while “preventing or attempting to prevent the commission of an offence against a person other than the applicant or his or her dependent or against such person’s property. The Applicant’s injury occurred while he was handcuffing the Alleged Offender. The Applicant had previously arrested the Alleged Offender for being intoxicated in a public place and placed her in the back seat of his cruiser, at the time the Applicant slipped and fell on the icy roadway. He had taken the Alleged Offender out of his cruiser and was attempting to handcuff her when she pulled her arm back. An offence of public intoxication is categorized as an offence against public order, rather than an offence against “a person” or “property.” Therefore the requirements of compensability under this subsection are also not met. Even if, on a broad interpretation, public intoxication was considered to be a crime against a person, it is the CICB’s view, that the person is “the applicant.” As the subsection specifically excludes compensation for acting in the prevention of crimes against an applicant “or his or her dependent or against such person’s property,” in the CICB’s view, under any reasonable interpretation of subsection (c) of the Act, the Applicant is not compensable under this provision.

20The CICB finds, as indicated by the Hospital, Family Physician records and the [Police] incident synopsis, that the Applicant’s torn ligaments and lower back pain came as a result of him slipping and falling to the roadway. While the CICB is sympathetic to the Applicant in light of his injury, the CICB finds that the Applicant is not compensable under sections 5(a), (b) or (c) of the Act.

21Accordingly, the Applicant’s Application is denied.