(Re) 1512-01722, 2017 ONCICB 97

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Lisa F. Barazzutti Date: April 20, 2017 Indexed as: (Re) 1512-01722

ORDER

Introduction

1The Applicant asks the Criminal Injuries Compensation Board (the “CICB”) to compensate him for injuries resulting from a crime of violence involving four individuals which occurred on [date], 2014 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.

2Three of the Alleged Offenders were charged with aggravated assault, assault causing bodily harm and break and enter but the charges were eventually withdrawn by the Crown Attorney’s office. The fourth Alleged Offender was not identified and therefore no charges were ever laid against him.

Preliminary Issues

3Prior to the commencement of the hearing, the Panel advised the Applicant of the potential difficulties that this application faced in respect to section 17(1) and section 17(2) of the Act, which 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 ordered 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, despite having been offered an adjournment to prepare for this issue. The Applicant indicated that he was prepared to proceed with the hearing as scheduled.

Decision

5The CICB denies the Applicant’s claim for the reasons set out below.

Issues

6In order to find the Applicant compensable, the CICB must find, on a balance of probabilities, that he was a victim of a crime of violence that resulted in injuries, in accordance with section 5(a) of the Act.

7If the CICB finds the Applicant compensable, it must then assess the extent of his injuries and the amount of compensation to award for pain and suffering.

8Lastly, the CICB must consider both sections 17(1) and 17(2) of the Act and whether these sections have an impact on any potential award for compensation for the Applicant.

Evidence

Evidence of the Applicant

9In addition to the Application filed with the CICB, the Applicant testified at the oral hearing. On the date in question, the Applicant was at home with his younger brother when all of a sudden four males kicked in the door of the home. The Applicant testified that he was held down and stabbed multiple times about his body. The Applicant further testified that he had no idea why these males broke into his home and why they attacked him. He also did not indicate who these males were and indicated he did not know who they were. When pressed for additional details, the Applicant indicated that he had “heard” that someone may have thought he had trashed someone else’s place. The Applicant refused to elaborate any further. The Applicant testified that he fled the home and went to a nearby Tim Horton’s restaurant where eventually an ambulance was called and he was taken to the local Hospital. The Applicant testified that he remained at the Hospital for approximately two days but then left the hospital prior to being officially discharged by hospital staff. When asked why he left the Hospital before being officially discharged, the Applicant testified that he was afraid. He then indicated that after a while he left the city. He refused to elaborate on why he was afraid or why he had to leave town. He stated that he was in hiding in [Province] for a little over a year.

10With respect to injuries, the Applicant testified that with respect to physical injuries he had sustained multiple stab wounds about the body including stab wounds to the left upper shoulder, left arm and right thigh. Medical Records from the treating Hospital describe the multiple stab wounds as testified by the Applicant. As indicated earlier, the Applicant testified that he left the Hospital after two days but prior to being officially discharged by Hospital staff. The Applicant indicated that after leaving the Hospital he suffered from an infection while he was in hiding. The Applicant also stated that he sustained nerve damage although provided no additional details. No Medical Reports were filed with the CICB that referred to any nerve damage. Emotionally, the Applicant testified that this incident had caused him to fear for his safety which is why he fled the jurisdiction and went into hiding in [Province] for approximately one year. He stated that he has a camera outside his home for security and that he has difficulty sleeping.

Police Witness

11The Police Records detailing the investigation are on file with the CICB. At the hearing, the Police Witness testified that according to his records the Applicant was at home with his younger brother when four males kicked in the door of the home. The Applicant was held down while another male began stabbing him about his body. The Applicant’s younger brother was placed in another room in the home away from the Applicant. The Applicant was found at a nearby Tim Horton’s restaurant and was taken to the local area Hospital where he was treated for his injuries. The Police attempted to interview the Applicant but were unable to do so. The Police did obtain the Applicant’s consent to obtain his medical records. The Police Witness then testified that they had made numerous attempts to locate the Applicant in an effort to obtain a statement but were unable to do so. The Police in a related investigation had obtained some information that the Applicant just prior to this incident had been involved in a home invasion at another residence. The Police Witness testified that he believed this incident was in retaliation for the previous incident which they suspect involved the Applicant. In addition, the Police Witness also indicated that before the Applicant had fled the jurisdiction he had testified at the bail hearing for one of the Alleged Offenders. At that bail hearing, the Applicant testified that the Alleged Offender was not involved in the incident where he was stabbed. The Police Witness further indicated that because they could not obtain a statement from the Applicant, the charges were eventually withdrawn. He further added that one of the Alleged Offenders went on to commit another home invasion causing injuries to other persons.

12The Police Witness indicated that the Applicant had a criminal record which involved several convictions for drug possession, trafficking, assault and fail to comply with recognizances. The Applicant did not dispute the criminal record as presented by the Police Witness.

13The Applicant was given the opportunity to respond to the Police Witness’s testimony. He denied being involved in any prior home invasion incident. He was not able to however offer any explanation as to why now he could not identify who the Alleged Offenders were but at the bail hearing was able to testify that one of the Alleged Offenders had not been involved in the incident.

Analysis

14The Applicant is required to prove, on a balance of probabilities, that he was a victim of a crime of violence and that he suffered a resulting injury as required by section 5(a) of the Act.

15Having considered the evidence presented including the Applicant’s oral testimony, the written Application, the Medical Records, the Police Records on file and the testimony of the Police Witness, the CICB finds, on a balance of probabilities, that the Applicant was the victim of a crime of violence within the meaning of section 5(a) of the Act. The CICB further finds that as a result of this crime of violence the Applicant did sustain both physical and emotional injuries. All of the evidence was consistent on these points. The only issue in this case is whether sections 17(1) and (2) of the Act will impact any award that the Applicant may have been entitled to.

[Sections 17(1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c24/latest/rso-1990-c-c24.html) and [17(2)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c24/latest/rso-1990-c-c24.html) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c24/latest/rso-1990-c-c24.html)

16In determining whether to compensate him, section 17(1) of the Act requires that the CICB take into consideration “all relevant circumstances,” including any behaviour on the part of the Applicant which may have contributed to his injuries.

17The Applicant testified that he had no idea why these males broke into his home and why they attacked him. He stated he did not know who they were. He led the Panel to believe that this was a random attack. His evidence is inconsistent with the evidence of the Police Witness who testified that he believed this incident was retaliation for a previous incident which involved the Applicant. When pressed for additional details, the Applicant admitted that he had “heard” that someone may have thought he had trashed someone else’s place. The Applicant refused to elaborate any further. The Applicant’s evidence was not credible. The evidence of the Police Witness, which the Panel finds to be most probable, shows that the Applicant likely contributed to his injury by participating in a home invasion at another residence prior to the date of this incident and that he was attacked as retribution. In addition, the evidence of the Police Witness is that the individuals who they believe assaulted the Applicant were individuals known to the Applicant and also involved in the drug culture. The Applicant’s evidence is also problematic when compared to the criminal proceedings he participated in. At this hearing he was not able to offer any explanation as to why he could not identify who the Alleged Offenders were given that at the bail hearing he was able to testify under oath that one specific Alleged Offender had not been involved in the incident. All of the evidence suggests that the Applicant knew more about the Alleged Offenders than he admitted or that he was somehow involved with them prior to this incident.

18The Police Witness also indicated that the Applicant had a lengthy criminal record which included several convictions for violent crimes and failing to comply with court orders and that the Applicant is currently on bail. The CICB has examined the Applicant’s criminal record. There are numerous entries for convictions which relate to drugs. It is clear from not only the Applicant’s criminal record but also from the testimony of the Police Witness that the Applicant had considerable involvement with drugs and the drug culture. The Applicant himself admitted that he was heavily into drugs and had a problem with drugs. In fact, the Applicant is currently facing charges relating to drugs and is out on bail with a surety.

19The Applicant also testified that he left the Hospital before being medically cleared. As a result of him doing that, his injuries worsened and became infected.

20Therefore, the CICB is satisfied that the Applicant’s behaviour contributed to the injuries he sustained.

21Section 17(2) of the Act permits the CICB, in its discretion, to refuse to make an order or reduce an 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.

22In this case, there is no dispute that the Applicant failed to report the incident. The Applicant testified that he did not report the incident to Police. The Applicant testified that after the incident, he fled the scene and went to a nearby restaurant where an ambulance was called and he was taken to the local Hospital. The Applicant testified that he fled the Hospital prior to being officially discharged. When asked why he left the Hospital before being officially discharged, the Applicant testified that he was afraid. He did not elaborate on what he was afraid of. At no point did the Applicant call the Police for help. At no point did the Applicant report the incident. The Police Witness's evidence is consistent on that point as well.

23After he fled, the Police made numerous attempts to locate the Applicant in an effort to obtain a statement from him but were unable to do so. The Police Witness further indicated that because they could not obtain a statement from the Applicant, there was no reasonable prospect of conviction and the charges had to be withdrawn. Further, one of the Alleged Offenders went on to commit another home invasion, causing injury to others. The Applicant’s lack of cooperation in this case significantly hindered the Police investigation. The Applicant, as a matter of public policy, had an obligation to co-operate with Police so that the Alleged Offenders could be apprehended. The Applicant was not under any apparent threat of retribution from the Alleged Offenders. The Panel has carefully considered the above failure to co-operate with police and finds that the failure to co-operate was unreasonable.

24Finally, the CICB has also considered the proportionality of the injury in determining whether to refuse or reduce an award under section 17. The CICB weighed the proportionality of the injury with the circumstances that it has found to be relevant. The CICB has considered the nature of the Applicant’s injuries against a number of factors such as the Applicant’s contributing behaviour, criminal record and the fact that the Applicant failed to co-operate with the Police investigation. Given the serious nature of the incident and the fact that the Police investigation and Court case against the Alleged Offenders was significantly compromised as a result of the Applicant’s lack of co-operation, the CICB finds that both the relevant circumstances and the lack of co-operation outweigh the injuries sustained by the Applicant. The CICB finds that given the Applicant’s behaviour, compensation out of public funds would not be reasonable under both sections 17(1) and (2). Accordingly, the Applicant’s claim for compensation is denied.