(Re) 1508-00498, 2018 ONCICB 14

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Guy Savoie

Date: March 13, 2018

Indexed as: (Re) 1508-00498

ORDER

Introduction

1The Applicant is seeking financial compensation from the Criminal Injuries Compensation Board (CICB) in accordance with the Compensation for Victims of Crime Act, RSO 1990, c. C.24, as amended (the “Act”). The Applicant is seeking an award for pain and suffering and medical expenses as a result of physical assault and robbery that occurred on [date], 2015.

Preliminary Matters

2The Applicant was advised of the potential issues with this Application in light of subsections 17(1) and 17(2) of the Act. The provisions 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 applicant has refused reasonable co-operation with, or failed to report promptly the offence to, a law enforcement agency.

3The Applicant confirmed that he understood the meaning of the above sections and declined an offered adjournment. The Applicant indicated that he was prepared to proceed with the hearing as scheduled.

Decision

4The CICB denies the claim for the reasons set out below.

Issues

5The absence of a conviction does not mean that the CICB is precluded from making an order of compensation. Subsection 16(1) of the Act provides that compensation may be awarded whether or not a person has been prosecuted or convicted of the offence giving rise to the injury. But in the absence of a successful prosecution, the Applicant is required to prove, on a balance of probabilities, that he was a victim of a crime of violence and that his injuries resulted from the crime pursuant to subsection 5(a) of the Act.

6The CICB must also determine whether there are any issues with respect to subsections 17(1) and 17(2) of the Act that would affect the amount of compensation awarded.

The Hearing

7The Applicant appeared and provided oral testimony and submissions.

8A Police Detective, the officer in charge of the case, appeared as a witness.

Documentary Evidence

9In the Application the Applicant describes the incident as follows. He says he was approached by 5 strangers. One asked for a cigarette. When the Applicant declined he was pushed by one of the strangers. While the applicant was in the process of putting his cigarette down, he was hit in the head with a hammer and robbed of his wallet.

10The only supporting documentation received by the CICB in connection with this Application is the Police Report. It includes photographs taken of the Applicant at the Hospital. No medical documentation was provided by the Applicant. Although the applicant was provided with a “Consent to Disclose Personal Information” Form by the CICB, it was not signed or sent to the Hospital. As a result, there is no documentary evidence with respect the broken jaw the applicant alleges he sustained during the robbery.

Oral Evidence

The Applicant

11The Applicant testified that on [date], 2015 he met with a prospective landlord. They had agreed to enter into a tenancy agreement and the Applicant had arranged to meet with the landlord to pay his first and last month’s rent deposit of $1,000.00 in cash. When asked by the CICB where he had obtained the $1,000.00 in cash, the Applicant stated he could not recall.

12When the Applicant arrived at the rental office that afternoon, it was closed. He decided to walk around the area until it re-opened.

13When asked by the CICB where the unit was located or where he was to meet the landlord or about any of the particulars regarding the tenancy, the Applicant stated he could not recall.

14The Applicant testified while in the vicinity, he was approached by two Alleged Offenders, one of whom asked if he had a cigarette. He indicated he did not. As he attempted to walk by one of the Alleged Offenders grabbed him by the arm and a fight ensued. While he was fighting Alleged Offender 1, Alleged Offender 2 came from behind and punched him. The Applicant believed Alleged Offender 2 had something in his hand because after he was punched he felt dizzy. It was at this point that the Applicant believes the Alleged Offenders took the envelope containing the $1,000.00 in cash and his phone. When the physical confrontation ended the Applicant crossed the street with the intention of using the payphone. When he arrived at the payphone he discovered it was not working.

15The Applicant testified that he saw a bus approaching and when it stopped he got on the bus and informed the driver that he had been robbed. While the Applicant was speaking to the bus driver the Alleged Offenders fled the scene. The Applicant exited the bus and proceeded to walk to the hospital for the purposes of obtaining medical attention for the injuries he sustained.

16The Applicant testified that when he arrived at hospital, they instructed him to go to a different hospital. He did as he was instructed however the lineup was too long so he went home and returned the following day. The Applicant acknowledges that he made no attempt to contact police in regard to the assault and robbery on the day of the incident.

17The Applicant testified that he suffered a broken jaw and was unable to eat solid food for six weeks. The Applicant is seeking out of pocket expenses for the purchase of “Ensure”. He is unable to recall what he spent on the product and as such did not indicate the amount he is seeking. The Applicant is unable to produce any receipts for the claimed expenses.

Police Witness Testimony

18The Police Witness testified that a Police Report was taken at the second hospital on [date], 2017, two days after the incident. The Hospital contacted police when they were informed by the Applicant that his injuries were the result of an assault.

19On the day that the Applicant gave his statement to police he was “all over the place with his story”, he stated that he was too fatigued to give a proper written statement. The Applicant was not willing or able to attend the police station to complete an audio or videotaped statement. At the time he was interviewed by the officers he was under medical care, specifically he was receiving fluids through an IV.

20An officer took photographs of the Applicant and his injuries. Those photographs were submitted into evidence. The photographs reflect that the applicant had a slight abrasion and swelling under his left eye and light cut or abrasion on his chin – there were other cuts to his hands that did not appear to be fresh wounds.

21The officers who attended the Hospital made the following brief synopsis of the Applicant’s version of what took place. On [date], 2017 at approximately 8:00 p.m. the applicant had come in search a new home. The Applicant advised the officers that he uses the shelter system on a regular basis. He informed officers that he was on the northwest corner when he was approached by two unknown individuals. They asked the Applicant for a cigarette and when he refused one of the Alleged Offenders hit him in the head with a hammer. The Applicant attempted to get on transit and the Alleged Offenders fled the scene. There was no mention of a robbery or a demand for cash.

22The Police Witness testified that when he took over the case on [date], 2017, in addition to reviewing the officer’s notes, he also reviewed the Applicant’s background. As of July 2015, the applicant had amassed 156 criminal convictions, 5 of those were crimes of dishonesty (fraud or obstructing a police officer) and 11 convictions for crimes of violence. There is currently a warrant for his arrest in a different province.

23In the Applicant’s statement to the police he indicated he did not ask anyone to call the police when he reached a place of safety like the streetcar or the hospital. The Police were contacted by the Hospital after the Applicant informed hospital staff he had been assaulted during a robbery. That call was placed 2 days after the incident.

24The Police Witness has no personal knowledge as to the extent of the Applicant’s injuries because after the initial contact with the Applicant, they were unable to contact him again. They attempted to contact him both through his sister and the shelter system but to no avail.

25The Police Witness states that after viewing the photographs, he believes the injuries sustained by the Applicant are not consistent with being hit in the head or face with a hammer.

26The Police Witness advises the CICB that the location of the incident is the epicentre for crack cocaine in the city. He knows this because he is a former officer with the drug squad.

27There was no video surveillance in the area. The Police Witness states that the Applicant was neither forthcoming nor cooperative with the investigation. Given the delay in reporting the crime the surveillance footage was erased and therefore not available.

[Subsections 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)

28As stated above, subsection 17(1) of the Act requires the CICB to take into consideration all relevant circumstances including any contributory behaviour on the part of the Applicant. In addition, subsection 17(2) permits the CICB to exercise its discretion to refuse to award compensation or reduce the amount ordered where it is satisfied that the victim has refused reasonable co-operation with law enforcement, or failed to report the offence promptly.

29The Applicant submits that on the day of the incident he was set upon by the Alleged Offenders and he was merely defending himself during a robbery.

30With respect to subsection 17(2) the Applicant submits he feels that he has fully co-operated with police.

Analysis and Decision

31For the following reasons the CICB dismisses the Application.

32Based on the Applicant’s oral evidence and documentary evidence in the form of the photographs taken by police, I am not satisfied that the Applicant was a victim of a crime of violence pursuant to subsection 5(a) of the Act.

33There are a number of inconsistencies in the Applicant’s evidence that raise issues with respect to the Applicant’s reliability and credibility. First, the Applicant states the reason he was in the area was because he was walking around waiting for the return of his prospective landlord but could provide no details or particulars about who he was meeting with and where. In addition, the Applicant testified that the incident took place in the afternoon at the hearing but in his statement to police he claims it took place at 8:00 p.m.

34The Applicant claimed that he had $1,000.00 in cash for first and last month’s rent but could not recall where he obtained the funds although he acknowledged he would not be able to amass that kind of sum easily as he is in receipt of Ontario Disability Support Program benefits.

35In the Application the applicant claims he was set upon by five individuals. However in his statement to police and in his oral evidence he stated there were only two.

36Although the Applicant in both his Application and oral evidence claimed that he was robbed of his cash during the incident, his statement to police makes no mention of that. There is no mention of his cellphone being stolen in his Application. This was brought up for the first time at the hearing.

37As stated above, if an applicant has sought medical attention at a hospital, the CICB usually requests that the applicant sign a Consent to Disclose Personal Information Form and that would be forwarded to the hospital to release the hospital records. The applicant did not sign one and as a result, the CICB was not provided with a medical report to substantiate his claim of a broken jaw.

38Based on the photographs taken at the Hospital by police, it is evident that the Applicant was involved in a physical altercation of some kind and sustained was appears to be superficial injuries namely bruising and small cuts on his hands and his face. The photographs do not corroborate the assertion that the Applicant had a broken jaw. As a result, there is insufficient evidence before the CICB to support the applicant`s claim that he suffered a broken jaw or any lasting injury amounting to bodily harm as a result of a crime of violence.

39In the alternative, even if the Applicant could be found to be a victim of a crime of violence pursuant to subsection 5(a) of the Act, the CICB must then move on to consider section 17(1) and (2) of the Act. The circumstances leading up to the altercation and the Applicant’s contributing behaviour is not clear. The CICB finds the Applicant’s criminal record of crimes of violence and crimes of dishonesty to be relevant in the circumstances under section 17(1).

40With respect to subsection 17(2) the Applicant submits he co-operated with police. However based on the unchallenged evidence of the Police Witness that was not the case. The Applicant did not report the alleged crime of violence to police immediately after the incident. The police were called two days after the incident by the Hospital staff when the Applicant told them that he had been assaulted. By his own admission the Applicant made no attempt to contact police nor did he attend the police station to complete an audio or videotaped statement.

41The CICB concludes that this is an appropriate case for the CICB to exercise its discretion to refuse compensation to the applicant under subsection 17 of the Act.