(Re) 1705-01454, 2018 ONCICB 3

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Keith Forde Date: January 24, 2018 Indexed as: (Re) 1705-01454

ORDER

Introduction

1The Applicant is seeking compensation from the Criminal Injuries Compensation Board (CICB) pursuant to section 5(a) of the Compensation for Victims of Crime Act, RSO 1990, c. C.24, as amended (the “Act”).

2The Applicant is seeking compensation for pain and suffering (mental or nervous shock) for psychological injuries as a result of witnessing her friend brutally stabbed to death on [date], 2014.

3In addition, the Applicant is also claiming expenses for “Dialectic Behaviour Therapy” and grief counselling.

4The Offender was convicted for manslaughter and sentenced to two years ten months, in addition to four years two months pre-sentence custody, an order for firearm prohibition was made against the Offender for life.

5The CICB grants compensation to the Applicant in the amount of $8,000.00 for pain and suffering, $2,400.00 for therapy by way of section 14, and $1,200.00 for future counselling for the reasons set out below.

Issues

6The issues to be decided in this case are:

• The Applicant is required to prove, on a balance of probabilities, not only that the deceased Victim was a victim of a crime of violence and sustained an injury pursuant to section 5(a) of the Act; but also that as a result of this crime of violence committed against the deceased Victim, she suffered the injury of mental or nervous shock, and, if so, what injuries were sustained;
• The Panel is to determine whether the Applicant suffered the injury known as mental or nervous shock and, if so, what compensation for pain and suffering will be awarded;
• Whether the claims for “Dialectic Behaviour Therapy” and grief counselling are supported.

Evidence

The Applicant’s Evidence

7The following is a summary of the facts and circumstances taken from the Applicant’s Application and from police correspondences to the CICB.

8The Offender and the deceased Victim were roommates at the time of the offence. On the day in question, the Offender and several witnesses were present at the Offender and deceased Victim’s home consuming alcohol beverages.

9The Applicant was also in attendance as both the Offender and the deceased Victim were her friends. Sometime after 11:00 p.m., the Offender and the deceased Victim were involved in was appeared to be a consensual fight. When the fight was over, the deceased Victim sat down in a chair and about 10 minutes or less, the Offender pushed past the Applicant, proceeded to the kitchen, then came around the comer and went after the deceased Victim. The Applicant thought that the Offender was retaliating by hitting the deceased Victim again. However, the Applicant soon found out the Offender was actually stabbing the deceased Victim repeatedly with a butcher’s knife which the Police later found outside.

10At 11:43 p.m. the Offender called 911 and reported that there had been an accident and that he might have stabbed someone. He provided his own physical and clothing description to the police operator and said he would await the arrival of police. Police officers soon located the Offender and placed him under arrest.

11Paramedics attempted resuscitation and transported the deceased Victim to the hospital where medical intervention continued. Lifesaving efforts ultimately failed and the deceased Victim was pronounced dead.

12The Offender was subsequently charged with second degree murder.

13The Applicant also provided the CICB various documents in support of her claim. The CICB was in receipt of a Medical Report from a Psychiatrist who had been seeing the Applicant since 2008. The report noted that the Applicant suffered from Post-Traumatic Stress Disorder and Major Depressive Disorder after witnessing the murder of the deceased Victim. The Report also disclosed that the Applicant had a pre-existing diagnosis of Panic Disorder, Borderline Personality Disorder and that her current mental health problems are separate from her previous difficulties, although they were clearly influenced by them. The Applicant’s prognosis was described as poor given the severity of the incident.

14The Psychiatrist's Report also noted the Applicant suffered from the following psychological injuries: flashbacks of event; panic attacks when exposed to anything reminding her of event; nightmares; loss of interest in activities; self-destructive behaviour (increase in alcohol use); poor sleep; low self-worth; decreased social interaction and self-care; unable to work or attend school and daily living has been severely impaired.

Injuries

Psychological/Emotional

15The Applicant noted the following injuries in her application to the CICB:

• Fear of the Offender;
• Flashbacks from incident;
• Turn to alcohol;
• Brought back panic attacks;
• Depression;
• Unable to hold down a job;
• Lack of motivation to go to school;
• Unable to trust anyone;
• Isolate herself;
• No relief from flashbacks, nightmares, insomnia and intense fear of death; and
• Suicidal ideation.

Analysis

16Section 11 of the Act provides that proof of conviction shall serve as conclusive evidence that the offence has been committed. In view of the conviction of the Offender, the CICB accordingly finds the Victim to be a victim of a crime of violence with respect to the incident involving the Offender.

17The question becomes whether the Applicant suffered the injury known as mental or nervous shock in witnessing the crime against the deceased Victim. In this regard, the CICB considered all the documentary evidence that was presented to the CICB, the medical and the police information and the circumstances surrounding the incident and the injuries sustained.

18Under the Act, an individual, who is not the direct recipient of violence, may be eligible for compensation as a victim themselves, where the individual is able to establish that he or she has sustained the injury known as mental or nervous shock from the incident against a victim.

19Mental or nervous shock is a legal term (rather than a medical diagnosis). The criteria have been defined by courts. Several components must be established in order to meet the legal test for proving that an individual suffered this injury. They are as follows:

i. The occurrence was exceedingly violent in nature; ii. The individual maintained a close personal relationship with the injured/deceased Victim; and iii. The individual sustained a significant diagnosed/recognized psychiatric/psychological injury directly induced from the shock of witnessing the occurrence or coming upon the crime scene in its immediate aftermath.

20In this case, there is no doubt that the incident was of a violent nature and that the Applicant witnessed the incident and that she had a close personal relationship with the deceased Victim.

21The CICB also accepts that the Applicant suffered severe psychological and emotional injuries as a result of the incident and that her injuries are corroborated through medical reports filed with the CICB. Accordingly, the CICB finds that the Applicant suffered the injury known as mental or nervous shock and thereby finds her to be a victim within the meaning of section 5(a) of the Act.

22Having considered all of the evidence and the circumstances surrounding the deceased Victim’s death; the emotional/psychological injuries sustained by the Applicant, the treatment required, the lengthy period of convalescence and the lingering problems the Applicant still faces resulting from witnessing the death of her friend; the overall impact on the Applicant’s life and general well-being, the CICB assesses compensation for pain and suffering in the amount of $8,000.00.

23The CICB authorizes up to $1,200.00 (exclusive of tax) for counselling expenses to be paid directly to a qualified treatment provider upon receipt of a curriculum vitae outlining the credentials of the service provider (unless the CICB already has a copy on file). These sessions can only be accessed when the therapy sessions are not covered by other sources, such as the applicant’s place of employment or insurance benefits. Therapy sessions should be completed within 36 months of receipt of this Order. It is the CICB’s practice to award up to $100.00 per session for therapy, or up to $125.00 per session for registered psychologists. Payment will be made directly to the treatment provider on a monthly basis, upon submission of an invoice and the required verification from the Applicant.

Award

24The CICB orders payment as follows:

Section 7(1)(a) Expenses (section 14 Award) therapy $2,400.00 Section 7(1)(a) Future therapy $1,200.00 Section 7(1)(d) Pain and Suffering $8,000.00 TOTAL AWARD (AND COSTS) $11,600.00

Less: Section 14 Award – already paid/authorized $2,400.00 Less: Preauthorized treatment costs $1,200.00 TOTAL CURRENT AWARD $8,000.00

25The 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

26THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $8,000.00