Re 1705-01395, 2018 ONCICB 47

Adjudicator: Maija Laitinen

Date: July 13, 2018

Indexed as: (Re) 1705-01395

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 “CVCA”). The Applicant is seeking compensation for pain and suffering and loss of income as a result of an incident that occurred on [date], 2007 when the Alleged Offender threw a paint ball and struck the Applicant in his right eye. For the following reasons, the CICB is not satisfied that this incident amounts to a “crime of violence” within the meaning of section 5(a) of the CVCA and therefore denies the Applicant’s claim.

Issues

2Pursuant to section 5(a) of the CVCA, the Applicant is required to prove on a balance of probabilities that he was a victim of a “crime of violence” and that he suffered physical and/or psychological injuries as a result that crime. The fact that there has not been a conviction is not a bar to the Applicant’s claim. Subsection 16 (1) of the CVCA provides that compensation may be awarded whether or not a person has been prosecuted or convicted of the offence giving rise to the injury.

3If the Applicant has met the above threshold, in deciding whether or not to exercise my discretion to award compensation and the amount thereof, I must consider whether the Applicant has refused reasonable cooperation with, or failed to report promptly the offence to a law enforcement agency pursuant to subsection 17(2) of the CVCA.

Hearing

4This Application was heard by way of a telephone hearing on June 14, 2018. The Applicant participated in the hearing and provided oral testimony under affirmation. A worker from the Victim Witness Assistance Program also attended the hearing to provide support to the Applicant. At the beginning of the hearing, the Panel confirmed that the Applicant was aware of subsection 17(2) of the CVCA and that the Panel would consider this provision when deciding the Application.

5The Applicant testified that at the time of the incident he was approximately [age] years old and was self-employed selling flowers to patrons at bars in [city], Ontario. He testified that he first met the Alleged Offender on the evening of [date], 2007. He stated that he was selling flowers in a bar called [name] and noticed that the Alleged Offender was holding a flick-knife. The Applicant told the Alleged Offender to put the knife away. The Alleged Offender complied, and they had no further discussion. The Applicant moved on to another establishment to continue selling flowers. He gave evidence that he returned to [name] later that same evening to shoot a game of pool. The Applicant testified that he had consumed one beer and played some pool when the Alleged Offender approached him and asked for a ride to the bridge. The Alleged Offender offered to buy the rest of the Applicant’s flowers when they arrived.

6The Applicant testified that he agreed to give the Alleged Offender and his three friends a ride. Once they arrived, the Alleged Offender invited the Applicant to join them “upstairs” (in an apartment above a garage) for a game of pool. The Applicant agreed. He recalled that he had been wearing a cowboy hat that evening and the Alleged Offender and/or one of his friends had asked to try his hat on at some point in the evening. The Applicant stated that he had been there for less than 15 minutes when he overheard the Alleged Offender talking to one of his friends. The Alleged Offender was standing approximately 8 or 9 feet away from the Applicant and said, “Watch this”. The Applicant testified that he turned to face the Alleged Offender; he had a red paint ball in his hand and threw it overhead. The paint ball struck the Applicant in his right eye. The Applicant suggested that the Alleged Offender may have been trying to break the paint ball on the back of his cowboy hat.

7The Applicant stated that he immediately could not see out of his right eye. He left and drove himself to the hospital. The hospital records on file confirm that the Applicant sought medical attention at 3:30 a.m. on [date], 2007 and reported that “someone threw a paint ball at him from six feet away”. A medical report from a retinal surgeon, [name], dated [date], 2018, states that Applicant underwent vitrectomy surgery in [date] 2007.

8According to the police information on file as well as the Applicant’s affirmed testimony, the Applicant did not report the incident to police until 2009. When the Panel asked the Applicant why he had waited to report the incident to the police, the Applicant stated that he had run into the Alleged Offender in a bar after the incident and he had apologized and offered to compensate him for his hospital bills. At that time, the Applicant asked the Alleged Offender to instead give him his yellow jeep, which the Applicant had recently seen advertised for sale. The Applicant stated that he had no further contact with Alleged Offender following this conversation.

9The Applicant testified that a friend later suggested to him that he apply for compensation from the CICB. He gave evidence that he attended at a community legal clinic and was advised that he would need to report the incident to the police. The police information on file indicates that the Applicant reported the incident in 2009. He advised the police that he had given the Alleged Offender and his three friends a ride and went upstairs to an apartment above a garage. The Applicant heard the Alleged Offender say “watch this” and turned to look and was “struck in the right eye with a paint ball that is thrown from his hand”. When the police asked the Applicant why it took him so long to report the incident, the Applicant stated “at first he thought [the Alleged Offender] would help him and now that he is not going to do that he wants to press charges against him”.

10According to the police information on file, the police did not lay any charges or otherwise investigate the incident because the Applicant later called the police to advise that he not want to pursue the matter. At the hearing, the Applicant testified that he told the police that he did not want to pursue charges because an acquaintance had suggested that he would have to “move far away” if he sought criminal charges against the Alleged Offender.

Analysis and Decision

11The CICB is not satisfied that the incident on [date], 2007 amounts to a “crime of violence” within the meaning of section 5(a) of the CVCA. This section provides that, in order to be compensable, the Applicant’s injury must have resulted from:

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

12The CVCA gives the CICB broad discretion to determine whether compensation ought to be awarded in any given case and, if so, the amount. Awards from the CICB are paid using public funds. They are not paid from the wrongdoer as would be the case if a victim pursued compensation through a civil action.

13In Pitters v. Ontario (Criminal Injuries Compensation Board), [1996] O.J. No. 4339 at para. 55, the Divisional Court stated that it is for the CICB to decide whether a “crime of violence” has taken place:

Under the legislation, it is the Board that is required to decide whether a relevant offence, “a crime of violence”, has taken place. The matter is not determined by the initial categorization of the offence by police investigators. It is not decided by the charge(s) laid against the offender. It is not resolved by the charge(s) which the prosecutor chooses to proceed to trial of other disposition. It is not pre-empted by the decision of the criminal court. It is for the Board to decide the matter, on the evidence adduced before it, and upon proper construction of its statutory mandate.

14In R. v. Neve, 1999 ABCA 206, [1999] A.J. No. 753 (C.A.), which cited Pitters, the Alberta Court of Appeal stated at para. 85 that simply because an offence did result in some injury, it would not automatically make the offence a violent offence. Both Neve and Pitters have been followed in subsequent cases including the Ontario case of R. v. Carlson, [1999] O.J. No. 5305 (S.C.J.). In Carlson, at paragraph 19, the Court similarly commented that:

While actual injury is not required before an offence can be classified as a ‘violence offence’, it does not follow that simply because an offence did involve some injury this automatically makes the offence a violence offence.

15Given the evidence before the CICB, I am unable to conclude that it was more likely than not that the Applicant was injured due to an intentional assault as opposed to being injured in some other way.

16The offence of assault is defined in section 265(1) of the Criminal Code as follows:

265 (1) A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or

17The Applicant must be able to provide the CICB with cogent and reliable evidence to show that another person applied force to him, directly or indirectly and that the use of force was intentional (e.g. the other person did not accidentally, reflexively or carelessly cause him harm). On balance of probabilities, the CICB is unable to conclude that the Alleged Offender’s actions in throwing a paint ball with his hand overhead amounted to the application of force intentionally, directly or indirectly without the consent of the other person. Based on the Applicant’s testimony as well as the police information on file, the Alleged Offender threw the paint ball when the Applicant was turned away from him. There is no indication that the Alleged Offender was speaking to the Applicant when he threw the paint ball. During his testimony, the Applicant provided no indication or explanation as to suggest that the Applicant intended to strike him. While it is possible that the Alleged Offender intended to strike the Applicant, it is equally plausible that he was attempting to break the paint ball on the floor, the pool table or the Applicant’s cowboy hat as the Applicant himself suggested during his testimony.

18Further, the Applicant’s behaviour following the incident suggests that it is more likely than not that the Applicant initially viewed the incident as an accident or mishap, rather than a violent crime. The Applicant testified that he sought medical attention immediately following the incident, but did not contact the police until approximately two years later. Based on the Applicant’s testimony, the CICB finds that the primary reason the Applicant contacted the police was because he was (perhaps erroneously) advised that it was a necessary step for him to file an application for compensation to the Board. In all the circumstances, the CICB quite simply does not have the factual basis to make a finding that the Alleged Offender intended to strike the Applicant with a paint ball. The relationship between the parties and the circumstances leading up to the incident suggest that it may well have been an unfortunate accident as opposed to an intentional assault and is therefore not compensable under the CVCA.

19While the Applicant’s delay in reporting the incident to the police may also raise concerns pursuant to subsection 17(2) of the CVCA, it is not necessary to address these considerations given the CICB’s conclusion that there is insufficient evidence to prove on a balance of probabilities that a crime of violence occurred. Similarly, it is not necessary to address the issue of injury.

20The Application is hereby dismissed.

DATED at Toronto this 13^th day of July, 2018.

Maija Laitinen, Member