(Re) 1501-98038, 2018 ONCICB 5

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Louise Charette

Date: February 16, 2018

Indexed as: (Re) 1501-98038

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 compensation for pain and suffering and loss of wages as a result of a robbery that occurred on [date], 2013 for which he alleges he sustained physical/psychological injuries. The incident was reported to the Police and resulted in a conviction of armed robbery for two of the three Offenders.

Issue

2The onus is on the Applicant to prove, on a balance of probabilities, that he was a victim of a crime of violence and that he suffered an injury as a result of the crime. The CICB must then determine whether there are any issues with respect to sections 17(1) and 17(2) of the Act that would affect the award of compensation in this case.

Decision

3The CICB denies the claim for the reasons set out below.

The Hearing

Preliminary Issues

4The hearing took place on January 11, 2018. The Applicant provided oral testimony in person. At the beginning of the hearing, the CICB confirmed that the Applicant was aware of subsection 17(1) and 17(2) of the Act and that it would consider those parts of the Act when deciding the Application. These subsections 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.

5The Applicant confirmed that he understood the meaning of the above sections and, after having been offered an adjournment and an opportunity to consult counsel, the Applicant indicated that he did not wish to adjourn the matter and was prepared to proceed with the hearing as scheduled.

Documentary Evidence

6The CICB received the following documents with respect to the claim: Application, police synopsis, police questionnaire, court documents and a Medical Report submitted by the Applicant’s Family Doctor.

Applicant’s Testimony

7The Applicant testified that on the day of the incident he was at work (at a car rental company). His responsibilities at work included retrieving and cleaning vehicles and preparing them for the next customer. On the day of the robbery, he was at his workplace but states he was on his way out when three men came in and one pointed a gun at his direction while the other had his hand in his pocket. He noted that they were not masked but rather had a hat pulled over their faces. He as well as three employees and the owner were told to get back into the office and to get on the ground. Once inside, one of the individuals took his hat off and at that point the Applicant realized that he had seen him before. In fact the Applicant stated he had seen two of the three Offenders before on three separate occasions. They told the employees to empty their pockets. The Applicant took out his ring, cell phone and keys as well as his I.D. During the incident the Applicant recalls the gun being pointed at him two or three times and the Offender saying “you are not a tough guy now” while “gun butting him”. He testified that he was hit three times in the head and another three to four times a few minutes after. The men told them they wanted to burn the place down. The Offenders eventually took the keys to a Mercedes Benz and drove off. The Police were called and the Applicant cooperated with Police during the investigation.

8With respect to his injuries, the Applicant testified that he did not experience any physical injuries at first but that he now experiences nerve pain. He also mentions experiencing headaches after the incident however not so much now. He testified that as a result of the incident he now forgets things, suffers from PTSD and has anger issues.

Applicant’s Extensive Criminal Record

9With respect to the Applicant’s criminal record, he testified that his first adult criminal record entry was in 2000 and his last conviction in 2017. He testified to having a total of forty convictions on file and considering his last conviction was in 2017, these forty criminal convictions extend over a period of seventeen years. During the hearing, the Applicant admitted to having been convicted of the following crimes: armed robbery, weapons charges, assaults, assault police officer, threatening a police officer, failure to appear in court, breaches of probation, threats, mischief and also of domestic violence. The Applicant testified that the longest custodial sentence he served was for armed robbery. That is the very crime of violence he now seeks to be compensated for. This time as a victim, not the offender.

10Next, the CICB considers the degree/nature of injuries suffered as described herein. The Applicant suffered a number of stab/cut wounds to his right leg and buttocks and one wound to his left leg. He also had bruising about her face. The CICB considers the pain involved in the healing process and the period of disability.

11The Applicant reports that his most recent convictions were for the following crimes: assault police, domestic violence and fail to appear in court. He noted that he plead guilty and received a custodial sentence with three years’ probation following. He stated that he does not currently have any outstanding warrants or charges however he is still bound by his probation order. It should be noted that this most recent conviction occurred after the incident before the CICB.

Medical Report

12The CICB reviewed a Medical Report completed by the Applicant’s Family Doctor. The Physician indicates that he has been the Applicant’s doctor since 2015. It should be noted that the incident before the CICB dates back to [date] 2013 therefore the Physician was not treating the Applicant at the time of the incident. Consequently, it would appear that some of the information is based on the Applicant’s own account of events. The Physician noted the following physical injuries: post-concussion syndrome, poor gait balance, head trauma to right and left side of face. He mentions numbness and tingling in feet to toes and loss of strength and functioning ability. It was noted that the Applicant was referred to a psychiatrist and an internal medicine specialist however no addition information is provided and no reports were obtained from these professionals. With respect to psychological injuries, the Physician notes the following: PTSD post attack, insomnia and social withdrawal.

Analysis and Decision

13A conviction may be taken as conclusive evidence that an offence has been committed pursuant to section 11 of the Act. Given that there was a conviction in this case, the Applicant is required to prove, on a balance of probabilities, that his injuries are the result of the crime of violence pursuant to subsection 5(a) of the Act.

14The CICB accepts the medical documentation on file and finds that the Applicant suffered physical and psychological injuries.

15Having considered all of the evidence before it, the CICB finds the Applicant to be a victim pursuant to section 5 (a) of the Act.

Section 17 Issues

16As is the case with all applications that come before it, once it determines that the applicant is a victim of a crime of violence under the Act, the CICB is required to consider the provisions of section 17(1) of the Act, which states:

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.

17Section 17(1) requires that the CICB take into consideration “all relevant circumstances”. The Act gives the CICB broad discretion to determine whether compensation ought to be awarded in any given case and, if so, the amount. The awards from the CICB are not paid from the wrongdoer as would be the case if an applicant pursued compensation through a civil action, they are paid using public funds. In this context, the CICB has considered the Applicant’s criminal history for violent crimes including, but not limited to: armed robbery, assault police, domestic assault, assault with a weapon, possession of a firearm, threats, sexual assault, and sexual interference. The Applicant has a criminal record which dates back to 2000 totaling 40 convictions.

18In addition, his most recent conviction is post-incident and for violent crimes against a police officer and spouse and breaches of court orders. The Applicant is currently on probation for these convictions. The CICB’s right to also consider an applicant's subsequent criminal behaviour when deciding entitlement to compensation has been upheld by the Ontario Divisional Court in Sweet v. Ontario (Attorney-General), 2011 ONSC 2650 (Div. Ct.). In this decision, the Courts have said that the requirements of 17(1) does not in any way limit the meaning of “all relevant circumstances”. In following the broader instructions of the Court, the CICB therefore finds that it is not limited to considering only circumstances related to the incident but also any convictions for crimes of violence committed by the Applicant. In addition the higher court in decision in para 35, states:

Furthermore, the case law supports the proposition that it is relevant circumstances to consider that the awards, when granted, are made from public funds and that the function of the legislation is not to assess civil liabilities for damages. These are circumstances which are relevant and yet do not relate to the injury itself.

19The CICB considers the criminal court convictions as evidence of the Applicant’s victimization of others on numerous occasions. In the CICB’s view, the fact that the Applicant, who has been convicted of victimizing others through crimes of violence, including armed robbery, multiple assaults, assaults with weapons, sexual assault and interference, and uttering threats now seeks award for pain and suffering is a “relevant circumstance” for the purposes of his request.

20It should be noted that 17(2) issues were not found to apply in this case as the Applicant fully cooperated with the police.

Consideration of Proportionality

21In this context the CICB has also considered the proportionality of the injury in determining whether to refuse or reduce an award. The CICB must also weigh the proportionality of the injury with the circumstances that it has found to be relevant. The CICB has considered the nature of this injury against a number of other relevant factors such as the Applicant’s extensive criminal history and current involvement in the criminal justice system. The main physical injuries noted by the Applicant were tingling, forgetting things and headaches which are not as frequent now. The Applicant noted that he suffers from PTSD and anger issues.

22The Medical Report provided by the Applicant’s Family Doctor who has been his family physician since 2015, two years post incident notes the following: post-concussion syndrome, poor gait balance, head trauma to right and left side of face, numbness and tingling in feet to toes and loss of strength and functioning ability. Further, it was noted the Applicant suffers from PTSD post attack, insomnia and social isolation/withdrawal.

23Notwithstanding the emotional impact and the physical injuries suffered by the Applicant, the CICB has considered the ‘relevant circumstances’ of the Applicant’s history of extensive convictions for violent crimes and finds that they far outweigh the Applicant’s injuries.

24On the totality of the information before it, including the information concerning the Applicant’s long history of victimization of others and involvement in violent criminal activities subsequent to the incident, the CICB does not consider the provision of compensation to the Applicant out of public funds for a pain and suffering award to be reasonable under the Act. The CICB therefore, denies the Applicant’s claim for damages for pain and suffering.

25With respect to the Applicant’s claim for income loss, the CICB notes that it requires supporting documentation (i.e. employer’s report, pay stubs or Income Tax records and medical confirmation of disability) in order to verify an applicant’s employment status and average net earnings at the time of the incident, and to determine whether any income-replacements benefits were received during the period being claimed. The Applicant’s Family Doctor who started treating the Applicant in 2015, notes a period of disability starting in 2014 to present. It should be noted that the Applicant confirmed with the CICB, that at that time he was employed at a restaurant. In addition, it should be noted that the Applicant testified that he was unable to provide documents as at the time of the incident he was working just to help and “under the table”. Based on this information and the fact that there are no supporting documents, the CICB finds that the Applicant has failed to establish his claim for income loss and the claim in that regard is hereby denied.