(Re) 1710-03157, 2018 ONCICB 50

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: M. Saleem Akhtar

Date: July 23, 2018

Indexed as: (Re) 1710-03157

ORDER

Preliminary Matters

1Prior to the commencement of the hearing, the Panel advised the Applicant of the potential difficulties that this application faced in respect to subsections 17(1) and (2) of the Compensation for Victims of Crime Act, RSO 1990, c. C.24 (CVCA), 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 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.

2The Applicant confirmed that he understood the meaning of the above sections and, having been offered an adjournment, the Applicant indicated that he was prepared to proceed with the hearing as scheduled.

Introduction

3The Applicant is seeking financial compensation from the Criminal Injuries Compensation Board (CICB) in accordance with the CVCA. The Applicant is seeking pain and suffering compensation as well as incident-related expenses including future counselling costs and loss of income. The incident happened on [date], 2016 which caused the victim physical and emotional injuries. No Alleged Offenders have been identified in this matter.

Decision

4For the reasons set out below, the CICB approves the claim and awards [name] the sum of $500.00 as pain and suffering compensation.

5The CICB approves $600.00 for incident-related future counselling costs, as further explained below.

6The CICB denies expenses claimed in the amount of $28,200.00, as further explained below.

7The CICB denies loss of wages / income claim, as further explained below.

Issues

8Pursuant to section 5 of the CVCA, the CICB must determine, on a balance of probabilities, whether a crime of violence occurred against the Applicant that caused him injuries, and if so, the nature and extent of the injuries sustained, and their impact on the day-to-day life of the Applicant.

9The Applicant is required to prove, on a balance of probabilities, not only that he was a victim of a crime of violence but also that his injuries resulted from the crime pursuant to section 5 of the CVCA.

10Consider the Applicant’s claim in respect to incident related expenses including future counselling costs and loss of income / wages, as requested by him.

Hearing

Documentary Evidence

11The CICB received the following documents with respect to the claim: Application giving details of his injuries, police report dated [date], 2016, family physician’s report and Income Tax Returns (Canada Revenue Agency) for the years 2013 to 2016.

12In his Application, the Applicant has not provided any details pertaining to the incident under the heading “Details of the Crime”.

13In terms of his injuries, the Applicant writes,

My lip was split open on the upper left side. I got a hole in the right side of my face around the temple area. Huge deep scratches on the left side of my neck; dislocated right thumb; (My injuries) were photographed by the police hours later. I still have scarring from these injuries – the one by the temple is still hard and lumpy with scar tissue and causes pain. My back and neck still cause pain and I get frequent headaches.

I have trouble sleeping…I am afraid to park in dark places and to go to meet friends as I once liked to do. I have lost trust in a lot of people…I was attacked by multiple people in a dark parking lot of an area I once felt safe and comfortable. I am now scared guess everyone and everywhere I go. I am much more quick to anger…I am physically and emotionally torn and scared. I have been placed in financial difficulties as well due to this and have basically withdrawn from life…It was [day]. All of my presents for the kids (I have 5 children) everything I owned was in the vehicle. I didn’t even have a change of underwear or a brush for my teeth. All I had were the blood stained clothes I walked away in.

Police Report

14The matter was reported to police on [date], 2016. The police arrived at the address where the alleged robbery was reported to have taken place. After reviewing the Applicant’s statement, which appeared to the investigator to be inherently contradictory (two different stories to two different officers) and other factors such as whatever limited video surveillance was available as well as [Name] Taxi records relevant to the place and time of the alleged incident and police investigator’s inability to reach the Applicant by cell phone provided, Applicant providing a false address to police and not appearing for a scheduled audio-video statement, victim’s inability to identify any names/description of the Alleged Offenders, factors indicating that the vehicle in question did not seem to have been driven for some time, the police/Crown determined the investigation to be “unfounded with no charges applicable. This occurrence will be parked as a result of the investigation.”

Oral Hearing

Applicant’s Oral Testimony: Incident

15In his oral sworn testimony before the CICB on June 19, 2018, the Applicant advised the CICB that, on the day of the incident, he attended a local bar where he got drunk. He went outside the bar and sat inside his car, which had tinted glasses. After hearing a knock, he opened the window and got ambushed by unknown people. They hit him in the head causing him a clump/lump in the side of the head. They also punched him. In retaliation, the Applicant followed the Alleged Offenders with a crowbar in his hand. On his request, a cab driver gave him a ride to his home. The following morning or maybe afternoon, he reported the incident to [division] Police Station. An officer got his statement and also took pictures of his injuries. He did not call police right away because he was bleeding and also because he did not trust police, particularly from [division]. He had a bad experience with them. They seem to be ‘obsessed’ with him. He added, in fact, that is what happened because police did not take his matter seriously. He claimed he did not know why police had a grudge against him, particularly, when he had no criminal record as an adult. In fact, he and his family are widely loved by neighbourhood, and he knows he is not a bad person. He has five kids from two mothers and he is busy raising them. He claimed that because of the bad investigation by police and their wrong and bad attitude towards him has cost him a lot, both socially and financially. Police told his insurance carrier a made-up story with the result that the insurance company did not accept his claim incurring him a huge financial loss, close to thirty thousand dollars.

16When asked if he gave two different stories to two different police officers, the Applicant responded that was not true. He might have stated something not clear or different when he was under the influence, but certainly, he did not give any different story nor he had any intention doing so. He added, in fact, police have a different story – sometimes they say video surveillance was working and in another report they say it was either partially working or the images were not very clear.

17When asked why he did not cooperate with police in relation to investigation, the Applicant replied that he told them what he knew. He went to police station and gave a statement and even pictures of his injuries were taken at the time. He did not know what else he could do. In fact, it was police duty to find the assailants, once the matter had been reported to them.

18When asked why he did not give his right address to police, the Applicant responded he gave the right mailing address to them. They never asked him to give his residential address.

19When advised that as per police, he did not return their telephone calls to follow up the matter, the Applicant replied he did attempt but the concerned police officer was not available. He added, he, however, did not leave a voice-mail message for the officer.

20When inquired that, as per police report, the Applicant had scheduled a meeting with the officer to record his audio-video statement on [date], 2017, but he did not show up, the Applicant stated he had no trust in police. They never treated him justly. He did not expect police to help him and investigate the matter properly. He knew they would try to find fault with him, and that is exactly what happened. He added police never cooperated with him. For example, he asked them to give copies of his injuries’ photos taken at the police station, but they have not provided him photos despite the fact that many requests have been made.

21In response to a question, the Applicant responded that the bar owner knew that the Applicant attended the bar on the day of the incident, but for his own reasons, best known to him, he chose to state that he had not seen the Applicant at the bar that day.

22Responding to a question, the Applicant stated that he was once charged with a domestic. However, the charges were later dropped for lack of any evidence.

Injuries

23Regarding his injuries, the Applicant testified that he sustained a split lip and a big lump on his head giving him a permanent residual scar. He added he did not go to a hospital for treatment. However, 2-3 days after the incident, certainly within a week, he visited his family doctor who gave him tetanus shot and also recommended pain killers. He claimed he also sustained a hand injury. It took three weeks for his physical injuries to heal.

24He further testified that the assault had made him an angry person with a short temper. He did not trust others, especially police officers, particularly from [division] Police Station. He thinks of the assault almost every day and that bothers him and makes him angry. In addition to other situations, the scar on the head reminds him of the incident every day.

25When asked if he received medical attention for his emotional/psychological injuries, the Applicant responded ‘no.’ He added he did not have the money to pay for counselling. He requested if the CICB would consider funding for counselling and scar treatment.

26When asked if he had pre-existing anger management and anxiety issues and that he used to take medication for anxiety, the Applicant stated ‘yes’. However, he added that the assault exacerbated those conditions.

27When asked if his anxiety medication dosage was increased, the Applicant stated ‘no’.

28When asked what his source of income was, the Applicant responded he was in receipt of Ontario Works benefits whereas his partner was on OSAP support and was also working part-time.

Police Witness Oral Testimony

29In his oral sworn testimony on June 19, 2018, the police witness who had 8 years of police experience with [name] Police Service, testified that he was the investigating officer in this matter and that his testimony would be primarily based on the report generated by the first responding officer at the time of the incident and his own notes prepared during the course of investigation.

30The police witness confirmed that the Applicant reported the matter at the police station where his injuries were also photographed. Police also observed laceration to the Applicant’s lip and bruising. The police witness informed that the occurrence was “parked as a result of the investigation.” Some of the factors taken into account for reaching this determination included: i) Applicant’s statements did not have consistency; ii) he did not cooperate with police in that he did not show up for a scheduled formal audio/video statement on [date], 2017 at 4 p.m.; iii) the Applicant did not call back despite several messages (at least 3-4 attempts made) left at the voicemail of the given telephone #; iv) there was no evidence to suggest that any items were stolen from the vehicle in question; v) in fact, valuable items were found inside the vehicle after the alleged incident, leading the investigator to conclude that there was no robbery involved, as propounded by the Applicant; vi) review of video surveillance (6 hours span) does not show the presence of the Applicant in that area at that time; vii) the bar owner told police that the Applicant was not seen attending the bar on the night of the alleged incident, however, he would not provide with a written or audio statement, explaining he wouldn’t want to get involved with police investigation.

31In response to a question from the Panel, the police witness told that police had not formally notified the Applicant regarding the fate of the investigation. He added he was afraid he might have to charge the Applicant for obstruction of justice for not cooperating with police and also for keep changing his story.

32The police witness confirmed that the Applicant had sustained injuries, but it was not clear how that happened. It could well be the result of a crime of violence or maybe something else. He could not say with definitiveness as to what had happened.

33The Panel asked the Applicant if he had any question for the police witness, the Applicant responded ‘no’. However, he added that he did not trust police, particularly the officers of [division] Police Station. He did not expect justice and fairness from them. They seem to be biased towards him. The story presented by the police witness and the observations made in the police report were not true.

Analysis and Decision

34The CICB must determine, on a balance of probabilities, if the Applicant is a victim of violent crime under section 5 of the CVCA. This section provides that the Applicant’s injury must have resulted from a “crime of violence” constituting an offence against the Criminal Code of Canada RSC 1985, c.C-46 (the “Code”).

35In this claim, the CICB must be able to conclude that the Applicant was probably injured as a result of an intentional assault as opposed to being injured in some other way. The standard of proof in cases before the CICB is “on a balance of probabilities.” However, clear, cogent and convincing evidence is required to satisfy the standard of proof. The CICB must not consider the Applicant’s evidence in isolation; rather, the CICB is required to assess the totality of the evidence presented.

36The fact that the Alleged Offenders were found not guilty of the offence in relation to this Applicant does not mean that the CICB is precluded from making an order for compensation. Subsection 16(1) of the CVCA provides that the CICB can make an order for compensation whether or not the person has been prosecuted for or convicted of the offence giving rise to the injury.

37Having considered all of the documentary evidence including police report, treatment /assessment report, and the oral testimony of the police witness as well as that of the Applicant, which the CICB considers to be credible, though there seems to be a few holes, the CICB finds the Applicant, on a balance of probabilities, to be a victim of violent crime within the meaning of and pursuant to subsection 5(a) of the CVCA.

38Hence, the remaining issues to be decided by the CICB in this matter are as follows:

a) The nature and extent of the injuries as a result of the foregoing incident,

b) Having regard to the relevant circumstances, whether compensation should be awarded, and, if so, determine the amount, and,

c) Consider incident-related expenses including future counselling and loss of wages, as requested by the Applicant.

39The Applicant’s injuries, as described by him in his Application as well as in his oral testimony, have already been described above.

40In support of his injuries claim, the Applicant has submitted a report from his family physician, as already mentioned above. The CICB accepts this report for the purpose of compensation in this matter.

41In every case before it, the CICB is required to determine what the relevant circumstances are and to decide whether to grant or deny compensation having regard to those circumstances on a balance of probabilities. There is no automatic right to compensation under the CVCA. There is only a right to apply for compensation, which may be granted or refused at the discretion of the CICB, in accordance with natural justice. Sheehan and Criminal Injuries Compensation CICB (1975), 1974 439 (ON CA), 5 O.R. (2d) 781.

42Based upon a careful review of the documentation on file, including treatment report as well as the oral testimony of the Applicant and that of the police witness, the CICB finds the Applicant, on a balance of probabilities, not only to be a victim of a crime of violence within the meaning of and pursuant to subsection 5(a) of the CVCA but also accepts that he sustained both physical and emotional injuries, as a result thereof. Therefore, the Applicant is compensable.

43As it does in all applications that come before it, the CICB must have regard to the provisions of subsections 17(1) and 17(2) of the CVCA, which have already been described in the beginning of this Order.

44The CICB is obliged to consider “all relevant circumstances”, and to assess the proportionality between the entireties of the Applicant’s behaviour against the injury he claims he sustained.

45Regarding subsection 17(1) of the CVCA, the CICB, after considering the evidence presented including the oral testimony of the police witness, has determined that subsection 17(1) is not established and the CICB is satisfied that the Applicant’s behaviour did not contribute, either directly or indirectly to his own injuries.

46In respect to subsection 17(2) of the CVCA, the CICB considered the police witness testimony that the Applicant co-operated in the initial stage in that he reported the matter to police at the police station and also consented to have photos taken of his injuries, but, later, he did not show up for a formal audio/video statement, nor he responded to phone calls from the investigator in this matter for a further follow-up. As a result of the Applicant’s un-cooperative behaviour, the Alleged Offenders were never apprehended/charged, and thus, the likelihood of a conviction against the Alleged Offenders was compromised.

47In determining whether or not subsection 17(2) of the CVCA is established, the CICB considered the Applicant’s lack of trust with police, based on his prior interaction with police, particularly, with officers from [number] Division. In addition, the Applicant stated that he did not know who had assaulted him. Therefore, he could not give the names of Alleged Offenders. The Applicant added that he was under the influence of alcohol at the time. Hence, he was not in a state of mind to recognise the faces of the Alleged Offenders. In light of this explanation, the CICB understands the Applicant’s state of mind with regards to his limited cooperation with the police and by putting things in perspective, and having regarded to all relevant circumstances and in exercising its discretion, the CICB finds appropriate not to deny compensation outright and instead order a reduced award of compensation in this case.

48In assessing compensation for pain and suffering, the CICB has considered:

a) The nature of the incident causing physical injuries;

b) The possible emotional/psychological impact of the assault;

c) The ongoing impact on the Applicant’s overall health, relationships and productivity.

49It is important to note that the CICB has wide discretion to determine whether or not to award compensation to a victim from public funds. Leung v Ont. (Criminal Injuries Compensation CICB), 1995 10629 (ON CTGD), 1995 OJ 1464 (Div. Ct) at para 5. The CVCA is not intended to make a victim for compensation whole or to provide full indemnity to a victim. The CICB is mindful that awards are paid using public funds. They are not paid by the wrongdoer as would be the case if a victim pursued compensation through a civil action. The CICB also considers previous awards made by it in similar fact cases/situations in order to determine a reasonable amount of compensation, and to maintain consistency across the CICB.

50After reviewing the evidence in its totality, and having regard to all of the above mentioned circumstances of this case as well as considering previous awards made by the CICB in similar fact cases/situations in order to determine a reasonable amount of compensation, and to maintain consistency across the CICB, the CICB awards the Applicant $500.00 as compensation for pain and suffering.

51Based on the Applicant’s stated intention to enter into counselling therapy in the near future, the CICB authorizes up to $600.00 (exclusive of any applicable taxes) 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 or public funds. Therapy sessions must 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 may be made directly to the treatment provider on a monthly basis, upon submission of an invoice and the required verification from the Applicant. The CICB may also consider therapy expenses that were incurred between the time that the Applicant submitted his final set of documents to the CICB and the receipt of this Order. If there are such expenses, the CICB will deduct these from the pre-authorized $600.00 amount described above.

Expenses

52The CICB has considered the Applicant’s claim in the amount of $28,200.00 in respect to car rental etc. The CICB generally awards compensation only to cover expenses related to treatment of the injuries sustained such as hospital, medication or therapy expenses and not for expenses related to personal items/property or moving costs or financial debts. Having found no compelling reasons to deviate from its usual practice in this instance, the CICB declines to award compensation for the Applicant’s claim in respect to car rental costs.

Loss of Income

53With respect to the Applicant’s claim for income loss, the CICB notes that it generally requires supporting documentation such as employer’s report, pay stubs, 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, and to confirm the period of disability. In the absence of relevant supporting documentation, and having found no compelling reasons to deviate from its usual practice in this instance, the CICB finds that the Applicant has failed to establish his claim for income loss and the claim in that regard is hereby denied.

Award

54The CICB now orders payment as follows:

Subsection 7(1) (a) future counselling $600.00

Subsection 7(1) (d) Pain and Suffering $500.00

TOTAL CURRENT AWARD AND COSTS $1,100.00

Less Future treatment costs -$600.00

TOTAL CURRENT AWARD $500.00

55The 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 CVCA.

Payment

56The CICB orders that the following sums be paid forthwith to:

The Applicant $500.00