(Re) 1702-00377, 2018 ONCICB 62

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: M. Saleem Akhtar

Date: August 21, 2018

Indexed as: (Re) 1702-00377

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 subsection 17(1) of the Compensation for Victims of Crime Act, RSO 1990 c C24 (CVCA) which reads 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.

Introduction

2The 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 for the injuries he claims he sustained as a result of the assault committed against him on [date], 2016. Both Offenders were convicted in this matter.

Decision

3For the reasons set out below, the CICB approves the claim and awards the Applicant the sum of $4,000.00 as pain and suffering compensation.

Issues

4Pursuant 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, assess the nature and extent of the injuries sustained, and their impact on the day-to-day life of the Applicant.

5The 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. Whether compensation should be awarded and if so, determine the amount, and the Applicant must provide reliable evidence to support his claims.

Hearing

Documentary Evidence

6The CICB received the following documents with respect to the claim: Applicant’s Application giving details regarding the incident and the resultant injuries, police report dated [date], 2016, court documents and treatment/assessment reports from his family/addiction physician.

Incident

7In describing details of the crime, the Applicant writes

I was in my apartment and had friends over. There was a knock at the door. I didn’t recognise the people on the other side of the door. The people were aggressive and I wouldn’t let them in. They tried to push their way inside and, then, I noticed there was a gun. I tried to shut the door quickly and my friend used beer spray on the people outside my door. They fired the gun into the apartment before I was able to shut the door. I was almost hit by a bullet and my friend was gazed. Once we were able to, we called the police.

Injuries

8In terms of his injuries, the Applicant writes

I lost my housing and was evicted from my residence. Since this incident, I am not the same mentally and after participating at the Preliminary hearing, everything came back. I was born in [place] and was exposed to gunfire as a child. This incident has brought back childhood trauma and memories. Loud noise startles me, and I have very vivid dreams of war and detailed visions of my childhood. I am much traumatized as I was a victim of a shooting earlier in my life and now suffer from anxiety. I am paranoid and have anger issues now. I have outbursts towards things that wouldn’t have upset me before. I am currently in my longest relationship and am afraid that these issues will cause this relationship to fail. I also find it extremely difficult to be in public and constantly looking over my shoulder in fear. I am currently residing in [place] House and am diagnosed with schizophrenia. My mental health is fragile and this incident in my home has made it worse.

Testifying at the Preliminary Hearing has caused me stress to myself and partner. I am hearing on the streets that make us nervous and fear for our safety. I am currently on methadone and enrolled in a methadone program. I am a recovering addict and the stress of the shooting and coming to court has caused me great difficulty with my sobriety. It is very hard. It is difficult to find housing when there was a shooting at my former residence. No one wants me as their tenant. I feel like this shooting has caused others to view me in a negative way.

9In her medical report dated [date], 2017, the Applicant’s family/addictions M.D. wrote that the Applicant had “mental health” issues. He witnessed “guns shooting crime at his apartment.” Prior to this incident, the Applicant had experienced “severe/advance childhood events/trauma/neglect, chronic mental health symptoms, H(heavy) substance/alcohol use, psychosis also.” In terms of treatment, the Applicant was provided “on-going trauma informed addictions + mental health counselling.” The physician sees “[name] weekly for Opioids’ Disorder – [Applicant] has a mental health worker from [name] Services as well.”

10In support of his Application the Applicant has also provided a letter of support from [Name] which is a community health service program.

Police Report

11The police report / investigation, on record, corroborate the Applicant’s version of the incident. After due investigation, both Offenders were charged and later convicted in this matter.

Oral Hearing

Police Witness Oral Testimony

12In his oral sworn testimony on July 26, 2018, the police witness who had 15 years of police experience with [police service] testified that his testimony would be primarily based on his report generated at the time of the incident, his investigation and his independent recollection of the incident, which he thought was very vivid in his mind.

13The police witness testified that he was the investigating officer in this matter. He added that the incident happened at about 4:30 a.m. at the victim’s residence where three other people were also present and all of these four individuals were consuming drugs. A male and a female knocked at the Applicant’s door. The Applicant did not recognise the Offenders so he advised them to go away. However, the Offenders attempted to force their way into the apartment and opened the gunfire twice through the door. The Applicant did not sustain any physical injury. However, one of the Applicant’s friends was shot in the upper left shoulder causing a superficial wound.

14In response to a question from the Panel, the police witness testified that the Offenders were known to police for ‘home invasions’ and ‘selling drugs to people’. The police witness added that the Applicant was also known to police, but for only consuming drugs. The Applicant’s place was known as ‘drug handout’ where friends would get together and have fun time. The Applicant was not known to be involved in selling drugs.

15Responding to another question from the Panel, the police witness testified that, at the time of their arrest, the Offenders had ‘drugs and money’ in their possession and that the handgun used in the assault was located and recovered from the female Offender’s apartment.

16In replying to another question from the Panel, the police witness testified that the victim cooperated with police at all stages of the matter, despite threats from the Offenders.

17The police witness confirmed that both Offenders, as mentioned above, were charged with and later convicted in this matter.

18The Panel asked the Applicant if he had any question for the police witness, the Applicant responded ‘no’.

Applicant’s Oral Testimony

19In his oral sworn testimony before the CICB on July 26, 2018, the Applicant, after listening to the testimony of the police witness, advised the CICB that he was in agreement with the police witness's version of the incident. That was what happened. He added that he had nothing to add to and that he would accept the police witness's narration of the incident as the correct one. However, the Applicant commented that the shooter targeted him, but he shrugged aside and was thus saved from being hit. He considered himself lucky to be alive. The Applicant confirmed that a bullet grazed one of his friends present there.

20The Panel advised the Applicant that apparently it seems that he was living a risky life by engaging himself in drugs and using and providing his place of residence to others for drug purposes. In this context, the Applicant was asked to comment if he would agree that he had put himself in a harm’s way, and therefore, he had, to some extent, contributed to the incident and the resultant injuries because in a drug culture, there is always a possibility of an element of violence. The Applicant responded ‘yes’ but he added that he was not selling drugs. All that he was doing was provide a safe place to friends involved in using drugs and alcohol so that they wouldn’t use unhealthy environment and not share needles and/or things like that. In fact, he thought that he was doing a good thing.

21Regarding his injuries, the Applicant testified that he did not sustain physical injuries. However, the incident had emotional impact on him and caused him emotional trauma. The incident shocked him. He could not understand why that happened to him. He felt fearful living in his own home. He was fearful of his associates / friends as well because they called him ‘rat’. He stopped going outside his home except for an emergency. He was worried about himself and his family consisting of his partner and an eight month old son. The incident added to his anxiety. The Applicant added that a good thing also resulted from the incident in that he has become ‘sober’ and does not do drugs or excessive alcohol anymore. He has started a new ‘drug-free life and does not associate with anyone who is involved in drugs.’ He is trying to make a better life for himself and for his family.

22When asked if he attended any counselling sessions to address his emotional trauma, the Applicant responded he meets his counsellor every Wednesday and that the counselling was helpful. He added he did not have to pay for counselling and that it was covered through public/government funding.

Analysis and Decision

Crime of Violence

23The CICB must determine, on a balance of probabilities, if the Applicant was 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 R.S.C 1985, c.C-46 (the “Code”).

24In 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.

25In light of section 11 of the CVCA, there is no question that the Applicant was a victim of a crime of violence involving the Offenders, as proven through the conviction described above.

26Hence, 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, and

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

Nature and Extent of Injuries

27The Applicant’s injuries, as described by him in his Application as well as in his oral testimony have already been described in paragraphs 10 to 12 and 24 - 25 of this Order.

28In support of his injuries claim, the Applicant has submitted treatment / assessment reports from his family physician/addiction doctor, and a letter of support [Name] as already mentioned above in paragraphs 12 and 13 respectively of this order. The medical report also indicates that the Applicant had pre-existing health and emotional issues such as mental health, childhood issues, substance / alcohol abuse, psychosis and anxiety. The CICB accepts this report / document for the purpose of compensation in this matter.

29Based upon a careful review of the documentation, on file, including treatment reports 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 physical and emotional injuries, as a result thereof. Therefore, the Applicant is compensable.

30In assessing compensation for pain and suffering, the CICB has considered:

a) The nature of the incident causing injuries;

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

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

d) The CICB also took into account pre-existing health issues of the Applicant and their impact on his day-to-day life.

Amount of compensation

31In 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 Board (1975), 1974 439 (ON CA), 5 O.R. (2d) 781.

32It 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 Board), 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.

33Based on the Applicant’s testimony and that of the police witness, the CICB is convinced that subsection 17(1) related issues are not established in this matter. There is no evidence to suggest that the Applicant was involved in the business of selling drugs or that he had engaged himself in activities inviting violence. Also, he fully cooperated with police at all stages of the matter. Hence, there would be no negative impact in terms of the outcome of the matter in relation to compensation.

34After 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 $4,000.00 as compensation for pain and suffering.

Award

35The CICB now orders payment as follows:

Subsection 7(1) (d) Pain and Suffering $4,000.00

TOTAL CURRENT AWARD $4,000.00

36The 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

37THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $4,000.00