CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Maija Laitinen
Indexed as: (Re) 1511-01246
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 (CVCA).
2The Applicant was the victim of a violent shooting on [date], 2014. Offender 1 shot at the Applicant 14 times. Twelve shots struck the Applicant’s extremities, chest, abdomen and pelvis. The Applicant suffered serious, life-threatening injuries, including a right diaphragmatic injury, a liver laceration, a gallbladder injury, a right forearm fracture, broken ribs, pelvic fractures, bilateral hemopneumothorax and a left hand injury. Bullet fragments penetrated the Applicant’s abdomen and pelvis and lodged in his spine and around his left sciatic nerve.
3Three Offenders were convicted of multiple criminal offences in relation to this incident and the series of events leading up to this incident. In particular, Offender 1 was convicted of attempt murder with a firearm contrary to section 239(1)(a) of the Criminal Code.
Issues
4There is no question that the Applicant was victim of a “crime of violence” within the meaning of section 5(a) of the legislation. Pursuant to section 11 of the CVCA, a conviction may be taken as conclusive evidence that an offence has been committed.
5The CICB must therefore determine the following issues:
i. The nature and extent of the Applicant’s injuries resulting from the crime; and
ii. Whether the Applicant’s behaviour may have directly or indirectly contributed to his injuries pursuant to subsection 17(1) of the CVCA.
Decision
6The CICB awards the Applicant the sum of $10,200.00 as compensation for pain and suffering for the reasons set out below. This is a reduced award based on the CICB’s consideration of “all relevant circumstances” under section 17(1) of the CVCA. The CICB has also made an award for medical expenses as well as future counselling.
Hearing
7The Applicant, who was represented by counsel, appeared at the hearing and provided affirmed oral testimony. The Applicant’s mother attended at the hearing to provide support. A police witness also testified at the hearing.
8The CICB received a large volume of documents with respect of the Applicant’s claim:
Court documents, including the reasons for judgment from the criminal trial of Offender 1 as well as the reasons on sentencing for all three Offenders;
Police reports, including a summary of the Applicant’s witness statement, dated [date], 2014;
Hospital records;
Medical report from a neurologist, dated [date], 2016; and
Copies of receipts for medical expenses.
Analysis and Decision
Events leading to Shooting on [date], 2014
9The court decisions make it clear that the Applicant and all three Offenders were involved in “an illicit drug subculture” within their community.
10The Applicant testified that in [month] of 2014 he was [age] years old and addicted to opiates. He acknowledged that he was acquainted with two of the Offenders. He gave evidence that he regularly purchased drugs from [name] mother, [name], who was a known drug dealer in the community. [Name] and [name] both frequented [name]'s residence. The Applicant testified that he spent time with [name] and [name] – “hanging out, doing drugs and trading drugs”. He denied ever selling drugs. The Applicant admitted that at the time of the incident he had a lengthy criminal record, including convictions for break and enter, aggravated assault, theft and failing to comply with court orders.
11In approximately [month] of 2014, the Applicant pawned a diamond ring with [name]. The Applicant testified that, when he later sought to redeem the ring, [name] informed him that it had been seized by police during a raid at her residence. At the hearing, the Applicant gave evidence that he was upset about the loss of the ring and thought that [name] was lying.
12On [date], 2014, the Applicant attended at [name]’s residence. According to the reasons for judgment from the trial of [name], the Applicant was carrying a crow bar or a tire iron. He went into [name]’s bedroom while she was sleeping and stole $60.00 and some scratch tickets. Upon leaving the residence, the Applicant was confronted by [name] who was holding a baseball bat. They exchanged words and went their separate ways.
13Shortly thereafter, [name] and [name] met up and went searching for the Applicant. They located him at a nearby apartment. They were carrying baseball bats. The Applicant was armed with a knife. Offender, [name], punched the Applicant in the face, and [name] asked him “where the drugs were”. The Applicant denied taking any drugs from [name]’s residence and returned the $60.00 and scratch tickets to [name].
14At the hearing, the Applicant testified that he subsequently received telephone threats from [name] and heard rumours that [name] was “going to shoot him in the knee caps”. The Applicant did not contact the police in regard to these threats. He testified that he did not take them seriously at the time. Instead, the Applicant sought to resolve things on his own. He returned to [name]’s apartment because he wanted to confront [name]. He was carrying a knife, which he used to pick the lock on the front door. [Name] was not at the residence. [Name] saw the Applicant coming up the stairs and armed himself with a baseball bat. An altercation ensued. They wrestled, and the Applicant removed the baseball bat from [name]. The Applicant told [name] that he wanted to fight [name]. The Applicant denied taking any drugs from [name] and asked for his ring back. At the hearing, the Applicant testified that he thought he had resolved things with [name] after this exchange.
15Approximately four or five days later, the three Offenders attended at another residence where the Applicant was visiting with a friend. [Name] knocked at the door. The Applicant asked his friend to wait to open the door to allow him to put his shoes on. The Applicant was standing in a bedroom and armed with a knife when [name] asked him to come out. The Applicant testified that he had initially expected they would go outside to fight. The Applicant observed Offender 1 wearing a mask and holding a gun. Offender 1 began shooting the Applicant, who kicked closed the bedroom door. Offender 1 continued shooting though the door and then directly at the Applicant after kicking open the door. Offender 1 shot at the Applicant 14 times. The Applicant dropped to the ground, and [name] sprayed him with bear mace. The three Offenders then fled the residence.
Applicant’s Injuries
16Based on the Applicant’s testimony and the medical documentation on file, the CICB is satisfied that the Applicant sustained serious and long-term physical injuries as a result of the shooting on [date], 2014. The hospital records confirm that the Applicant suffered “multi-system trauma secondary to multiple gunshot wounds to the extremities, chest, abdomen and pelvis”.
17The Applicant received emergency treatment at a community hospital where he underwent a trauma laparotomy as well as an open reduction internal fixation of his right forearm fracture. He was transferred to a tertiary hospital in [city] on [date], 2014, where he underwent a second trauma laparotomy. The discharge summary from the tertiary hospital, dated [date], 2014, summarizes the Applicant’s injuries and course of treatment:
Primary repair of gunshot wound to right hemidiaphragm.
Repair of bullet tract through segment four of the liver exiting at the caudate lobe. The bullet tract measured approximately 3 cm in widest diameter and was filled with EDACEL topical thrombotic agent injected along the entire length of the tract.
Primary repair of gunshot wound to the inferior vena cava. The injury was situated between the level of the right and left renal veins and the caudate lobe.
Insertion of bilateral chest tubes.
No evidence of injury to the esophagus, stomach, duodenum, small intestine, colon, spleen, right and left kidneys and intra-peritoneal bladder.
Gunshot wound through the gallbladder, which was managed with cholecystectomy.
The discharge summary indicates that a bullet fragment was lodged in the Applicant’s spine anterior to the Applicant’s L1 vertebral body.
18The Applicant was transferred back to his community hospital on [date], 2014 and remained in hospital until [date], 2014. The discharge summary from the community hospital, dated [date], 2014, states that the Applicant suffered pelvic fractures, a right forearm fracture, left sciatic nerve injury, left hand injury and a bullet fragment resting in the anterior portion of his L1 vertebral body.
19At hearing, the Applicant testified that he underwent a second surgery on his right forearm in 2017. He showed the CICB a long scar that runs along the length of his right arm. He gave evidence that bullet fragments remain lodged in his spine as well as in his back and upper chest. He stated that his physicians continue to monitor these fragments as surgery has been deemed “too risky”. The Applicant testified that he has experienced a “drop foot” as a result of his injuries and cannot flex his left foot or lift up or wiggle his toes. He gave evidence that he also experiences nerve pain in his left leg and foot as well as numbness in his upper chest and leg. He stated that he currently takes Lyrica to cope with the pain.
20With respect to his left hand injury, the Applicant testified that a bullet went through his knuckle and came out his wrist. He did not require surgery on his left hand, but he continues to feel pain in that area. The Applicant also described occasions when bits of shrapnel have risen out of his skin in various part of his body.
21The Applicant testified that he underwent a lengthy course of physiotherapy after he was discharged from hospital. He continues to wear a brace on his left foot every day. He testified that he is not able to run or play sports as a result of his injuries. He has limitations with respect to lifting with his right arm.
22The medical report from the Applicant’s neurologist, dated [date], 2016, indicates that the Applicant suffered a sciatic nerve injury and lower left leg weakness as a result of the crime. On page 2, he states that the Applicant should regain some function in plantar flexion, but is unlikely to regain dorsiflexion of his left foot. The neurologist describes the Applicant’s impairment as “permanent”.
23With respect to the psychological impact of the crime, the Applicant testified that this incident motivated him to change his life for the better. He gave evidence that he stopped using drugs and has not been in trouble with police for over four years. He testified has been employed as a delivery driver for the past 10 months. He has three children, ages [ages]. That said, the Applicant testified that he continues to fear the Offenders and worries about his safety and the safety of his family once they are released. He gave evidence that he has hard time coping when he is out in public and in large crowds and expressed an interest in attending counselling in the future.
Cooperation with Law Enforcement
24The CICB is satisfied that no section 17(2) factors that impact on this award. The Applicant provided police with a video-taped witness statement on [date], 2014, shortly after he was discharged from hospital. He testified at the preliminary inquiries in relation to all three Offenders. He testified at the trial of Offender 1. At the hearing, the police witness gave compelling evidence that the Applicant was fearful of the Offenders, but cooperated fully with the Crown and police.
Section 17(1) Considerations
25The 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 wrongdoers as would be the case if a victim pursued compensation through a civil action.
26Section 17(1) of the CVCA obligates the CICB to consider all of the relevant circumstances of the case and to consider the principle of proportionality. The relevant circumstances include whether there was any conduct by the victim that contributed to his injury as well as the severity of the injury suffered. The CICB must decide whether to grant compensation, deny compensation or allow a reduced award.
27The CICB finds that the Applicant’s involvement in the sequence of events leading up to the shooting on October 22, 2014 is relevant under section 17(1).
28There is no question that the Applicant sustained serious, life threatening injuries as a result of being shot fourteen times. The CICB has considered the severity of these injuries against a number of factors, namely:
The Applicant engaged in dangerous and/or criminal acts in the weeks leading up to the shooting, including the theft of money and other property from a known drug dealer and subsequently breaking into the drug dealer’s residence after the theft to confront the Offenders.
The Applicant engaged in a course of action that he ought to have known could result in violence. The Applicant was actively involved in the series of escalating confrontations with two of the Offenders, [name] and [name]. The court documents indicate that the Applicant was carrying a crow bar or tire iron when he robbed [name]. He was carrying a knife when he was punched by [name] on the street when [name] asked him where the drugs were. Rather than contact police after this altercation, the Applicant returned to [name]’s apartment, picked the front door lock with a knife and confronted the Offender, [name].
29Pursuant to section 17(1), I have carefully considered the serious injuries suffered by the Applicant against these relevant circumstances. I have concluded that the Applicant engaged in conduct of a nature that, although his serious injuries were not proportional to those activities, they were nevertheless a contributing factor. Accordingly, I reduce the amount of compensation to be awarded to the Applicant by 40%.
30In assessing compensation for pain and suffering, the CICB considered the nature and extent of the Applicant’s injuries as well as the need for medical intervention. The CICB was also mindful of the fact that the crime involved multiple Offenders. Absent section 17(1) considerations, I would have awarded the Applicant the sum of $17,000.00 as compensation for pain and suffering. With a 40% reduction based on the above-noted section 17(1) considerations, the total award for compensation for pain and suffering is $10,200.00 [$17,000.00 - $6,800.00 = $10,200.00].
31Based on the Applicant’s stated intention to enter into therapy in the near future, the CICB authorizes up to $1,800.00 (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. 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.
32The CICB approved the Applicant’s claims for $141.88 for prescription expenses and $112.79 for a foot brace, for which receipts were provided.
33Pursuant to section 22 of the CVCA, I award the Applicant costs in the amount of $400.00 for contribution to the Applicant’s legal fees. This amount will be paid directly to the Applicant’s lawyer.
Award
34The CICB orders payment as follows:
Subsection 7(1)(a) Future Pre-Authorized Expense $ 1,800.00
Subsection 7(1)(a) Medical Expenses $ 254.67
Subsection 7(1)(d) Pain and Suffering $10,200.00
Section 22 Costs (Legal fees contribution) $ 400.00
TOTAL AWARD (AND COSTS) $12,654.67
Less: Preauthorized treatment costs $ 1,800.00
TOTAL CURRENT AWARD $10,854.67
Payment
35The CICB orders that the following sums be paid forthwith to:
The Applicant $10,454.67
[name] Professional Corporation $400.00
DATED at Toronto this 9th day of October, 2018.
Maija Laitinen, Member