(Re) 1704-01252, 2018 ONCICB 81

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: James Graham
Date: October 09, 2018
Indexed as: (Re) 1704-01252

ORDER

Introduction

1The Applicant is seeking financial compensation for pain and suffering from the Criminal Injuries Compensation Board (CICB) in accordance with the Compensation for Victims of Crime Act, R.S.O. 1990, c. C.24, as amended (CVCA). The Applicant is seeking compensation for mental and nervous shock suffered as a result of a murder that occurred on [date], 2016. The incident was reported to the police and the Alleged Offender was charged, but the prosecution did not proceed because the Alleged Offender died.

Decision

2The CICB approves the claim and awards the Applicant the sum of $9,000.00 for the reasons set out below.

Issues

3The 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. The Applicant is required to prove, on a balance of probabilities, not only that she was a victim of a crime of violence but also that she suffered the injury of mental and nervous shock pursuant to subsection 5 (a) of the CVCA.

Hearing

4The Applicant participated in the hearing by telephone. She was accompanied by [name] and [name] of [name] Family Services. Ms. [name] also gave evidence.

Documentary Evidence

5The CICB received the following documents with respect to the claim:

• The Application
• News article from the [newspaper]
• [name] Police general occurrence report
• [name] Health Centre records

6In her Application, the Applicant states that in the morning of [date], 2016 the Alleged Offender came to her apartment very upset and told her that he had just killed her cousin. Because she did not believe him, he took her cell phone, returned to his own apartment, next door, took a picture of the body, and returned to show it to her. He talked about other people he was going to kill and the Applicant became afraid that he would hurt her too. The Alleged Offender called a number of people on the Applicant’s cell phone, one of whom called the police. They arrived and took the Alleged Offender away.

7The Applicant says that when the Alleged Offender came to her apartment she was shaking and her heart was beating very fast. Subsequently, she was afraid to be alone and could see the body all the time. Later the next day she went to the emergency department in [city] because she could not stop shaking and her heart was beating very fast. They gave her Lorazepam while she was there and kept her there until she calmed down. When she returned to her apartment she was frightened to be so close to where the murder took place and afraid that the Alleged Offender’s friends would come and hurt her. She did not want to be in the apartment, but was afraid to go outside.

8The Applicant claims that she is still taking Lorazepam for anxiety, is unable to sleep, has nightmares and is afraid to be in her apartment. She has flashbacks where she relives the terror of that day.

9Police records state that the Alleged Offender went to the Applicant’s home at some time in the early afternoon of [date], 2016. The police confirm the Applicant’s story. They investigated the matter as a homicide by the Alleged Offender which occurred in the Alleged Offender’s apartment. The police report shows that the murder had taken place the previous evening on [date], 2016. They also say that the Alleged Offender attended at the Applicant’s home at about midnight prior to visiting the Applicant and first told the Applicant’s common law husband that he had stabbed someone. The Alleged Offender also told the police that the body had been there all night.

10Records from the hospital show that the Applicant was taken there by ambulance on [date], 2016. She was found by the ambulance crew sitting in her kitchen in moderate distress. She told the ambulance crew that she has seen a disturbing picture and was having a panic attack. Her pulse was 96 and regular. She told the nurse on duty at the hospital that the picture was all she could see and that she was shaking and hyperventilating at home. She said that she thought she was having a nervous breakdown. She left the hospital before seeing a doctor.

11Her next hospital attendance was on [date], 2017 when she told the triage nurse that she thought she suffered an anxiety attack because of the upcoming trial. She reported trouble breathing, dizziness, and uncontrollable shaking. She said that she had seen a photograph of a murder scene a year before and had a similar episode shortly after that. She reported difficulty sleeping all year.

12Although there are records of other hospital visits subsequent to [date], 2017, there are no references in those records to the events of [date], 2016.

Oral Evidence

13The Applicant testified that the Alleged Offender came to her door on the morning of [date], 2016 and told her that he had killed the Applicant’s cousin. He returned to his own apartment with her cell phone and took a picture of the body, which he then showed to the Applicant. He then said repeatedly that he was going to continue killing but when asked said he would not kill the Applicant.

14The Applicant said that when she saw the picture of the body she was really scared. She said that she has trouble sleeping and is still taking pills for anxiety. She has nightmares where she can still see blood. She is afraid that the Alleged Offender’s friends might harm her, although she has received no threats. She is upset by the apartment where the killing took place, which is very close to her own home (next door). She says that she is now suicidal and does not want to live any longer.

15Ms. [name] testified that the Applicant is developmentally challenged. She has nightmares and flashbacks, is afraid to be in her apartment and is afraid of reprisals from family and friends of the Alleged Offender. She is afraid to be in her own apartment. She has seen a mental health counsellor, but does not feel comfortable talking about it because she is in a small community. The witness disclosed that the Applicant wants to die and has attempted suicide. Attempts are being made to secure alternate accommodations away from the scene of the crime, but have not been successful.

Analysis and Decision

16Under the CVCA, an individual, who is not the direct recipient of violence, may be eligible for compensation as a victim themselves where the individual is able to establish that he or she has sustained the injury known as mental or nervous shock, which is a legal term and not a medical diagnosis. The legal test for mental and nervous shock, summarized in Ulmer v. Weidmann, [2011] B.C.J. No. 158 and cited with approval by the Divisional Court in Wilson v. Criminal Injuries Compensation Board, 2015 ONSC 7876 at para. 27, is as follows:

a. the defendant must take reasonable care not to injure those persons who are so closely and directly affected by his/her actions that he/she ought reasonably to have them in contemplation as being so affected;

b. proximity factors inform the foreseeability analysis for claims of psychiatric injury where there is no physical injury;

c. the relevant proximity factors are:

i. the relational proximity (the closeness of the relationship between the claimant and the victim of the defendant’s conduct),

ii. the locational proximity (being at the scene of a shocking event and observing it or observing its immediate aftermath), and

iii. the temporal proximity (the relation between the time of the event and the onset of the psychiatric illness);

d. the claim must be for actual psychiatric injury caused by the actionable conduct of the defendant;

e. it must be concluded as a matter of law that a reasonable person should foresee that his/her conduct is such that for it could create a risk of direct psychiatric injury to a person of normal fortitude and thereby give rise to a duty of care to avoid such a result;

f. a claimant must prove not just psychological disturbance or upset as a result of the defendant’s negligence but also that his/her psychological disturbance rises to the level of a recognizable psychiatric illness. Mere grief or sorrow caused by a person’s death is not sufficient to support any compensation. The law does not recognize upset, discord, anxiety, agitation or other mental states that fall short of a recognizable psychiatric illness.

17Therefore, to be compensable, the Applicant must establish that she suffered psychiatric or psychological injury, which rises to the level of a recognizable psychiatric illness, induced by the shock resulting from the violent occurrence. Problems in dealing with the aftermath of the occurrence, such as difficulty in adjusting to a new lifestyle, stress, financial problems or having to attend court are not compensable.

18The CICB finds the Applicant’s evidence to be reliable and credible. Details of the crime were consistent with and corroborated by the police report. Details of her injuries were consistent with hospital documents and the evidence given by her social worker.

19The CICB finds on the balance of probabilities that the Applicant learned of the violent death of her cousin in a nearby apartment by being told and by seeing a photograph of the body immediately after she learned the deceased victim was murdered. The disclosure was made by the Alleged Offender before the body had been discovered and before the police had been notified. As a result of what she saw on the date of the incident, she has experienced fear, nightmares, flashbacks, and ongoing concern for her safety. She is stressed by being in her own apartment and its proximity to the murder scene. She has become suicidal. The Applicant was under a significant disability prior to the incident and as a result was more vulnerable than most and so is still experiencing strong and dangerous suicidal ideation.

20On the basis of these findings, the CICB is satisfied that:

a) the Applicant had a close relationship with the deceased, who was her cousin;

b) the Applicant was proximate to the scene of the murder, being next door to it and being exposed to the body by photograph;

c) the Applicant received the information of the death and viewed the photograph right after the murder and before police involvement, and

d) although not formally diagnosed with a psychiatric injury, the CICB is satisfied that the Applicant did suffer a serious disturbance as a result of the murder.

21In the rare and unusual circumstances of this case, the CICB finds that the Applicant has established that she is entitled to compensation pursuant to section 5(a) of the CVCA. Taking into consideration the emotional injuries described above, the CICB awards the Applicant the sum of $9,000.00 for pain and suffering.

Award

22The CICB orders payment as follows:

Subsection 7(1)(d) Pain and Suffering $9,000.00

TOTAL AWARD $9,000.00

Payment

23The CICB orders that the following sums be paid forthwith to:

The Applicant $9,000.00