Re 1710-03355, 2018 ONCICB 84

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Louise Charette Pamela Arnott

Date: October 22, 2018

Indexed as: (Re) 1710-03355

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, R.S.O. 1990, c. C.24, as amended (CVCA). The Applicant is seeking expenses, pain and suffering as a result of physical assault that occurred on [date], 2016 where he sustained physical and psychological injuries. The incidents were reported to the police but did not result in charges.

Decision

2The CICB denies the claim for the reasons set out below.

Issues

3The absence of a conviction does not mean that the CICB is precluded from making an order of compensation. 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 he was a victim of a crime of violence but also that his injuries resulted from the crime pursuant to subsection 5(a) of the CVCA.

4The Applicant must provide reliable evidence to support his claims for:

a. expenses actually and reasonably incurred as a result his injury pursuant to subsection 7(1)(a) of the CVCA; and,

b. pecuniary losses resulting from his injury and any other reasonable expense that, in the opinion of the CICB, it is reasonable to incur, pursuant to subsection 7(1)(f) of the CVCA.

Documentary Evidence

5The CICB received the following documents with respect to the claim: police correspondence and reports from 2015; clinical notes from [name] General Hospital dated [month] 2015; clinical notes from [name] MRI dated [month] 2017; physiotherapy notes from [month] and [month] 2016; written submissions from the Applicant’s counsel; and the Application.

Oral Evidence

6The Applicant appeared and provided oral testimony and submissions.

7Detective [name] with the [city] Police Service (“police officer”) appeared as a witness. The police officer investigated the assault against the Applicant as part of an investigation into other assaults.

Summary of the Oral and Documentary Evidence

8On [date], 2016, a 911 call was made to [city] Police by an unknown witness indicating that the Applicant was lying in the middle of the road. The Emergency Medical Services report noted that the Applicant “appears to be drunk…had to (sic) much to drink and fell and hit his head.” The CICB was not provided with any reports of a police investigation after this 911 call.

9The Applicant’s evidence was that he was walking to the store late at night. At the beginning of the hearing, the Applicant indicated that he had consumed 4 beers. By the end of the hearing, the Applicant indicated that he may have consumed 12 beers over the evening. His evidence was inconsistent on whether he knew he was being followed; however, he noted that he was punched in the head from behind and recognized at least one of the attackers as a neighbour but was unable to identify where the “loud and obnoxious” neighbours lived (above or to the side of him). After he was attacked, he rolled on the ground trying to protect himself as he was repeatedly kicked, stomped and punched. He believes that the incident lasted 5-10 minutes and he eventually lost consciousness. He indicated that, if he had fallen due to his intoxication, he would have fallen much earlier in his walk. He testified that when he spoke to the police, he indicated that an incident happened outside his house but however, his testimony before the CICB was that the incident happened some distance away from the house while he was walking.

10The Applicant was initially taken to the [name] General Hospital where he was hospitalized for 9-10 days. He was treated for anemia and cervical injuries. His lengthy hospitalization may have been due, in part, to his alcoholism as he was treated for several conditions relating to excess fluid in the body which may have diluted his blood sugar, potassium and salt levels.

11At the oral hearing, the Applicant initially stated that he had no memory of speaking to the EMS personnel or to a police officer at the hospital. Later in the hearing, he indicated that he recalled seeing two officers at the hospital. The Applicant did not recall seeing any bystanders at the time of the incident nor having a conversation with his family at the hospital who suggested that one reason for his injuries was an assault.

12The police evidence indicates that the Applicant was interviewed on [date] where he advised police that he had been drinking heavily, did not recall being assaulted and did not wish to lay charges or to make a report of any assault against him. The officer, after speaking to the Applicant for 20 minutes, noted in his log that he believed that the Applicant had had too much to drink and that the Applicant’s injuries were consistent with a fall, being a black eye, injury to his right arm, cuts to his hands, balance problems and internal bleeding.

13The police evidence shows that the Applicant’s explanation for his injuries changed significantly in the 6 days following his hospitalization. In speaking with officers, the Applicant stated, at different points in the interview, that he fell, that he was beaten up, or that he had no memory of being assaulted. The officer also testified that the Applicant told his ex-wife that he had been beaten up and that the Applicant’s son believed that someone had assaulted his father and wanted to find out who was the culprit and retaliate for the treatment of his father.

14The police evidence indicates that their investigation relating to the Applicant was part of an investigation of assaults committed by the Applicant’s son. In his investigation, Detective [name] came to the belief that the Applicant’s fall “was never found to be the result of an assault or a violent crime. We still believe his fall was due to alcohol consumption and that he was alone when he fell into the street. This was witnessed by an independent civilian witness who called police.”

15The medical report from his discharge notes that the Applicant “reportedly he had a witnessed assault. He was a poor historian…” This conclusion “a witnessed assault” was later contradicted by the police evidence that the 911 caller may have seen the Applicant fall or may have seen him lying in the street, but did not see him being assaulted. It is not clear in any of the accounts whether the witness saw anyone with the Applicant at the time of his fall. The CICB was not provided with any statements from the witness or police notes of their contacts with the witness. The Applicant suggested that the 911 caller may have been connected to the Alleged Offenders but the CICB heard no evidence to support this belief.

16The medical evidence indicates that the Applicant suffered the following injuries:

• Subarachnoid hemorrhage

• Facial trauma including 2 black eyes, bloody nose, cut lip, bruises

• Blunt trauma to the head

• Melena in his stool (on one occasion).

17The Applicant spent 8-10 days in hospital where staff noted his significant balance issues and alcoholism. At his discharge from the hospital, the Applicant is advised to “use his walker for walking due to his unsteady gait”.

18The Applicant added that the incident aggravated his existing shoulder injuries which were due to workplace overuse. He variously indicated that he was injured in one or both shoulders during the incident or due to his workplace. He initially indicated that his collarbone was broken in this incident but then clarified that this was due to workplace injuries.

19The Applicant noted that he had no cognitive or balance issues prior to this incident, but now has both memory and balance problems. The Applicant notes that he also suffered a loss of cognitive abilities and has an increased sense of fearfulness and hypervigilance.

20The Applicant believes that his sore ribs and black eyes can only be explained by a beating as he would not have suffered these injuries in a fall.

21It is important to note that one hospital report describes the Applicant’s head injury as “post-assault subarachnoid hemorrhage”. Other reports state that it is a “small subarachnoid hemorrhage” without drawing a conclusion about the cause of the injury.

Analysis and Decision

22For the following reasons the CICB dismisses the Application.

23We are not satisfied that the Applicant has met his onus in establishing, beyond the balance of probabilities, that he was a victim of a crime of violence. We find that the Applicant’s evidence was inconsistent on multiple details, which taken as a whole, taint his credibility as a witness. His recollection of the number of beers which he had consumed and his subsequent level of intoxication, changed multiple times throughout the hearing with the CICB. He indicated to the police on [date] that the incident happened outside his house but indicated to the CICB that it happened some distance away from the house while he was walking. He was unable to identify where the “loud and obnoxious” neighbours lived (above or to the side of him). While the CICB accepts that the Applicant may have had memory issues due to the incident, we found his account of the events was inconsistent in his first interaction with the police, in his written application and in his testimony before the CICB.

24Further, the Applicant’s credibility is affected by his evidence with respect to his injuries. While it is clear that the Applicant suffered injuries on [date], the CICB has been presented with conflicting accounts of the source of the Applicant’s injuries. The Applicant’s oral evidence is that he was punched from behind such that he fell and hit his head on the cement curb. However, in his initial conversation with medical staff, the Applicant said that his injuries came from a fall from his intoxication and then changed his mind about the cause of injuries. The information provided by the witness to police dispatch and to officers at the scene was that the Applicant fell down due to his intoxication. It appears to the CICB that the Applicant’s statements change according to his motivation or his audience; for example, it appears that the Applicant’s current conviction of having been the victim of an attack came as a result of a conversation with his family, although he initially said that he had not been attacked in order to protect his son during a police investigation of the son’s assaults on other people.

25There are many inconsistencies in the Applicant’s evidence which, taken as a whole, do not give credence to his claim before the CICB. The Applicant’s evidence at the oral hearing differed in several respects from his written evidence: whether he was aware of being followed by the attackers or believed himself to be alone, which shoulder had been injured, whether his shoulder injury came from a workplace injury or this incident, to give a few examples.

26We do not accept the Applicant’s explanation that his injuries could only have resulted from an assault. The medical evidence is ambivalent as it indicates that he had facial trauma and a small bleed in his brain, which could be the result of falling due to his inebriation or falling from being pushed. One medical report draws a conclusion that the subarachnoid hemorrhage came about due to an assault; however, the conclusion in the report is based on an incorrect fact that the assault was witnessed. The assault may not have been witnessed. It appears to the CICB that these 2 conclusions in the medical report from medical staff (that there was a witnessed assault and that the hemorrhage is a post-assault consequence) are, to some degree, based on medical staff having conversations with third parties who may not have had all the necessary information.

27Having considered all the evidence available to the CICB, the CICB cannot find that there is credible evidence necessary to substantiate the Applicant’s claim. Therefore, the CICB finds that the Applicant has failed to provide, on a balance of probabilities, that the Applicant was a victim of crime pursuant to section 5 of the CVCA. The Applicant’s Application is dismissed.