(Re) 1811-04015, 2019 ONCICB 103

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicators: Pamela Arnott and Louise Charette

Date: August 14, 2019

Indexed as: (Re) 1811-04015

DECISION

Introduction

1The Applicant applied to the Criminal Injuries Compensation Board (CICB) seeking compensation for injuries resulting from a crime of violence. The Applicant is seeking the following forms of compensation: pain and suffering and hearing costs.

Decision

2In accordance with the Compensation for Victims of Crime Act, RSO 1990, c.C24, as amended (CVCA), the CICB denies the Application. The reasons for this Decision follow below.

Hearing

3Prior to the commencement of the Hearing, the Panel advised the Applicant and her Counsel of the potential difficulties that this application faced in respect to section 17(1) and section 17(2) of the 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 behavior 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 ordered 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.

4The Applicant confirmed that she understood the meaning of the above sections and, having been offered an adjournment, the Applicant and her Counsel indicated that she was prepared to proceed with the Hearing as scheduled.

5The Applicant appeared in person and provided oral testimony and submissions.

Evidence

6The Applicant testified that she knew the Alleged Offender as he was a friend of a friend. She had previously let him into her apartment in company of their mutual friend and had given him money to do errands for her.

7The Applicant testified that she was in her bed and heard noise outside. She initially testified that it was the Alleged Offender striking a metal bar on the fence outside, but later indicated that she didn’t look outside. She testified that someone began ringing her doorbell and she went to open the door without knowing who was at the door. She indicated that she did this because she wanted to ask the person why he was making so much noise. Upon opening the door, it was the Alleged Offender and she let him in the apartment. When he entered her apartment, he was carrying a bottle of tequila but did not have the metal bar. She described the Alleged Offender as drunk and aggressive and that he was looking for an individual who is known to live with her. She told him she did not know where he was. She believes that he got angry at her as she did not know where the individual he was. Her attempts to calm him down failed. He was in “her face” bullying her. This caused her to back up to her room.

8The Applicant indicated that the Alleged Offender was drunk, hyper and out of control when he arrived. He was looking for someone and asked her for money and the address of this person. He pushed her backwards. He was very close to her and she began moving backwards to avoid him. She was pushed onto her bed, which is a distance of 10 feet from the door.

9In her application, she indicated that she then broke away from him and ran out the back door from the apartment to a friend’s house. When she returned to the apartment, her purse was missing and her belongings were scattered over the apartment.

10In her oral testimony, she indicated that the Alleged Offender was on the bed and had his forearm over her neck. The Applicant testified that she had trouble breathing and tried to fend him off. She tried to yell but was unable to get enough breath due to her emphysema.

11The evidence on the police report indicates that a neighbor heard people yelling and called for police. It is not clear if these people were outside the apartment building or were the Applicant and the Alleged Offender. The witness declined to give a more detailed statement to police. The Applicant testified that most neighbors would not open their door when they heard people yelling.

12The Applicant testified that a neighbor must have called the police. When they arrived, she declined to make a statement. She believed that the Alleged Offender was a young man who made a mistake. She didn’t want him to cause trouble for her. She indicated that the Alleged Offender apologized to her sometime after the incident but she refused to accept his apology.

13The Applicant was asked about the statement in the police report that the incident was related to a drug deal. She denied that there was a drug deal with the Alleged Offender. She indicated that she has never exchanged money with the Alleged Offender. She added that she has a nephew who has been in trouble with the law whom she protects by lying to police about his whereabouts. She indicated that she decided not to make a statement to the police about this incident in order that the police have no reason to contact her.

14The Applicant’s solicitor explained that there is a fear in her neighborhood of cooperating with police. The Applicant’s solicitor indicated that she would be seen to be a “rat”. The Applicant indicated that she has not changed her habits as a result of this incident. She continues to let “lots of people” in her house, in her words.

15The Applicant was questioned about her injuries. She testified that she had bruises and had sleeplessness, weight loss, and fearfulness over this incident. She was not able to indicate where her bruises were. She indicated that she is seeking an award for future counselling. When questioned by her support person, she indicated that she has not used the award from a previous application to the Board and has cancelled three times on the counselor.

16The Applicant is also seeking the counsel fee for the assistance provided by her solicitor during this application.

Analysis

17Section 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.

18The 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 the injuries resulted from the crime.

19We find that there was a crime of violence committed against the Applicant due to the push and the choking by the Alleged Offender. We are convinced that crime of violence occurred because the neighbor contacted the police as a result of this incident. Further, a letter of support from a friend confirms she saw the Applicant crying and saying “help me” after and that when she went back to her apartment her purse was gone.

20We find; however, the Applicant did not have any injuries from this incident. She testified that she has no or very limited physical injuries at the time of the incident. These injuries were transient in nature and do not provide a basis to find that there was a physical injury sufficient for the purpose of the CVCA. Her testimony was not credible regarding her psychological injuries. While she testified that she was fearful of the Alleged Offender, she lost weight, she had anxiety cramps, and had trouble sleeping, she also testified that she continues to see the Alleged Offender him in their social circle, to speak with him and that she has not changed her habits in continuing to let many people into her apartment.

21The CICB found other minor inconsistencies in the Applicant’s testimony and her application, including, whether she knew who was knocking on the door and how the incident ended. The CICB does not find the Applicant to be credible.

22Given that we have found, on a balance of probabilities, that there were no injuries suffered in respect of 5(a) of the CVCA, we decline to make an award for compensation.

Section 17

23Even if the Applicant could prove her case on a balance of probabilities, we would have nevertheless declined the application pursuant to section 17 of the CVCA. Section 17 reads as follows:

(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.

(2) The Board may, in its discretion, refuse to make an order for compensation or ordered 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.

(3) In assessing compensation, the Board shall take into consideration any benefit, compensation or indemnity paid or payable to the applicant from any source other than social assistance.

24In this case, the CICB finds that the Applicant’s behavior is relevant and may have contributed to the Applicant's injuries within the meaning of s. 17(1). The Applicant opened her door in the night to someone who was yelling on the street and may have had a weapon in his hand. She testified that, despite alleging of several incidents of people harming her, she continues to let lots of people into her house even though she knows that she should not do so.

25In this case, the CICB finds the Applicant’s behavior to be relevant to s. 17(2). The Applicant testified that she refused to provide a statement to police as she believes that the neighborhood discourages cooperating with the police. She also declined to cooperate with the police in this incident because a nephew was sought by police.

26The CICB must also consider proportionality in determining whether to refuse or reduce an award under section 17. The CICB weighed the proportionality of the injury with the circumstances that it found to be relevant. In this case the Applicant's injuries were relatively minor. She has no physical injuries at the time and no lasting psychological injuries. As mentioned above, the CICB did not find that the Applicant was credible in her testimony of her fearfulness of the Alleged Offender.

27In the circumstances the CICB finds that the Applicant's actions when weighed against the injuries suffered are such that no order for compensation should be made.

28Given the circumstances of this matter and our findings, we find also that it would be inappropriate to award costs for bringing forward the hearing.

29The Application is denied.