(Re) 1807-02686, 2019 ONCICB 109

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Keith Forde

Date: September 10, 2019

Indexed as: (Re) 1807-02686

DECISION

Introduction

1The Applicant applied to the Criminal Injuries Compensation Board (CICB) seeking compensation for injuries resulting from two crimes of violence. The Applicant is seeking the following forms of compensation: pain and suffering, medical and treatment expenses.

Decision

2In accordance with the Compensation for Victims of Crime Act, RSO 1990, c.C24, as amended (CVCA), the CICB denies the Application; however, awards the Applicant’s legal representative $400.00 as a contribution for legal expenses. The reasons for this Decision follow below.

Hearing

3The Applicant appeared by teleconference and provided oral testimony and his solicitor gave oral submissions.

4At the beginning of the hearing, the CICB advised the Applicant of subsection 17(1) and 17(2) of the CVCA and that the CICB would consider those parts of the CVCA when deciding the application. These subsections 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 behaviour 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.

5The Applicant and his legal representative confirmed they understood the meaning of the above sections and, after having been offered an adjournment and an opportunity to consult, the Applicant and his legal representative indicated that they did not wish to adjourn the matter and was prepared to proceed with the hearing as scheduled.

Evidence

Incident # 1

6The Applicant testified that on January 2, 2016, he attended a house party in a northern city in Ontario. Sometime during the party, the Applicant got involved in an argument with the Alleged Offender (AO). The argument soon escalated into a physical consensual fight with the AO. The Applicant testified that he and the AO began to push each other and then started to exchange blows. During the fight, the Applicant said he was stabbed in his left hip by the AO, causing him to fall to the floor; the Applicant said he got back to his feet and continued fighting with the AO. Again, the Applicant was stabbed by the AO for the second time under his left arm. The Applicant testified that after being stabbed the second time, other party attendees intervened and separated them from fighting. The Applicant testified that both he and the AO were drinking heavily when they decided to go after each other; however, the Applicant said he was unaware that the AO had a knife on him and would use it in the fight.

7The Applicant did not know the AO, hence the reason for not involving the police.

8When the Applicant was asked if he notified the police of the stabbing, he responded that this was something he could have dealt with on his own; and he did not think he needed to call the police.

9The Applicant testified that he was bleeding from his wounds and was taken to the local hospital where he was examined, treated and released with instructions. The Applicant said that he received a stab wound to his left hip which touched the bone, this stab wound required three inside stitches and 5 outside stitches to close the wound. The stab wound under his left arm required twelve stitches to close.

10The Applicant informed the Panel Member that as a result of the stabbings, he is now always on guard, does not trust anyone, looks over his shoulder more than ever, is hyper vigilant, dreams of getting stab again and is more jumpy, nervous and stressed out.

11The CICB was in receipt of a hospital report from the local hospital which noted the Applicant presented with two stab wounds to his left arm and hip. The hospital report noted that the Applicant said he fell on a stick in the bushes earlier during the day, resulting in a 5' laceration under his arm and a 2cm laceration to left hip.

Incident # 2

12The Applicant testified that on October 13, 2017, after making a drug transaction over the phone, he walked to a lane way to meet the purchasers of the illegal pills he was selling.

13The Applicant said that he went to make a drug deal with “250 speed tabs” and it all went bad. The Applicant said the deal was to be done with two individuals; however, when he arrived at the pre-arranged location in a lane way, they were a third person. The Applicant said he ended up getting robbed by the unknown person and was shot at the same time; he said there was a scuffed between he and the three AOs for the drugs. The Applicant said that after he was shot and robbed, the three AOs scattered and left him alone in the lane way and that it was an obvious set up.

14When the Panel Member asked the Applicant if he knew who he was going to meet; he said yes, that two of the AOs were regular costumers of his and as such, he did not think anything about meeting them in the lane way.

15When the Panel Member asked the Applicant how long he was in the business of selling illegal drugs, he said that he had been a dealer for a while.

16When the Applicant was asked if there was any discussion about exchanging the “Speed tabs” for a gun, the Applicant said no, that he was expecting cash for his drugs.

17The Applicant testified that the police visited him at the local hospital and tried to get out of him who the shooter was; however, he said he was on medication, and was in and out of consciousness. He said he never told the police who shot him, because he did not know the person who shot him.

18When the Panel Member asked the Applicant if he told the police who the other two AOs were, he said he did not.

]19] The Applicant testified that two days after coming out of surgery, the police witness attended the hospital with her partner. The Applicant said he told the police witness he could not disclose who the AOs were, that by giving her the identities of the AO could jeopardize he and his family’s safety. The Applicant said the police knows him and knows of his criminal record and that they were not going to get anything out of him.

20The Applicant advised that as a result of the gun shot, the bullet severed the two arteries on the left side as well as in his foot. He received a gunshot wound to his left lower leg; traumatic damage to left anterior and posterior tibial artery; internal bleeding; required surgery; required skin grafting to left leg; developed leg infections; nerve damage where the bullet entered his left leg.

21The Applicant presented to the local hospital with a gun shot wound to his left leg; there was an entry wound, but no exit wound; he was stabilized and then transferred to another hospital for surgery.

22The Applicant was airlifted to another hospital for surgery. In October 2017, he underwent repair by the Vascular Surgery, of his posterior tibial artery. Repairs were done to the Applicant’s left posterior tibial artery with major saphenous vein graft, repairs to his left anterior pseudoaneurysm, left anterior compartment fasciotomy, limited posterior compartment fasciotomy, graft thrombectomy. The Applicant was discharged from hospital about a week and a half later.

23The Applicant said that he now suffers from sleep issues; flashbacks; triggered by loud noises and sudden movements; easily startled; anxiety; thoughts of being shot again; flashbacks of the noise made by the discharge of the firearm.

Police Witness

24The Police Officer who was the lead investigator said that the Applicant was the victim in incident # 2.

25The Police said that when the Applicant was interviewed, he told the police that he went to the store to purchase cigarettes, and when he left the store, he decided to go and pick up a pizza. The Applicant told the police that while he was on his way to get the pizza, he met up with a male and they talked for a bit. He then decided to go for a walk down the laneway directly behind the pizza shop. The Applicant said that at this time, he was hit on the head and knocked to the ground. After about 30 seconds, someone started going through his pockets, which is when he started to fight that person and two others. He said that all sudden he heard what sounded like a gunshot, and had pain in his left leg, making him fall to the ground. He stated that the three males ran away. He then crawled to the north end of the laneway due to the injury on his leg and called 911. He was subsequently transported to the local District Hospital by the ambulance before being airlifted to another northern hospital for surgery.

26The Applicant told the police at this time, he did not know who the AOs were or who shot him. The Applicant said he believes that he saw a handgun in one of the AO’s hands.

27At another interview with police investigators, the Applicant told the police that he was coming from his house going to do a "drug deal;" he was going to meet the three AOs who wanted approximately 250 tablets. He advised that he stopped at the store to get something to drink then he went in the alleyway to meet the three AOs. The Applicant advised the police that is when everything went wrong. He said the three AOs started grabbing at his stuff and he began swinging at them. One of the AO pulled out a "black Piece," he heard it go off into his leg and he screamed; two of the AO scattered and one stayed trying to go through his pockets to find money; however, he did not have any. The Applicant advised the police that the shooting occurred shortly before or after his curfew, as he was pushing his luck with time.

28The Applicant further advised the police that he does not believe the AO who shot him wanted to, he's known him for a very long time. The Applicant said he believes that the three AOs were trying to exchange the gun for the tablets; and further, he has dealt with the AOs before, except for the shooter who he did not know. The Applicant told the police that the pills were “Montreal Canadiens,” little round tablets, and that they were speed pills.

29The Applicant advised the police that he did not shoot himself, that he has had plenty of guns before and he has never shot himself.

30The Police Witness testified that on the information provided at this time, it is clear the Applicant has not been honest about what he had done and what occurred. The Police Witness stated the Applicant went to sell drugs to the AOs who were known to him and they wanted to exchange the drugs for a gun instead of money which he did not want to do, therefore a struggle began, and he was shot in the leg. The Police Witness further stated that her investigation did not support the Applicant’s assertion that he was shot in the lane way. The Police Witness believes that the Applicant was shot at another location and was brought to the lane way where he was picked up by the ambulance.

31The Police Witness said that the Applicant refused to provide the names of the AOs involved as he does not want police involved, he stated that it's his fault what happened and that he will deal with it.

Analysis

Crime of Violence

32Incident #1 was not reported to the Police and there has been no conviction. Incident #2 was reported to the police; however, there has been no conviction since the Applicant refused to identify the AOs.

33Section 16(1) of the CVCA provides that compensation may be awarded whether a person has been prosecuted for or convicted of the offence giving rise to the injuries.

34The Applicant is required to prove, on a balance of probabilities in both incidents, not only that he was a victim of a crime of violence but also that the injuries resulted from the crime.

35Having considered all the documentary evidence, the testimony of the Applicant, the Police Witness’ testimony, medical reports on file and the legal representative oral submissions, I find the Applicant to be a victim of crimes of violence in each incident, sustaining injuries, and therefore a victim within the meaning of section 5 (a) of the CVCA.

Section 17

36Before being able to grant compensation, the CICB must also consider section 17 issues. There is clear evidence that section 17(1) and (2) issues are present and it is mandatory to consider the evidence related to these issues. The CICB is also mindful that the principle of proportionality applies to the section 17 analysis.

38Section 17(1) of the CVCA requires that the CICB take into consideration “all relevant circumstances” including any behavior of the victim which may have contributed to his injuries. The CVCA gives the CICB broad discretion to determine whether compensation ought to be awarded in any given case and, if so, the amount.

39Awards from the CICB are paid using public funds. They are not paid from the wrongdoer as would be the case if an applicant pursued compensation through a civil action. However, that requirement does not in any way limit the meaning of “all relevant circumstances.”

40In this context, the CICB has also considered the proportionality of the injury in both incidents in determining whether to refuse or reduce an award. The CICB must also weigh the proportionality of the injury in both incidents with the circumstances that it has found to be relevant.

Incident # 1

41Section 17(2) of the CVCA permits the CICB, in its discretion, to refuse to make an order or reduce an amount of compensation where it is satisfied that the victim has refused reasonable co-operation with or fail to report promptly the offence to a law enforcement agency.

42In incident #1 the Applicant failed to report the stabbing to the police, such that the police were never able to apprehend the AO. The Applicant testified that he did not want the police involved as he thought he could look after the situation on his own.

43I have carefully considered the above failure to co-operate with the police by reporting the alleged stabbing and find that the failure to co-operate was unreasonable. The Applicant, as a matter of public policy, had an obligation to co-operate and report the stabbing to the police. This was a serious crime with serious injuries and apprehending the AO would be for the public good. The Applicant was not under any threat of retribution or would have suffered any consequence if he reported the incident. Accordingly, I conclude that the Applicant should be denied compensation with respect to Incident #1.

Incident # 2

44In incident #2, I considered the nature of the injury against a number of other relevant factors including the Applicant’s admitted involvement in drug dealing, his changing account of what actually took place on the night in question, the location where he was actually shot, and his lack of assistance with law enforcement with details surrounding the incident.

45In this matter, the Applicant sustained injuries which were non-life threatening and moderately severe during the incident. In the CICB’s view, the injury sustained by the Applicant was a foreseeable consequence of his admitted participation with the drug culture, be it drug dealing or drug use. This is not a situation in which the severity of the injury experienced by the Applicant is so disproportionate to the Applicant’s conduct which contributed to the injury such that compensation should still be awarded.

46I have carefully considered the injuries suffered by the Applicant’s against the above-mentioned relevant circumstances to determine whether compensation ought to be awarded, whether a reduced award of compensation should be granted or whether compensation ought to be denied. I have concluded that the Applicant’s injuries were proportional to his involvement in the drug culture as a dealer of illegal drugs. Accordingly, I deny the Applicant any compensation under section 17(1) of the CVCA.

47Even had I not deny compensation under section 17(1) of the CVCA, I would have denied compensation under section 17(2) of the CVCA. In this case, the Applicant failed to cooperate with the police by lying about the events leading up to the shooting, by offering several versions of what took place. Further, the Applicant refused to identify the AOs although he testified at his hearing that two of the AOs were his regular customers. Because of the Applicant’s non-cooperation, the three AOs are still at large. Considering the public policy demands that victims of crime cooperate with police, I conclude that the Applicant’s failure to cooperate was unreasonable and that compensation should be denied.

48It is the CICB’s practice to contribute up to a maximum of $400.00 towards legal fees incurred to assist an Applicant with his Application where it is satisfied that legal representation was reasonably necessary in the circumstances of the case. Despite the Applicant’s claims were denied, the CICB still acknowledges that legal representation was reasonably necessary. Therefore, the CICB find no compelling reason to deviate from that practice under the circumstances. The CICB awards $400.00 in respect of this expense and orders that it be paid directly to the Applicant’s solicitor.

Award

49The CICB orders compensation as follows:

Section 22 Costs

$ 400.00

Total Current Award

$ 400.00

Payment

50The CICB orders the following be paid immediately to:

Law Firm

$ 400.00