(Re) 1708-02691, 2019 ONCICB 82

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicators: Guy Savoie, James Graham Date: May 8, 2019 Indexed as: (Re) 1708-02691

DECISION

Introduction

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

Decision

2In accordance with the Compensation for Victims of Crime Act, RSO 1990, c.C24, as amended (CVCA), the CICB grants the Application and awards the Applicant $4,000.00. The reasons for this Decision follow below.

Hearing

3The Applicant appeared in person and provided oral testimony and submissions. The Police Witness appeared by teleconference and provided oral testimony.

Evidence

4The Applicant testified that on the day of the incident he and his brother were returning home from a friend’s house and decided to stop off at a convenience store for cigarettes.

5The Applicant parked the car across the street from the store and waited in the car while his brother went into the store.

6As his brother was exiting the convenience store, the Applicant observed at least three people in dark hoodies (the ‘Alleged Offenders’) standing at the side of the building. The Applicant testified that he saw one of the Alleged Offenders called his brother over. Although he could not hear what was being said the body language of the Alleged Offenders raised concerns for the Applicant about his brother’s safety.

7The Applicant testified he exited the car to go to his brother’s aid and by the time he arrived at the scene a physical altercation between his brother and the Alleged Offenders had already begun.

8The Applicant explained he was unaware that he was stabbed until the Alleged Offenders ran off. The Applicant testified that his brother, who was also stabbed, help him back to the car and drove him to the hospital where they were both treated for their injuries.

Police Evidence

9The Police Witness testified at the time of the incident he was with the major crime unit and the Officer in Charge of the investigation. He testified that his team received a radio call that two individuals were at the hospital with stab wounds.

10When the Police Witness and his team arrived at the hospital they took video statements from the Applicant and his brother.

11The Police Witness testified that at the hospital they located a quantity of crack cocaine (6.94 grams) in the Applicant’s clothing and marijuana (15.62 grams) in the Applicant’s vehicle.

12The Police Witness testified as part of the investigation, on that same evening and again the next day, he went to the location identified as the crime scene. Given the severity of the injuries the Police Witness expected to see a great deal of blood evidence at that location however there were no blood droppings or other physical evidence outside the convenience store.

13The Police Witness testified that he reviewed numerous hours of surveillance footage that captured the location where the stabbing was to have allegedly taken place. Neither the Applicant nor his brother’s image can be found on the surveillance footage.

14The Police Witness testified that both he and other officers disclosed to the Applicant and his brother that the physical evidence and surveillance footage would not support their claim that they were stabbed at that location. Although the Applicant and his brother were asked repeatedly if it was possible that the stabbing occurred at a different location, they replied it had not.

15The Police Witness testified that he also went to another convenient store in the area in case the Applicant and his brother were mistaken. However there was no physical evidence there either and the surveillance footage outside that store was not available.

16The Police Officer submitted that due to the lack of physical evidence at the site, no images of the Applicant or his brother captured on the surveillance footage, the vague description of the Alleged Offenders, no other witnesses and the lack of cooperation on the part of the Applicant, the investigation into the stabbing and attempted murder came to a halt.

17Under cross-examination the Police Witness was asked to clarify his comment that in his opinion the Applicant was not co-operating with police. The Police Witness explained when the original statement was given to police he believed the Applicant was co-operating. During the second interview when it was disclosed to the Applicant that the surveillance footage and physical evidence would not support his version of the events, the Applicant continued to assert the incident took place at that location. It was at that point when the Police Witness felt the Applicant was not co-operating with the investigation.

18The Applicant was charged with possession for the purpose and possession.

19The charges against the Applicant were dismissed at the preliminary hearing. The Applicant denies having crack cocaine in his possession.

Analysis

Crime of Violence

20There was no conviction in respect of the incident.

21Section 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.

22The 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 the injury resulted from the crime.

23We find the Applicant is a victim of a crime of violence given it is clear that the Applicant’s injuries are consistent being stabbed during a physical assault.

Injury

24We find the Applicant’s injury consisted of a life threating stab wound to his abdomen. When the Applicant arrived at the hospital his abdominal contents (intestines) were hanging out. His spleen, liver, pancreas and stomach were lacerated and there was also evisceration of his small bowel and colon. The surgical intervention included liver laceration repair, distal pancratectomy and splenectomy. The Applicant required a massive blood transfusion due to excessive blood loss. At that time it was not clear whether he would live or die.

25The Applicant also testified that after the incident he sought counselling for his psychological injures including nightmares and flashbacks. He is no longer in counselling.

Section 17

26Sections 17 of the CVCA read 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.

27In this case, the CICB finds the Applicant’s version of the events provided to police is not supported by the surveillance footage and physical evidence at the alleged crime scene is relevant to subsection 17(2). We find the Applicant deliberately mislead police thereby frustrating their investigation. The Applicant, as a matter of public policy, had an obligation to co-operate with police so that the Alleged Offenders could be apprehended. Accordingly, we find that the Applicant has refused reasonable co-operation with a law enforcement agency.

28The 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 life threatening and require a long period for recovery.

29In the circumstances the CICB finds that the Applicant's actions when weighed against the injuries suffered are such that the order for compensation should be reduced.

Compensation

Pain and Suffering

30In assessing the claim for pain and suffering the CICB considered that the Applicant sustained life threating injuries. The Applicant’s surgical intervention included liver laceration repair, distal pancratectomy and splenectomy. The Applicant required a massive blood transfusion due to excessive blood loss. The Applicant also spoke of the psychological injures including nightmares and flashbacks. The Applicant advises he continues to experience abdominal pain after he exercises. Accordingly, we award compensation for pain and suffering in the amount of $4,000.00.

Costs

31It 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. The CICB awards $400.00 in respect of this expense and orders that it be paid directly to the Applicant’s solicitor

Award

32The CICB orders compensation as follows:

Subsection 7(1)(d) Pain and Suffering $4,000.00

Section 22 Costs $400.00

Total Award (and Costs) $4,400.00

Total Current Award $4,400.00

Payment

33The CICB orders the following be paid immediately to:

Law Firm $4,400.00