(Re) 1708-02692, 2019 ONCICB 83

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicators: Guy Savoie

James Graham

Date: May 8, 2019

Indexed as: (Re) 1708-02692

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 and medical expenses.

Decision

2In accordance with the Compensation for Victims of Crime Act, RSO 1990, c.C24, as amended (CVCA), the CICB partially grants the Application and awards the Applicant $2,000.00. 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’s brother parked the car across the street from the store and remained in the car. The Applicant testified that as he exited the car he observed the four Alleged Offenders standing off to the side of the building. As he was about to enter the store one of the Alleged Offenders made a derogatory comment about his appearance. There was a short verbal exchange and the Applicant proceeded to enter the store.

6The Applicant testified that upon exiting the store, one of the Alleged Offenders called him over. The Applicant approached the group. The Alleged Offender told the Applicant he liked his watch and then attempted to take it from him. The Applicant resisted and a physical altercation ensued involving all the Alleged Offenders.

7The Applicant testified he heard his brother yelling and assumed that he had exited the car and was trying to assist him. The Applicant explained he was unaware that he was stabbed until the Alleged Offenders ran off.

8The Applicant testified that he helped his brother, who was also stabbed during the altercation, 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.

11As the Applicant was waiting surgery the Police Witness testified that he observed the Applicant inserting a foreign object into his rectum with his fingers. The Police Witness requested the attending physician to remove the item from the Applicant’s rectum. The foreign object was determined to be a quantity of heroin (12.02 grams). A further search uncovered a quantity of marijuana (15.62 grams) in his brother’s vehicle and a quantity of cash in the Applicant’s clothing ($340.00).

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, possession and possession proceeds by crime not exceeding $5000.00.

19The charges against the Applicant were dismissed at the preliminary hearing.

Applicant’s Reply to the Police Evidence

20The Applicant was questioned by the Panel about the heroin found on his person at the hospital. The Applicant explained that he has a history of drug use. The heroin found on him was for his personal use. The Applicant testified that prior to the incident he was using .5 of a gram of heroin on a daily basis.

21When questioned by the Panel regarding the actual quantity of heroin found, the Applicant explained it was a case of simple economics, the larger the quantity purchased the lower overall cost per gram. The Applicant testified he had the drugs in his possession when he left his friend’s house and was fully intending to go straight home until the incident at the convenience store changed that plan.

22The Applicant testified that since the incident he has stopped using drugs.

Analysis

Crime of Violence

23There was no conviction in respect of the incident.

24Section 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.

25The 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.

26We 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

27We find the Applicant’s injury consisted of a single stab wound to the upper left abdomen. The Applicant's surgical intervention included an urgent laparotomy, repair of a left flank hernia, repair of the laceration of the abdominal wall, and splenectomy. The injuries exacerbated a pre-existing H-pylori infection with symptoms including pain, nausea and vomiting. The Applicant advises he continues to experience abdominal discomfort after he exercises.

28The Applicant also testified that after the incident he sought counselling for his psychological injures including reoccurring nightmares, flashbacks and a fear of confrontational situations with other people. He is no longer in counselling.

Section 17

29Sections 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.

30In 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.

31The 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.

32In 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

33In assessing the claim for pain and suffering the CICB considered that the Applicant’s surgical intervention included an urgent laparotomy, laceration of the abdominal wall, repair of a left flank hernia and splenectomy. The injuries exacerbated a pre-existing H-pylori infection resulting in pain, nausea and vomiting. The Applicant advises he continues to experience abdominal discomfort after he exercises. In addition, the Applicant suffered psychological injuries including nightmares and flashbacks. Accordingly, we award compensation for pain and suffering in the amount of $2,000.00.

Expenses

34The Applicant’s claim for ambulance fees is denied because the Applicant did not provide receipts or other documentation to support it.

Costs

35It 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

36The CICB orders compensation as follows:

Subsection 7(1)(d) Pain and Suffering

$2,000.00

Section 22 Costs

$400.00

Total Award (and Costs)

$2,400.00

Total Current Award

$2,400.00

Payment

37The CICB orders the following be paid immediately to:

Law Firm

$2,400.00