(Re) 1812-04769, 2020 ONCICB 7

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Keith Forde

Date: May 13, 2020

Indexed as: (Re) 1812-04769

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, physiotherapy expenses, cost of obtaining a physician’s medical report and expenses for property and farm maintenance.

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

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

4A […] interpreter was present to assist the Applicant. The Applicant’s son appeared as a witness.

Evidence

5The Applicant testified that sometime in the late afternoon he and his dog went for a walk on his property, a horse farm. On his way back to his home, he heard an ATV and a dirt bike coming from behind, about 100-150 metres behind. At some point when the two vehicles were about 10 metres away, the Applicant said he looked around and the ATV struck him full on and threw him in the air. After the incident, the ATV and the dirt bike turned around and with full throttle left the scene without stopping.

6The Applicant said that after he was struck, he crawled out of the brush, called to his son who came to his rescue. The emergency services arrived, and the Applicant was taken to the local hospital. The Applicant informed the hearing that he did not speak to the police at the scene, nor did he contact with the police after he was released from the hospital. The Applicant said the incident was a deliberate act as the ATV and dirt bike sped away with throttle fully engaged.

Witness Testimonies

7The Witness testified that the Applicant is his father and they both were on the horse farm. He stated that he witnessed the ATV and a dirt bike travelling across the farm. The Witness said that the Applicant saw them heading east and they turned around and proceeded west because their path was obstructed by a creek. The ATV and the dirt bike then crossed the street onto the neighbour’s private property. The Witness said that ATVs and dirt bikes were regularly on their property. The Witness said that the incident occurred on an open grass area where the grass was a foot high. The Witness also testified that when the vehicles passed him, they were not operating at a high rate of speed; however, at some point, they sped away at a high rate of speed.

8The Witness said that he was about 200 metres away from the Applicant when the ATV and dirt bike passed him first; however, the Witness said he was busy helping out on the farm and did not see the ATV colliding with the Applicant. The Witness testified that the operator of the ATV and the dirt bike were both wearing helmets and goggles; and as such, he was unable to identify them.

9A Police Officer, who was dispatched to the scene also gave affirmed testimony. The Police Witness said he was dispatched to a motor vehicle accident on the farm and upon his arrival he observed the ambulance and fire vehicles already on location. He spoke with the Witness at the scene who was very uncooperative telling the police he would investigate the accident on his own. The Police Witness never spoke to the Applicant either at the scene nor in the hospital; however, he checked with surrounding neighbours as to the whereabouts of the ATV and dirt bike and then submitted a motor vehicle report of the incident.

Injuries

10The Applicant testified that his left leg was broken in multiple places requiring a plate and screws. The injury has left him with severe limping, pain in left knee and pain to his left knee when he is walking.

11The Applicant presented to the local hospital with left tibia fractures, pain and swelling. The hospital report notes that the Applicant suffered a comminuted intra-articular fracture of the tibia al plateau. In the medial tibial plateau where there is a 9 mm intra-articular gap deformity approximately 3 mm intra- articular depression. There is also a comminuted fracture of the fibular head extending into the proximal tibiofibular joint.

12Emotionally, the Applicant said that after the incident he became sad and afraid to walk on his own property.

Analysis

Crime of Violence

13In reaching its decision, the CICB considered all of the oral and written evidence and the circumstances of this incident. The issue before the CICB was to establish whether or not the Applicant was injured as a result of a crime of violence within the meaning of Section 5 (a) of the CVCA which states:

5. “Where any person is injured or killed by an act or omission in Ontario of any other person occurring in or resulting from,

a) the commission of a crime of violence constituting an offence against the Criminal Code (Canada), including poisoning, arson, criminal negligence and an offence under section 86 of that Act but not including an offence involving the use or operation of a motor vehicle other than assault by means of a motor vehicle; (emphasis added)

14The issue before the CICB was to determine whether, in the particular circumstances of this case, the Alleged Offenders’ use and operation of the motor vehicle constituted an assault by a motor vehicle. At the beginning of the Hearing, I explained to the Applicant that he was required to prove, on a balance of probabilities, that the Alleged Offender’s motor vehicle was used to assault him to meet the criteria and to potentially be eligible to receive compensation.

15The definition of assault as defined in s. 265(1) of the Criminal Code of Canada which states:

265. (1) A person commits an assault when:

a) without the consent of another person, he applies force intentionally to that person, directly or indirectly; (emphasis added)

b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to affect this purpose; or

c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

16The Applicant’s evidence was such that the Alleged Offender was a stranger and that the said Alleged Offender had been apparently riding his ATV along with another person on a dirt bike through the Applicant’s property. The CICB considered the fact that in the moments leading up to the collision there had been no preceding dispute between the Applicant and the Alleged Offender. Further, the Alleged Offender drove by the Witness about 200 metres away from where the accident occurred without incident. There was no evidence that there were any other underlying motives as to why the Alleged Offender would intentionally strike the Applicant.

17The Applicant’s testimony, the Witness and the police records substantiate the fact that the accident occurred as a direct result of a hit and run whereby the Alleged Offender and his companion on the dirt bike sped away from the farm immediately after the accident, across a highway and then onto the neighbour’s property. The Witness was clear that when the ATV and the dirt bike passed him, they were not speeding; however, after the collision, both the Applicant and the witness testified that it was full throttle a head at great speed. While it is clear that the Alleged Offender showed great disregard for the well-being of others, and if caught could have been charged with, dangerous operation of a motor vehicle. This is fundamentally different, however, from having used the vehicle intentionally to hit the Applicant. Further, the Witness testified that the grass on the farm was a foot high in his estimation which begs the question, did the Alleged Offender ever saw the Applicant before the collision?

18Given the evidence before me, I am not satisfied that the Applicant has establish, on the balance of probabilities, that incident was actually an assault with a weapon (the ATV) and not a motor vehicle accident. As such, I am not satisfied there was a crime of violence pursuant to Section 5 (a) of the CVCA. Therefore, the Application is denied.