Re 1908-03858, 2021 ONCICB 38

CRIMINAL INJURIES COMPENSATION BOARD

Applicant: Self-Represented Adjudicator: Ashleigh Nother Date: January 29, 2021 Indexed as: (Re) 1908-03858

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, medical expenses, dental expenses, travel to treatment, and loss of wages.

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 $5,585.00. The reasons for this Decision follow below.

Hearing

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

Evidence

4The Applicant testified that he had recently relocated from Toronto to […] and attended a new acquaintance’s residence to sleep. He was greeted by his acquaintance’s boyfriend. Shortly thereafter the acquaintance’s boyfriend left the residence. The Applicant testified approximately 20 minutes later he was attacked by three men in the residence. He testified the alleged offenders used a knife, axe, and crowbar in the commission of the offence. He testified the acquaintance’s boyfriend then returned to the residence a short time later and found him on the floor and called the police and an ambulance. The Applicant testified he was conscious at the time.

5The Applicant was asked to clarify why he was in […] and how long he has known the acquaintance. The Applicant testified he moved to […] six months prior to the offence. He reported he initially went up to pursue “gold mining” and brought his equipment for this purpose with him. He then testified he previously engaged in some real estate transactions and realized there were some marketable prospects in the area regarding the real estate market. The Applicant provided “screenshots” of a residence on his Instagram page where he conducts business prior to the offence date as proof of his intentions in […]. While not provided prior to the deadline of 14 days before the hearing, the CICB still reviewed and considered them.

6The Applicant indicated he had only recently met the acquaintance and expressed some thought that people may have seen him with money before the offence which is why they targeted him. The CICB was provided with information from the police indicating it appears the Applicant was “set up”. The Applicant also claimed this in an interview with police officers shortly after the incident. The CICB was provided with a police occurrence report and interview transcripts detailing this information.

7The Applicant explained he left […] after the incident and returned to Toronto.

8The Applicant was then questioned about the injuries sustained from the incident. The Applicant testified he was stabbed with a knife in the arm, beaten around the legs with a crowbar, and he was hit in and around the head with an axe. The Applicant was taken to the hospital after the incident. Hospital records provided to the CICB indicate the Applicant was admitted for at least one evening. The Applicant testified that he sought additional medical intervention with a home care clinic in Toronto for wound care on his left leg from approximately April 12, 2018 until approximately May 23, 2018.

9The Applicant was asked to explain if he had any emotional trauma from the incident. He advised he continues to suffer from anger issues and does not sleep well at night. The Applicant indicated he has addressed his anger challenges with a social worker and reached out to a psychiatrist in July 2019 and November 2019.

10The CICB was provided with a health professional report from a health clinic indicating the Applicant was referred to a doctor for psychiatric treatment for PTSD symptoms. The CICB was also provided with a therapy report indicating the Applicant was suffering from PTSD symptoms along with depression, anxiety, panic, and flashbacks. The therapy report also suggested the Applicant was also experiencing some psychosis featuring paranoia, agony, fear, lethargy, sleep disturbance, and headaches.

11The Applicant testified he attended sessions with a psychiatrist as noted above in July 2019 and November 2019. The therapy report indicates attendance with a medical doctor in July 2019 and November 2019 for “advice and lettering” and “psychiatrist referral”.

Analysis

Crime of Violence

12There was no conviction in respect of the incident.

13Section 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.

14The 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.

15I find the Applicant is a victim of a crime of violence. In doing so, I have considered the Applicant’s oral testimony, his Application, and supplementary documentary evidence, including police occurrence reports, medical reports, and therapy reports. The Applicant testified in a candid and straightforward manner and I found him to be a credible witness to the incident. The Applicant testified as to the events on the evening in question in the same manner they were presented in the documentary materials. I also do not find that the Applicant minimized his own behaviour and readily acknowledged a theory on why he may have been targeted. The attack by three alleged offenders in which the Applicant was stabbed, beaten and hit constituted a crime of violence.

Injury

16I find the Applicant’s injuries resulted from the crime of violence. The Applicant testified he experienced significant physical injuries to his head, arms, and legs. There were stab wounds and his legs were cut which became infected necessitating further treatment. The Applicant also experienced emotional trauma which continues to persist.

Section 17

17Section 17 of the CVCA reads, in part, 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.

18In this case, the CICB finds the Applicant’s behaviour in the community is relevant and may have contributed to the Applicant's injuries within the meaning of section 17(1). There is some suggestion in the material that the Applicant is a “low level” drug dealer. The Applicant testified he had cocaine and approximately $400.00 with him at the time of the offence. He testified the amount of cocaine was marginal and for his personal use, and that he received the money from Ontario Works not from trafficking in narcotics. The CICB notes the candor that the Applicant had regarding his alleged inappropriate behaviour, including disclosing this information to the police at the time of the attack. Further, no charges appear to have been laid against the Applicant regarding this alleged behaviour. The CICB also notes the Applicant was cooperative with police and did not minimize his consumption or possession of cocaine.

19The CICB must also consider proportionality in determining whether to refuse or reduce an award under section 17. The CICB weighed the proportionality of the injuries with the relevant circumstances. In this case the Applicant's injuries were extremely serious and while his behaviour in the community may have indirectly played a role in what transpired, the CICB is satisfied that his compensation should not be reduced in this instance. It appears based on the Applicant’s testimony and the other evidence that the Applicant’s alleged behaviour was not the only factor in play regarding the incident. The CICB also notes the Applicant was isolated in […] and surrounded himself with peers whom he had only known a short while. The Applicant did not have a stable residence and was reliant on these acquaintances in the community. The Applicant was a vulnerable person and it appears based on the material and his testimony that while he may have had some small amount of money and illicit narcotics on his person there are reasons to believe he was “set up” by the alleged offenders.

20In the circumstances the CICB finds that the Applicant's actions when weighed against the injuries suffered are such that they do not affect the amount of compensation to be awarded.

Compensation

Pain and Suffering

21In assessing the claim for pain and suffering the CICB considered the nature of the incident and the extent of the Applicant’s physical and emotional injuries stemming from the incident as well as the ongoing emotional trauma that continues to persist.

22Based on these considerations, I order an award of $4,000.00 for pain and suffering pursuant to section 19(6) of the CVCA which states:

19(6) The amount awarded by the Board to be paid in respect to pain and suffering shall not exceed $5,000.

Expenses and Income loss

23The Applicant must provide reliable evidence to support the claims for:

• expenses actually and reasonably incurred as a result of injury

• income or pecuniary loss incurred as a result of his total or partial disability affecting his capacity for work

24The Applicant's claim for medical expenses is $585.00 The CICB was provided with two invoices, one for $550.00 and the other for $35.00. The CICB orders compensation to Humber River Hospital on behalf of the Applicant for these expenses. This will be paid directly to the hospital.

25The Applicant’s claim for dental expenses is denied. The Applicant failed to provide any evidentiary documentation that would allow the CICB to determine that this was a reasonable expense incurred by the Applicant. Furthermore, the CICB was not provided with any amount claimed for dental expenses.

26The Applicant’s claim for travel to treatment is denied. The Applicant did not provide any evidentiary documentation that would allow the CICB to determine that this was a reasonable expense incurred by the Applicant.

27The Applicant’s claim for loss of income is denied. The CICB was not provided with any substantive evidentiary documentation that would allow it to determine that the Applicant incurred any lost wages as a result of the crime of violence. While the Applicant provided “screenshots” of a residence reportedly in the […] region, the CICB does not find this evidence persuasive as nothing further was provided indicating any potential income loss.

Counselling/Therapy

28The CICB awards the Applicant $1,000.00 which the Applicant can use for future therapy or physiotherapy sessions. This amount will be paid out to the Applicant directly. The CICB finds that the Applicant will continue to benefit from ongoing counselling to continue to address his physical needs and mental health challenges.

29The CICB acknowledges that there is no amount of money that can make up for the harm the Applicant has experienced as a result of this crime of violence. Having considered the types of cases that come before the CICB, I find that the amount of the Applicant’s award is reasonable under the circumstances and is in line with similar cases that have come before the Board.

Award

30The CICB orders compensation as follows:

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

Subsection 7(1)(a) Expenses: Therapy/Physiotherapy $ 1,000.00

Subsection 7(1)(a) Expenses: Medical $ 585.00

Total Current Award $ 5,585.00

Payment

31The CICB orders the following be paid immediately to:

Humber River Hospital $ 585.00

Applicant $ 5,000.00