(Re) 1610-00135, 2017 ONCICB 148

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: M. Saleem Akhtar

Date: June 09, 2017

Indexed as: (Re) 1610-00135

ORDER

INTRODUCTION

1The Applicant is seeking financial compensation from the Criminal Injuries Compensation Board (CICB) in accordance with the Compensation for Victims of Crime Act, RSO 1990, c. C.24, as amended (the “Act”). The Applicant is seeking compensation for pain and suffering for the emotional and psychological injuries sustained by her, as a result of the assault committed against her on [date], 2015. The Alleged Offender was charged with utter threats cause death or bodily harm. However, later, the charges were withdrawn in relation to the Applicant.

DECISION

2The CICB approves the claim made by the Applicant in relation to an assault committed against her on [date], 2015 by the Alleged Offender and awards the Applicant the sum of $3,000.00 as compensation for pain and suffering, for the reasons set out below.

ISSUES

3Pursuant to subsection 5(a) of the Act, the CICB must determine on a balance of probabilities,

a) Whether a crime of violence occurred against the Applicant that caused her injuries; and if so;

b) The nature and extent of the injuries sustained;

c) Whether compensation should be awarded and if so, determine the amount;

EVIDENCE

Submissions regarding the incident

4In her Application before the CICB, the Applicant described the incident under the heading “Details of the Crime” as follows:

At home with [Alleged Offender] on [date]; we were in the living room sitting on the couch. He went in the kitchen and got a knife. He was going to my friend [Name]. He threatened to kill me because he couldn’t leave a witness

Submissions regarding her injuries

5In her Application, under the heading “Details of Injuries”, the Applicant described her injuries as follows:

He destroyed my life. I have never been afraid of anyone or anything in my life. I don’t sleep well unless in dialysis. I am afraid to go outside because I feel that [Alleged Offender] is out there. I check every door that is opened. I live in fear as I feel he is out there. There is no recovery. It is just getting worse I used to sleep at night. I don’t sleep at night at all. I sometimes sleep 20 minutes in a chair at home. Dr. [Name] has stated that I am one step above being legally blind.”

Police report on file

6The Police Report, on file, corroborates Applicant’s version of the incident. The Report adds that

(…) all parties were consuming alcohol at the residence except for [Applicant] who does not drink due to medical issues (…) [Applicant] was on the couch where she spends the majority of her time due to her disability. Both [Applicant] and her friend had fallen asleep for the evening (…) [Applicant] had awoken to find [Alleged Offender] sitting in the chair watching the television (…) At the beginning of the conversation, [Applicant] observed Alleged Offender put his head down and he said “he dropped the hammer on me.” When [Applicant] asked who did, the Alleged Offender stated referring to the fact [Name] feels ratted him out to police in regards to a stolen gun … [Applicant] observed him (Alleged Offender) holding a large kitchen knife with a black and red handle…he was shouting “I want you… At this time, the Alleged Offender stated to [Applicant], “I am going to kill, I am looking at four and a half years in jail, what does it matter to get 25. The Alleged Offender then stated to [Applicant], I kill him, I have to kill you too, I can’t leave a witness.”…he went on to describe that he would throw his body within the recycle dumpster and pour gas on him, lighting his body on fire…Once the Alleged Offender had left, Applicant, who at the time was scared to call police due to the Alleged Offender having the knife and being out of control…neither one of the parties (Applicant and friend) contacted police until later in the evening…”

7After due investigation, the Police charged the Alleged Offender with utter threats cause bodily harm x 2, fail to comply with conditions of undertaking and intimidation – justice system participant contrary to the provisions of sections 264.1(1)(a), 145(5.1) and 423.1(1)(b) respectively of the Criminal Code of Canada RSC 1985, c.C-46 (the “Code”). Later, he was convicted for fail to comply conditions of undertaking and intimidation – justice system participant. He was not convicted in relation to the Applicant.

ANALYSIS AND DECISION

8With respect to an incident of assault alleged by the Applicant to have occurred on [date], 2015, the fact that there has not been a conviction is not fatal to the victim’s claim.

9Section 16(1) of the Act provides that compensation may be awarded whether or not a person has been prosecuted or convicted of the offence giving rise to the injury or death.

Crime of Violence

10The CICB must determine on a balance of probabilities if the Applicant is a victim of violent crime under subsection 5(a) of the Act. This subsection provides that the Applicant’s injury must have resulted from a “crime of violence” constituting an offence against the Code.

11In this claim, the CICB must be able to conclude that the Applicant was probably injured as a result of an intentional assault as opposed to being injured in some other way.

12The standard of proof in cases before the CICB is “on a balance of probabilities.” Clear, cogent and convincing evidence is required to satisfy the standard of proof. In essence, the CICB must determine whether the Applicant’s allegations regarding the incident are substantially the most probable version of events to have occurred. The CICB must not consider the Applicant’s evidence in isolation; rather, the CICB is required to assess the totality of the evidence presented.

13Under the legislation, it is the CICB that is required to decide whether a relevant offence, “a crime of violence”, has taken place. It is for the CICB to decide the matter, on the evidence adduced before it, and upon proper construction of its statutory mandate.

14Based upon a careful review of the documentation, on file, the CICB finds the Applicant, on a balance of probabilities, not only a victim of a crime of violence within the meaning of and pursuant to subsection 5(a) of the Act but also accepts that she sustained injuries.

Nature of Injuries

15The Applicant did not identify or claim any physical injuries accruing from this assault. However, she claimed that she sustained emotional/psychological injuries, as described above.

16In support of the Applicant’s injuries claim, she has submitted Treatment and Assessment Reports from her Family Physician and a Social Worker, which corroborate Applicant’s claim of her stated emotional/psychological injuries. The CICB accepts these reports for the purpose of compensation in this matter. However, the CICB also notes that the Applicant had pre-existing health issues such as dialysis and vision, unrelated to this incident, which had an impact on her overall health and productivity.

Compensation

17In every case before it, the CICB is required to determine what the relevant circumstances are and to decide whether to grant or deny compensation having regard to those circumstances on a balance of probabilities. There is no automatic right to compensation under the Act. There is only a right to apply for compensation, which may be granted or refused at the discretion of the CICB, in accordance with natural justice. Sheehan and Criminal Injuries Compensation Board (1975), 1974 439 (ON CA), 5 O.R. (2d) 781. As such, not all injuries warrant compensation. As was noted by the Divisional Court in Pitters v. Ontario (Criminal Injuries Compensation Board), [1996] O.J. No. 4339 (Div. Ct):

The nature of the dispositive authority conferred upon the Board by the Act evidences a legislative intention to accord to the Board a substantial measure of discretion. Under section 5 of the Act, the CICB "... may make an order that it, in its discretion exercised in accordance with this Act, considers proper." The breadth of the statutory discretion is underscored by the use of the permissive "may" and "in its discretion". The only substantive qualifier on the exercise of discretion by the CICB is that it must be "in accordance with this Act". No enumerative list of factors informs the exercise by the Board of its discretion.

18Section 5 of the Act states:

The Board, on application therefor, may make an order that it, in its discretion exercised in accordance with this Act, considers proper for the payment of compensation to,

(d) The victim

19Based upon a careful review of the documentation, on file, the CICB finds the Applicant not only a victim of a crime of violence within the meaning of and pursuant to subsection 5(a) of the Act but also accepts that she sustained emotional injuries, as described and claimed by her in her Application.

20In assessing compensation for pain and suffering, the CICB has considered:

a) The nature of the threat/assault;

b) The emotional/psychological impact of the assault;

c) The ongoing impact on the Applicant’s overall health, relationships and productivity.

21It is important to note that the CICB has wide discretion to determine whether or not to award compensation to an applicant from public funds. Leung v Ont. (Criminal Injuries Compensation Board) 1995 10629 (ON CTGD), 1995 OJ 1464 (Div. Ct) at para 5. The Act is not intended to make an applicant for compensation whole or to provide full indemnity to a victim. Awards are not paid by the wrongdoer as would be the case if a victim pursued compensation through a civil action. The CICB also considers previous awards made by it in similar fact cases/situations in order to determine a reasonable amount of compensation.

22After reviewing the evidence in its totality and having regard to all of the above mentioned circumstances of this case as well as considering previous awards made by the CICB in similar fact cases/situations in order to determine a reasonable amount of compensation, the CICB awards the Applicant $3,000.00 as compensation for pain and suffering.

AWARD

23The CICB now orders payment as follows:

Section 7 (1) (d) Pain and Suffering $3,000.00

TOTAL CURRENT AWARD: $3,000.00

24The CICB recognizes that no amount of money can adequately compensate victims for the injustice they have suffered but also finds the amount of the award to be reasonable within the context of the Act.

PAYMENT

25THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $3,000.00