(Re) 1608-04298, 2017 ONCICB 215

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Anne-Marie Langan

Date: August 03, 2017

Indexed as: (Re) 1608-04298

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 damages for pain and suffering and reimbursement for expenses related to travelling to treatment as a result of an incident that occurred on [date], 2016 in which she sustained psychological injuries. The incidents were reported to the Police and resulted in charges for breaking and entering with a weapon, disguised with intent to commit an indictable offence and uttering threats of bodily harm. The Offender pled guilty to uttering threats and was given a conditional sentence which includes 6 months’ probation.

DECISION

2The CICB approves the claim and awards $6,000.00 in damages for pain and suffering for the reasons set out below.

ISSUES

3The absence of a conviction does not mean that the CICB is precluded from making an order of compensation. Subsection 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. The Applicant is required to prove, on a balance of probabilities, not only that she was a victim of a crime of violence but also that her injuries resulted from the crime pursuant to subsection 5(a) of the Act.

4The Applicant must provide reliable evidence to support her claims for:

a) expenses actually and reasonably incurred as a result of her injury pursuant to subsection 7(1)(a) of the Act

HEARING

5The hearing was conducted in writing on the basis of the materials contained in the Applicant’s file.

Documentary Evidence

6The CICB received the following documents with respect to the claim:

a) Application: in her Application the Applicant describes how on [date], 2016 the Offender pushed through her front door with a mask on swinging a wooden bat. He was banging on the walls and screaming threats at her including a threat to return to the home with a gun which he would then “put to someone’s head”. At the time of the incident the Applicant was alone in the house. After the incident the Applicant was in shock. It took a few days before she felt safe again in her home as she was fearful that the Offender would return with a gun as he had threatened to. Since then she has had to take medications to assist in dealing with her anxiety and to sleep. She has nightmare of people calling her name. She is hyper-vigilant about who is coming and going outside in front of her home. She no longer feels safe for herself or her family. She is particularly afraid of going out in the dark. She has been having difficulty with sleeping. She mentions in the Application that “PTSD is a possibility”.

b) Letter of support from sister: [Name] confirms that Applicant suffered mentally after what she describes as “the home invasion”. The Applicant stayed with her for a month following the incident. During this time the Applicant ate very little, slept very little, had difficulty concentrating and just stared outside for long periods of time. Even after returning home she continued to eat very little and as a result has lost a lot of weight. The Applicant has gone out very little since the incident and mainly just to go shopping, accompanied by her sister.

c) Medical Report: Dr. [Name] describes in her Report that as a result of the incident the Applicant suffers from “severe anxiety”, insomnia and decreased appetite, fear of being at home and fatigue. She notes that the Applicant had a prior history of anxiety. After the incident she had to change her prescriptions as the anxiety was worse. She estimates it will be 6-12 months for recovery to take place.

d) Police Incident Report: confirms incident as described in the Application. Adds that the Applicant had her son’s dog in her arms at the time of the incident and the dog was cowering. The Police Report also mentions that the Applicant had a heart condition at the time. The Applicant disclosed to the Police that she thought the Offender may be a friend or associate of her son’s friend who is a Hell’s Angels biker. The Police Report notes that “she is terrified and was sobbing and shaking with police”.

e) Court documents: confirm that the Offender received a 6 month conditional sentence for uttering threats which includes a prohibition from communicating directly or indirectly with the Applicant or from coming within 100 meters of her place of residence, employment or anywhere he knows her to be.

f) File Notes [date], 2017: Sister advised that the Applicant had a stroke on June 5, 2017 and had to be hospitalized as a result. The sister feels that the stroke may be related to the stress that the Applicant has experienced since the incident.

ANALYSIS AND DECISION

7Based on the documentary evidence filed with the CICB, the CICB finds on a balance of probability that the Applicant is a victim of a violent crime, as defined in the Act. Although the Offender in this case did not physically strike the Applicant during the incidents, the CICB still considers this incident to be violent in nature and to fall into the broad definition of violent crime as interpreted by the courts. More particularly, in Pitters v. Ontario (Criminal Injuries Compensation Board), [1996] O.J. No. 4339, the Court noted that for the purposes of the Act:

A "crime of violence" is a crime of a violent kind. In everyday usage, "violence" connotes the exercise of a physical force so as to inflict injury or damage to persons or property. "Violent" includes intense, vehement, very strong or severe. It is characterized by the doing of harm or injury. It includes impetuous. In ordinary speech, "violent" includes, but is not synonymous with the use of physical force. [para 46]

8While the Offender was convicted in this case for uttering threats, the CICB does not always award compensation for this crime. However, in the present case, the Offender forced his way into the Applicant’s residence where, prior to the incident, she felt safe. He proceeded to threaten her physical safety both by violently wielding a bat and by uttering threats to shoot her in the head with a gun. Objectively speaking, any reasonable person would interpret this type of action as “violent” and react with fear.

9The Applicant was even more vulnerable as a result of her pre-existing anxiety disorder. The Doctor confirms in her Medical Report that the Applicant’s anxiety became more severe following the incident and that she began to have difficulty sleeping and problems with her appetite following the incident. The Applicant’s sister also confirms in her letter that her sister’s anxiety was very severe after the incident and that she did not feel safe living in her home for at least a month following the incident. The sister also describes the symptoms reported by the Applicant and her Doctor of insomnia, lack of appetite, and fear of going out. The sister mentioned to the CICB that she believes that the incident was a contributory factor in the Applicant’s recent stroke.

10It is clear that the Applicant has suffered psychological injuries as a result of the incident, which may be permanent in nature. The CICB awards the Applicant $6,000.00 in damages for pain and suffering and in doing so considered:

a) That the incident took place in the Applicant’s home where she ought to have been safe;

b) That the Offender was wielding a weapon at the time of the incident;

c) That the Offender uttered threats, which although interpreted by Police as being threats of bodily harm, could also be interpreted as a death threat as he was threatening to shoot the Applicant in the head,

d) That the Applicant was a vulnerable person in that she suffered from anxiety due prior to the incident which was greatly exacerbated by the incident;

e) That the Applicant suffered severe psychological injuries which resulted in her being unable to sleep, losing her appetite, being unable to stay in her home for a month following the incident and continuing to feel unsafe in her own home and her sister felt that this added stress may have contributed to her having a stroke.

11The Applicant did not specifically make a request for assistance in paying for counselling in her Application. However, if, as a direct result of this crime, the Applicant requires counselling and the cost of that counselling is not covered by other sources, the CICB may, pursuant to the provisions of section 25 of the Act, consider varying this Order to include a claim for counselling expenses. The Applicant must obtain authorization from the CICB prior to incurring any such expense. The Applicant may contact the CICB to determine what information is required in order to obtain authorization.

12It is the CICB’s practice to only consider travel to treatment costs when an Applicant is required to travel more than 40 kilometres each way (80 kilometres round trip) outside of her city of residence for treatment. The CICB finds no compelling reason to deviate from that practice under the circumstances. Since the Applicant was not required to travel only 17 kilometres each way for her Doctor’s appointments with Dr. [Name] ([City] to [City]) these expenses are denied.

AWARD

13The CICB orders payment as follows:

Subsection 7(1)(d) Pain and Suffering $6,000.00

TOTAL AWARD (AND COSTS) $6,000.00

PAYMENT

14THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $6,000.00