(Re) 1510-01207, 2017 ONCICB 23

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: M. Saleem Akhtar

Date: February 08, 2017

Indexed as: (Re) 1510-01207

ORDER

Introduction

1This is an Application by the Applicant seeking compensation for physical and emotional injuries arising from the commission of assault peace officer in accordance with the Compensation for Victims of Crime Act, RSO 1990, c. C.24, as amended (the “Act”). The assault was committed against the Applicant by the Offender on [date], 2015 in the Province of Ontario.

Issues

2Pursuant to subsection 5(a) of the Act, the CICB must determine on a balance of probabilities,

a) Whether crimes of violence occurred against the Applicant; and if so;

b) The nature and extent of the injuries sustained;

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

d) Consider incident related expenses, as claimed by the Applicant.

Written submissions

3In her Application before the CICB, under “Details of the Crime” the Applicant stated as follows:

I responded to…a call of a disturbance. Upon my arrival with [partner], a subject male was identified as being responsible for causing the disturbance by threatening to punch several patrons of the establishment. I also observed the subject male, identified as [Offender], raise his fist to my partner, and threaten to punch him in the face…Profiling the male as assaultive, [partner] and myself grounded [Offender] to effect a lawful arrest. [Offender] resisted and fell on my right leg. [Partner] and I both fell to the ground. When we hit the pavement, [Offender's] full weight was on the outside of my right knee. I heard and felt it ‘snap’ as we connected with the ground. [Offender] continued to resist arrest. It took both me and my partner, and two [name] Security Guards to get [Offender] under control and to effect the arrest.

Police Report

4The Police Report, on file, corroborates the Applicant’s version of the incident. The Report adds that the Offender had a criminal record dating back to 1973. The convictions include: break and enter, theft of auto, theft under $200.00 x2, enter with intent, possession of a weapon x2, driving while ability impaired x2, fail or refuse to provide breath sample, assault peace officer x2, mischief x2, assault x2 and false messages. The Report further adds that the Offender was intoxicated.

5After due investigation, the Offender was charged with and later convicted of assault peace officer with intent to resist arrest contrary to section 270(1)(b) of the Criminal Code of Canada RSC 1985, c.C-46.

Written submissions regarding injuries

6In the Application the Applicant wrote that she sustained the following physical injuries:

Immediately following the arrest, the pain in my right knee became unbearable…the pain was intensifying with every second…an x-ray revealed I had not broken bones and I was to attend the following day for an ultrasound. I was given crutches and an injection for the pain and inflammation, as well as a prescription for Tylenol 3…the ultrasound the following day revealed I had torn my medial collateral ligament (MCL)…I relied on the crutches for seven days, until I was able to bear weight on my right leg. Due to the swelling and build-up of fluid, my right leg was stuck in a bent position…Any sideways motion in my right leg would cause the knee to give out and me to fall…I began physiotherapy on [date], 2015.

The injury has greatly affected my life…I was unable to pick up my children for several weeks, and help them with daily activities, including walking them to school on their first day of the new school year…this injury has by far been the most debilitating and life altering. In relive the events in my mind, wondering if there was another way it could have occurred, if I could have done something different to avoid this, just a split second could have saved from months of pain.

Analysis and Decision

7In considering this Application, the CICB has had regard to section 5 of the Act which reads as follows:

Where any person is injured or killed by any 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;

(b) lawfully arresting or attempting to arrest an offender or suspected offender for an offence against a person other than the applicant or his or her dependant or against such person’s property, or assisting a peace officer in executing his or her law enforcement duties; or

(c) preventing or attempting to prevent the commission of an offence or suspected offence against a person other than the applicant or his or her dependant or against such person’s property.

8As a Police Officer who was injured in the course of work, in order for the Applicant to be compensable under the Act, she is required to prove, on a balance of probabilities that she comes within the ambit of either subsection 5(a) or subsection 5(b) of the Act.

9Subsection 5(a) of the Act requires her to prove that she was a victim of a crime of violence and that, as a result of the crime of violence committed against her, she suffered injury pursuant to subsection 5 (a) of the Act.

10Alternatively, she can be found compensable pursuant to subsection 5(b) of the Act if she can prove, on a balance of probabilities, that she was engaged in lawfully arresting or attempting to arrest an offender or suspected offender for an offence against a person other than her or her dependant or against such person’s property. In other words, she must establish that the arrest, or attempted arrest, of an offender or suspected offender was specifically brought about in relation to an offence against a person other than her or her dependant or against such person’s property.

11Having considered all aspects of the matter including Applicant’s statement on file regarding how the incident occurred, the CICB is persuaded to believe that the Offender did not assault the Applicant while the former was resisting arrest and was trying to free himself from the Applicant. The Applicant has stated that “[The Offender] resisted and fell on my right leg. [Offender] and I both fell to the ground. When we hit the pavement, [Offender’s] full weight was on the outside of my right knee. I heard and felt it ‘snap’ as we connected with the ground.” Thus, the Applicant’s matter does not fall under subsection 5(a) of the Act.

12The CICB has, then, considered whether the Applicant qualifies under subsection 5(b) of the Act. At the time of her injury, the Applicant was clearly attempting to subdue the Offender from resisting arrest. Applicant’s statement as well as the information provided by [Name] Police Service confirms this.

13Based upon a careful review of the documentation submitted and available on file, the CICB finds the Applicant to be a victim within the meaning of subsection 5(b) of the Act.

14Further in this context, the CICB has considered the nature of the Applicant’s reported physical injuries as described above. Treatment Reports (Hospital and Physiotherapy) corroborate the Applicant’s account of her physical injuries. Based on the totality of evidence, the CICB has determined to accept these injuries for the purpose of compensation for pain and suffering. The CICB also accepts the Applicant’s statement that she had to endure pain and stiffness for some amount of time, which had negatively impacted on activities she enjoyed.

15The Act gives the CICB broad discretion to determine whether compensation ought to be awarded in any given case and, if so, the amount. Awards from the CICB are paid using public funds. They are not paid from the wrongdoer as would be the case if a victim pursued compensation through a civil action.

16In 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 Board "... 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 Board is that it must be "in accordance with this Act". No enumerative list of factors informs the exercise by the Board of its discretion.

17Section 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

18In Skunk v. Criminal Injuries Compensation Board, 2006 11440 (ON SCDC), and Dugas v. Criminal Injuries Compensation Board, 2009 29192 (ON SCDC), the Divisional Court confirmed that the CICB has a wide measure of factual discretion and broad discretion in awarding compensation under the Act.

19In the Pitters decision, the Divisional Court commented as follows:

The Act provides statutory authority for the award of compensation to victims of crime. Payment is not made ex gratis. It is made only to persons who are eligible for compensation under the statute. The legislature did not furnish the Board, however, with a blank cheque. It is not every injury, loss or expense suffered by a victim of crime which is compensable under the Act. [para 12]

20Based upon a careful review of the documentation on file, the CICB finds the Applicant not only a victim of “assault peace officer” within the meaning of and pursuant to subsection 5(b) of the Act but also accepts that she sustained both physical and emotional injuries, as described in her Application.

21In assessing compensation for pain and suffering, the CICB has considered:

a) The nature of the physical assault including the fact that the Applicant was in a line of duty at the time;

b) The physical injuries sustained as well as the emotional/psychological impact of the physical assault, as discussed above;

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

22In support of her claim with regards to physical and psychological injuries, the Applicant has submitted diagnostic and treatment reports from [Name] Memorial Hospital and Physiotherapy Alliance. The CICB accepts these reports for the purpose of this matter and compensation thereof.

23In support of her claim with regards to psychological injuries, the Applicant has not submitted any treatment reports from a counsellor/social worker and / or from any other relevant professional, which might have discussed the emotional impact that the physical assault may have had on the Applicant.

24In the absence of any relevant supporting documentation, it is difficult, if not impossible, to gauge the extent of emotional impact that the assault might have had on the day-to-day life of the Applicant. Despite that, the CICB understands that such traumatic incidents do leave emotional scars on victims’ minds, at least to some degree, particularly when they are hurt by those whom they are assigned to assist and protect on a line of duty.

25It 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 an applicant. The CICB also considers previous awards made by it in similar fact cases/situations in order to determine what is considered a reasonable amount of compensation.

26After reviewing the evidence in its totality and having regard to all of the above mentioned circumstances of this case, and in light of the foregoing considerations, as well as considering previous awards made by the CICB in similar fact cases/situations in order to determine what is considered a reasonable amount of compensation, the CICB awards the Applicant $3,000.00 as compensation for pain and suffering.

27The CICB considered the Applicant’s claim in the amount of $200.00 in respect to knee brace costs, for which relevant documentation has been provided. The CICB finds such costs to be both reasonable and within the context of the Act. However, the evidence indicates that the Applicant expects her insurance company to reimburse the full amount. In this context, the CICB is obligated to take these monies into account in accordance with subsection 17(3) of the Act, which reads as follows:

(…) 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 general welfare assistance or family benefits

28In light of the above, the CICB declines to make an order for the payment of $200.00 with regards to knee brace costs. But, in the event, the Applicant is denied full payment or a portion of the knee brace costs by her insurance company, she is advised to approach the CICB providing original denial letter as well as original receipt of payment and the CICB would be ready to reimburse.

AWARD

29The CICB ORDERS payment as follows:

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

TOTAL CURRENT AWARD $3,000.00

30The CICB recognizes that no amount of money can adequately compensate victims for the injustice they have suffered but also finds the amount of this Award to be reasonable within the context of the Act.

PAYMENT

31THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $3,000.00