CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Anne-Marie Langan
Indexed as: (Re) 1605-03417
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 and reimbursement for the costs associated with travel to treatment as a result of a physical assault that occurred on [date], 2014 where he sustained physical/psychological injuries. The incident was reported to the Police and resulted in the Offender being charged with aggravated assault, breaking and entering, imitation use of a firearm, discharging an air gun with intent and possession of a weapon for a dangerous purpose. The Offender was found guilty of aggravated assault, imitation use of firearm and possession of a weapon for a dangerous purpose.
DECISION
2The CICB approves the claim for the reasons set out below.
ISSUES
3A conviction may be taken as conclusive evidence that an offence has been committed pursuant to section 11 of the Act. Given that there was a conviction in this case, the Applicant is required to prove, on a balance of probabilities, that his injuries are the result of the crime pursuant to subsection 5(a) of the Act.
4The Applicant must provide reliable evidence to support his claims for expenses.
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.
Application
7The Applicant describes how the Offender broke into his home on four separate occasions at night while he was asleep. On the last occasion, on [date], 2014, the Offender shot the Applicant with a machine gun pellet pistol. Four of the pellets struck him. He was able to get the attention of a neighbour who called 911. He was taken to [Name] General Hospital which sent him on to [Name] General Hospital. He was operated on a few days later and the surgeon removed three of the four pellets but could not remove the fourth due to where it was located. The Offender was apprehended on the night of the incident as he was crawling down from the Applicant’s window and was charged. The Applicant had to attend Court 6 times because the Offender’s counsel kept seeking adjournments but the Offender was finally convicted and given a prison sentence. The Applicant describes how he has been “paranoid” ever since the incident and has carried a bat everywhere he goes, even in the shower, as he is constantly afraid that the Offender will return and shoot him again. He believes that the Offender meant to kill him. He has lost his fiancée as a result of the symptoms he has been experiencing since the incident.
Court documents
8These documents confirm that the Offender was charged with aggravated assault contrary to section 268 of the Criminal Code, possessing a weapon for purpose dangerous contrary to section 88(1) of the Criminal Code and use of a firearm contrary to section 85(1) of the Criminal Code and was sentenced to prison for one year less a day, given a lifetime weapons prohibition and prohibited from communicating with the Applicant.
Police Report
9The Incident Report by the officers who attended from the [Name] Police Service states that the Offender was arrested on the day of the incident outside of the Applicant’s building and was in possession of an air-powered “Uzi” style rifle. The Offender confessed to Police that he had entered the Applicant’s home on prior occasions and that his motivation for doing so was a “property dispute” they had had with each other earlier. The Offender admitted to shooting the Applicant at close range.
Hospital Report
10From [Name] Health Care includes:
i. Dr. [Name]- Psychiatric Report dated March 23, 2015- confirms that since the incident the Applicant has not felt safe in his home and has had great difficulty leaving home due to anxiety, has been drinking heavily, hyper vigilant, has constant flashbacks and nightmares about the incidents and has been having major difficulties with his relationships. The Report stated that these symptoms are classic symptoms of PTSD. The Applicant had no prior history of mental illness. The Psychiatrist recommended that the Applicant participate in counselling to assist him in learning healthier coping strategies and that he take anti-depressants, although at that time the Applicant was resistant to taking them.
ii. Records from night of incident and surgery from [Name] General and [Name] General Hospital include an x-ray showing the four pellets in the Applicant’s neck and a contusion on his right jaw. Two days later there is a report by the Plastic Surgeon indicating that he was able to remove three of the four pellets but refused to remove the fourth as it was “asymptomatic” and was “too close to vital structures”.
Expenses
11The Applicant is requesting to be reimbursed for his expense of having to take a taxi from [City] to [City] for medical care and indicates that he spent $300.00 on taxi fare in his Application, but did not provide any receipts to support this expense. The distance he had to travel from [City] to [City] would have been 85 kilometers each way or $68.00 round trip. Based on the medical reports provided he had to travel to [Name] General Hospital at the very least on two separate occasions at his own expense, once to see the Plastic Surgeon on the [date] and once to see the Psychiatrist on [date], 2015. He is also claiming $150.00 for ambulance expense but did not provide an invoice or receipt.
ANALYSIS AND DECISION
12Since the Offender was convicted of aggravated assault and several weapons related offences, the CICB accepts this as conclusive evidence that a crime of violence occurred and that the Applicant was a victim of a violent crime as defined in s. 5(a) of the Act.
13Based on the documentary evidence provided by the Applicant as described above, and in particular the medical records provided by [Name] Health Care Centre and in the absence of any evidence that the Applicant’s injuries were caused by anything other than the assault, the CICB finds that the Applicant suffered severe injuries as a result of the incident, including, but not limited to:
a. Contusion on his right jaw;
b. Having four pellets in his neck, one of which cannot safely be removed;
c. Severe PTSD symptoms including hyper vigilance, feeling unsafe in his home and in the community, nightmares, flashbacks and a secondary substance use disorder; and
d. The incident has affected the Applicant’s ability to care for himself and to have healthy relationships and cost him his relationship with his fiancée.
14The CICB therefore finds the Applicant to be compensable pursuant to s.5(a) of the Act and awards $15,000.00 in compensation for pain and suffering. In assessing the amount of damages awarded the CICB considered:
a. That the attack was unprovoked;
b. The attack occurred in the Applicant’s home at night while he was sleeping and has caused him to feel unsafe in his own home;
c. The Offender used a weapon during the attack resulting in permanent damage to the Applicant; and
d. The Applicant has suffered severe psychological injuries from which he has had difficulty recovering and which caused severe damage to his life
15The CICB awards travel to treatment costs in the amount of $136.00, calculated at the CICB’s standard rate of 40¢ per kilometre (2 trips @ 86 kilometres per trip @ 40¢ per kilometre). The CICB is unable to reimburse the Applicant for his taxi fares as he did not provide any receipts to confirm these expenses.
16The CICB denies the claim for ambulance expense due to lack of receipts or other supporting documentation.
17Based on the Applicant’s stated intention to enter into therapy in the near future, the CICB authorizes up to $2,400.00 (exclusive of any applicable taxes) for counselling expenses to be paid directly to a qualified treatment provider upon receipt of a Curriculum Vitae outlining the credentials of the service provider (unless the CICB already has a copy on file). These sessions can only be accessed when the therapy sessions are not covered by other sources, such as the Applicant’s place of employment or insurance benefits. Therapy sessions must be completed within 36 months of receipt of this Order. It is the CICB’s practice to award up to $100.00 per session for therapy, or up to $125.00 per session for registered psychologists. Payment may be made directly to the treatment provider on a monthly basis, upon submission of an invoice and the required verification from the Applicant. The CICB may also consider therapy expenses that were incurred between the times that the Applicant submitted his final set of documents to the CICB and the receipt of this Order. If there are such expenses, the CICB will deduct these from the pre-authorized $2,400.00 amount described above.
18While the CICB appreciates that no amount of money can ever make up for the harm you have endured, we believe that the total amount of this award is reasonable given the circumstances and the intention of the CICB’s governing legislation and hopes that it will assist the Applicant in moving forward and healing from the injuries caused by the attack.
AWARD
19The CICB orders payment as follows:
Subsection 7(1)(a) Expenses (travel to treatment) $ 136.00
Subsection 7(1)(a) Future Counselling $ 2,400.00
Subsection 7(1)(d) Pain and Suffering $15,000.00
TOTAL AWARD (AND COSTS) $17,536.00
Less: Preauthorized treatment costs $ 2,400.00
TOTAL CURRENT AWARD $15,136.00
PAYMENT
20THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $15,136.00
DATED at Toronto, this 27th day of October, 2017.
Anne-Marie Langan, Member