CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Anne-Marie Langan Date: September 30, 2017 Indexed as: (Re) 1701-00115
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 a police officer with the [Name] Police Service who is seeking damages for pain and suffering as a result of an assault that occurred in the course of an arrest on [date], 2016 when he alleges that he sustained physical/psychological injuries. The incidents were reported and resulted in charges being laid for assault and resisting arrest. The charges were later withdrawn by the Crown for reasons which will be explained below.
DECISION
2The CICB approves the claim for the reasons set out below.
ISSUES
3The Applicant must prove, on a balance of probabilities, that his injuries are the result of lawfully arresting or attempting to arrest an offender or suspected offender of an offence against a person other than the Applicant or his/her dependent or against such person's property, or assisting a peace officer in executing his/her law enforcement duties
HEARING
4The hearing was conducted in writing on the basis of the materials contained in the file.
Documentary Evidence
5The CICB received the following documents with respect to the claim.
Application
6In his Application the Applicant explains that he is a police officer with the [Name] Police Service Community Response Unit and was injured in the course of arresting the Alleged Offender for a drug related offence. The Alleged Offender tried to resist arrest and ran at the Applicant's fellow officer in an aggressive manner. The Applicant was required to use his Taser gun and physical force to restrain the Alleged Offender. In the course of the arrest he fractured his right hand. He went to the Hospital for treatment following the incident and has had a cast placed on his right hand and arm. The incident occurred during a time period when the Applicant's wife was on sick leave due to pregnancy and he was unable to assist her with many tasks around the home due to his broken hand. He continues to experience pain in his injured hand and finds that it affects his sleep. He also has some difficulty writing with the hand and had to undergo 6 weeks of physiotherapy before he could use his hand. The Applicant describes how he has had a general decline in his "physical fitness and overall happiness" as a result of the incident.
7On June 28, 2017, the CICB communicated via telephone with the Applicant to inquire why the charges were withdrawn against the Alleged Offender. The Applicant explained that charges were withdrawn due to the small amount of crack cocaine that the Alleged Offender had in his possession at the time of the arrest. The Crown told the Applicant that the small amount of drugs listed and withdrew the charges as is the usual practice due to the large number of cases at the [Court] and apologized for making the mistake of overlooking the concealed amount and the fact the Alleged Offender resisted arrest.
Police Information
8The Police Questionnaire confirms the events as described in the Application, with a few additional details, including, but not limited to:
i. That the arrest took place in front of a men's shelter in downtown Toronto where drug dealers often go to deal drugs to vulnerable homeless individuals;
ii. There was video surveillance showing the entire drug transaction the Alleged Offender was participating in;
iii. That the Alleged Offender was found to have a "quantity of Canadian Currency" on his person, suggesting that he had been engaging in several drug transactions.
iv. That the Alleged Offender was charged with trafficking in cocaine, possession of proceeds of crime and assault resist arrest.
Hospital Report
9The Report confirms that the Applicant attended at the Hospital on [date], 2016 with pain and swelling in his right hand related to the injury he incurred while arresting the Alleged Offender. An X-ray was done showing a fracture (Fifth metacarpal neck fracture) and soft tissue swelling.
Physiotherapy Report
10Confirms that the Applicant injured his right hand while arresting the Alleged Offender and was on light duties from [date], 2016 until [date], 2017. Treatments prescribed include ultrasound, manipulation and massage.
Physiotherapy Report
11Confirms that the Applicant injured his right hand and experienced related radial hand and elbow joint dysfunction and tendonopathy as a result of the incident. He was treated with a cast, muscle therapy and manipulation; the Applicant's prognosis for a full recovery is "good".
WSIB report
12Reflects that the Applicant did not receive any Loss of Earnings or Non-Economic Loss from WSIB as a result of his injury.
Supplementary Statement by Applicant
13The Applicant filed a supplementary statement in which he states that he continues to have limited use of his right hand due to a lack of range of motion in his pinky finger and pain in his hand that extends to his elbow. He experiences pain whenever he puts pressure on his right hand. The fracture resulted in a deformity in his hand as you can see that the pinky does not align property with his other fingers. He has actively participated in physiotherapy and has been compliant with his home exercise program. Some of the consequences of his injury include not being able to participate in sports that he did before, inability to complete home renovations himself and having to hire others to do the work, limitations to his ability to care for his infant daughter, having to attend numerous medical appointments related to his injury.
ANALYSIS AND DECISION
14Section 5(b) of the Act provides that compensation may be awarded where an injury or death occurs in or results from the following circumstances:
a. Lawfully arresting or attempting to arrest an offender or suspected offender for an offence against a person other than the Applicant, or an offence against property
b. Assisting a peace officer in executing his or her law enforcement duties
15This provision enables peace officers and those assisting them to be compensated for injuries that are not a product of a criminally violent act but rather a bi-product of efforts to address certain violations of the Criminal Code.
16The CICB find that section 5(b) of the Act applies in the present case the Applicant was injured in the process of lawfully arresting the Alleged Offender who was involved in the illegal drug trade at the time of his arrest. The Alleged Offender attempted to escape arrest and when caught became violent with the Applicant, resulting in the Applicant having to physically restrain him and injuring his right hand. The Applicant has provided medical evidence of the injury to his right hand including a Hospital Report and two Physiotherapy Reports. The injury impacted several aspects of the Applicant's life including his social life, his work and his family life.
17The CICB therefore finds that the Applicant is compensable pursuant to section 5(c) of the Act and awards $6,000.00 in damages for pain and suffering having considered:
a. That the Applicant was trying to prevent the Alleged Offender from committing a criminal offence at the time he was injured;
b. That the Applicant suffered a serious injury to his hand form which he continues to experience pain and limited mobility;
c. That the Applicant's life has been disrupted as a result of his injury in various ways including not being able to participate in activities he enjoys and limits on his ability to participate fully in his parenting responsibilities,
AWARD
18The CICB orders payment as follows:
Subsection 7(1)(d) Pain and Suffering $6,000.00
TOTAL AWARD (AND COSTS) $6,000.00
PAYMENT
19THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $6,000.00
DATED in Toronto this 30th day of September, 2017
_____________________________
Anne-Marie Langan, Member