(Re) 1608-04554, 2017 ONCICB 352

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicators: Anne-Marie Langan, Louise Charette Date: December 01, 2017 Indexed as: (Re) 1608-04554

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 assistance in paying for dental expenses as a result of an incident of aggravated assault and threats that occurred on September 9, 2014 due to which he allegedly sustained physical/psychological injuries. The incident was reported to the police two days later and resulted in the Offender being convicted for aggravated assault, possession and theft.

ISSUES

2A 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.

3If the Applicant has met the above threshold, in deciding whether or not to exercise our discretion to award compensation and the amount thereof, we must consider:

a. All the relevant circumstances, including whether the Applicant’s behaviour may have directly or indirectly contributed to the injuries pursuant to subsection 17(1) of the Act;

b. Whether the Applicant has refused reasonable cooperation with, or failed to report promptly the offence to a law enforcement agency pursuant to subsection 17(2) of the Act; and,

c. Any benefit, compensation or indemnity paid or payable to the Applicant from any source other than social assistance pursuant to subsection 17(3) of the Act.

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

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

HEARING

5The hearing took place over two days. The Applicant appeared with his representative from Queen’s Legal Aid and began providing his testimony on July 27, 2017. However, due to technical difficulties with the Applicant’s phone, the matter was adjourned to September 28, 2017.

6Detective [Name] with the [Name] Police (Police Witness) appeared as a witness. The Police Witness was the detective who took over the investigation.

7At the beginning of the hearing, we confirmed the Applicant was aware of subsections 17(1), 17(2) and 17(3) of the Act and that these subsections may be considered when deciding the Application. The subsections read as follows:

17(1) In determining whether to make an order for compensation and the amount thereof, the Board shall have regard to all relevant circumstances, including any behaviour of the victim that may have directly or indirectly contributed to his or her injury or death.

17(2) The Board may, in its discretion, refuse to make an order for compensation or ordered a reduced amount of compensation where it is satisfied that the applicant has refused reasonable co-operation with, or failed to report promptly the offence to, a law enforcement agency.

17(3) 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 social assistance.

Documentary Evidence

8The CICB received the following documents with respect to the claim:

a. Application: The Offender invited the Applicant and the Applicant’s girlfriend to his home, allegedly to sample drugs (cocaine) that the Offender wanted the Applicant to distribute. When the Applicant arrived at the Offender’s home, the Offender invited him in. Almost immediately after having entered the residence, the Offender assaulted the Applicant and struck him in the mouth with a hammer. The force of the blow sent the Applicant through the open back door onto the patio. The Offender held the Applicant on the ground by the neck and choked him. The Applicant was bleeding profusely and choking on his blood, such that he believed his throat had been cut. The Applicant could hear his girlfriend screaming and the Offender] slowly began to loosen his grip. Throughout the incident the Offender] was accusing the Applicant of robbing him, and threatening him with further physical harm. The Offender eventually released the Applicant, and the Applicant managed to crawl away. As he was crawling away, the Alleged Offender arrived and continued to threaten and accuse the Applicant of stealing. The Applicant and his girlfriend managed to leave the premises and attended at a Hospital. The Applicant reported the incident to Police 2 days later. The Applicant suffered injuries including, an injury to his mouth, the loss three of lower teeth and chipping four upper and one lower tooth, a split lower lip, and a piece of tooth was embedded in lower lip. He indicated that he suffered from paranoia and fear which prompted him to steal an illegal handgun for protection. The stolen handgun resulted in charges, a conviction, and a 5 year custodial sentence. Says had “perfect teeth” prior to the incident.

The Applicant alleges that in the year leading up to the trials of the Offender and Alleged Offender, they repeatedly contacted the Applicant, threatening him and trying to bribe him not to testify. At one point, a Molotov cocktail was thrown through the window of the Applicant’s grandmother's home, he was living. The Applicant eventually moved to [City], Ontario.

b. Police information: The Applicant was assaulted by the Offender] with a hammer, and later threatened by the Alleged Offender. The Offender and Alleged Offender were arrested, charged and held for bail. A search warrant was executed at the Offender’s residence for evidence of the offence. The related incident reports were summarized as follows:

i. [Date], 2014: the Applicant is casually acquainted “through illegal drug trade” to [Offender]. All involved persons are “known to police”. On this date, [name] invited the Applicant and his girlfriend [name] to [the Offender]’s residence. [The Offender]’s believed the Applicant and his girlfriend had recently broken into his residence so he struck the Applicant in face with hammer and engaged in a struggle which resulted in the Applicant being backed into the in a choke hold and crashing through a wooden railing. Alleged Offender then arrived and confirmed accusations of break and enter and uttered threats including: “You're fucking dead punk! You fucking steal his shit! Yo? You brought a knife?” “Ya he's fucking guilty! You fucking stole his shit! He stole your shit! You don't get our shit back, you're fucking dead. You're going to end up in a fucking river and gone missing. You better fucking 'up his shit. Come inside and we can deal with this right now.”

The Applicant attended at the hospital which confirmed his injuries to include three chipped upper teeth, a chipped molar, a displaced lower tooth, three missing lower teeth, and 15 stitches to his lower lip. The incident was reported to police three days later on [date], 2014.

ii. [Date], 2014: despite what occurred on [date], the Applicant and his girlfriend arranged to buy drugs from [Offender] at their residence. However, they were given empty pill cases and his girlfriend got mad and demanded her money back at which point [Offender] grabbed his girlfriend’s hair and began to assault her. The girlfriend, who was also present, pulled out a knife. [Alleged Offender] again uttered threats towards the Applicant including: "Everything will be okay with these guys if you just give them back their safe and their laptop. Otherwise you guys will get killed. You better mark their words". "You guys better 'up the stuff". [Offender] eventually pushed the Applicant outside to prevent him from helping [Name] and the Applicant eventually left and ran to neighbours.

iii. [date], 2014: [Offender] were caught outside the Applicant’s residence apparently trying to break in. They were arrested for break and enter as well as for assault on the Applicant.

c. CPIC: The CICB received a criminal records check from OPP services for the Applicant. The record notes that between 2000 and 2015, the Applicant was convicted for: Assault with a Weapon (3 months consecutive to sentence being served), 4 counts of Utter Threats (2 months consecutive to sentence being served); Assault, and Utter Threats (3 months consecutive to sentence being served, 1 year probation); Carry Concealed Weapon (60 days consecutive to sentence being served); Assault with a Weapon, Possess Weapon, and Utter Threats (2 years consecutive to sentence being served); Assault (60 days custody, 28 days’ time served, and 12 months’ probation); Robbery, and Forcible Confinement (30 months custody, 60 days’ time served); Utter Threats (70 days consecutive to time being served); Assault with a Weapon (1 year consecutive to time being served); Possession of a Loaded Firearm, and Possession of Firearm/Ammunition Contrary to Prohibition Order (48 months custody and mandatory weapons prohibition). Applicant is currently on a firearms prohibition without expiration.

d. Dental Reports:

i. 2009-2012: during the applicant’s incarceration, he requests dental visits frequently and mentions cavities, at least three teeth hurting, gums receding and bleeding, pain in wisdom teeth, difficulty eating, missing tooth. Requests pain medication to assist with tooth pain, dentures. Note in file that he signed stating that “inmates responsible for cost of replacement of dentures if misplaced” dated 2009. Eligible for dentures every 5 years according to prison policy.

ii. A Dental Report from 2015-2016 when the applicant was incarcerated indicates that his teeth were smashed with hammer, confirming that two teeth were knocked out, 3 teeth were cracked, and 2 were chipped. There is nothing in the Report to indicate recommendations for replacing or the cost of doing so.

e. Hospital Report: The hospital report from [Name] Hospital the night of incident confirms that the Applicant was hit in mouth with hammer, noting blood in mouth and multiple lacerations to lower lip inside and outside. Further, the Report notes that his lower front teeth broken off from gum and the upper teeth were chipped. The Applicant asked for morphine for pain.

f. Psychologist Report: [Psychologist] indicated in [date] 2016 that the Applicant disclosed the most recent assault and he had a serious suicide attempt as he grew self- conscious and insecure so he began carrying weapon.

Oral Evidence

The Applicant

9The Applicant testified that does not remember what day the assault took place but that it was the same day he went to Hospital. The Applicant agreed that based on Hospital Records, the incident must have occurred on [date], 2014 and he went to Hospital just after midnight.

10The Applicant remembers being with his girlfriend at her house and received a call from [the Offender] who was convinced that the Applicant was the person who had broken into his house. In reality, the Applicant indicated that he was in [City] when this alleged break in occurred, nevertheless, [the Offender] invited the Applicant to come to his house. Later than night, the Applicant drove to [the Offender]’s house to obtain drugs and he was offered the drugs for free to try them and give them to other people. The Applicant had met [the Offender], who lived in the same apartment buildings in [City], had smoked marijuana together before but they were not friends. The Applicant indicated he had the impression of [the Offender] was that he was a nice chubby guy, friendly and sociable but was also a “big time drug dealer”.

11The Applicant indicated he arrived at [the Offender]’s residence; he was greeted and shook his hand. [The Offender] was very friendly as usual and told him to go upstairs. The next thing he remembers was being outside with [the Offender] on top of him choking him and yelling “you robbed me” but does not remember being hit in the face with a hammer. The Applicant indicated that he remembered crashing through the patio railing and eventually [the Offender] getting off from top of him. The Applicant’s girlfriend then went to call the police.

12The Applicant did testify that he told his girlfriend not to call police as was concerned for her safety if she did. He also said that he did not trust the police and had never reported anything to the police before.

13The applicant testified that Alleged Offender was the boss of the drug ring and that because [the Offender] worked for him, the Applicant believed he would be assaulted or killed if he reported the incident to the police.

Account of the incident at House

14The Applicant testified that after he was assaulted with a hammer, he went to the house so that his girlfriend could buy some drugs. He stayed outside the house until he saw that they were trying to rip his girlfriend off and assaulting her. Upon seeing this, he went to help his girlfriend but he was pushed out of the house. Eventually they were both able to escape; however, [the Offender] and [Name] threatened them again about the stolen items. The Applicant testified that he later found out that these people were paid $500.00 by [the Offender] to hold the Applicant's girlfriend there so [the Offender] could come and beat her up.

15The Applicant testified that he went to the Police right after this incident with his girlfriend and told them everything as reported in the Police Report noted above.

16When asked by the CICB why the Applicant is currently incarcerated, he explained that he is in jail now because when someone threw a Molotov cocktail at his grandmother’s house, where he was living, in retaliation for the alleged robbery he obtained a gun for his own protection. Nevertheless, he was found with a gun in his possession by Police during an unrelated break and enter arrest, in breach of his probation order. The Applicant indicated that he entered a plea of guilty and is currently incarcerated for these offences. He testified that while incarcerated, Corrections Canada allegedly sent him to British Columbia because people in Ontario are aware of what he did in telling the police. He was put in segregation because the Offenders are all members of criminal organizations, Hell’s Angels and/or the mob. He said that every day while he was in prison was violent.

17The Applicant testified that between being charged and trial, he was out for approximately one year. During this time, he stated that everyone wanted a “piece of him” and he had to move to [City] because he was fearful for his safety. On the court date the Applicant was angry because he had just been charged with a weapons offence and refused bail. Despite this, the Applicant was willing to testify against them but ended up not having to because Offenders plead guilty.

Police Officer’s Testimony re incidents

18The Police Witness works in the major crimes unit and is aware of the Applicant. On [date], 2014 he heard from his co-workers that the Applicant was admitted to hospital due to injuries to his face from what the Applicant had claimed to hospital staff that it was due to an accident. The Police Witness’s co-worker had asked the Applicant about his injuries but he would not disclose the cause.

19On [date], 2014, when the Applicant reported the incident to the Police, the Police Witness took “relatively thorough” videotaped statements from the Applicant and his girlfriend. They both stated that they had been called by someone to attend [the Offender]’s house to get cocaine to distribute to others. The Applicant indicated in his police statement that he brought a knife with him as he had “beefs” with other people but put it away upon arriving at the house. The Police Witness never found out why the applicant had knife out when he came to the door or what the “beefs” he was talking about. The statement confirmed the hammer attack and the subsequent struggle outside.

20As a result, a search warrant was executed on September 12, 2014 to search [the Offender]’s home. The Officer who executed the search did not see any phone lines on the exterior of [the Offender]’s house. There were trail cameras on the outside of the residence but [the Offender] said they had installed after his house was broken into but before the incident with the Applicant. The Officer observed that the basement window had been tampered with. The Officer explained that it was hard to believe anyone could fit through other than maybe the Applicant’s girlfriend. Eventually the Officer found a landline telephone and its cord had been ripped out. The Officer also found a black knife on a console table which matched the description of the knife the girlfriend provided and indicated was in the Applicant’s possession. The Police Witness also found two black hats belonging to the Applicant and his girlfriend. There was evidence of a fight given the blood and damaged railings. He found chipped teeth which later, through DNA forensic testing, confirmed to be the applicant’s DNA. There was also further evidence of break and enter such as a cabinet that had hinges ripped off and a door hanging off. The Police Witness found marijuana throughout the room and surmised the unhinged cabinet contained marijuana. The Police Witness could see that fiberglass near the attic hatch which had been disturbed. The Police Witness also found a hammer but did not find any DNA on it. Ultimately, based on the evidence of there being an assault, [the Offender] was arrested for aggravated assault.

21Upon his arrest, [the Offender] provided a video statement. He admitted that the house had been broken into and that his girlfriend had called the Applicant to come over. [The Offender] stated that the Applicant came to the door with a knife and as a result, punched him with a “bare fist” but denied using a hammer. [The Offender] claimed that his house had been broken into and his safe was missing which contained keys for doors but denied the safe contained drugs. [The Offender] and Alleged Offender have a reputation as being heavily involved in the drug trade. The Police Witness confirmed that Alleged Offender is known as “ring leader” and believes that he is very well connected to various criminal entities. The Police Witness was not surprised that [the Offender] was working for Alleged Offender and storing drugs for him at his house and this was consistent with the statement the Applicant provided to the Police. Ultimately, the Police Witness did not find enough evidence which could have been used to charge the Applicant and/or the girlfriend for breaking and entering into [the Offender]’s home.

Detective’s evidence regarding the Applicant’s criminal record

22The Police Witness confirmed that the Applicant has an extensive criminal record. In total he counted 63 criminal convictions. 16 convictions are related to theft, mischief and possession of property related to crime. 9 of the offences, not included in 16, are break and enters. 11 offences related to violence such as assault and assault with a weapon. One robbery conviction in 2008 in [City].

23The CICB asked whether any of the assaults were outside of jail to verify what the Applicant had testified to; however, the Police Witness could not confirm this but it could be possible.

24The Police Witness stated that the Applicant’s current sentence was being served was for carrying a firearm despite a firearm prohibition, break and enter, and 2 counts for breaching probation order. One breach was for failing to keep the peace and the other was for failing to notify the court of a change of address.

25The Police Witness testified that he had heard from a confidential informant that [the Offender] was missing a couple of kilograms of cocaine and a laptop. The charges against [the Offender] were laid mainly because of the extent of the Applicant’s injuries. With respect to the injuries, the Police Witness confirmed that the applicant had three chipped teeth, a damaged molar, a damaged tooth and a laceration on his lower lip.

Police Testimony re 17(2) Issues

26The Police Witness indicated that, with respect to police cooperation, the Applicant attended the [Name] detachment two days later and was encouraged to do so by the Police Witness. The Applicant was cooperative afterwards as evidenced by the fact that he gave a statement and a DNA sample.

Applicant’s response to police testimony

27The Applicant pointed out the criminal history of the Offenders which included many violent offences but the Police Witness was not able to confirm whether or not they did as he did not have access to that information at this time. The Applicant stated that he had no idea that [the Offender] would assault him when he went to his house and further mentioned repeatedly how people threw Molotov cocktails at his grandmother’s house and five men threatened his life. The only reason why he had a gun on his person because he feared for his life after the assault. When asked by the CICB why, if he had no idea that he would be assaulted, why did he bring a knife with him to [the Offender]’s house. The Applicant responded by indicating he had bad experiences with being assaulted and did not feel safe in that neighbourhood. The Applicant clarified that he was jumped once in jail and once on the outside.

Applicant’s testimony re Injuries

28Physical injuries: With respect to his physical injuries, the Applicant testified that his lip was split open, his 2 bottom teeth got knocked out, another was loose and had to be removed, his top three teeth were chipped, and two other teeth where smashed in half. He indicated there were still pieces of teeth in his gums so these tooth fragments were removed. One molar was capped but the repair did not last. The Dentist he saw was at the prison. After the assault his mouth and lip hurt very badly as did the little shards of teeth sticking into his gums. There was a lot of blood coming from mouth during and after the assault.

29Psychological injuries: The Applicant focused his testimony mainly on the self-esteem issues caused by his broken teeth. He explained that he covers his mouth when he talks because he feels weird when he talks and is very embarrassed and insecure because of it. Because he cooperated with the police investigation against the two Offenders he was identified by other prisoners as a “rat” and had to be placed in segregation for a year and a half due to concerns for his safety. He was asked to transfer by the Department of Corrections to British Columbia for safety reasons even though he has no family support there. After the assault he feared for his life. He was getting death threats. This has affected his ability to have relationships. Has to continue to worry about his safety when he returns to [city].

30Treatment: The Applicant received dental treatment and counselling with a psychologist in prison. Due to being incarcerated he has had no other access to dental help and could not get a quote for future dental services.

31Counsel’s submissions: Applicant’s counsel submitted he is entitled to compensation pursuant to s.5(1). The Offenders have been criminally investigated and [the Offender] was convicted which is conclusive evidence that the assault did occur. Further, the Applicant’s story goes far beyond the date of the incident as the fear went on for a year since they threatened him and threw Molotov cocktails at his house. The applicant only obtained a firearm to protect himself. With respect to his injuries, the Applicant’s dental injuries have been documented. [Name] Hospital Report mentioned the injuries to his teeth including one lower front tooth broken off at the gun and upper teeth being chipped and lower front incisor. No monetary estimate of the cost to repair the teeth but given the Applicant’s circumstances would have been difficult to provide estimate.

32With respect to the Applicant’s psychological injuries counsel submitted that the Applicant has suffered long lasting trauma, insecurity and lower self-esteem.

33With respect to the section 17 issues, Counsel submitted that the CICB should consider fact that he did cooperate with the police. Due to this fact, the Applicant was perceived as a “rat” which resulted in the Molotov cocktails and other acts committed against him. Counsel further submitted that the Applicant’s criminal history should be considered as “secondary in nature” given that the CICB policies have been changed so as to no longer require criminal history and an Applicant’s past criminal behaviour is to be a minor consideration. The CICB has to weigh his past criminal history against the injuries that he suffered. A considerable amount of the convictions had occurred in the prison context and because the Applicant is a man of small stature in prison led him to commit these crimes. Counsel further submits that when considering the gravity of offence and fear and trauma that he has experienced since proportionality should be in the Applicant’s favour. He did not use a firearm in the act of violence.

34Additionally, Counsel submitted that the Applicant did not behave in any way to contribute to his assault. [The Offender] was the one who invited him to his house to try the drugs he had. This should not be considered ‘contributory behaviour” for the purposes of 17(1). He was invited over, walked in and was struck in the face as soon as he walked in which shows that the assault was planned and deliberate. Counsel submits that the CICB should not reduce amount because of the Divisional Court matter Mark v. Criminal Injuries Compensation Board, 2010 ONSC 6540, as the test for contributory behaviour requires an examination of the conduct in question versus the foreseeability and contributory behaviour. He further submitted that no suspected theft or degree of implication in the drug trade warrants this kind of injury.

35Counsel requests that the CICB consider an award for pain and suffering: based on physical and emotional trauma.

36The Applicant also requests compensation for future dental expenses- plates or porcelain teeth. There has been no way to accurately assess costs but know that there are three missing teeth and five chipped and rotted teeth.

ANALYSIS AND DECISION

37Having considered all of the evidence before it the CICB finds the Applicant to be a victim of aggravated assault pursuant to section 5 (a) of the Act. The Applicant, through his evidence and the conviction of [Offender], has proven on a balance of probabilities that he was injured as a result of a crime of violence. However, as mentioned, there are section 17 considerations, of which are the following.

Issue of 17(1)

38As is the case with all applications that come before it, the CICB is required to consider the provisions of subsection 17(1) of the Act.

39Section 17(1) requires that the CICB take into consideration “all relevant circumstances”, including any contributory behavior on the part of the Applicant. The Act gives the CICB broad discretion to determine whether compensation ought to be awarded in any given case and, if so, the amount. The Divisional Court in Sweet v. Ontario (Attorney-General), 2011 ONSC 2650, held that the requirements of 17(1) does not in any way limit the meaning of “all relevant circumstances”; the CICB is open to considering circumstances outside the underlying facts to the application including any convictions for crimes of violence committed by the Applicant.

40At paragraph 35, the Court states:

Furthermore, the case law supports the proposition that it is relevant circumstances to consider that the awards, when granted, are made from public funds and that the function of the legislation is not to assess civil liabilities for damages. These are circumstances which are relevant and yet do not relate to the injury itself.

41In this context the CICB has considered the Applicant’s criminal history for violent crimes including, but not limited to several counts of assault, assault with a weapons, forcible confinement, uttering threats, possession of loaded firearm, etc. The Applicant has spent a considerable amount of time in custody since 2009 and is currently serving time in a maximum security federal penitentiary.

42The CICB considers the criminal court convictions as evidence of the Applicant’s victimization of others on several occasions. In the CICB’s view, the fact that the Applicant has convictions for multiple assaults with weapons and uttering threats and now seeks award for pain and suffering and counselling expenses is a relevant circumstance for the purposes of his request.

43The CICB further considered, for the purpose of s. 17(1), that the Applicant admittedly attended the Offenders’ residence with a view to participating in activities related to the illegal drug trade. He was assaulted by the Offenders who thought that he had stolen their property which he has been convicted of doing to others in the past. Without making any finding with respect to whether the Applicant did in fact rob the Offenders, he knew or ought to have known that partaking in the illegal drug trade, could put him in harm’s way. The Board considers this context relevant in making a determination regarding whether the Applicant should be compensable.

44Furthermore, two days after the assault, the Applicant once again attended at the residence of one of the friends of his assailant, to purchase illegal drugs. It was only after once again being accused of theft by [Name] that the Applicant decided to report the [date] incident to the police.

Consideration of proportionality

45The CICB has also considered the proportionality of the injury in determining whether to refuse or reduce an award. The main injury was to his mouth including broken and chipped teeth, cuts on the inside and outside of his lips and a tooth implanted on the inside of his mouth. It should be noted that the Applicant appears to have had issues with his teeth prior to the assault and complained of sore gums, sore teeth and even chipped teeth prior to the assault. The Psychologist reported that the Applicant had some “paranoia” following the incident and concerns of his safety. Although the CICB accepts that the Applicant would be afraid of retribution from the Offenders for having reported the incident, as stated above, the Applicant was knowingly participating in illegal activity at the time of the assault with the Offenders, whom he knew to be people who have a history of violent behaviour.

46The CICB has considered the Applicant’s injuries; however, these injuries do not outweigh the impact of the other factors in this matter including the incident and the Applicant’s criminal history.

47Therefore, the CICB does not consider the provision of compensation to the Applicant out of public funds for a pain and suffering award and counselling to be reasonable under the Act.

48With respect to the claim for assistance in paying for dental expenses, the Applicant has not provided the CICB with any information regarding the potential cost of such dental work. The Dental Reports provided by the Applicant show all dental work completed in prison and there is no separate report relating solely to the injuries the Applicant incurred at the time of the assault. In the absence of this information the CICB is unable to compensate for this expense. However, if, as a direct result of this crime the Applicant requires dental repair and the cost of that dental work 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 dental expenses. The Applicant must obtain an order from the CICB prior to incurring any such expense. The Applicant may contact the Board to determine what information is required for the CICB to consider a variation of this order, if at all.