(Re) 1612-00722, 2017 ONCICB 365

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Anne-Marie Langan

Date: December 13, 2017

Indexed as: (Re) 1612-00722

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 as a result of an armed robbery/home invasion that occurred on [date], 2016 where he sustained physical and psychological injuries. The incidents were reported to the Police but the Police were unable to identify the offenders.

DECISION

2The CICB approves the claim and awards $25,000.00 for the reasons set out below.

ISSUES

3The absence of a conviction does not mean that the CICB is precluded from making an order for 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 he was a victim of a crime of violence but also that his injuries resulted from the crime pursuant to subsection 5(a) of the Act.

HEARING

4The hearing was conducted in writing on the basis of the materials contained in the Applicant’s file.

Documentary Evidence

5In his Application the Applicant describes how he was visiting at a friend’s house on [date], 2016 when there was a knock at the door. When his friend opened the door two unknown males forced their way into the unit. One of the males “pistol whipped him” with a gun and a shot went off, wounding him. The Alleged Offenders left and an ambulance came to take the Applicant to the hospital for treatment.

6With respect to his injuries, the Applicant describes how he suffered a gunshot wound to his shoulder, had to be resuscitated due to a cardiac arrest, underwent numerous operations and had to have kidney dialysis. He had a tracheotomy which stayed in for two months. He had to be in the critical care unit for 2 months and intensive care for a month. He has lost most of his eyesight and can no longer read or write as a result. He has nightmares and flashbacks to the incident and still has anxiety about leaving his home. He is dependent on the care of others.

7The Police Incident Report confirms that they were called by the Applicant immediately following the incident and found him on the ground bleeding. He was taken to the Hospital by ambulance. Detective [name] spoke to a CICB staff person on [date], 2017 and confirmed that the Applicant was at the wrong place at the wrong time. The Police suspect that the incident was a "drug rip" since the house is known for drug activity and was targeted but that the Applicant was just visiting friends at the time. There is evidence that the Applicant was protecting a female in the house when he was injured.

8The Police confirmed that the Applicant has been cooperative with the investigation but the other parties involved in the incident were not willing to provide any information so no arrests have been made and the police investigation is ongoing.

9A Hospital Report was provided which includes the emergency notes from the date of the incident. The discharge summary confirms that the Applicant has had a long complicated course in Hospital. This started with his with treatment that included a resuscitative ED thoracotomy, the repair of multiple pulmonary lacerations, an emergency laparotomy and on the fourth laparotomy he had primary closure of his fascia. He has required VAC dressings and his wounds and had a tracheostomy placed for prolonged intubation. As a result of his lung injuries he had multiple ventilator-associated pneumonias, as well as bacteremia. Due to his prolonged stay in the Hospital he had become deconditioned and had to do physiotherapy to regain his strength. The Applicant’s main remaining deficit from the incident is cortical blindness which the Doctor explains is a "secondary anoxic brain injury when he arrested after the injury”.

10A referral was made to a Psychiatrist who confirms that the Applicant suffered from dreams and nightmares, voices and hallucinations. He has difficulty sleeping at night or staying awake during the day. He is prone to periods of confusion. He also has symptoms of depression including a lack of motivation. The Applicant is now unable to read or write and dependent on others for his care. There has been little to no improvement in his condition since his release from the Hospital.

11On [date], 2017 the Psychiatrist wrote to the CICB to confirm that the Applicant’s condition has not improved significantly since he was discharged from Hospital and that he continues to be “blind, anxious, and has hallucinations”.

ANALYSIS AND DECISION

12The CICB is satisfied on a balance of probabilities based on the documentation provided by the Applicant as described above, and in particular the Police Report and Hospital Report, that the Applicant was the victim of a violent crime on [date], 2016 and suffered serious physical and psychological injuries as a result.

13Based on my assessment of the evidence, the CICB finds the Applicant to be compensable under the Act as a victim of violent crime. In particular, the CICB considered the police evidence that confirmed that the Applicant did nothing to provoke the home invasion and tried to protect a female who was present at the time of the incident. The CICB also took into account the medical evidence that confirms that the Applicant suffered a gunshot wound and as a result had to undergo several surgeries, had to be resuscitated, had a tracheotomy and has had profound ongoing injuries including blindness and severe psychological symptoms including auditory and visual hallucination. The CICB awards the Applicant $25,000.00 in damages for pain and suffering.

AWARD

14The CICB orders payment as follows:

Subsection 7(1) (d) Pain and Suffering $25,000.00

TOTAL AWARD (AND COSTS) $25,000.00

PAYMENT

15THE CICB ORDERS that the following sums be paid immediately to:

The Applicant $25,000.00