CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Kevin Cleghorn
Indexed as: (Re) 1702-00410
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 a pain and suffering award and the costs of obtaining records as a result of a physical assault that occurred on [date], 2016 where he sustained physical injuries. The incident was reported to the police and resulted in a charge against the Offender of assault with a weapon. The Offender was convicted of assault with a weapon.
DECISION
2The CICB approves the claim and awards the Applicant the sum of $5,000.00 for his pain and suffering and $30.00 for the costs to obtain hospital records 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.
4If 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.
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.
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: Inmate Incident Report; Accident/Injury Report; Misconduct Report; Notification of Right to Pursue/Decline Criminal Charges; Medical Temporary Absence Permit; and [Name] General Hospital emergency department records.
ANALYSIS AND DECISION
7For the following reasons the CICB grants the application.
8The applicant was an inmate at the [Name] Detention Centre. He was watching television with the Offender on [date], 2016 early in the morning. The Applicant had expressed concern to a guard about the Offender’s behaviour since the Offender had not been taking his medication for his mental health challenges. The guard advised him that it would be dealt with when the nurse came on duty later that morning. The Applicant went back to his bunk.
9The Offender expressed the desire to watch the news. The Applicant explained that there was no news on since it was the weekend. For no apparent reason, the Offender struck the Applicant on his head from behind with a ceramic or plastic coffee cup. The Offender quickly ran away. The applicant was brought to the [Name] General Hospital for treatment of a laceration to his head. He required eight stiches to close the wound.
10The Applicant declined to lay charges against the Offender. The Offender wished for charges to be laid against the Applicant. The Offender was eventually charged with assault with a weapon. He was convicted of that charge on [date], 2016.
11I accept the Applicant’s version of the events as set out in his Application because all of the information provided is corroborated by the Police information and the Hospital records. The attack was wholly unprovoked by the Offender according to the Applicant and the documentation provided. The records of the [Name] Detention Centre indicate that the Applicant did nothing to contribute to his injuries and confirm that he did not do anything to initiate the encounter.
12CICB finds the Applicant to be a victim within the meaning of subsection 5(a) of the Act as a result of the act of physical assault perpetrated by the Offender. I accept the Applicant’s description of the nature of his injuries. The extent of the injuries and cause of the injuries as outlined in the Application are consistent with the Hospital records. He claims that he had headaches and dizziness for a number of days after the incident, that he now grinds his teeth at night and that he is fearful of retaliation as he is considered a “rat” in inmate terms for pursuing charges against the Offender. He is now fearful for his safety in his home and is hyper vigilant about home security as other inmates threatened to “get him” for his perceived breach of the inmate code.
13The Applicant paid for the Hospital records which have been provided to CICB. He has forwarded the receipt for same and will be reimbursed for the $30.00 cost incurred in that regard.
14The CICB has considered the following factors in coming to its decision on the amount of the pain and suffering award:
The criminal actions of the Offender caused the injuries sustained;
The nature and extent of the injuries to the Applicant, which includes headaches and dizziness for a period of time, grinding of his teeth (albeit not confirmed by his dentist), a permanent scar, hypervigilance and fearfulness;
The injuries have interfered with the Applicant’s daily activities to the extent that he remains fearful and hypervigilant to this day, despite no longer being in the institutional setting any longer;
The initial reluctance of the Applicant to pursue a criminal charge against the Offender is understandable in the context of the potential danger he faced for retaliation, interfered in no way with the pursuit of a criminal prosecution against the Offender and, therefore, will not impact his award for pain and suffering; and,
The award is made from public funds.
AWARD
15The CICB orders payment as follows:
Section 7(1)(d) Pain and Suffering $5,000.00
Section 22 Costs $30.00
TOTAL AWARD (AND COSTS) $5,030.00
PAYMENT
16THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $5,030.00
DATED at Toronto, Ontario this 18^th^ day of December, 2017.
Kevin Cleghorn, Member