Re 1706-01728, 2017 ONCICB 373

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Kevin Cleghorn
Date: December 18, 2017
Indexed as: (Re) 1706-01728

ORDER

INTRODUCTION

1The Applicant, on behalf of the victim, 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 Public Guardian and Trustee (the “PGT”) is the statutory guardian of property for the victim and is empowered to deal with his financial and related legal affairs. The Applicant is seeking a pain and suffering award for the victim as a result of a physical assault that the victim experienced on [date], 2015 where he sustained physical injuries. The incident was reported to the police and resulted in charges against the Alleged Offender of aggravated assault and assault with a weapon. The charges were withdrawn once the Alleged Offender entered into a peace bond in the matter.

DECISION

2The CICB allows the claim and awards the victim the sum of $25,000.00 for his pain and suffering for the reasons set out below.

ISSUES

3The absence of a conviction does not mean that the CICB is precluded from making an order of 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 the victim 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.

4If the Applicant meets this threshold then, in deciding whether or not to exercise my discretion to award compensation and the amount thereof, I must consider:

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

b. whether the victim 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 victim 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 Application.

Documentary Evidence

6The CICB received the following documents with respect to the claim: Information of the [Name] Police Service; Statement of Claim filed on behalf of the victim in the Superior Court of Ontario; Occurrence Details Report of the [Name] Police Service; Witness Statements […]; Ambulance Call Report; Emergency Department Records of [Name] General Hospital; and Records of [Name] Hospital.

ANALYSIS AND DECISION

7For the following reasons the CICB grants the Application.

8The Applicant was [age] at the time of the incident. He remembers little about the incident. The facts and circumstances are largely known as a result of the Police investigation and the victim’s minimal recollections as expressed to the Police and Hospital personnel at the time.

9The Alleged Offender is the victim’s nephew. On [date], 2015, the victim and the Alleged Offender engaged in some type of argument about the victim’s motorcycle. The victim received a horrific beating at the hands of the Alleged Offender. The victim believes he was hit on the head with a board or brick and that he was in a coma for four months.

10The Police investigation resulted in discovery of a bamboo stick with the victim’s blood on it. The Alleged Offender informed police that the victim had been assaulted and robbed by multiple strangers. The Police investigation revealed that the story told by the Alleged Offender was a complete concoction and that he had dragged the victim back to his apartment. The Alleged Offender was barred from being near the victim immediately after the incident due to threats made to further harm the victim if he advised the authorities of what had really happened.

11The Alleged Offender was charged with aggravated assault and assault with a weapon. The charges were withdrawn once he entered into a peace bond to stay away from the victim. There is no indication in the materials reviewed as to why that was the eventual outcome of the criminal proceeding. The victim, however, was diagnosed with acquired brain injury after the incident. I accept and find that the pursuit of convictions on the charges laid was likely impossible in light of the state of the victim. His memory and ability to live independently have been permanently impaired.

12The injuries to the victim have been catastrophic in nature. He had been diagnosed prior to the incident with a bi-polar disorder but was living independently. He enjoyed an active social life and enjoyed riding his motorcycle. Subsequent to the incident, he has been institutionalized in hospital settings. His immediate physical injuries were several broken teeth, two black eyes, orbital and cheek bone fractures, bruises and stomp marks all over his body and a serious concussion. With time, it became apparent that he has a permanent cognitive impairment, demonstrates symptoms of mania and depression, is incapable of managing his own personal and financial affairs and requires constant care and assistance. He is unlikely to ever leave an institutional setting. I accept the Applicant’s version of the events as set out in the Application because all of the information provided is corroborated by the Police information and the Hospital records. There is nothing to suggest that the victim did anything to contribute to his injuries or to provoke the assault in any manner whatsoever.

13The CICB finds the victim 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 Alleged Offender. I am satisfied, on a balance of probabilities, not only that the victim 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. I find that the authorities made a pragmatic decision not to pursue the charges against the Alleged Offender on the basis of the state of the victim and that the Crown’s case was dependent on the strength of the victim as the primary witness of what had occurred. The extent of the injuries and cause of the injuries as outlined in the Application are consistent with the Hospital records. The victim was, and remains, fearful of retaliation by the Alleged Offender.

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 Alleged Offender caused the injuries sustained;

• The nature and extent of the injuries to the victim, which included several broken teeth, two black eyes, orbital and cheek bone fractures, bruises and stomp marks all over his body, a serious concussion, permanent cognitive impairment, symptoms of mania and depression and an acquired brain injury;

• The injuries have interfered with the victim’s daily activities to a dramatic extent in that he has lost his independence completely and requires full time care and treatment;

• There is no doubt that the victim experienced a total change in his life and lifestyle as a consequence of the crime of violence perpetrated by the alleged offender ;

• The age and vulnerability of the victim; and

• The award is made from public funds.

AWARD

15The CICB orders payment as follows:

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

TOTAL AWARD (AND COSTS) $25,000.00

PAYMENT

16THE CICB ORDERS that the following sums be paid forthwith to:

Office of the Public Guardian and Trustee in trust $25,000.00