CRIMINAL INJURIES COMPENSATION BOARD
Adjudicators: James Graham
Pamela Arnott
Indexed as: (Re) 1506-99327
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 pain and suffering as a result of physical assaults that occurred on [date], 2014 and [date], 2014 where he sustained physical and psychological injuries. The incidents were not reported to the Police.
DECISION
2The CICB approves the claim and awards the Applicant the sum of $2,000.00 for the reasons set out below.
ISSUES
3The absence of a conviction does not mean that the CICB is precluded from making an order 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 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.
4If the Applicant has met the above threshold, in deciding whether or not to exercise the CICB’s discretion to award compensation and the amount thereof, the CICB 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; and
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.
HEARING
5The Applicant appeared and provided oral testimony and submissions.
6At the beginning of the hearing, the CICB confirmed that the Applicant was aware of subsections 17(1) and 17(2) of the Act and that the CICB would consider those parts of the Act 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.
Documentary Evidence
7The CICB received the following documents with respect to the claim:
The Application,
[Name] Detention Centre reports with respect to both occurrences, and
[Name] Health Centre records.
8In his Application, the Applicant stated that while in custody at the [Name] Detention Centre, he was attacked on two occasions by fellow inmates, and on both occasions was stabbed with a knife, on [date], 2014 in the right arm and in the neck and on [date], 2014 in the head. These attacks are confirmed in the [Name] Detention Centre records. There is no indication that the Applicant initiated or provoked the assaults.
9The Application states that the Applicant has nightmares, he wakes up at night from his injuries, has PTSD and anxiety attacks because of the stabbings and that he sees a therapist once a month. His trust is at an all-time low and his concern for his safety is the highest it has ever been.
10The Applicant was not hospitalized for injuries received on [first date] but was taken to [Name] Health Centre as a result of the stab wound to the head on [second date].
Oral Evidence
11The Applicant testified that he was taken into the washroom at the Detention Centre on each occasion and was stabbed by a number of people. He says that he has no idea why the attacks occurred. He complains that the security staff did little to protect him from injury in either case. He indicated that he did not provide the names or other identifying information about the assailants – in part because he didn’t know much, in part because he was afraid of the consequences for his safety amongst the prison population.
12The Applicant states that the injuries took a week or two to heal during which time he suffered migraines. He claims that he still experiences discomfort from the stab wound in the arm.
13He says that he was counselled while in custody by a Dr. [Name], but he has been unable to secure a report from Dr. [Name]. Attempts made by the CICB were also unsuccessful.
14The Applicant has a past record which includes convictions for assault and assault with a weapon but no charges since [year] except for the matters for which he was being held in custody in 2014. He states that he pleaded guilty to assault with respect to those charges but denies that he was in fact guilty.
15The Applicant is no longer suffering from nightmares. His continuing problem is lack of trust which he attributes to his belief that he was not properly protected by the prison staff. He continues to feel abused by the system.
ANALYSIS AND DECISION
16The CICB is satisfied on the evidence before it that the Applicant was the victim of two crimes of violence on [date], 2014 and [date], 2014. The Applicant’s version of events and resulting injuries are consistent with the Detention Centre records as well as the medical documentation on file.
17Next the CICB has considered section 17(1) of the Act. The CICB finds that there is no evidence to suggest that the Applicant initiated the specific attacks against him while in custody at the [Name] Detention Centre on [date] and [date]. However, the CICB finds that it is a relevant circumstance that the Applicant was in custody at the time of this incident as the result of a crime of violence to which he later pleaded guilty. Given the fact that his own act of violence is the reason he was in the [Name] Detention Centre and exposed him to the violence of which he now complains, the CICB believes that it is appropriate pursuant to subparagraph 17(1) of the Act to reduce compensation.
18The CICB has also considered subparagraph 17(2) of the Act and makes no finding that compensation should be refused or reduced pursuant to it.
19The CICB finds that although the attacks on the Applicant must have been frightening for him, the physical injuries were minor and have since healed. The CICB does not find that the Applicant is suffering from symptoms of PTSD resulting from the assaults. The other emotional injuries such as the nightmares appear to have subsided as well. The Applicant’s remaining issue seems more related to his perception of mistreatment at the hands of the prison security force than to the assaults by other inmates.
20The CICB finds the Applicant to be a victim within the meaning of subsection 5(a) of the Act as a result of the two acts of physical assault that occurred over a period of several days and were committed by the two alleged offenders and others. The Applicant’s case was presented in such a way that there is evidence before the CICB in the Applicant’s oral testimony and in the documentary evidence which establishes a separate physical injury for each occurrence. However, it is impossible for the CICB to establish exactly what psychological injuries resulted from each occurrence and certainly the evidence suggested that the emotional and psychological impact of the violence was cumulative over time. Therefore, the CICB accepts that there was more than one occurrence, but for the reasons set out herein, will make a global assessment of $2,000.00 for pain and suffering, taking into account the cumulative effect of all the occurrences on the Applicant and the applicability of subsection 17(1) of the Act.
AWARD
21The CICB orders payment as follows:
Subsection 7(1)(d) Pain and Suffering $2,000.00
TOTAL CURRENT AWARD $2,000.00
PAYMENT
22THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $2,000.00
DATED at Toronto this 31st day of December, 2017.
James Graham, Member
Pamela Arnott, Member