Re 1605-03376, 2017 ONCICB 49

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Jo-Anne Hughes

Date: March 06, 2017

Indexed as: (Re) 1605-03376

ORDER

Introduction

1In this case, the Applicant claimed he was shot in the back of his head and leg by the Alleged Offender while he was outside of a club.

2In this case, the CICB is required to determine whether a crime of violence has occurred as per section 5(a) of the Act, what injury, if any, rose from it, and the relevant circumstances affecting whether or not compensation should be awarded and if so, the amount.

Evidence

Incident

3In his [date] 2016 submission to the CICB, the Applicant did not describe the incident. Instead, the CICB will quote from an alert published by the Police which read in part as:

Police were called shortly before 3:00 a.m. outside of the club. A man [the Applicant] was rushed to hospital in critical condition after being shot multiple times in the head and leg.

Police Report

4The CICB received a Report from the Police in support of the Applicant’s claim. Police confirmed the Applicant was standing outside of the bar when he was shot in the back of his head.

5As a result of their investigation, Police charged the Alleged Offender with Attempt Murder, Discharging a Firearm with Intent, Aggravated Assault and several other firearm offences. The CICB received an update from the courts as a result of a hearing on [date], 2016. The Alleged Offender was found not guilty on all counts. The Applicant’s mother called the Board to confirm that all charges against the Alleged Offender were dismissed due to an “error by police” as they used information (fingerprints) obtained when the Alleged Offender was a young offender, to determine his identity. The Court ruled the use of this information as inadmissible in this case, so the Judge found that the Alleged Offender was not guilty.

Injuries

6The CICB also received an undated letter from the Applicant’s mother along with photos of her son, whom she described as a university student, a [accomplished athlete], loving father, son and brother who was active in the community and worked part-time with children. She wrote that her heart aches to recall who he was and that as a result of this incident, he will never be the same again.

7In a [date] 2015 phone call with the CICB, the Applicant’s mother described the nature of her son's injuries and advised that her son suffered profound physical injuries to his brain and would require extensive rehabilitation to both his cognitive and physical functions over the short and medium term.

8The Applicant’s mother sent a terse statement which the Applicant prepared to describe his injuries. She noted that as a result of this incident, the Applicant’s on-going communication impairment provides

… a significant challenge for him to recall words and spellings and know how to put words in the correct order to form sentences. Despite this difficulty, [the Applicant] typed his personal statement using the Notes app on his i-Pad and it is presented here unedited. He stated he wrote it in pieces over two days and it took him, in total, six hours to complete.

Details of Injury

• shot 2 times; left in a brain and left in a leg

• memory not right; brain flat missing

• speech 75% missing

• 20% memories missing

• frustrating and angry;

• Son is not the same because he is taking and running and not talking all the time.

• Ex-partner is crushed and devastating ... When you realize you want to spend the rest of your life with somebody, “again u-turn .... I'm emotional, I'm so embarrassing.... Make you cry ... it's hurt so bad.”

9The Applicant also provided his CV which showed that he was a [sport] Champion, a university student, he volunteered with local youth groups and he worked in Community Facilitation in 2013 and 2014.

10The Applicant’s mother wrote a letter of support, dated January 2017, in which she noted that on the night of the incident, the Applicant was the designated driver for his brother and some friends. The Alleged Offender shot into the crowd where the Applicant was standing, he was injured and his life was changed forever. Doctors first said there was “no hope” for the Applicant and after surgery they said he would never walk. The family held a vigil at the Applicant’s bedside and that was the beginning of his long and still on-going recovery process.

11The Applicant’s son was initially afraid to see the Applicant because half of his skull was missing. The Applicant is ashamed and embarrassed that he cannot function the same as he used to. The Applicant had several surgeries to begin his healing and his mother believes he will likely need to have surgeries in the future as things develop. The Applicant has been able to return to part-time work in significantly modified duties, three part-days per week. The Applicant is also on ODSP and is not expected to be able to return to full-time work as his comprehension abilities are mixed and his communication skills are poor. He will never be able to drive again and he needs supervision to go out anywhere. The Applicant cannot take care of his four year old son or be alone with him.

12The CICB also received letters of support from the Applicant’s aunt, sister-in-law, two sisters, an uncle and his former high-school coach.

13The CICB received a letter of support from a Social Worker who noted that following his traumatic brain injury, the Applicant received Occupational Therapy, Physiotherapy, Speech Therapy and Social Counselling services. The writer noted that as a result of this incident, the Applicant has “… difficulties with mobility, fatigue, endurance, cognitive difficulties, and communication issues and requires assistance with activities of daily living.” Also, “Emotionally, the Applicant acknowledges periods of sadness, anger and frustration. The impact of this injury is profound and impacts all aspects of his young life.” Although the Applicant has been able to return to work with significant modifications, he is only able to work 12 hours per week. The impact of this injury is long term and will have lasting effects on all aspects of the Applicant’s life. The Applicant struggles with talking, reading, writing and caring for his son. His altered self-image prevents him from participating in social activities outside of his family; and as a result, [the Applicant] is becoming more socially isolated.

Medical Reports

14The CICB received over 150 pages of Medical Reports in support of the Applicant’s claim. These Reports confirmed that the Applicant was shot in the back of the head and left leg. He was immediately brought into the Hospital trauma unit and lodged in the ICU with intubation for two weeks following emergency head/brain surgery. On admission to the Hospital, the Applicant was diagnosed with:

Gunshot wound to the brain, left side and gunshot wound to the left leg. Severe, traumatic brain injury, hemiplegia, and an injury severity score greater than 16 and open comminuted depressed skull fracture.

His surgery included a craniotomy and craniotomy, resection of skull fragments, evacuation of subdural hematoma, removal of bullet fragments and duraplasty. He was discharged from the Hospital almost two months later with five medications and he was placed in the care of the Hospital Brain Injury Unit.

15A report, dated [date] 2015, reported that the Applicant was in acute care from [date], 2014 to [date], 2015. Then, he was an inpatient in the Neuro Rehab program until [date] 2015, when he was discharged to the care of his mother and brother and he continued as an out-patient. As a result of this incident, the Applicant “sustained significant physical, cognitive and communication deficits.” He has weakness and motor control difficulties and sensation on his right side which has had a significant impact on his ability to use his right arm/hand and right leg/foot. Cognitively, the Applicant “has difficulties with problem solving, planning and memory. He requires more time and assistance to perform daily living activities.” On a communication level, the Applicant also has “expressive language impairments and more difficulty understanding information, writing and reading.” In summary, "the injury has left [the Applicant] with significant challenges and it is unknown how fully he will be able to resume his social roles in the future.”

16An undated Therapy Summary reported that the Applicant was re-admitted to hospital for a cranioplasty. Complications required an ICU admission, the installation of a ventriculoperitoneal shunt and finally medical clearance from Neurosurgeon Dr. [Name] to continue therapy on [date], 2016. Here is a summary of the Applicant’s capabilities:

• Self-Care: The Applicant can get dressed and shower independently using only his left hand as he continues to have limited functional use of his right arm and hand.

• Home: The Applicant is able to cook on his own but requires assistance with cleaning, shopping and managing money.

• Community: The Applicant requires assistance with transportation.

• Overall, with intensive physiotherapy, the Applicant is expected to make slow gains in his indoor and community mobility. It is unlikely that he will return to his premorbid, high-level physical abilities.

• Comprehension/Input: The Applicant has mild-moderate difficulty understanding speech – good understanding of familiar topics, more difficulty with faster speakers, changing topics, complex grammar, passive vs. active and much more difficulty recalling sentences with more than five words or numbers with more than three digits.

• Expression/Output: The Applicant has moderate-severe issues producing speech – significant difficulty expressing himself verbally due to language (cognitive) impairment and motor (muscle) speech impairment which requires the listener to infer or guess what the Applicant is speaking about. Several attempts are required to communicate messages verbally.

Expenses

17In his submission to the CICB, the Applicant claimed he was off work from the date of the incident until the present (April 2016) and as a result, he lost $24,969.06 in income. Also, the Applicant wrote that he currently receives CPP Disability and ODSP but he did not specify the amounts of either benefit payment.

18Although the CICB received a report from the Applicant’s Employer, after a telephone conversation with the CICB, the Applicant decided to abandon his Loss of Income claim as he did not want a Loss of Income payment to interfere with the ODSP payments he was receiving.

Analysis and Decision

19The fact that there has not been a conviction is not fatal to the Applicant’s claim. Section 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 or death.

20Considering reports from Police and the Courts, the CICB finds the Applicant, on a balance of probabilities, to be a victim of a crime of Assault with a Weapon, and therefore, a victim within the meaning of section 5(a) of the Act.

21In assessing compensation for pain and suffering, the CICB has considered the nature of this incident and how it affected the Applicant. In this case, the [age] year old Applicant was shot in the head and leg, which caused a significant brain injury and nearly cost him his life. The Applicant was hospitalized for two months, then re-housed into a convalescent hospital for another three months and then enrolled in out-patient programs for several months to help him cope with his significant brain injury. As a result of this incident, the Applicant has significant difficulties with "mobility, fatigue, endurance, cognitive difficulties, and communication issues and requires assistance with activities of daily living.” Also, “Emotionally, [the Applicant] acknowledges periods of sadness, anger and frustration. The impact of this injury is profound and impacts all aspects of his young life".

22The Applicant’s claim was supported with reports from Police, the Courts, a Hospital, Counselors, several family members and friends. Considering this evidence and the submissions by the Applicant, the CICB assesses this award at $25,000.00.

23As noted above, the Applicant abandoned his claim for Loss of Income, so that aspect of his claim will not be considered by the CICB.

Award

24The CICB orders payment as follows:

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

TOTAL AWARD $25,000.00

25The CICB recognizes that no amount of money can adequately compensate victims for the injustice they have suffered but also finds the amount of the award to be reasonable within the context of the Act.

Payment

26THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $25,000.00