CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Louise Charette Date: December 07, 2018 Indexed as: (Re) 1709-02791
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, R.S.O. 1990, c. C.24, as amended (the “CVCA”). The Applicant is seeking compensation for pain and suffering, medical expenses and loss of wages as a result of an assault that occurred on [date] 2016 for which he alleges he sustained physical and psychological injuries. The incident was reported to the police and resulted in a conviction.
Issues
2The onus is on the Applicant to prove, on a balance of probabilities, that he was a victim of a crime of violence and that he suffered an injury as a result. The CICB must then determine whether there are any issues with respect to sections 17(1) and 17(2) of the CVCA that would affect the award of compensation in this case.
3The Applicant must also provide reliable evidence to support his claims for:
expenses actually and reasonably incurred as a result of his injury pursuant to subsection 7(1)(a) of the CVCA
income or pecuniary loss incurred as a result of his total or partial disability affecting his capacity for work pursuant to subsection 7(1)(b) of the CVCA.
Documentary Evidence
4The CICB received the following documents with respect to the claim: application, police synopsis and supplementary reports (including witness statements), [city] and district hospital records, ambulance call report, [city] and district family health team records, letter from surgeon, employer’s report and pay stubs/payroll earnings.
Decision
5The CICB denies the claim for the reasons set out below.
Hearing
6The electronic hearing took place on November 2nd 2018. The Applicant provided testimony over the phone from a correctional facility. At the beginning of the hearing, the CICB confirmed that the Applicant was advised of subsection 17(1) and 17(2) of the CVCA and that he was aware the CICB would consider those parts of the CVCA when deciding the application. These 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.
7The Applicant confirmed that he understood the meaning of the above sections and, after having been offered an adjournment and an opportunity to consult counsel, the Applicant indicated that he did not wish to adjourn the matter and was prepared to proceed with the Hearing as scheduled.
Applicant’s Testimony regarding the crime of violence
8The Applicant testified that prior to the incident, there had been altercations between him and the offender due to the fact that he had been involved with the offender’s ex-girlfriend. The Applicant stated that the two had never really had issues until he started dating her.
9The Applicant testified that on the day of the assault he had attended a bar earlier in the day where he saw the offender. He recalled that at some point he went outside to have a cigarette and noted that the offender followed him outside. He advised the CICB that the offender then approached him, wanting to fight. The Applicant testified that the two then engaged in a consensual fight but he considered the offender to be the main aggressor. The Applicant notes the offender threw the first punch hitting him in the face and as a result he hit back. According to the Applicant, both were able to walk away without injuries. Following the altercation, they went separate ways and the Applicant believed that the conflict between the two had been resolved.
10The Applicant testified that several hours later, he attended a friend’s residence where he was assaulted by the offender. He recalled that as he was approaching the location, the offender was leaving. He tried shaking his hand but the offender slapped it and told him off. As a result, he went inside and had a few drinks. He stated that as he was leaving he noticed the offender outside, around the corner, holding what he believed to be a weapon. He noted that the offender hit him in the head with a bar or board and then punched him. He recalled being able to get his arm up and grab the object. As a result, the Applicant pulled him in and they ended up wrestling on the ground. At some point during the assault, the offender pulled out a knife and stabbed him several times. The Applicant says he was eventually able to push him off and continued hitting him to defend himself.
Testimony of the investigative officer
11The detective confirmed the offender was charged with aggravated assault in connection with the assault. The offender provided a statement to police and the information he provided was very different from the Applicant’s. According to her, the offender’s testimony had major contradictions and the story he told police about finding the knife on the ground was simply not believable. Although she was not sure who had started the fight, she believed the Applicant’s version based on the fact that he was consistent and also based on the evidence she had at the time. In light of his credibility issues and of his admission to stabbing the Applicant, charges were laid against the offender. The offender pled guilty to assault with a weapon.
Evidence regarding injuries
12The Applicant writes in his application that for approximately one month after the incident, he was unable to flex his foot and move his toes. He noted that to this day he still experienced pain and that he has been unable to work. As a result, he became depressed, angry and withdrawn and suffered from anxiety.
13At the hearing, the Applicant noted that two of the stab wounds required stitches, one in the upper thigh and the other he could not remember where. He stated that he also sustained other cuts on his leg and as a result of the lacerations, he has scarring. The Applicant recalled attending the hospital during the evening and being released the next day, roughly 12 hours after admission.
14The Applicant also notes that as a result of the assault he started drinking and lost his employment. He recalled that he could hardly walk for one month as it was too difficult to put pressure on his leg. He maintains that to this day he experiences pain in his leg. He also reported nerve damage however no medical information is available to support this statement.
15The detective testified that as a result of the assault, the Applicant suffered a stab wound to his thigh and one to his calf. There were also small puncture wounds and scratches. She stated that as a result of the injury to his thigh the Applicant had difficulty walking and that he required medical intervention.
Section 17 issues
16The Applicant advised the CICB that when the police arrived on scene he lied to them because he did not want people to think he was a “rat”. He noted however that he later fully cooperated with them.
17The detective confirmed that the Applicant originally lied to police about what had happened but she found this to be common when a lot of people are involved as some individuals don’t want to be labelled as snitches. She noted that the Applicant did provide a statement and was considered cooperative during the investigation. With respect to the issue of the Applicant contributing to his injuries, she stated she could not say or comment as she had no evidence either way.
Applicant’s Criminal Record
18The Applicant testified that his criminal record dates back to a first entry as a youth, when he was twelve years old. He indicated that his last adult criminal conviction dates back several months, in 2018. He reported having a total of eleven convictions on file and that these criminal convictions extend over a period of approximately 11 years. The Applicant admitted to having been convicted of the following crimes: Break and enter on two occasions, unlawfully in a dwelling, throwing an explosive device at a residence, impaired driving and refusing to provide a breath sample, weapons charges (in possession of a baton), assaults, resist police officer, mischief, at least five convictions for domestic violence involving different victims, numerous conviction of failing to comply with court orders including breaches of probation for contacting victims and failing to keep the peace and be of good behaviour.
19As noted, his most recent conviction occurred in 2018 and was related to domestic violence. At the time of the hearing, he was serving a ten-month sentence for assault causing bodily harm on his partner. It should be noted that this is the same type of crime of violence he now seeks compensation for but this time as a victim, not the offender. No information was provided on if he currently has any outstanding warrants or charges pending but he confirmed that he was eligible for release from custody in January of 2019. It appeared from his testimony that he has very limited insight into his own behaviour.
20The detective also testified in respect to the Applicant’s criminal record. She stated that she has known the Applicant for a number of years, in fact, for most of his life. She confirmed he has a history of violence and that he has over eleven convictions on his criminal record dating back to 2008. She testified that the first conviction entered for violence is in 2011 and the last being the most recent one. She confirmed that half of the convictions on file are related to domestic violence. Other violence on his record includes resisting arrest and assault with a weapon.
21The detective also confirmed the Applicant has convictions for the following weapons related charges; possession of an explosive substance, clarifying that this was as a result of him throwing a “cocktail” at a residence. It was also noted that he was charged for being in possession of a weapon, a baton belonging to an RCMP officer, however this charge was withdrawn as a result of a plea deal. She further stated that the Applicant was convicted of a home invasion at the age of eighteen and that he has two convictions for Break and Enter on his record.
22It was further reported that the Applicant has the following conviction related to driving offences; flight from police, impaired driving and failure to provide a breath sample. In addition, he has a convictions for the following offences; mischief, possession of a schedule 1 substance, unlawfully in a dwelling and failing to comply with court orders. According to the detective, the Applicant is usually cooperative with police. It should be noted however that he does have a conviction for resist arrest and flight from police and the Applicant also testified that police had to Taser him on one occasion.
23The Applicant’s criminal record also reveals two life time weapons prohibitions. The detective confirmed that the Applicant was currently incarcerated for assault causing bodily harm and threats within a domestic context for which he had been sentenced to ten months incarceration.
Medical records
24The ambulance call report notes two lacerations to the left leg however it was too difficult for the paramedic to determine how deep the lacerations were, but both were said to be into the muscular layer. It also notes that the Applicant was able to feel and move his foot and toes, that his pulse was intact and the cap refill was normal.
25The hospital records confirm the Applicant attended the emergency department on [date] 2016. Staff noted that the patient was alert but he was intoxicated and unreliable about following commands. The following injuries were noted; 3 lacerations to left leg, 2 cm wound to mid left thigh with small scratch beside it and one cm laceration to lateral calf. Some swelling was observed around the wound but bleeding was controlled. It was noted that there was good pedal pulse, good cap refill and that the Applicant was able to move his toes even though he did complain about some numbness. The critical care notes confirm the Applicant was assessed, the wound was cleaned and that the physician sutured the anterior thigh and left lateral calf wounds.
26The assessment information indicates the Applicant’s left leg was considered well-perfused. His pulses were found to be adequate and there was adequate perfusion of the foot and leg with good capillary refill. The doctor described the Applicant’s injury as a superficial wound but did note that he was reporting numbness in the leg and inability to flex his left foot. He was however able to extend and flex and mobilize all the toes. As a result, it was recommended that he continue with antibiotic therapy and pain management and that there should be follow up to assess the symptoms. It was noted that there did not appear to be any vascular injury.
27The CICB also reviewed a letter prepared by the general surgery physician dated [date] 2016. It confirmed that the Applicant was seen in clinics and that the wounds were healing well, that there was still edema in the area of trauma but no signs of infection. He was able to flex and extend as well as rotate and prone his foot at the ankle level and he was able to flex and extend all toes. It was noted that no further interventions were required at that time and that there was a plan for stitches removal in fifteen days and follow up in clinics in two weeks.
28The Applicant attended the emergency department again on [date] 2016, five days after the incident. The nurse assessment indicates that the Applicant attended for wound check as he was noting that the wound was continuing to ooze and that his foot was very swollen. No additional information was provided with respect to his injuries or follow up.
Analysis and Decision
29A conviction may be taken as conclusive evidence that an offence has been committed pursuant to section 11 of the CVCA. 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 of violence pursuant to subsection 5(a) of the CVCA.
30The CICB has considered the medical documentation on file and finds that the Applicant suffered the following physical injuries as a result of the crime of violence; lacerations to his left leg requiring stitching. Although no therapy report was provided, the CICB accepted the Applicant testimony that he also suffered some psychological injuries as he described feeling depressed, angry and withdrawn following the incident and that he experienced some anxiety. Therefore, having considered all of the evidence before it, the CICB finds the Applicant to be a victim pursuant to section 5(a) of the CVCA.
Section 17 Issues
31As is the case with all applications that come before it, once it determines that the Applicant is a victim of a crime of violence under the CVCA, the CICB is required to consider the provisions of section 17(1) of the CVCA, which states:
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.
32Section 17(1) requires that the CICB take into consideration “all relevant circumstances”. The CVCA gives the CICB broad discretion to determine whether compensation ought to be awarded in any given case and, if so, the amount. The awards from the CICB are not paid from the wrongdoer as would be the case if an Applicant pursued compensation through a civil action, they are paid using public funds. In this context, the CICB has considered the Applicant’s criminal history for violent crimes including, but not limited to: Break and enter, unlawfully in dwelling, resist police, weapons charges, domestic assault, threats and assault causing bodily harm. The Applicant has a criminal record which dates back to when he was a youth. In addition, his most recent conviction in 2018 is for a violent crime against his spouse. The Applicant is currently serving a ten-month sentence for this conviction.
33The CICB’s right to also consider an Applicant's criminal behaviour when deciding entitlement to compensation has been upheld by the Ontario Divisional Court in Sweet v. Ontario (Attorney-General), 2011 ONSC 2650 (Div. Ct.). In this decision, the Courts have said that the requirements of 17(1) does not in any way limit the meaning of “all relevant circumstances”. In following the broader instructions of the Court, the CICB therefore finds that it is not limited to considering only circumstances related to the incident but also any convictions for crimes of violence committed by the Applicant. In addition the Higher court in its decision states in para 35:
Furthermore, the case law supports the proposition that it is relevant circumstances to consider that the awards, when granted, are made from public funds and that the function of the legislation is not to assess civil liabilities for damages. These are circumstances which are relevant and yet do not relate to the injury itself.
34The CICB considers the criminal court convictions as evidence of the Applicant’s victimization of others on numerous occasions. In the CICB’s view, the fact that the Applicant, who has been convicted of victimizing others through crimes of violence now seeks award for pain and suffering is a “relevant circumstance” for the purposes of his request.
35It should be noted that 17(2) issues were not found to apply in this case as the Applicant fully cooperated with the police.
Consideration of Proportionality
36In this context, the CICB has also considered the proportionality of the injury in determining whether to refuse or reduce an award. The CICB must also weigh the proportionality of the injury with the circumstances that it has found to be relevant. The CICB has considered the nature of the Applicant’s injury against a number of other relevant factors such as the Applicant’s extensive criminal history and current involvement in the criminal justice system. The main physical injuries noted by the offender were two stab wounds requiring stitching and residual pain. He also noted psychological injuries.
37Notwithstanding the emotional impact and the physical injuries suffered by the Applicant, the CICB has considered the ‘relevant circumstances’ of the Applicant’s history of extensive convictions for violent crimes and finds that they outweigh the Applicant’s injuries.
38On the totality of the information before it, including the information concerning the Applicant’s history of victimization of others, the CICB does not consider the provision of compensation to the Applicant out of public funds for a pain and suffering award to be reasonable under the CVCA. The CICB therefore denies the Applicant’s claim for damages for pain and suffering.
39In light of the above analysis under section 17, there is no compensation available to the Applicant for loss of income and expenses. Even if it were reasonable to award compensation despite section 17, the Applicant would not be eligible for such as he has not provided supporting documents required. The CICB also denies this part of the Applicant’s claim.
Dated at Toronto on this 7th day of December, 2018
Louise Charette, Member