CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: James Graham
Indexed as: (Re) 1102-85166
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 compensation for funeral expenses incurred as a result of the death of the Victim, her seventeen year old son. On [date], 2010, the Victim was shot and died. The incident was reported to the Police and resulted in convictions of first degree murder for one of the Offenders and second degree murder for the other
Decision
2The CICB approves the claim and awards the Applicant the sum of $2,914.50 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 and that the Victim died as a result of the crime, the Applicant must provide reliable evidence to support her claims for expenses actually and reasonably incurred as a result of the Victim’s death pursuant to subsection 7(1)(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 if the relevant circumstances, including whether the Victim’s behaviour may have directly or indirectly contributed to the injuries/death pursuant to subsection 17(1) of the Act.
Hearing
5The Applicant failed to appear at the hearing, although duly served with notice of the hearing. The CICB determined that the hearing could proceed in her absence without unfairness to her given that the sole issue for determination appeared to be whether the Victim’s conduct contributed to his own death.
6The Police Officer that appeared as a witness was, at the time of the incident, a member of the homicide squad that investigated the killing.
7The Applicant had been advised of the content of subsections 17(1) and 17(3) of the Act by letter dated October 10, 2017 and in particular that the subsections read:
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(3) In assessing compensation, the Board shall take into consideration any benefit, compensation or indemnity paid or payable to the applicant from any source other than social assistance.
Documentary Evidence
8The CICB received the following documents with respect to the claim:
Police Report relating to the killing;
judgment of the Superior Court of Justice dated February 19, 2013 with respect to the conviction of the Offenders;
letter of support from Victim/Witness Services Program dated January 19, 2011;
Proof of Death dated [date], 2010; and
a receipt for payment dated [date], 2010 in the amount of $2,914.50.
9It is clear from the documentary evidence that the Victim, son of the Applicant, died from gunshot wounds on [date], 2010. Victim’s Services paid $5,000 of the cost of the funeral and the Applicant paid the balance, being $2,914.50. The judgment of the Superior Court found that the Offenders were the members of the Bloods, a local gang, and had the intention of killing a member another local gang. The Court did not find that the Victim was a member of any other gang.
Oral Evidence
10The Police Officer gave evidence at the hearing that the Victim had moved into the neighbourhood with his mother shortly before the incident. He had a criminal record and had been a member of a gang in his old neighbourhood. The new neighbourhood was occupied by two gangs. The Victim had been seen in the company of members and on the day of the shooting was wearing the colours of that gang but there is no evidence that the clothing was otherwise distinctly associated with that gang.
11On the day of the shooting, the police evidence was that the Victim left home with a friend to look for work. They were returning to the Victim’s home, and were within four houses of it when the Offenders, identified the Victim by name and then shot him to death. His friend was uninjured.
12The Police Officer said that the Victim had not been engaged in any gang activity on the day of his death, and that she had no evidence that he was a gang member.
Analysis and Decision
13The CICB finds, based on the documents before it, that the Applicant has spent the sum of $2,914.50 for the funeral of her son and that such expenditure was reasonable.
14The only evidence from which the CICB might infer that the Victim was a gang member is that he had been a member of another gang in the past, he had been seen in the company of gang members, that he was shot by members of a rival gang, and that he was wearing gang colours. It is not clear to the CICB, on the balance of probabilities, that the Victim was a gang member.
15In any event, membership in a gang is not in itself a crime and there is no evidence at all of gang related activity on the part of the Victim on the date of the killing. For those reasons, in assessing section 17(1) of the Act, the CICB finds that the Victim did not contribute, either directly or indirectly, to his death.
16In assessing section 17(3) of the Act, the CICB has taken into consideration the fact that Victim’s Services paid $5,000 of the cost of the funeral and the applicant paid the remaining $2,914.50. Therefore, the CICB will award the Applicant compensation in the amount of $2,914.50 for the remaining funeral expenses.
Award
17The CICB orders payment as follows:
Subsection 7(1)(a) Funeral expenses $2,914.50
TOTAL AWARD $2,914.50
Payment
18THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $2,914.50
DATED at Toronto this 4th day of April, 2018.
James Graham, Member