CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Christine McGoey Veda Rangan
Indexed as: (Re) 1609-04782
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. 24, as amended (the “Act”). The Applicant is seeking compensation for pain and suffering, loss of income, and medical expenses relating to an alleged assault on [date], 2013, and alleged criminal harassment relating to a conspiracy to murder him as a result of a lawsuit commenced by him.
2At a prehearing conference on February 2, 2018, the Applicant sought to have summonses issued to three police witnesses from the [Police] detachment in [place] and a fourth witness from the [Police]. According to the resulting ruling only one of the four proposed witnesses was actually involved in the investigation. The other officers listed were individuals whom the Applicant had spoken with on the telephone. The Panel granted the summons for a single officer and denied the request for the other proposed witnesses on this basis. The CICB had intended to summons a different police witness to the hearing as he was the officer dispatched to investigate the first complaint by the Applicant about suspicious vehicles/persons on [date], 2016.
3The Panel granted the Applicant’s request to amend his Application to include an alleged assault on him on [incident date], 2013 (while that date is mentioned in some of the filed materials, the Medical Records suggest the Applicant was admitted to Hospital on [date], 2013).
Decision
4The CICB denies the Applicant’s claim for compensation for the reasons set out below.
Issues
5At the outset of the hearing the Applicant confirmed that compensation was being sought arising from an incident where he believes he was assaulted by an individual wielding a golf club and criminal harassment relating to an allegation that he is the target of a conspiracy to commit murder.
6The 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.
7The Applicant must provide reliable evidence to support his claims for pecuniary losses resulting from his injury and any other reasonable expense that, in the opinion of the CICB, was or is reasonable to incur.
8The Applicant was advised of section 17(2) of the Act, which provides that the CICB may refuse compensation or order a reduced amount of compensation if the Applicant failed to promptly report the offence to a law enforcement agency.
Documentary Evidence
9The CICB materials received with respect to the claim include the following: police reports and notes relating to incidents beginning on [date], 2016 relating to suspicious persons and/or vehicles near the Applicant’s home from the [Name] Police; police reports relating to an alleged assault in [incident date] 2013, reported on [date], 2016; medical records relating to the Applicant; photographs and emails from the Applicant; a Statement of Claim issued on January 14, 2015 relating to the injuries suffered as a result of an assault on [incident date], 2013 (sic), while the Applicant was at an establishment; a Statement of Defence and Cross Claim filed on behalf of respondents; Canada Revenue records relating to tax returns for the Applicant for the years 2009-2016; receipts for chiropractic treatment; and correspondence between the Applicant and the CICB.
10The Statement of Claim lists the Applicant as the Plaintiff and John Doe and the establishments Defendants. It alleges an assault by a John Doe on April 3, 2013 which caused the Plaintiff to fall and sustain serious and permanent injuries. The injuries listed include a broken tibia, fibula and ankle, bruising, swelling and scarring to his face, headaches, dizziness, nausea, anxiety, nervousness, insomnia and depression result in permanent impairment of his ability to work.
Oral Hearing
11The Applicant participated throughout the hearing and provided oral testimony and submissions. The Applicant’s two brothers also attended the hearing to provide support. Two Officers also provided testimony at the hearing.
Testimony of Police Witnesses
12Constable [Name] has been a police officer with the [name] since 2009. On [date], 2016 he testified that the Applicant came to the detachment and reported that a suspicious vehicle had been parked outside his residence for about five minutes that morning. According to the Applicant, who was watching from inside his home, the male occupant of the black Kia got out of the vehicle, smoked a cigarette, disposed of the butt in a nearby manhole and spoke on his phone before he left in the vehicle. The Applicant was concerned that this individual was linked to organized crime (Italian) and his presence related to an assault where his leg was broken at a club. He did not provide names of suspected individuals.
13The Applicant provided the Constable with photographs of the car and the male person beside it, but the full plate was not visible. The Constable asked the Applicant to keep police informed of any suspicious vehicles and arranged for patrols in the area. The Applicant provided more photographs from a neighbour. The Constable attended his home. Plate numbers apparently on [date] and on [date] were provided. There wasn’t information on the latter plate. According to the Constable, the Applicant lives on a busy residential street which serves as an entry point for other neighbourhoods.
The Constable searched the police database for calls from the Applicant to the [Police] in preparation for his testimony before the CICB and gave evidence as to the following reports by the Applicant following their initial contact on [date], 2016:
A call by the Applicant about a yellow Mustang on [date], 2016. The plate was checked. The car belonged to a neighbour.
On [date], 2017 the Applicant left a message about a number of vehicles at a nearby address which he had seen on his street. The Constable was not working that day. On [date] the Constable testified he searched records relating to the address and checked plates and nothing suggested further investigation was required.
The Applicant called about a Hyundai Santa Fe on [date], 2016. The plate related to an address in the neighbourhood.
On [date], 2016 the Applicant made a report regarding a suspicious vehicle. The vehicle was attached to an address in the neighbourhood.
On [date], 2016 the Applicant asked officers to park in a laneway until he was safely inside his home. A patrol of the area was conducted and did not locate any suspicious vehicles.
On [date], 2016 the Applicant called police about a green Mazda. The neighbours were canvassed and surveillance was done but no further information was obtained.
There was a further call by the Applicant on [date], 2016 about a Jeep Cherokee which he felt was suspicious.
On [date], 2016 the Applicant reported that there was a vehicle parked outside his residence. Police attended but the vehicle was gone. They escorted the Applicant and he left for [location].
The Applicant contacted Police on [date], 2016 to provide information about organized crime.
The Applicant had also spoken to the [Police] and a mental health unit.
14The Constable testified that any license plates provided by the Applicant were checked. He provided pictures of the suspect vehicles supplied by the Applicant to officers in the detachment. On multiple occasions the Constable said he drove past the Applicant’s home looking for any suspicious vehicles. He never saw any, nor did he observe any activity which raised a safety issue. He was aware of other officers patrolling the area and that they did not see anything suspicious. The last email he received from the Applicant was on [date], 2016.
Testimony of Detective Constable
15The Detective Constable was working with the [Police] Major Crime Unit when she received a message from the Applicant in [date] 2016. She ran the Applicant’s name before returning his call (her normal practice) and noted several occurrences relating to suspicious vehicles and people. When she spoke to the Applicant by phone he asked why the [Police] had not installed wiretaps and surveillance to deal with organized crime. He complained of an incident where he had been boxed in at a gas station by vehicles. He couldn’t remember if he had contacted the police at the time. He also spoke about two men, who were apparently of Italian descent, working on a construction site in the same subdivision where his home was located. He believed that, while they were dressed as construction workers, they were actually there to watch him and that they were members of organized crime.
16The Detective Constable asked the Applicant how it began and why he was being followed. The Applicant said he had broken his leg in March of that year and he started to see men. The Detective Constable invited him in to provide a statement but he refused as he was living [outside Canada] because he didn’t feel safe. He indicated he would be calling the police because of their expertise with organized crime.
17On [Date], 2016 the Detective Constable received a call from an [Police] Inspector indicating the Applicant had called her from [outside Canada] relating to his belief that organized crime groups were targeting him and that she had seen the Detective Constable’s report from the day before. Another officer also saw her report and told her she had spoken to the Applicant in the past and was at a loss as to how to assist him. She told the Detective Constable that the Applicant had provided her with a name. The Detective Constable called the Applicant to ask for more information about him.
18The Applicant told the Detective Constable that he was going to buy the restaurant where he worked but an Italian organized crime group ended up making the purchase. He felt that two addresses close to where he lived, were involved. He said he had seen two Spanish men working there moving rocks but they were actually there to watch him. The Applicant also said he reported the original assault to police but they didn’t follow up because the address where it occurred had ties to organized crime. The Detective Constable offered to speak to his neighbours but he didn’t want her to. She also offered to speak to him at the detachment when he returned to Canada.
19On [date], 2017, the Applicant called the Detective Constable and asked her to meet with him at a Hospital in [City]. She and another officer attended the following day and the Applicant provided an audiotaped statement to them. He also showed her photos and videos on his cell phone of vehicles and people he felt were suspicious. The Detective Constable didn’t notice anything out of the ordinary in the photos and videos. They appeared to be of random people in the neighbourhood.
20Over the course of his statement on [date], 2017, (the officers spent about an hour and a half with him) the Applicant indicated he worked for a restaurant for several years with a person who was in the ‘top 3 of the [Name] group’. In [year] the Applicant said the Alleged Offender 1 and his family were thrown out of ownership/partnership of the restaurant by their partners as the business was losing money. According to the Applicant, as one of the managers, he was blamed by the Alleged Offender 1 and his family. He continued to work there after this incident and he believed the Alleged Offender 1 took offence to that.
21With respect to the incident at the establishment, the Applicant said that there was a large male who was drunk, belligerent and spitting on their food. The Applicant was going outside for a smoke and that individual hit the Alleged Offender 1 and an altercation broke out. He stated that a golf club, which had been kept behind the bar was handed to the Alleged Offender 1 who hit the Applicant from behind and shattered his ankle. In his statement the Applicant said he was hit because the Alleged Offender 1 blamed him for his family getting thrown out of the partnership. He told police that there was a distance between him and the other individual and that there was no way the Alleged Offender 1 would have been aiming at the other man who had spit on him when he hit the Applicant. He was a 100% sure the Alleged Offender 1 did it because he blamed him for being thrown out of the partnership related to the restaurant. He suggested it might even have been staged.
22According to the Applicant, he was taken to the Hospital by the owner of the club. The owner told him to say he slipped and fell. That was the story the Applicant told until he learned from someone he didn’t want to identify sometime later that he had been hit with a golf club.
23The Applicant indicated that he had commenced a civil suit against “John Doe”. He told police he had a drink sometime after launching the lawsuit with Alleged Offender 1 but their relationship was not the same. In his statement to police the Applicant said that sometime in 2015 the Alleged Offender 1 told him to drop the lawsuit on two separate occasions. According to the Applicant, the Alleged Offender 1 was neither aggressive nor threatening when he said it. The Applicant told the Alleged Offender 1 he would need an ankle transplant and was not going to drop the law suit.
24In his statement the Applicant told police that in [month] or [month] of 2015 his ex-girlfriend told him he ‘had problems’ with the guys who had broken his leg. Sometime later he was at the bar at the restaurant when Alleged Offender 2 walked in. He said ‘hi’ to the Applicant then went with another male to a table at the end of the bar. Before he left the restaurant the Applicant went to say goodbye to Alleged Offender 2 and Alleged Offender 2 told the other guy he shouldn’t look at the Applicant. The Applicant stated that he did not pay attention to it at the time.
25In the statement the Applicant said he saw two guys in the bar who didn’t appear to be dressed for it. He saw them on other occasions. On the occasion he saw a black Kia on his street he said one of the men who got out of it had very similar body structure to the guys in the bar.
26The Applicant also spoke to police about incidents with his neighbours which he believed were suspicious. He told police he would panic every time he saw a car circling his home more than once and he would call police. He acknowledged he might be wrong on some of these occasions, but he felt there were cars that didn’t belong in the neighbourhood.
27In the statement the Applicant also told police about a male who had shot someone at a hotel in [City] and whom he believed was at [location] looking at him.
28The Applicant stated that when he attended the Hospital upon his return to Canada two cars were sitting outside the Hospital and he believed the individuals in them were there to watch him. He asked police to get a warrant for the surveillance video at the Hospital. The Applicant said the man at the Hospital watching him was the same guy he had seen at [location] wearing a [name] uniform.
29Upon her return to the detachment on [date] 2017, the Detective Constable pulled up all occurrences relating to the Applicant on the [Police] database and searched all the license plates related to those occurrences. None of the searches suggested criminal or suspicious activity. She also ran people associated with the addresses the Applicant had provided with negative results. The Detective Constable ran the names given and found one newspaper. She also ran the name of the owner of the Club in question and found a newspaper article relating to 2008 and a Hells Angel member (the Applicant supplied the article in his materials). She searched the name [Name] and found a newspaper article linking him to the [Name] family in 2014. She also did similar inquires on Google.
30On [date], 2017, the Applicant sent the Detective Constable an email expressing a concern with respect to a black man sitting in his car near the Hospital, saying he was the same man who had been in the [name] uniform at [location]. Over the next few days there were further emails to the officer from the Applicant.
31On [date], 2017 the Detective Constable and another police officer checked the addresses the Applicant had mentioned and patrolled the area near his home. They did not see anything suspicious. She also checked for police information relating the Club [Name] with negative results. She attended the Applicant’s home hoping to speak to his family and the homes of some neighbours without success. She left her card at a neighbour’s home. The Detective Constable also attempted to contact the ex-girlfriend mentioned by the Applicant without success. She checked the addresses on [Name] Road and found that there was no clear sight line between them and the Applicant’s home. The Detective Constable also attended the restaurant hoping to speak to the Applicant’s boss. She spoke to the manager there and requested that the owner call her. She did not receive a call back.
32The Detective Constable continued to receive emails from the Applicant. After speaking with her supervisors it was determined that she would cease contact with him. The last email she received was on [date], 2017.
Testimony of the Applicant
33The Applicant testified at the hearing. He stated that he had worked at the restaurant since [date], continuing on after the [Name] family bought it in 2008. Quite frequently, some of the staff would go to the Café, which was close by, late at night after finishing work.
34After the Alleged Offender 1 had his ownership severed at the restaurant he would still come by on occasion. On [incident date], 2013 the Applicant testified he went with the Alleged Offender 1 to Club [Name]. He felt his friendship with the Alleged Offender 1 was still okay at the time. He wasn’t sure if he consumed alcohol before attending.
35According to the Applicant he had one or two drinks at the bar and neither he nor the Alleged Offender 1 were intoxicated. There was a large intoxicated man nearby, spitting on some of the food. In describing how he came to be injured, the Applicant stated that at the time he did not know if he fell, or slipped or was hit, but he ended up on the ground in great pain. He did not see the Alleged Offender 1 hit him. He was taken by the owner to the Hospital. On the way there, the owner said to tell Hospital staff that he fell or that it didn’t happen at the Club. The owner was with him in emergency department.
36The Applicant gave evidence that at the time the Statement of Claim was filed on January 14, 2015, he hadn’t yet learned that he had been hit with a golf club by the Alleged Offender 1. The only injury he suffered was to his ankle. He did not know why the Statement of Claim also made reference to facial injuries. In his testimony at the hearing the Applicant said that when he spoke with the Alleged Offender 1 after his injury he told him to drop the lawsuit against the Club on two or three occasions and described his tone as unfriendly.
37According to the Applicant he only learned he had been hit by a golf club when he was told by a staff member (who he didn’t want to identify for safety reasons) whom he happened to see at a coffee shop in [date] 2015. The Applicant said he discussed this scenario with his surgeon who agreed that it was more likely to have happened that way than by a fall. A fall that caused such an injury would have to be from a significant height according to the Applicant. The Applicant testified that he tried to contact police about it in 2015.
38According to the Applicant, sometime late in 2015, he got a phone call from a person telling him someone had been hired to get rid of him. The [Name] group was responsible. The person on the phone told him the place and time that a meeting was going to take place to hire the hit man. The Applicant testified that at the appointed time he went to the restaurant and sat at the bar after ordering a drink. Alleged Offender 2, whom he described as the street boss, came in and greeted him then went with another man who had been sitting at the bar to a table at the far end of the bar. When the Applicant finished his drink he went to say goodbye to Alleged Offender 2 and, by reading his lips, he concluded that Alleged Offender 2 told the other man not to look at him. It was the Applicant’s view that Alleged Offender 2 was there for the purpose of hiring the individual to kill him.
39In his testimony the Applicant said that the man in the black Kia he saw on [date], 2016 was the same man with Alleged Offender 2 in the bar who he believed had hired that man to kill him. He agreed that maybe he hadn’t provided this detail to the Constable although he maintained he told him there was a targeted hit on him.
40According to the Applicant, he was followed all over airports in [Cities], [Country] and [Country]. He said the police in [Country] confirmed that he was being followed by someone linked to [Canada]. The Applicant expressed disappointment that other officers who might confirm he was targeted for murder weren’t summoned to provide evidence when his pre-hearing application with respect to them was refused. He thought that some of his neighbours might be involved and be part of an organized crime group. He felt that some of the neighbours who stopped speaking with him had been approached by other neighbours with those connections.
Injuries to the Applicant
41The Applicant was admitted to Hospital on [incident date], 2013. In a consultation note the surgeon, Dr. [Name] provided the following information: “He works as a restaurant manager. He fell over sustaining a twisting injury to the foot and a comminuted fracture of the tibial plafond.” It was noted that he was likely to end up with a stiff painful foot afterwards but that the best chance to reduce the impact of such an outcome was to realign the area with a view to possible further surgery to restore joint surfaces when the swelling settled down. The Applicant was operated on [date], 2013. The surgery required the insertion of pins. He was discharged on the [date] with follow-up and a plan for readmission for further surgery.
42The Applicant underwent a further procedure on [date], to insert plates. He was seen on several occasions afterwards, with metal being removed once the alignment was stable. The Applicant testified that there is still one piece of metal in his ankle. He still has swelling and sometimes the ankle locks up when he sits for long periods. He still experiences pain and a ‘pins and needles’ sensation at times.
43The Applicant testified that while he was in the Hospital, first with the owner of the Club on admission, and later when sedated, he did not think of contacting the police.
44The Applicant testified that as a result of being targeted and the resulting harassment he has suffered severe anxiety, he fears for his life, and is afraid to leave the home where he lives with his [family]. He left the country at one point due to these concerns, and hasn’t worked since 2016. He also suffers from depression.
Analysis and Decision
45The central issue in this case is whether there could be a finding on a balance of probabilities that the Applicant was injured as a result of crimes of violence. The onus in on the Applicant to prove, on a balance of probabilities, that it is more likely than not that a crime of violence occurred. Clear, convincing and cogent evidence is required to satisfy that standard.
46There is no doubt that the Applicant suffered a significant injury to his ankle area. It is also apparent that the Applicant honestly fears for his safety and believes he is the target of a conspiracy by organized crime members to murder him. However, the evidence before the CICB with respect to the cause of the injury to his ankle area and whether there is a conspiracy to murder the Applicant or criminal harassment related to that plan is not clear.
47With respect to the allegation of assault, the evidence indicates that the Applicant had no independent knowledge that an assault had occurred until he happened to run into a staff member from the bar, in the spring or summer of 2015 ([month] 2015 according to the file; [month] 2015 according to his testimony), about two years after the incident, who told him that he had been assaulted with a golf club by Alleged Offender 1. This call was apparently after the Statement of Claim was issued in January, 2014 alleging an assault by ‘John Doe’.
48The Applicant testified that at the time of the event he felt he and Alleged Offender 1 were on fairly good terms. Despite being edged out of his ownership of the restaurant, according to the Applicant, Alleged Offender 1 continued to come to the restaurant and socialize with others there. Alleged Offender 1 and the Applicant attended the establishment location together on [date], 2013. While they were there another bar patron was behaving poorly. In his statement to the Detective Constable the Applicant suggested that this individual hit the Alleged Offender 1 in addition to being belligerent and spitting on food. He didn’t mention that blow in his evidence before the CICB. Whatever the case, the immediate issue appeared to be between Alleged Offender 1 and this individual. It is difficult to accept that Alleged Offender 1 chose this opportunity to hit the Applicant with a golf club in the ankle area. The Applicant had no idea at the time how he came to be on the ground with a very painful injury. Further, while he testified it was at the urging of the owner of the bar who drove him to the Hospital, the history he provided to hospital staff was of a fall, not an assault and that didn’t change until the Statement of Claim was issued in January of 2015. At that point the Alleged Offender was unknown.
49The Applicant submitted an article from Wikipedia which described a Pilon (also known as Plafond) fracture, and suggested that such fractures are caused by rotational or axial forces, mostly as a result of falls from a height or motor vehicle accidents.
50In essence, the CICB is left with the fundamental question as to whether a crime of violence occurred. In support of that claim the Applicant relies on a statement said to have originated from an unnamed third party about two years after the event, that the injury was the result of a crime of violence and not the result of a fall or some other cause unknown to the Applicant. This evidence is contradicted by the history given to Hospital staff, although the Applicant has testified that this was at the urging of the bar owner and at the time he did not know how he came to be injured. It is also somewhat at odds with what appeared to be a fairly good relationship with the alleged perpetrator at the time, although the Applicant has subsequently stated his belief that the alleged perpetrator blamed him to some extent, for his lost ownership in the restaurant.
51The Applicant stated to police that the Alleged Offender 1 had urged him to drop the lawsuit against the Club on two or three occasions. The Alleged Offender 1 was not named in that lawsuit. In his statement to the Detective Constable he said his tone was not threatening or aggressive when he made these requests. In his testimony before the CICB he described his tone as unfriendly.
52Considering all the evidence before the CICB, unfortunately, clear, convincing and cogent evidence as to the cause of the fracture to the Applicant’s lower leg is lacking and we do not find, on a balance of probabilities that the injury was caused by a crime of violence.
53With respect to the allegations relating to the Applicant being the target of a conspiracy to murder him or criminal harassment with respect to following him, while we accept that subjectively the Applicant believes this to be true, objectively the evidence is not clear. The summary of his statement to the Detective Constable indicates that the Applicant was sitting at the bar at the restaurant when the Alleged Offender 2 walked in and greeted him then met with an individual there. When he went to say goodbye he told the Detective Constable that the Alleged Offender 2 told the other guy not to look at him. At the time he said he didn’t pay too much attention to it. On the way out he noticed two guys who weren’t dressed smartly, which seemed out of place in the bar. He felt that one of these guys was the person in the Kia he saw in [month] 2016 which he reported to the Constable although it appears he didn’t provide this detail to the Constable.
54In his testimony before the CICB the Applicant testified that he received a phone call in late 2015, during which the caller told him that a meeting was about to take place at the restaurant for the purpose of someone being hired by the [Name] group to get rid of him. As a result the Applicant said he went to the bar to see if it was true and he made the observations outlined above. He said at the time he thought the Alleged Offender 2 was hiring someone to kill him. This would appear to be in contrast to his earlier statement to the Detective Constable that at the time he didn’t think much of it and somewhat inconsistent with prior knowledge that the meeting was for the purpose of hiring a hit man to kill him.
55Some months later, on [date], 2016 the Applicant made his first call to the [Police] about a suspicious vehicle on his street. In his statement to the Detective Constable the Applicant noted the similarity to the gentleman he’d seen in the bar some months earlier. Leaving aside the challenges of identification issues after months have elapsed, this detail isn’t mentioned to the Constable, although the Applicant likely told him he was being targeted. With respect to the black Kia, depending on the license plate, according to the Applicant, he was told there was no registration for the plate. In the weeks following that incident the Applicant called police on several occasions about suspicious vehicles. When police checks were done on those plates and associated owners or addresses nothing suspicious was uncovered. While the Applicant submits that the police didn’t do exhaustive checks, such as attempting to get warrants or surveillance videos in the course of their investigation, it would appear that grounds for warrants and further investigative techniques were not made out.
56Further, on the Applicant’s evidence, it would appear that organized criminal activity utilized extensive resources to watch him and follow him, not only near his home, but on the subway, at the hospital and at international airports. While the Applicant’s fear appears honestly held, and he may believe rightly or wrongly, that some of his prior acquaintances are connected to or are members of organized crime, we are not satisfied on a balance of probabilities that there is clear, cogent and convincing evidence that he is the target of a criminal conspiracy to murder him or that he has been criminally harassed in furtherance of that objective or for any other reason.
57In the circumstances, while we believe that the Applicant’s injury was significant and that his fears are honestly held, we cannot find, on a balance of probabilities that they arise from a crime or crimes of violence. The CICB must therefore deny the Application for compensation.
DATED at Toronto, this 8th day of June, 2018
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Christine McGoey, Member
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Veda Rangan, Member