CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: M. Saleem Akhtar Noeline Paul
Indexed as: (Re) 1707-02360
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 compensation as well as incident-related expenses. The alleged incident happened on [date], 2016 which caused the Applicant, who is a Police Officer, physical and emotional injuries while he was attempting to enforce a lawful arrest of the Alleged Offender. The Alleged Offender was charged in this matter, however, the Court acquitted the Alleged Offender.
Decision
2For the reasons set out below, the CICB approves the claim and awards the sum of $718.51 as pain and suffering compensation, as further explained in paragraphs 31 to 34 of this Order.
3The CICB denies incident-related expenses for lack of relevant supporting documentation, as further explained in paragraph 35 of this Order.
Issues
4Pursuant to section 5 of the Act, the CICB must determine, on a balance of probabilities, whether a crime of violence occurred against the Applicant that caused him injuries, and if so, the nature and extent of the injuries sustained, and their impact on the day-to-day life of the Applicant.
5The 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 section 5 of the Act.
6Consider the Applicant’s claims in respect to out-of-pocket incident-related expenses. The Applicant must provide reliable evidence to support his claims.
Hearing
Documentary Evidence
7The CICB received the following documents with respect to the claim: Applicant’s Application giving details regarding the incident and the resultant injuries, Police Report dated [date], 2016, Hospital Report, Chiropractor’s Report and WSIB report.
8In describing details of the crime, the Applicant writes;
On [date], 2016, I was responding to a call for service as it was reported a female was being assaulted. I responded to the call and spoke with a female and male party who was identified as [Alleged Offender] I had formed the grounds to arrest the male party for being intoxicated in a public place. While affecting the arrest, the male party began to resist the arrest and fight with me and my partner. We had tried several de-escalation methods…During the struggle, I fell on my back. The male party then grabbed my gun and tried to remove it from gun holster…While still fighting with the male party, back-up arrived on scene and the male party was able to be controlled and arrested.
9In terms of his injuries, the victim writes,
The physical injuries that I incurred were several cuts on my knees and fingers. Other physical injuries that occurred were a sore back…The Alleged Offender’s lifestyle is a high risk lifestyle and it is unknown if he had infectious disease. I was covered in his blood as he has been cut during the struggle. I had to spend 4 hours in the hospital as the doctor was unsure if I had to take HIV cocktail medicine as it was unknown if the male party had HIV…This had affected me emotionally as a precaution I had to operate as I could possibly have Hep C until the male party’s blood work came back. This included not kissing my wife and being careful not to touch anything that could come in contact with my wife. Further, I had to wait 4 days until I got the results back from the lab…This was very stressful. I did not know I may possibly be exposed to a disease that would affect me and my family for the rest of my life. I also had to miss work…the HIV medicine made me feel very sick. The medicine was very aggressive and had a very negative effect on my body…
This occurrence had affected me greatly as the Alleged Offender had attempted to take my firearm and kill me and my partner. Also, due to the fact that I had been exposed to the Alleged Offender’s blood and may have to live with an incurable disease put a great emotional burden on my family and my life.
10The Police Report/investigation on record corroborates the Applicant’s version of the incident. After due investigation, the Alleged Offender was charged with resist peace officer, disarm a peace officer and assault peace officer. However, the Court acquitted the Alleged Offender of all the charges against him.
Applicant’s Oral Testimony
11In his oral sworn testimony before the CICB on May 23, 2018, the Applicant advised the CICB that on [date], 2016 while he was attending a service call as a police officer, he sustained injuries in an attempt to making a lawful arrest of the Alleged Offender.
12When asked by the Panel if he was assaulted by the Alleged Offender causing him injuries, the Applicant stated that the Alleged Offender did not assault him, rather, during the process of arresting the Alleged Offender, the Applicant fell on his back and his back became sore. Also, during the tussles between the Alleged Offender and the Applicant, the latter sustained injuries such as cuts on his hands and fingers and scrapes on his knees. He added there was ‘nothing major’.
13When asked by the Panel how many days it took for his physical injuries to heal, the Applicant responded ‘maybe one week or so’.
14When asked if there was any lingering-on impact of his physical injuries to his work-related and/or off-work day to day life, the Applicant replied ‘no’.
15When asked by the Panel how many days after the incident, he returned to his normal full duties, the Applicant responded that he had been off work for 12 days, however, in actual, he took 4 days off work and that he was paid for those days.
16When asked by the Panel to describe how this incident affected him emotionally, the Applicant told that for 4-5 days until the result of the blood work arrived and he was advised that everything was normal, he and his family were distraught emotionally and were under a lot of stress.
17When asked if there was any on-going impact of his emotional state of mind beyond the initial 4-5 days, the Applicant replied ‘no’. He added he was relieved to know that everything was normal and that he had not contracted any communicable disease such as HIV or Hep C from the Alleged Offender’s blood.
Analysis and Decision
18In considering this Application, the CICB has had regard to section 5 of the Act which reads as follows:
Where any person is injured or killed by any act or omission in Ontario of any other person occurring in or resulting from,
(a) the commission of a crime of violence constituting an offence against the Criminal Code (Canada), including poisoning, arson, criminal negligence and an offence under section 86 of that Act but not including an offence involving the use or operation of a motor vehicle other than assault by means of a motor vehicle;
(b) lawfully arresting or attempting to arrest an offender or suspected offender for an offence against a person other than the applicant or his or her dependant or against such person’s property, or assisting a peace officer in executing his or her law enforcement duties; or
(c) preventing or attempting to prevent the commission of an offence or suspected offence against a person other than the applicant or his or her dependant or against such person’s property.
19The CICB has first considered whether the Applicant qualifies under subsection 5(a) of the Act. In his oral testimony, the Applicant confirmed that he was not assaulted by the Alleged Offender. Therefore, this Application does not qualify to be considered within the meaning of subsection 5(a) of the Act.
20At the time of his injury, the Applicant was clearly attempting to affect a lawful arrest and subdue the Alleged Offender. The information provided by the Police also confirms that while attempting to arrest/control the Alleged Offender, the Applicant sustained injuries. The CICB, therefore, finds that the Applicant fits within the criteria of subsection 5(b) of the Act. He was engaged in the attempted arrest of the Alleged Offender.
21The fact that the Alleged Offender was found not guilty of the offence does not mean that the CICB is precluded from making an order for compensation. Subsection 16(1) of the Act provides that the CICB can make an order for compensation whether or not the person has been prosecuted for or convicted of the offence giving rise to the injury.
22Having considered all of the documentary evidence including Police Report, treatment/assessment reports, and the oral testimony of the Applicant, which the CICB considers to be credible, the CICB finds the Applicant to be a victim of within the meaning of subsection 5(b) of the Act.
23Hence, the remaining issues to be decided by the CICB in this matter are as follows:
The nature and extent of the injuries as a result of the foregoing incident, and
Having regard to the relevant circumstances, whether compensation should be awarded, and, if so, determine the amount
Consider incident-related expenses, as requested by the Applicant.
24The Applicant’s injuries, as described by him in his Application as well as in his oral testimony have already been described in paragraphs 9 and 10 of this Order.
25In support of his injuries claim, the Applicant has submitted reports from the Hospital and from his Chiropractor, as already mentioned above. The CICB accepts these reports/documents for the purpose of compensation in this matter. However, based on the oral testimony of the Applicant, the CICB notes that neither physical injuries nor emotional impact had any lingering-on impact on his work-related and/or off-worktime beyond the first one week after the incident.
26In every case before it, the CICB is required to determine what the relevant circumstances are and to decide whether to grant or deny compensation having regard to those circumstances on a balance of probabilities. There is no automatic right to compensation under the Act. There is only a right to apply for compensation, which may be granted or refused at the discretion of the CICB, in accordance with natural justice. Sheehan and Criminal Injuries Compensation Board (1975), 1974 439 (ON CA), 5 O.R. (2d) 781.
27Based upon a careful review of the documentation on file, the CICB finds the Applicant, on a balance of probabilities, not only to be a victim of a crime within the meaning of and pursuant to subsection 5(b) of the Act but also accepts that he sustained both physical and emotional injuries, as a result thereof, as described above. Therefore, the CICB has determined that the Applicant is compensable.
28In assessing compensation for pain and suffering, the CICB has considered:
The nature of the incident causing injuries;
The possible emotional/psychological impact of the assault;
The ongoing impact on the Applicant’s overall health, relationships and productivity.
29It is important to note that the CICB has wide discretion to determine whether or not to award compensation to a victim from public funds. Leung v Ont. (Criminal Injuries Compensation Board) 1995 10629 (ON CTGD), 1995 OJ 1464 (Div. Ct) at para 5. The Act is not intended to make a victim for compensation whole or to provide full indemnity to a victim. The CICB is mindful that awards are paid using public funds. They are not paid by the wrongdoer as would be the case if a victim pursued compensation through a civil action. The CICB also considers previous awards made by it in similar fact cases/situations in order to determine a reasonable amount of compensation, and to maintain consistency across the CICB.
30After reviewing the evidence in its totality, and having regard to all of the above mentioned circumstances of this case as well as considering previous awards made by the CICB in similar fact cases/situations in order to determine a reasonable amount of compensation, and to maintain consistency across the CICB, the CICB awards the Applicant $2,000.00 as compensation for pain and suffering.
31Pursuant to subsection 17(3) of the Act, the CICB is obligated to consider if the victim has received or is likely to receive any compensation, other than the social assistance, in relation to the matter before the CICB. Subsection 17(3) reads as follows:
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.
32Based on WSIB report, the CICB notes that the Applicant has received $1,281.49 as compensation in respect of this matter before the CICB for adjudication.
33In light of subsection 17(3) of the Act, and the fact that the Applicant received $1,281.49 from WSIB, the CICB now approves the award in the amount of $718.51 ($2,000.00 - $1,281.49 = $718.51).
34Pursuant to subsection 7(1)(a) of the Act, the CICB may make an award for expenses that are “actually and reasonably incurred or to be incurred as a result of the victim’s injury”. The CICB has considered the Applicant’s claim in the amount of $10.00 in respect to prescription drugs costs However, the CICB generally requires original receipts and/or other supporting documentation for any expenses that are claimed, both to verify the amount claimed and to confirm that such costs were not covered by other sources, such as private insurance or public funds. In the absence of such evidence, and having found no compelling reason to deviate from its usual practice in this instance, the CICB denies this part of the claim.
Award
35The CICB now orders payment as follows:
Subsection 7(1)(d) Pain and Suffering $2,000.00
Less: subsection 17(3) amounts already received from WSIB $1,281.49
TOTAL CURRENT AWARD $ 718.51
36The 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
37THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $718.51
DATED at Toronto, this 25th day of June, 2018.
M. Saleem Akhtar, Member
Noeline Paul, Member