Re 1703-01000, 2018 ONCICB 48

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicators: Lisa Barazzutti Kevin Cleghorn

Date: July 15, 2018

Indexed as: (Re) 1703-01000

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 “CVCA”). The Applicant is seeking compensation for his pain and suffering as a result of a physical assault and uttering of a threat of bodily harm that occurred on [date], 2014. The incident was reported to the police and, following the police investigation, no charges were laid.

2The Applicant laid a private information against the Alleged Offender. The Crown Attorney took over the prosecution and withdrew the charge.

Decision

3The CICB denies compensation for the alleged physical assault. The CICB awards the Applicant $3,000 for his pain and suffering as a result of the uttering threat of bodily harm. Our reasons are set out below.

Issues

4The absence of a conviction does not mean that the CICB is precluded from making an order of compensation. Subsection 16(1) of the CVCA provides that compensation may be awarded whether or not a person has been prosecuted or convicted of the offence giving rise to the injury.

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 subsection 5(a) of the CVCA. If the Applicant meets this threshold, in deciding whether or not to exercise our discretion to award compensation and in what amount, we must consider all the relevant circumstances, including whether the Applicant’s behaviour may have directly or indirectly contributed to the injuries pursuant to subsection 17(1) of the CVCA.

Hearing

6The Applicant appeared and provided oral testimony and submissions.

7Officer [name], with the [service] Police (‘police officer’), appeared as a witness. The police officer was involved in the investigation of the incident.

8The Alleged Offender did not participate in the hearing. His lawyer was present for the hearing by telephone and participated only by questioning the Applicant and the police witness. The Applicant and counsel for the Alleged Offender were in separate hearing rooms but able to hear and participate in the proceeding in the other room using telephones.

9The Applicant’s wife provided testimony at the hearing. She was with the Applicant at the time of the incident.

10At the beginning of the hearing, we confirmed that the Applicant was aware of subsection(s) 17(1) and 17(2) of the CVCA and that we 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 order 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.

Documentary Evidence

11The CICB received the following documents with respect to the claim: police reports dated [date], 2014; family doctor’s records from [date], 2014, [date], 2014 and [date], 2015; medical reports from Dr. [name] dated [date], 2017; and psychiatric records dated [date], 2017 and [date], 2017.

12The police records indicate that they were contacted by the Applicant on [date], 2014 and attended to speak to him. The Applicant showed the police the video recording he had taken of the incident with his IPad and the officer had an opportunity to review the entire recording which is summarized in the officer’s notes.

13The police notes indicate that they observed the Applicant’s video recording which showed the Applicant walking right up to the bulldozer that the Alleged Offender was operating, the Alleged Offender getting off of the bulldozer, words being exchanged between the Applicant and the Alleged Offender, the Alleged Offender getting back onto the bulldozer, the Applicant stepping in front of the bulldozer, the Alleged Offender attempting the move forward, the Alleged Offender stopping the bulldozer and turning it around away from the Applicant, and the Applicant’s pant leg being clipped. The officer’s notes also make a notation that they did not believe that the Applicant’s actual leg was touched during the incident as they did not observe any physical injuries upon their inspection.

14The Panel viewed the IPad video of the incident. The video shows the Applicant walking towards the Alleged Offender who was operating the bulldozer. The Alleged Offender gets off of the bulldozer to speak to the Applicant and words are exchanged. The Alleged Offender gets back onto the bulldozer and moves it slightly forward. At the same time the Applicant steps in front of the bulldozer. The Alleged Offender then stops the bulldozer and turns it away from the Applicant and proceeds to move in the other direction. During the altercation, the Applicant does not lose control of the IPad even at the moment when he claims the bulldozer clips his leg. The Applicant then proceeds to walk back in the direction from where he came. On the voice recording of the video, the Alleged Offender can be clearly heard to say “get off of my property or I will run you over.”

15Medical records from the Applicant’s family physician from [date], 2014 to [date], 2015 indicate that on [date], 2014 (approximately six days after the incident) x-rays of the Applicant’s ankle produced negative results. The records indicate that the incident exacerbated the Applicant’s already existing anxiety. The notes further indicate that the Applicant had already been suffering from anxiety previously. The rectal bleeding that the Applicant complained about was confirmed as being caused by hemorrhoids. The medical report from the Applicant’s doctor dated [date], 2017 indicates that she did not find any physical injuries as a result of the incident but that there was an exacerbation of the Applicant’s previously diagnosed anxiety.

16The psychiatric consult notes from [date], 2017 and [date], 2017 confirm that the Applicant presented with symptoms of PTSD as a result of the incident and that the Applicant’s medications were being adjusted as a result.

17The Alleged Offender filed a written response with the CICB dated [date], 2017. In his response, he denies the Applicant sustained any injuries as he did not assault the Applicant. He indicates that the Applicant had attempted to have him charged with assault but that the police did not lay charges. When the Applicant attempted to lay a private information the Crown Attorney took over the prosecution and withdrew the charge. The Alleged Offender indicates that since the incident has taken place he has been confronted by the Applicant but that he has avoided any further dealings with the Applicant.

Oral Evidence

Applicant

18The Applicant testified that on [date], 2014 he was having breakfast at his mother’s cabin and heard a tractor cross his mother’s property. He grabbed his IPad and headed over to the area as he wanted to know who was on the tractor and what they were doing. The Applicant could not see anything until he reached the road and testified that he did not see any “no trespassing” signs anywhere so he proceeded towards the noise of the tractor.

19The Applicant approached the tractor and the man who was operating it. He identified the man as the Alleged Offender. The Applicant testified that he identified himself as an elder and that he told the Alleged Offender that he was on treaty land. They got into a verbal argument over who owned the land. The Applicant indicated that the Alleged Offender told him to get off of his land or he would run him over. The Applicant advised the Alleged Offender that he was going to call the police because the material he was moving with the tractor was contaminated.

20The Applicant indicated that the Alleged Offender got back onto the tractor. The Applicant testified that he moved in front of the tractor as he did not think that the Alleged Offender would do anything. The Applicant testified that the Alleged Offender raised the blade of the tractor, moved forward about four feet and struck him on the leg. The Applicant then indicated that the Alleged Offender backed up and drove away with the tractor.

21The Applicant made his way back to the road to his friend [name]. [Name] later became his wife. He proceeded to his neighbour’s home to contact the police. When he could not reach the police he went to another residence to wait for the police to attend.

22The Applicant testified that two Police officers attended to speak with him. He indicated in his testimony that the officers advised him to not go back onto the property and that they would go and speak with the Alleged Offender. He also stated that one of the officers looked at his pants and asked him if he was sore anywhere. The Applicant stated that he told the officer that he was not sore but that he was also in a state of shock. He stated that he noticed swelling later upon taking his shoe off. The Applicant indicated that he waited for the officer to return but that the officer never returned to see him.

23We asked the Applicant to clarify if he ever followed up with the police officer and the Applicant testified that he had not. The Applicant did attend at the police station to retrieve his IPad and was advised that the officer involved was in training and then on vacation. He stated that he went to the hospital and that he never spoke to the police officer after that.

24The Applicant stated that he did attend court after filing charges against the Alleged Offender but that the charges were thrown out and he did not know why that had happened. He advised he later went to see his member of parliament but never received any answers.

25We asked the Applicant whether he walked in front of the bulldozer and the Applicant advised that he did not and that the Alleged Offender came right at him and that he flew into the blade. When asked why he did not attend at the hospital that day he advised that he did not realize anything was wrong and that it was not until he had went to the washroom that he realized his ankle was bleeding. He stated that when his ankle was under the bulldozer blade. He says it pulled his Achilles tendon and that he cannot walk properly anymore.

26Counsel for the Alleged Offender questioned the Applicant about why he did not call the police instead of confronting the Alleged Offender. The Applicant responded that there was no power at the cabin to call the police. Counsel also asked the Applicant about the existence of “no trespassing” signs and the Applicant acknowledged that there were such signs posted on the property. When asked if the Applicant has re-attended on the property the Applicant acknowledged that he has since re-attended. When questioned about being struck by the bulldozer the Applicant indicated that he had flew inside of the blade. The Applicant then indicated that although it appeared as though he had no difficulty walking back he was in shock.

Police Witness

27The police witness testified that he attended the scene after receiving a call from [name]. On attending the scene the police witness indicated that he watched the video taken by the Applicant on his IPad. The police witness also indicated that the video showed that the Applicant was confronting the Alleged Offender and it appeared to be a property dispute. He stated that he took a look at the Applicant and noticed a straight line mark on the Applicant’s pant leg but that when the pant leg was lifted up he did not see any visible injuries.

28When questioned by counsel for the Applicant about the Applicant being in shock the police witness indicated that if he had known that the Applicant was in shock he would have suggested medical treatment.

Applicant's Wife

29On [date], 2014 the witness testified they were at the Applicant's parents’ cabin and heard the noise of heavy machinery. The Applicant wanted to know who was working on the property and they walked over towards the property. The witness stayed at the ridge while the Applicant crossed the road and approached the Alleged Offender who was on the bulldozer working. She stated that she had a clear view of the incident but could not hear what was being said. She states that she saw the Alleged Offender get back into the bulldozer with the Applicant standing there and then saw the scoop rise and come forward and struck the Applicant, knocking him off balance. The Applicant then came back to where she was standing.

30The witness indicated that the Applicant was in shock. His skin was clammy and his speech and thoughts were scattered. After the police had left the cabin she brought the Applicant to bed and put ice on his ankle as it was swollen.

31We asked the witness about seeking medical attention and she testified that, because of her medical training, she felt confident in the medical treatment she provided to him.

32When questioned by counsel for the Alleged Offender the witness indicated that both she and the Applicant have re-attended the property to take pictures of the vegetation but that they stay on the road. She indicated that they are looking to acquire property elsewhere as they are no longer comfortable there anymore.

Analysis and Decision

33For the following reasons the CICB dismisses the claim for compensation with respect to the alleged physical assault but grants compensation for pain and suffering resulting from the alleged uttering of threats.

Alleged Assault

34The CICB does not find sufficient reliable evidence necessary to substantiate the Applicant’s claim with respect to the physical assault with the bulldozer. The CICB has carefully reviewed the video taken by the Applicant with his IPad. The video at no time shows the Applicant being struck by the bulldozer. While the video shows the Applicant standing in front of the bulldozer and the bulldozer moving slightly forward, no impact can be observed on the video. The Applicant can be seen walking back from the area holding the IPad the entire time.

35The police witness testified that neither he nor his colleagues could see any impact between the bulldozer and the Applicant on the video. Further, they did not observe any physical injuries to the Applicant’s leg.

36Medical reports filed in conjunction with the Applicant’s claim do not substantiate any physical injuries. Those medical records were created shortly after the incident date and indicate that the Applicant had pre-existing injuries that pre-date this incident.

37Notwithstanding the Applicant’s testimony that the assault did occur, the CICB finds that the Applicant has failed to prove, on a balance of probabilities, that he was a victim of an assault committed against him by the Alleged Offender.

Uttering Threats

38Having carefully reviewed the video taken by the Applicant with his IPad, there is a clear indication that a threat of bodily harm is made against the Applicant by the Alleged Offender. The Alleged Offender can be clearly heard and seen on the video threatening to run the Applicant over. The CICB is satisfied that the threat to run the Applicant over is a crime of violence within the meaning of the CVCA.

39Records on file from the Applicant’s treating psychiatrist indicates that the Applicant wakes up and goes to bed constantly thinking about the incident itself. The Applicant has disclosed to treatment providers that he suffers from nightmares and sweats twice a week and has recurring dreams of the Alleged Offender coming after him. The Applicant has testified that his anxiety has increased post-incident and that as a result of that heightened anxiety he suffers from hand tremors. He testified that he is unable to participate in his traditional carving activities that he carried on before the incident. The panel is satisfied the Applicant's injuries result from the crime of violence.

40In assessing compensation for pain and suffering, the CICB has considered the nature of this incident and how it has affected the Applicant. As a result of this incident, the Applicant suffers from nightmares, flashbacks and anxiety. He has been receiving psychiatric care and despite the passage of time, still suffers from nightmares and sweats. As a result of the incident and in particular the threat made by the Alleged Offender to run him over, the Applicant’s anxiety levels have increased and he has dreams of being chased by the Alleged Offender. The panel is satisfied the Applicant's emotional injuries result from the Alleged Offender threatening to run him over.

41Considering these factors, the medical reports on file, the treatment reports and the testimony of the Applicant, the CICB assesses compensation for pain and suffering in the amount of $3,000.00.

Award

42The CICB orders payment as follows:

Subsection 7(1)(d) Pain and Suffering $3,000.00

TOTAL AWARD (AND COSTS) $3,000.00

Payment

43The CICB orders that the following sums be paid immediately to:

The Applicant $3,000.00