(Re) 1705-01277, 2018 ONCICB 49

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicators: Noeline Paul, Janet MacEachen

Date: July 15, 2018

Indexed as: (Re) 1705-01277

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 pain and suffering as a result of physical and psychological injuries sustained on [date], 2017, after he was run over and dragged by a motor vehicle that was driven by his former girlfriend who was attempting to flee the scene of a gun shooting. The Applicant was also trying to protect himself from the gun shots and attempted to hide behind the vehicle. The police were called to the scene and investigated the matter. The police were not able to identify or locate the shooter and they did not lay criminal charges against the driver of the motor vehicle that injured the Applicant.

Decision

2The CICB denies the claim for the reasons set out below.

Issues

3The CICB may award compensation pursuant to section 5 of the CVCA where it is satisfied that a person is injured or killed by any act or omission in Ontario resulting from a crime of violence. Subsection 5(a) of the CVCA specifically states that compensation cannot be awarded where injuries have been caused by use or operation of a motor vehicle other than in the case of an assault by means of a motor vehicle.

4The burden rests on the Applicant to prove, on a balance of probabilities, that he was a victim of a crime of violence and that his injuries resulted from the crime.

5The fact that there has not been a conviction related to the Applicant’s injuries is not a bar to the Applicant’s claim for compensation from the CICB. 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.

6If 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:

a. 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; and

b. whether the Applicant has refused reasonable cooperation with, or failed to report promptly the offence to a law enforcement agency pursuant to subsection 17(2) of the CVCA.

Hearing

7The Applicant appeared and provided oral testimony and submissions. The Applicant’s friend, [name], also attended the hearing to provide support to him.

8Detective Constable [name] from the [city] Police Services (‘police officer’) appeared as a witness. The police officer was the officer in charge of the investigation and arrived on the scene as a result of calls to police advising that gun shots had been fired.

9At the beginning of the hearing, the Panel confirmed that the Applicant was aware that he must establish on a balance of probabilities that he sustained injuries as a result of being the victim of a crime of violence. We also confirmed that he was aware of subsections 17(1) and 17(2) of the CVCA and that we would consider those parts of the CVCA when deciding the Application.

Documentary Evidence

10The CICB received numerous documents in support of this Application. These documents include police reports and medical records and reports. These documents support the Applicant’s assertion that he sustained injuries as a result of being run over and dragged by a motor vehicle.

Oral Evidence

11At the hearing, the Applicant testified regarding the incident that lead to his injuries.

12He stated that he arrived at a parking lot of an apartment building complex with his girlfriend at the time and another person who was sitting on the rear seat of their vehicle, which he thinks was owned by his girlfriend’s mother. The Applicant testified that he attended this particular venue in order to meet a friend but that gun shots were fired soon after he arrived and he attempted to protect himself from the gun shots by hiding behind the vehicle. He stated that he believes his former girlfriend panicked upon hearing the gun shots and drove the car in effort to escape the shooting. He stated that he was run over by the vehicle driven by his former girlfriend and then dragged underneath it.

13With respect to his injuries, the Applicant testified that he sustained significant physical injuries to his body as a result of being run over by the vehicle and then dragged on the ground while he was still underneath it. The Applicant further testified that he suffers psychological injuries as a result of this experience.

14The police witness testified that he arrived on the scene as a result of calls made to police that gun shots had been fired. He stated that the Applicant had already been taken to the hospital at the time that he arrived. The police witness testified that he has examined the camera surveillance tapes thoroughly and, based on his investigation, believes that the Applicant was not the intended target of the shooting. He stated that the police were not able to identify or locate the shooter. He further testified that criminal charges were not laid against the Applicant’s former girlfriend in relation to the Applicant being run over by her vehicle as the police determined that the occurrence was an accident.

15With respect to subsections 17(1) and 17(2) of the CVCA, the police witness testified that his information does not indicate that the Applicant played a role in the shooting. He also corrected information provided in his police report submitted to the CICB and he testified that the Applicant cooperated with the police investigation.

Analysis and Decision

16For the following reasons the CICB dismisses the Application.

17The panel finds that the Applicant testified in an honest and forthcoming manner. We find that he was a credible witness.

18There is no doubt that the Applicant sustained serious injuries as a result of being run over and dragged by a motor vehicle driven by his former girlfriend. However, the central issue in this case is whether those injuries were caused by a crime of violence.

19Based on the evidence, we find that the Applicant was injured as a result of a motor vehicle accident and not a crime of violence. Both the Applicant and police witness indicated that the Applicant’s former girlfriend did not seem to realize that the Applicant was hiding by the vehicle at the time that she drove off. Instead, their evidence indicates that she drove off in a state of panic and she was not aware that the Applicant was being dragged under the vehicle as she continued out of the parking lot. We find that the vehicle was not used to assault the Applicant.

20We also find that the Applicant’s injuries cannot be tied to the gun shooting such that the incident can be viewed as a continuous event. The evidence is that the Applicant was not the target of the shooting and he was not injured physically in any way by the bullets that were fired. While the events unfolded in a way that had a tragic outcome for the Applicant, we are not satisfied on a balance of probabilities that the gun shooting gave rise to the Applicant’s injuries.

21As a result of the foregoing, we conclude that the Applicant has not established that he was a victim of a crime of violence. Therefore, the Applicant cannot be compensated for his injuries pursuant to subsection 5(a) of the CVCA. Based on this finding, we do not need to consider subsections 17(1) and 17(2) of the CVCA for the purposes of our analysis.

Conclusion

22The Panel concludes on a balance of probabilities that the Applicant was not a victim of a violent crime and, therefore, cannot be compensated for his injuries pursuant to subsection 5(a) of the CVCA.

23As a result of the above finding, this Application for compensation is dismissed.