CRIMINAL INJURIES COMPENSATION BOARD
Adjudicators: Jo-Anne Hughes, Christine McGoey
Indexed as: (Re) 1609-04796
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 (CVCA). The Applicant is seeking compensation for pain and suffering as a result of an alleged physical assault by two police officers who were conducting an arrest on [date], 2015, where he claimed to have sustained physical and psychological injuries. Also, the officers were not charged as a result of this incident.
2In this hearing, the Alleged Offenders identified were the two police officers who arrested the Applicant. In this order, they will be generally refereed as “Alleged Offenders” and occasionally referenced as officers when describing testimony received at the hearing.
Decision
3The CICB denies this claim for the reasons 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. 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 CVCA.
5If the Applicant has met the above threshold, in deciding whether or not to exercise our discretion to award compensation and the amount thereof, the CICB must consider all of the relevant circumstances, including whether the Applicant’s behaviour may have directly or indirectly contributed to his injuries pursuant to subsection 17(1) of the CVCA.
Hearing
6The Applicant appeared and provided oral testimony and submissions.
7Alleged Offender 1 and his counsel participated in the hearing via teleconference from the counsel’s office. Alleged Offender 2 did not provide written submissions and did not participate in the hearing.
8At the beginning of the hearing, the panel confirmed the Applicant was aware of subsections 17(1) of the CVCA and the CICB would consider that part of the CVCA when deciding the Application. This subsection reads 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.
Documentary Evidence
9The CICB received the following documents with respect to the claim: Application form and a few letters submitted by the Applicant, several reports from the [city] Regional Police Service which included, an Occurrence Report, officer’s Will Say statements and an Arrest Report, a letter of support for the Applicant from the Applicant’s sister and reports from the hospital. A summary of this documentary evidence follows.
Application (Incident)
10The Applicant wrote that at 2:35 a.m. on [date], 2015, he was stopped by Alleged Offender 1 for riding his bicycle without a light. He was asked for photo ID, the Applicant said that he had none and he attempted to leave the scene on foot. He was punched and kicked by up to three officers, arrested and held for hours.
11In a letter to the CICB, the Applicant clarified that while he attempted to walk away from Alleged Offender 1 who told him he was “under arrest”, the officer called for backup including a canine unit and he drew his asp (baton). The pursuit went on for several minutes while Alleged Offender 1 followed the Applicant from the front of a high school onto an adjacent street near his residence. There, after the Applicant’s coat was grabbed by Alleged Offender 2, he tripped over a garbage can and then the two officers pounced on him, hitting him several times in the head, body and legs. The Applicant was cuffed, searched, put into a police vehicle and taken to the police detachment for questioning. He was released four hours later and had to walk home.
Application (Injuries)
12The Applicant wrote that he suffered from a slight concussion, head trauma, a sore knee and on-going emotional stress with other members of his family.
Letter of Support
13The CICB received a letter, in [month] 2017, from the Applicant’s sister in support of the Applicant, whom she described as being extremely affected by this incident. He had difficulty initiating daily activities, he had been depressed and he had difficulty communicating with his family. She believes the Applicant suffers from PTSD but he has not been diagnosed with it. Also, his anxiety has prevented him from attending group therapy sessions.
Police Reports
13While fleeing from the Alleged Offenders, officers saw the Applicant yelling and then he took a fighting stance with his fists raised. The two Alleged Offenders tried to control the Applicant and when he fell to the ground, he was kicking at the two officers who responded with blows to the Applicant’s body. At the scene, the Applicant was searched, which revealed his wallet and a small amount of cannabis and some drug paraphernalia (a “grinder”). At the police detachment, the Applicant was provided with duty counsel and then he was charged with assault with intent to resist arrest, possession of cannabis and two offences under the Highway Traffic Act (HTA). In response to a request from the CICB, [police service] also sent a letter which confirmed that no charges had been laid with respect to the allegations that the Applicant had been assaulted by the police officers.
Hospital Reports
14At 12:50 p.m. on [date], 2015, the Applicant went into the hospital for an assessment. The doctor’s notes say he had an abrasion to his left temporal area which the Applicant reported was from having his head pushed down onto the roadway, he had pain to his left knee, right thigh and tenderness to his right thumb.
Oral Evidence - Incident
15At the hearing, the Applicant testified that about 2:30 a.m. on the morning of the incident, he was coming home from his father’s house on his bicycle. As he was going through the parking lot of a high school, he was stopped by a police officer, Alleged Offender 1, for not having a working light on his bicycle. The officer got out of his vehicle, they had a short conversation about the broken light on his bicycle and the officer asked the Applicant for photo ID. The Applicant said he did not have photo ID.
16The officer asked for his name and then the officer turned away from him and went to his vehicle. The Applicant went to give his name and while he is in the middle of saying his name, he was interrupted by the officer and he was told that he was under arrest. The Applicant asked the officer to just give him a ticket and the officer said he can’t give a ticket without ID. At that point, the Applicant began to panic, he let go of his bicycle and it dropped to the ground and he started to walk backwards with his hands up. The officer started to run towards the Applicant and the officer slipped on the grass.
17When the Applicant saw the officer take out his baton and call for backup including a canine unit, he started running. As the Applicant was being pursued by Alleged Offender 1, a second officer (Alleged Offender 2) joined the pursuit and the Applicant tripped over some garbage and fell to the ground. At this point, the two officers jumped onto the Applicant and then he was kneed, kicked and punched while three other officers were watching. The Applicant kept saying that he “just wanted to go home". He was handcuffed, searched and taken to the police detachment where he was charged and released.
18After going home, the Applicant went to the hospital for treatment for cuts and bruises on his head. He was kneed in the legs and he was kneed and punched so his body felt sore as well.
19The Panel asked the Applicant if he assaulted or tried to bite any officer and he said “no” because his face was pressed against the ground by the officers while one arm was pinned underneath him and the other arm was being held by an officer. When asked if, during the incident, his hands were open or closed in fists, the Applicant replied that his hands were always open and never closed. The Applicant testified that he had no photo ID. He had a wallet which contained his Social Insurance card and an old-style OHIP card without a picture on it.
20The Panel also asked the Applicant if he did not want to identify himself as he was concerned that he had marijuana on him – he replied that he was not at all concerned that he had it on him and that he did not remember that he had it on him.
21The Applicant said that in the trial, he was acquitted and the panel asked if he knew the reason why. The Applicant said he believed that the judge acquitted him because of “racial bias” by the officers.
22In response to a question from the Panel, the Applicant said he did not make a complaint to the police about this incident. He was looking for assistance from his sister in submitting such a complaint but it was never done. He also said that perhaps it was not done because he was afraid to pursue it.
23Counsel for the Alleged Offender 1 asked questions of the Applicant. The Applicant said he did not have any photo ID. He didn’t tell the officers that he had any form of identification with him. Asked why he didn’t give his name – he replied that he tried to give his name but while he was saying the first part of his name, he was interrupted by the officer and was told he was under arrest. In response to counsel’s question about police finding cannabis in his pocket, the Applicant said that he had not taken any drugs that night. At the station, the Applicant said he told duty counsel he that was injured and also when he was being released he said he was not feeling well and he was injured and that he would like to get a ride home. A supervisor told him that since he assaulted a police officer that evening, they would not do anything to help him.
24Alleged Offender 1 testified that he was working for the [police service] as a uniformed patrol officer on [date], 2015 and he saw the Applicant riding his bicycle without a light at 2:37 a.m. He followed the Applicant into the high school parking lot and the Applicant did not stop until he activated the lights on his police cruiser. Alleged Offender 1 told the Applicant that he was being stopped for an offence under the HTA for not having a light on his bicycle while riding on the highway at night time.
25Right away, the Applicant was hesitant in identifying himself. They had a lengthy conversation, approximately ten minutes, about the identifying of the Applicant who said he had no ID and he refused to identify himself. Alleged Offender 1 explained that he could not write a ticket without the Applicant’s name. Alleged Offender 1 explained that he always asks for the name of the suspect as he wants to know this for his own safety. He explained that he would take the suspect’s name, write it into his notebook and then call in the name to see if police had any history or information about the suspect which he should be aware-of. When Alleged Offender 1 asked for the Applicant’s name and the Applicant said “No” and there was a distinct period of silence after that.
26Alleged Offender 1 said he believed that he did not turn away from the Applicant when he asked for his name. The Applicant was looking around and the Alleged Offender 1 thought that he was either looking to fight or to run away. Alleged Offender 1 stepped behind the Applicant, grabbed his right arm and said he was “under arrest” pursuant to the HTA. The Applicant pushed his arm away and put his hands up in fists in a fighting stance. Alleged Offender 1 reached again to try to grab the Applicant and the Applicant started moving away. At that point, Alleged Offender 1 called for backup and in his radio call, he profiled the Applicant’s behaviour as assaultive - based on the fact that he pushed the Alleged Offender 1 away and because he went into a fighting stance. Alleged Offender 1 extended his baton and began to pursue the Applicant.
27The Applicant then took off running through the back field of the high school and through an opening in the fence. Alleged Offender 1 kept issuing verbal commands for the Applicant to stop. The Applicant kept screaming “I want to go home!” During this time, they both ran and walked. Alleged Offender 1 didn’t know where they were going so he called for backup. The Applicant ran up to the front door of a house, paused there and then started running up the street again.
28Alleged Offender 2 arrived, stopped in a driveway and joined in on the pursuit of the Applicant. The Applicant turned, raised his hands in a ‘fighting stance’ and while he was walking backwards away from the officers, he tripped over some garbage bags and fell over the bags and onto the ground. The officers then got on top of the Applicant while he was lying on the ground to make their arrest and the Applicant started swinging his arms to hit the officers. The Applicant was wrestling with the officers in an attempt to get away. Alleged Offender 1 said he issued punches, elbow and knee strikes to the Applicant’s soft muscle masses in an attempt to prevent him from getting away.
29Other officers arrived on the scene and one thought the Applicant was reaching into his waist-band to retrieve a weapon. The Applicant kept protesting that he didn’t do anything wrong and that he wanted to go home. At that point, Alleged Offender 1 got his handcuffs on the Applicant and that was the end of the involvement of Alleged Offender 1 in this incident. Other officers took over and brought the Applicant into the station for processing.
Applicant’s questions of the Alleged Offender 1
30When asked, Alleged Offender 1 confirmed no weapon was found when the Applicant was searched. Prior to this, the Alleged Offender 1 had made dozens of bicycle stops and hundreds of vehicle stops during his seven year career. Also, when asked, the Alleged Offender 1 said that Alleged Offender 2 made the statement to the Applicant: “You’re fucked!”
Panel’s questions of Alleged Offender 1
31When asked, the Alleged Offender testified that the Applicant never said he was injured at the scene and to the best of his knowledge, the Applicant did not mention his injuries at the trial. The Alleged Offender said that he, personally, had a few cuts and minor injuries to his right hand and knee for which he immediately went to the hospital for treatment.
32With respect to the Applicant’s trial, Alleged Offender 1 believed that the Applicant was acquitted because of an error in his notebook – an unfinished sentence which made it unclear about the process of asking the Applicant to identify himself. Alleged Offender 1 believed the arrest was lawful. He said there was something in the judge’s decision about reasonable doubt and if the judge’s decision said the arrest was unlawful, then the Alleged Offender 1 suspected that it may have been related to him not being able to specifically say with certainty that he asked for the Applicant’s name versus for his ID.
33At this point in the hearing, the Panel explained that because of the differences between what the Applicant and Alleged Offender 1 said about the reasons for the acquittal, that the Panel would need to order a copy of the Reasons for Judgement from the Applicant’s trial which they expected would help complete their understanding of the incident. Alleged Offender 1 and his counsel left the teleconference with an expectation that they would be contacted to resume this hearing via teleconference on a future date.
Oral Evidence - Injuries
34The Applicant testified that he went to the hospital at about noon the following day (nine hours after the incident). He showed them the abrasions and swelling on his face as a result of his arrest. The Applicant told doctors that he hit his head on the ground but they did not do a CT scan or an MRI for his injuries. The Applicant said that “doctors told him he was too young for such an assessment and that it would be detrimental to his health”. He reported that he was feeling dizzy and since that sensation lasted for less than 24 hours he did not have to return to the hospital. His legs were sore and tender for about a week. He also mentioned that he had sore knee and he confirmed that at the hospital, he received no treatment for any of his injuries.
35On an emotional level, the Applicant testified that he feels powerless to some degree, he feels that he has no support from anyone and nobody seems to understand what he experienced. Anytime he talks about this incident, it seems as if he is just complaining. He doesn’t ride a bike anymore as he has anxiety towards the police and he doesn’t want to be stopped again. He has panic attacks when he sees a police car. He doesn’t go out at night any more.
36At this point, the hearing was adjourned to receive the Reasons for Judgement from the courts.
Hearing Resumed on June 25, 2018
37Prior to the hearing resuming the CICB received a copy of the [date], 2016 decision with respect to the assault with intent to resist arrest trial which arose from this incident. In his decision, the judge acquitted the Applicant of the assault/resist arrest charge while the other three other charges (possession and two HTA violations) were withdrawn by the Crown.
Counsel’s Submissions
38In his oral submissions, Alleged Offender 1’s counsel noted that in the reasons for judgement, the judge found both parties in the trial to be relatively truthful as they each believed that their viewpoints were correct and they honestly presented their testimony to the court.
39Counsel noted that during this incident, the Applicant did not tell the arresting officer or the booking officer that he was suffering from any injuries and this issue of the Applicant’s injuries was not explored during the trial. Counsel suggested that the issue of the Applicant’s injuries only came to light several months after the fact to support his efforts to seek compensation for this incident.
40Counsel suggested that the Applicant was less than forthright with the CICB relative to why he did not want to identify himself to police. Counsel suggested that the Applicant had no intention of co-operating with the officer in this incident since he was carrying cannabis and drug paraphernalia and he refused to identify himself and he attempted to leave when informed that he was under arrest.
41Counsel suggested the Applicant was legitimately stopped because he did not have a light on his bike at night and that it was difficult to believe the Applicant’s assertion that he did not know it was illegal under the HTA.
42Counsel observed that the Applicant said he asked the officer to just write him a ticket - without giving out his name. Counsel noted that this aspect of the Applicant’s testimony brought home the point that he never intended to give his name to the officer.
43Counsel observed there was a difference between the Applicant saying that he was passive vs. the officers who provided evidence that he physically resisted his arrest. The Applicant’s resistance required the Alleged Offenders to bring him under control and to complete the arrest.
44Counsel noted that the Applicant suggested that he was acquitted because he was racially profiled by the officers. However, in the reasons for judgement, on the issue of racial profiling, the judge said “I make no comment in any way to suggest that that was what motivated [the] Constable.”
45Counsel noted that under the HTA, the Alleged Offender is allowed to arrest a person who fails to identify themselves. Alleged Offender 1 testified that he asked for the Applicant’s name and he heard a “No”, so the officer felt he was making a lawful arrest under the HTA.
46Counsel also noted that the trial was focused on lawful arrest and it did not focus on lawful detention. If the CICB decides it wasn’t a lawful arrest, there is still the aspect of a lawful detention which would legally require the Applicant to stay until the officers were finished dealing with him. Counsel said the Applicant did not comply with his lawful detention because he said “No” and he decided to leave without completing this interaction (dealing with the ticket) with the officer.
47In summary, counsel noted that under section 5(a) of the CVCA, the Applicant has not met the criteria that he was criminally assaulted by the Alleged Offenders. Also, with respect to injuries described in the Applicant’s written submission to the CICB, there was a complete lack of evidence to support the Applicant’s assertion that he was injured as a result of this incident.
48With respect to section 17(1) of the CVCA, the Panel asked counsel if he wanted to comment on the relevant behaviour of the Applicant which contributed to his injury. Counsel noted this aspect of the CVCA would apply to this case. The Applicant decided to not give his name, he decided to walk away from the interaction with the officer, and he was responsible for his own injuries by tripping over the garbage, falling on the ground and putting the officers in a position where he had to be forcefully arrested.
Applicant's Submissions
49The Panel invited the Applicant to make oral submissions on section 17(1) of the CVCA. The Applicant felt that during the ‘pursuit’ he was interacting with the officer so he remained in the custody of the officer. He was told he was under arrest, he feared for his safety and that’s why he decided to leave the scene. The Applicant said that he thought he did not attempt to assault the officers and he believed that he should not have been detained.
50At this point in the hearing, Alleged Offender 1 and his counsel were released and disconnected from the teleconference. When asked by the Panel, the Applicant had no additional submissions relative to his injuries.
Analysis and Decision
51The Panel has carefully reviewed all of the evidence provided in the written and oral submissions noted above. For the following reasons the CICB dismisses the Application.
52To begin, the CICB finds that the Applicant did not consent to the force that was intentionally applied to him by the Alleged Offender 1 when he arrested the Applicant and therefore an assault occurred.
53Next, the CICB must consider whether the assault on the Applicant in this case was justified given by the fact that the Alleged Offenders were police officers. Section 25(1) of the Criminal Code says that
(…) everyone who is required or authorized by law to do anything in the administration or enforcement of the law as a peace officer or public officer is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.
54The issue of whether the arrest of the Applicant was lawful is relevant to the CICB’s determination of whether a crime of violence occurred. If the arrest of the Applicant was unlawful, then the officer was not justified in using force for the purpose of making the arrest and it follows that an assault (crime of violence) occurred.
55As noted above, on consent, the hearing was adjourned in order to obtain the criminal trial court’s reasons for judgment. The Applicant’s trial was in relation to the charge of “resisting lawful arrest”, pursuant to section 270(1)(b) of the Criminal Code. While the CICB must rely on the evidence before it, the determination of the lawfulness of the arrest is assisted by the analysis of the trial judge.
56The trial judge found that the officer had grounds to stop the Applicant and there is no dispute that reasonable and probable grounds existed for the charge of operating a bicycle without a light.
57Next, section 218 of the HTA provides that an officer who finds a person contravening the HTA may require the person to stop and provide identification. Subsection 3 further states that verbally providing a correct name and address is sufficient to fulfill the legal requirement to identify yourself. Where a person does not comply, an officer may arrest them without warrant. However, an officer is required not only to ask for the driver’s licence, proof of insurance and ownership, but to also specifically request alternative identification where the licence is not provided. Until that request further request is made and refused there is no contravention of the subsection and therefore no power to arrest. Accordingly, any arrest arising in such circumstances is not lawful. See R. v. Plummer (2006) 2006 ONCA 38165, 83 O.R. 528 (Ont. CA).
58The event before us happened around 2:30 in the morning. The officer and Applicant were near a school parking lot. We are mindful that for both the officer and the Applicant, the situation was unpredictable and dynamic. Alleged Offender 1 and the Applicant both testified that the officer asked for identification and then for the Applicant’s name. It is apparent from the evidence before us that the Applicant was hesitant to identify himself and was aware of the difficulty created for the officer in filling out a ticket as a result. It also is clear that the officer didn’t specifically ask for the Applicant’s address.
59In our case, the offence being investigated (operate a bicycle without a light at night) was complete. The officer had made the observations necessary to issue a ticket to the Applicant. In order to do so he needed the Applicant’s identification. Failing that, he had the power to arrest if he had specifically asked the Applicant to provide his correct name and address and the Applicant refused to do so.
60Alleged Offender 1 did not ask the Applicant to provide his address. The CICB therefore finds on a balance of probabilities that the failure to explicitly ask for the Applicant’s address, while a somewhat minor breach, resulted in an unlawful arrest. It follows that the subsequent actions of the police in taking physical control of the Applicant after he fell, and using force in the form of punches, elbow and knee strikes, constituted an assault and was therefore a crime of violence.
61Accordingly, considering the totality of evidence presented and this analysis, we find the Applicant, on a balance of probabilities, to be a victim of a crime of assault, and therefore, a victim within the meaning of section 5(a) of the CVCA.
62In order for the Applicant to be compensable, we must also find that the Applicant was injured. The CVCA defines injury as meaning “actual bodily harm and includes pregnancy and mental or nervous shock”.
63Since there is no definition of bodily harm in the CVCA, the Panel relies on the definition found in the Criminal Code of Canada where "bodily harm" is defined as "any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature”. Several hours after the incident the Applicant attended a hospital. The record indicates that there was an abrasion to his left temporal area, and that he complained of pain to his left knee, right thigh and right thumb. No treatment or follow-up was required and all of his physical injuries healed within a week. During his testimony the Applicant indicated he suffered from some dizziness for a short period of time following the arrest.
64The Applicant testified that he experienced some distress and fear arising from the circumstances surrounding his arrest, and that he continues to experience significant anxiety when he sees a police cruiser. While it isn’t always required, we do not have the benefit of a report from a qualified practitioner. Other than the letter submitted in support of the Applicant by his sister, the Applicant submitted no documentary evidence to support the psychological injuries, such as reports by a medical practitioner, counsellor, therapist or social worker.
65Fortunately, the physical injuries were not serious, but they cannot be characterized as trifling. The CICB accepts that the incident caused the Applicant some fear and anxiety at the time, and also find that there have been some lingering emotional effects arising from it. We find, therefore, that the Applicant suffered bodily harm.
66In the circumstances before us we are required to address the evidence in relation to section 17(1) of the CVCA which obligates the Panel to consider all of the relevant circumstances, including any behaviour of the victim that may have directly or indirectly contributed to his injury and the principality of proportionality.
67In this case we find, on a balance of probabilities that the Applicant chose not to identify himself to the police by providing his name when asked. He was required by law to provide this information. He did not to produce the identification which was in his pocket and left the scene while the officer was attempting to determine his identity. The incident resulted in minor physical injuries and some ongoing anxiety relating to the police. In the circumstances before us we find that the actions of the Applicant when weighed against the injuries he suffered, are such that an order for compensation should not be made.
68In all of the circumstances, while we have sympathy for the Applicant, the Application must be denied.
Dated in Toronto on this 30^th^ day of August, 2018.
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Jo-Anne Hughes, Member
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Christine McGoey, Member