Re 1602-02392, 2018 ONCICB 73

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicators: Janet MacEachen, M. Saleem Akhtar Date: September 24, 2018 Indexed as: (Re) 1602-02392

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 (CVCA). The Applicant is seeking compensation for pain and suffering as a result of an attempt murder that occurred on [date], 2015 where he sustained physical/psychological injuries. The incident was reported to the police and resulted in the Offender being charged with attempt murder as well as a number of weapons charges. A preliminary inquiry was held and the matter was sent to trial. The Applicant testified at the preliminary inquiry and was cooperative with the investigation. Subsequent to the preliminary inquiry and prior to trial, the Offender pleaded guilty to attempt murder and was sentenced to 10 years in prison.

Decision

2The CICB approves the claim and awards the Applicant the sum of $8,000.00 for pain and suffering for the reasons set out below.

Issues

3A conviction may be taken as conclusive evidence that an offence has been committed pursuant to section 11 of the CVCA. Given that there was a conviction in this case, the Applicant is required to prove, on a balance of probabilities, that his injuries are the result of the crime pursuant to subsection 5(a) of the CVCA.

4If 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.

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

5The Applicant provided oral testimony by phone. He was assisted by his legal representative, also participating by phone, who asked questions of her client and made submissions on his behalf.

6[name], a Detective Constable with the [city] Police Service (‘police officer’) appeared as a witness. The police officer was the officer in charge of the case.

7At the beginning of the hearing, we confirmed the Applicant was aware of subsections 17(1) and 17(2) of the CVCA, as noted above in paragraph 4, and that we would consider those parts of the CVCA when deciding the Application. These subsections were read to the Applicant.

Documentary Evidence

8The CICB received the following documents with respect to the claim:

• The Application;
• Court documents setting out the charges against the Offender;
• A Police report dated [date], 2016;
• Multiple hospital reports dated from [date], 2015 to [date], 2015;
• A therapy report dated [date], 2016.

9The police report indicates that the Applicant was at a party at a restaurant/bar on [date], 2015. He was leaving at approximately 3 a.m. He went to the parking lot and started his car. As the car was running, he stepped outside of it to have a cigarette. Shortly thereafter, another vehicle arrived in the parking lot and the person in the passenger side exited the vehicle carrying a hand gun and fired a shot at the Applicant. There was a brief struggle he was shot 3 more times. The Offender left the scene and the Applicant went to the hospital.

10The hospital reports indicate that the Applicant suffered gunshot wounds to the neck, left arm, wrist and upper thigh. He underwent emergency surgery and remained in the hospital for 14 days. The last report, dated [date], 2015, describes the Applicant as doing extremely well. There was no further follow up treatment. There is no current medical report.

11A Therapy report dated [date], 2016 describes the Applicant as being traumatized by the incident.

Oral Evidence

12The Applicant’s testimony was similar to the information in the police report but with some additional detail. He said he recognized the Offender who had jumped out of an SUV carrying a hand gun. The Applicant said at first he tried to get away but was unsuccessful. The Offender kept shooting. Finally the Applicant pushed him and the Offender fell into a wall. He dropped the gun but recovered it and ran away to the SUV and left the scene. The Applicant took himself to a hospital which was closed. Security at the location called police and police and medics arrived. The Applicant was taken to [name] hospital. He was cooperative with the police. The Applicant indicated that he had a previous run in with the Offender when the Offender robbed him of jewelry and money.

13With respect to his injuries, the Applicant indicated that he still feels some pain in his leg and arm and that he still has some numbness in his wrist as well as a lack of range in rotating his wrist. He was advised that some physiotherapy would be useful.

14He also testified that the incident has left him fearful and that he doesn’t know who he can trust. He still gets flashbacks and has sleepless nights. He feels he would benefit from some therapy.

15The police witness confirmed that the Applicant was very cooperative with the police investigation from the beginning. He identified the Offender right away and gave a video statement. The police witness said the Applicant provided very thorough testimony at the preliminary inquiry which he said likely resulted in the guilty plea.

Analysis and Decision

16For the following reasons the CICB grants the Application.

17There is no question that the Applicant was a victim of a crime of violence. The Offender was convicted of attempt murder. There is no suggestion that the incident was in any way provoked by the Applicant. In addition, he was very cooperative with the investigation and court proceedings.

18It is also clear that he was injured as a result. The hospital records, the police observations and the Applicant’s own testimony confirm that he received 4 gunshot wounds. Surgery was required and the Applicant still has some residual pain as a result and some reduced flexibility. He has also suffered emotionally, as he remains fearful and still has flashbacks of the incident.

19Taking these factors into consideration, the CICB awards the Applicant $8,000.00 for pain and suffering.

20Subsections 17(1) and 17(2) of the CVCA are not factors in this decision as no evidence was brought forth suggesting they were relevant.

Physiotherapy

21Based on the Applicant's stated intention to enter into physiotherapy in the near future, the CICB authorizes up to $1,500.00 (exclusive of any applicable taxes) for physiotherapy expenses to be paid directly to a qualified treatment provider upon receipt of a Curriculum Vitae outlining the credentials of the service provider (unless the CICB already has a copy on file). These sessions can only be accessed when the therapy sessions are not covered by other sources, such as the Applicant's place of employment or insurance benefits. The physiotherapy sessions must be completed within 36 months of receipt of this Order. Payment may be made directly to the treatment provider on a monthly basis, upon submission of an invoice and the required verification from the Applicant. The CICB may also consider physiotherapy expenses that were incurred between the time that the Applicant submitted his final set of documents to the CICB and the receipt of this Order. If there are such expenses, the CICB will deduct these from the pre-authorized $1,500.00 amount described above.

Therapy/counselling

22Based on the Applicant's stated intention to enter into therapy in the near future, the CICB authorizes up to $1,500.00 (exclusive of any applicable taxes) for counselling expenses to be paid directly to a qualified treatment provider upon receipt of a Curriculum Vitae outlining the credentials of the service provider (unless the CICB already has a copy on file). These sessions can only be accessed when the therapy sessions are not covered by other sources, such as the Applicant's place of employment or insurance benefits. Therapy sessions must be completed within 36 months of receipt of this Order. It is the CICB's practice to award up to $100.00 per session for therapy, or up to $125.00 per session for registered psychologists. Payment may be made directly to the treatment provider on a monthly basis, upon submission of an invoice and the required verification from the Applicant. The CICB may also consider therapy expenses that were incurred between the time that the Applicant submitted his final set of documents to the CICB and the receipt of this Order. If there are such expenses, the CICB will deduct these from the pre-authorized $1,500.00 amount described above.

Award

23The CICB orders payment as follows:

Subsection 7(1)(a) Future Expenses $ 3,000.00

Subsection 7(1)(d) Pain and Suffering $ 8,000.00

TOTAL AWARD $11,000.00

Less: Preauthorized treatment costs -$3,000.00

TOTAL CURRENT AWARD $ 8,000.00

Payment

24THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $8,000.00