(Re) 1510-01026, 2019 ONCICB 110

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicators: Janet MacEachen, Christine McGoey Date: September 10, 2019 Indexed as: (Re) 1510-01026

DECISION

Introduction

1The Applicant applied to the Criminal Injuries Compensation Board (CICB) seeking compensation for an injury resulting from a crime of violence. The Applicant is seeking compensation for pain and suffering and expenses.

Decision

2In accordance with the Compensation for Victims of Crime Act, RSO 1990, c.C24, as amended (CVCA), the CICB denies the Application. The reasons for this Decision follow below.

Hearing

3The Applicant appeared in person and provided oral testimony and submissions.

4The Alleged Offender was present and participated in the hearing. In these circumstances and as is the CICB’s normal practice, the hearing was to proceed as a shuttle hearing. The Applicant and Alleged Offender were in separate hearing rooms, but both were able to hear and participate using telephones. The adjudicators, the Applicant and counsel for the Applicant were present in the same room.

Evidence

5The Applicant testified that on one occasion several weeks prior to the incident in question he had attended the auto shop of a person he had known since high school. The plaza was empty and there were no signs in the lot identifying parking for each of the businesses there. The Alleged Offender, who owned a business in the same strip mall, came into the auto shop while the Applicant was on the phone and told him to move his car. He said he was calling the police. They argued and the Alleged Offender blocked his car in with another vehicle. During the verbal confrontation the Applicant asked the Alleged Offender why he was taking things so seriously and told him to get a life. According to the Applicant the Alleged Offender was angry and stood face to face with him about 6-8 inches away. He then went into his shop and returned with a German Shepherd on a leash. They continued to argue as they waited for the police to attend. After about 30 minutes the Applicant got into his Jeep and maneuvered around the Alleged Offender’s vehicle. As he drove off the Alleged Offender was recording him on his phone and the Applicant told him to ‘get a life’.

6On August 26, 2015 the Applicant testified that he went to the shop and took a test drive with the owner in a vehicle he was considering buying. On their way back to the shop the engine began smoking and they drove into the lot and got out to investigate the problem. It was a busy afternoon and the space they had stopped in was between his friend and the Alleged Offender’s businesses straddling the space in front of both. As they got out to look at the engine the Alleged Offender came out of his business and told the Applicant’s friend to move the car. He then stood in front of the Applicant. They were between cars and the Applicant said he was trying to get around to look under the hood of the vehicle. It was a tight area, and as the Applicant walked around him he said the Alleged Offender rotated his body so that he was always facing him. The Applicant testified that at the time of the incident he was 27 years old, 5’ 8” tall and about 150 lbs. He described the Alleged Offender as being about 5’ 5” tall, skinny and in his late 30’s.

7The Applicant testified that he went to the hood and stood at the right side fender, facing the engine. The Alleged Offender stood sideways to him with his chest about 2-3 inches away from his left shoulder. The Applicant indicated that he was not looking at the Alleged Offender and he pushed him with his left hand, telling him to get away from him. According to the Applicant he did not want to start anything. The push was not hard enough to cause the Alleged Offender to lose his balance. A split second later the Applicant testified he was hit on the left side of his face near the temple. He didn’t see how he was hit.

8The Applicant testified that he was dazed and instinctively grabbed onto the Alleged Offender as he fell to the ground. As he went down he was hit a couple of times by the Alleged Offender. His friend, the owner of the auto shop, intervened. The Applicant said as he got up he was bleeding just above his left eye and he laughed. He said he knew the Alleged Offender had a history, that he was a hot head, and he said he was going to call the police. The Applicant said he wanted to get the Alleged Offender in trouble. He told the Alleged Offender he would sue him. The Applicant testified that he never consented to a fight.

9The Applicant explained that he bear-hugged the front lower part of the Alleged Offender’s body, saying that in high school when he got hit he tended to grab the other party. An ambulance and the police attended. He received three stitches for his cut and there was an injury to his eye which made it difficult to see. Police attended the hospital and spoke to him as he was being treated.

10The Applicant was cross-examined by counsel for the Alleged Offender. He was asked about the cautioned statement he had provided to the police and signed on the evening in question. In that statement the Applicant said that he had pushed the Alleged Offender telling him to ‘get away’, then turned to face the engine with his back to the Alleged Offender. He said he was assaulted and went to the floor then got up. His eye was bleeding, and things felt hazy. He saw the Alleged Offender in front of him and his friend came between them to intervene. He repeated that he was assaulted when his back was to the Alleged Offender and then quickly went to the floor. He said he didn’t know the number of times he was punched. He did not mention anything about bear hugging the Alleged Offender and being punched after doing so.

11When asked about this inconsistency in cross-examination the Applicant said that he did not think much about the bear hug until the criminal trial when he was cross-examined by the defence who were suggesting he was trying to do a UFC move, and sweep the legs out from under the Alleged Offender. He was also asked at trial about how, if events had happened as he described to police, blood got on the front of the shirt of the Alleged Offender. At trial the Applicant testified in chief that he did not know how the blood got on the shirt. At the hearing the Applicant said that he was arrogant when he testified at trial, and after thinking about it the story didn’t add up, and his account at the hearing made sense. He said as he read about it he remembered things.

12The Applicant was asked to explain why, in the Application dated Sept. 8, 2015, which was shortly after the incident and before he testified at trial, he said he was punched multiple times and fell to the ground having blacked out. The Applicant agreed he said that but indicated someone else filled out the form and he didn’t review it.

13The Applicant was asked in cross-examination about his testimony at trial. He had testified that he was looking at the engine after having pushed with his hand to get the Alleged Offender away from him. He told the Court the next thing he knew was he was bleeding on the floor and his friend was in front of him. It was put to him that his testimony at trial indicated he did not know how he went to the ground. He said at the criminal trial he had never been a witness, he was nonchalant, arrogant, and cocky. He said at the criminal trial he didn’t take it seriously and didn’t think he had to be precise. He maintained that he grabbed the Alleged Offender after he was punched and falling and that he was hit a couple of more times as he fell. He stated remembered the bear hug and punches after having spent time thinking about what happened

14The Applicant was asked about his criminal record by counsel for the Alleged Offender and testified he plead guilty to robbery for a crime that involved using an imitation firearm at a convenience store when he was 18 years of age. The Applicant testified that since that event he had turned himself around, had gone to college and that he intended to seek a pardon. He testified that that was why he showed restraint when dealing with the Alleged Offender. He agreed that he acted stupidly on the first occasion they met and that he shouldn’t have ‘fueled the fire’. He denied the suggestion put to him that he aggressively approached the Alleged Offender on August 26, 2015 and put him in a hold and it was only in defending himself that the Alleged Offender hit him.

15The police witness testified at the hearing and read the statement provided by the Applicant following the incident after being cautioned. In the relevant parts of the statement the Applicant said he arrived with mechanic/owner and parked in the plaza. He notified the mechanic engine was smoking up. The owner/assailant came out and told his friend he shouldn’t be parking here. He said okay, he was going to open hood. The Applicant proceeded to see the engine. The guy was standing near car. The Applicant told police he got near the hood of the car and got pushed by him and he said, ‘why are you close to me’. He went to the hood and he came nose to nose to him, so he pushed him away and said, ‘get away’. He turned to the engine, with his back to him, and was assaulted, went to floor, got up, and his eye bleeding, hazy. He still saw him in front and his friend came to the middle to stop it. He told him he was assaulted and was going to call the call the cops. The Alleged Offender went in his business then came out recording him. The Applicant said to him he was ‘glad you hit me because he was going to charge you’. The Applicant told police that a month or two before the Alleged Offender ‘literally’ came up to his face and bumped him nose to nose over a parking dispute. The police asked the Applicant how he was assaulted and the Applicant said his back was to him and he didn’t know. He said it happened quickly and he was on the floor. He said he didn’t know the number of times he was punched. The Applicant signed the statement.

16Shortly after the incident the police spoke to a witness who was working in the office owned by the Alleged Offender. She was with a client inside the office when her boss (the Alleged Offender) went outside because of a revving engine. She stated she believed another gentleman stepped out of the rear passenger door of the car. She didn’t know what was said. She turned back to her client and then turned back to see the man in front of her boss, face to face. They were yelling at each other, but she couldn’t hear what they were saying. The gentleman went to grab or bear hug her boss and then she saw them fist fighting. The witness stated her boss was punching to get him off. She went to get her other boss, and when she turned back around, the man’s arms were still around her boss. The two were now relocated on an area of grass. Her other boss went out and she continued to deal with the client. Both men were calling 911. The other man said he was happy to call 911 and that he was going to sue and make a lot of money. Her boss had blood on his shirt. The total altercation was a minute to a minute and a half. Her boss mentioned some injury to his thumb and back

17Almost three months after the incident the police spoke to the owner of the auto shop, the friend of the Applicant. The police witness testified about the contents of the statement taken by another officer. Unfortunately, the writing wasn’t very clear. Essentially, the auto shop owner stated that he and the Applicant took a car for a test drive then parked in front of his unit. The engine was smoking and he popped the hood. As they were looking inside the Alleged Offender came out. The Applicant didn’t want anything to do with him and the Alleged Offender punched him in the head. The Applicant fell to the floor. The witness/auto shop owner said he had to break it up and police were called. The Applicant’s eye was cut and bruised.

18The Alleged Offender was charged with Assault Causing Bodily Harm. The transcript of trial proceedings was filed and the following is a summary of the transcripts. The Applicant testified on August 8, 2016, approximately a year after the incident. The Applicant described pulling in to the lot with the car smoking. He indicated the Alleged Offender moved in his way and he told him to ‘get away from me’ pushing his hand. He stated he never pushed him directly, but pushed his hand up to maintain distance. The next thing he knew he was bleeding and on the floor. He was knocked out. He said he didn’t see whatever hit him coming. In cross-examination he said during the prior incident they were face to face, eye to eye, arm’s length apart. He was asked about his police statement where he said he bumped him nose to nose. The Applicant said he didn’t say arm’s length was the closest they came and that the Alleged Offender could have got close but there was no physical interaction. He then stated he was not going to say he did or didn’t bump his nose.

19With respect to the incident on August 26, 2015 the Applicant in cross-examination at the trial, denied being the initial aggressor. He testified that the Alleged Offender came up to him, and he put his hands up saying, “Get away from me”. He denied pushing the Alleged Offender. When asked about his police statement he said what he said at trial was he put his elbow up to keep him away and that is what he called a push in the statement. He agreed there was contact with the forearm. He denied bear hugging the Alleged Offender. He testified he didn’t know how blood got on the shirt of the Alleged Offender. He testified that he got hit, was dazed and fell to the floor. He said he could have rolled and fell, and that it was possible he got hit, lost his balance and tipped over. He felt that was what most likely happened. He said he didn’t know how he fell.

20It was put to the Applicant in cross-examination that after pressing his chest against the Alleged Offender the Alleged Offender pushed him away and that the Applicant came at him in a bear hug attempting a double leg sweep. The Applicant disagreed. It was further put to him that while he had his arms around the Alleged Offender’s waist the Alleged Offender gave him an upper cut to the eye. Again, he denied that that had happened.

21Initially, when asked about his criminal record at trial, the Applicant stated he didn’t remember who was holding the gun during the robbery. He then agreed that he had admitted in the facts read on the guilty plea that he was the one holding the gun.

22Following the Applicant’s evidence the Crown told the Court that they were not going to call anymore witnesses and invited the court to dismiss the charges, providing the reasons for their request on the record.

23The Alleged Offender chose not to testify at the CICB hearing. Counsel for the Alleged Offender relied on the inconsistencies in the Applicant’s account between the police statement, the trial evidence and the hearing and submitted that he had not met the burden of proving a crime of violence occurred on a balance of probabilities. It was submitted that the Applicant’s evidence raised credibility and reliability concerns. It was suggested that the Applicant had testified at the CICB hearing in an attempt to deal with the evidence he had been confronted with during cross-examination at trial about the blood on the Alleged Offender’s shirt and the evidence of the other witness describing a bear hug as recounted by the police witness at the hearing. It was only at the present hearing that he testified about falling after being hit and bear hugging the Alleged Offender on his way to the ground. It was only at the hearing that he added he was punched as this was taking place.

24Counsel also submitted that the Applicant had animus towards the Alleged Offender. On a prior occasion he admitted egging him on, wanting to get a reaction. It was submitted that the Applicant had not been straightforward at the trial of the Alleged Offender. His story has become more convoluted and his claim that his memory was better 3.5 years after the event didn’t make sense. It was also submitted that the Alleged Offender acted in self-defence and any injury caused by him was as a result of a reasonable and proportionate response.

25Counsel on behalf of the Applicant acknowledged that there were a number of inconsistencies in the accounts given by the Applicant and that he initially pushed the Alleged Offender. It was submitted that he didn’t consent to a fight and was looking away when he was blindsided by an assault by the Alleged Offender sustaining a cut requiring three stitches and some blurring to the eye. With respect to self-defence it was submitted that the punch was not a reasonable response to the push and that the blood on the shirt of the Alleged Offender was a result of the Applicant falling and grabbing or bear hugging the Alleged Offender as he went down.

Analysis

Crime of Violence

26There was no conviction in respect of the incident. We are not bound by any findings in criminal court and must determine the facts based on the evidence before us apply the balance of probabilities standard.

27Section 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.

28The 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 the injury resulted from the crime. In assessing what happened we are obliged to consider self-defence and section 17(1) of the CVCA.

29We are troubled by the inconsistencies in the accounts given by the Applicant to police, at the criminal trial and his evidence before us. While there are more minor inconsistencies, our greatest concern is with respect to the central issues as to the nature of the contact by the Applicant and Alleged Offender. It was only at the CICB hearing he testified for the first time about bear hugging the Alleged Offender as he fell after being punched and then being punched a couple of times on his way to the ground.

30After reviewing the evidence filed and the testimony at the hearing, we find that the Alleged Offender came out of his shop and confronted the Applicant. The Alleged Offender was standing in his way and very close to him. At that point the Applicant pushed him away using his hand.

31What followed is less clear. As indicated the Applicant has given different accounts of what transpired. The witness in the office whose statement was relayed by the police witness was also dealing with a client so it is quite possible she didn’t see everything. However, she described both parties yelling at each other and then the Applicant going to grab the Alleged Offender in a bear hug which was followed by a fist fight with the Alleged Offender punching to get him off. A few months later when the owner of the auto shop gave a statement he described the Applicant being punched in the head and falling to the ground. His account, at least as far the police witness could decipher from the written statement of another officer, does not mention bear hugging. We did not have the benefit of the Alleged Offender’s account of events.

32While we accept that the Applicant was punched by the Alleged Offender, we are not satisfied on a balance of probabilities when that occurred in relation to his pushing the Alleged Offender away and bear hugging him. In determining whether self-defence applies to the actions of the Alleged Offender we must consider whether the punch or punches he used, was a reasonable response in law to being pushed, and depending on the sequence of events, grabbed in a bear hug.

33In some circumstances the law allows a person to do things that would otherwise be unlawful and a crime to defend or protect themselves from the actual or threatened use of force. Anyone who does something for this purpose and within the limits permitted by the law is acting lawfully and commits no crime. (See Watt’s Manual of Criminal Jury Instructions, 2nd ed., 74A)

34Section 34(1) of the Criminal Code provides a defence for the use of force if a person believes on reasonable grounds that force is being used against them or another person; the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person; and the act committed is reasonable in the circumstances.

35Section 34(2) lists factors to assist with the determination of whether the force used was reasonable: the nature of the force or threat; the extent to which the use of force was imminent or whether there were other means available to respond; the person’s role in the incident; the size, age, gender and physical capabilities of the parties; the nature, duration and history of any relationship between the parties, any history of interaction or communication between the parties; the nature and proportionality of the person’s response to the use or threat of force and whether the act was committed in response to a use or threat of force that the person knew was lawful.

36In the criminal context the Crown must prove beyond a reasonable doubt that the accused person was not acting in self-defence, that is, he was not acting in lawful defence or protection of himself or another person. In order for the Applicant to be successful before the CICB we must be satisfied on a balance of probabilities that, the Alleged Offender, in punching him was not acting in lawful defence or protection of himself.

37Based on the record before us we find, after considering the factors outlined above, that the Applicant has not established the Alleged Offender was not acting in self-defence when he punched him. In doing so we accept that the Applicant pushed the Alleged Offender as he stood near him objecting to the parking of the vehicle on or near the front of his business. We accept that the Alleged Offender punched the Applicant but find there was interaction between the two which included the Applicant grabbing the Alleged Offender in a bear hug, and when the punch or punches by the Alleged Offender took place is not clear. Further the nature of the force was not excessive given the history and interaction that preceded it. Both parties were involved in escalating this unfortunate situation. The Applicant has not established on a balance of probabilities, that the Alleged Offender was not acting in the lawful self-defence.

38If our analysis is incorrect regarding self defence and the Applicant had successfully established on a balance of probabilities that the Alleged Offender was not acting in lawful defence we are required to examine section 17(1) of the CVCA. Section 17(1) requires the CICB to consider all relevant circumstances in order to determine whether to order compensation and the amount of compensation, including any behaviour of the victim that may have directly or indirectly contributed to his or her injury or death. This analysis also requires weighing proportionality of the injury to the behaviour of the Applicant in contributing to their injuries.

39In considering the circumstances, we find that the Applicant contributed to his injuries as a result of his prior interactions and behaviour at the time of the incident. Weighing the proportionality of the injury which involved a cut above the eye requiring three stitches and some temporary blurring of the eye with the Applicant’s actions as described above, and all the circumstances in this case, we find, pursuant to section 17, that compensation ought not to be ordered in this case.