Re 1604-03191, 2019 ONCICB 17

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Keith Forde

Date: February 04, 2019

Indexed as: (Re) 1604-03191

DECISION

INTRODUCTION

1The Applicant applied to the Criminal Injuries Compensation Board (CICB) seeking compensation for pain and suffering, treatment and travel to treatment expenses for injuries resulting from a physical assault that occurred on […].The incident was reported to the police; however, no charges were laid in relation to the Applicant’s injuries.

DECISION

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

ISSUES

3The fact that there has not been a conviction is not a bar to the Applicant’s claim. 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.

4The Applicant must prove, on a balance of probabilities, that his injuries are the result of at least one of the following:

• a crime of violence, pursuant to subsection 5 (a) of the CVCA;

• lawfully arresting or attempting to arrest an offender or suspected offender of an offence against a person other than the Applicant or his dependent or against such person’s property, or assisting a peace officer in executing his/her law enforcement duties, pursuant to subsection 5 (b) of the CVCA;

• preventing or attempting to prevent the commission of an offence or suspected offence against a person other than the Applicant or his or her dependant or against such person’s property, pursuant to subsection 5 (c) of the CVCA.

5The Applicant must provide reliable evidence to support his claims for expenses actually and reasonably incurred as a result of injury.

HEARING

6The hearing was conducted in writing on the basis of the materials contained in the Applicant’s file.

7The CICB received the following documents with respect to the Applicant’s claim: police reports dated April 28, 2016, hospital records from Health Sciences North (HSN) and a Workplace Safety and Insurance Board Report.

8The following is a summary of the facts and circumstances of the case as disclosed in the documentation on file with the CICB.

9The Applicant is a police officer with the Greater Sudbury Police Service (GSPS) and his claim relates to an incident which occurred on […], while he was on duty for the GSPS.

10The Applicant was attempting to arrest the Alleged Offender on an outstanding bench warrant. During the arrest, the Alleged Offender became argumentative and combative with the Applicant and attempted to run from him. A struggle ensued during the arrest, causing both the Alleged Offender and the Applicant to fall to the ground. Both the Alleged Offender and the Applicant landed on the Applicant’s left hand.

11The Applicant noted in his statement to the CICB that he injured his left hand when he took the Alleged Offender to the ground. He suffered a swollen left hand, a bruised left hand and he was unable to perform regular household chores. His hand was placed in three different casts as he was under the care of an orthopedic surgeon at HSN.

12HSN medical report confirmed the Applicant suffered a displaced metacarpal fracture of the long finger on the lateral. Follow-up at HSN was recorded as follows:

[Name] comes for assessment after he was injured on the job as a Police Officer. He is a gentleman who was arresting a suspect and grabbing him around the waist and then they both fell to the ground. He had a direct blow to his left hand and he felt a sharp pain in the base of his long finger metacarpal. During that time, he had difficulty using it and his pain slowly subsided. He ended up noticing a significant amount of bruising in the area, had difficulty with grip strength and he ended up seeking medical attention. Plain film x-rays showed a possible metacarpal fracture on the lateral view.

13The Applicant sought compensation for medical, treatment and travel to treatment expenses; however, no supporting documentation was received by the CICB for any of these claims.

ANALYSIS

14Section 5 of the CVCA reads as follows:

Injuries Compensable

5. Where a person is injured or killed by an act or omission in Ontario of any other person occurring in or resulting from,

(a) the commission of a crime of violence constituting an offence against the Criminal Code (Canada), including poisoning, arson, criminal negligence and an offence under section 86 of that Act but not including an offence involving the use or operation of a motor vehicle other than assault by means of a motor vehicle;

(b) lawfully arresting or attempting to arrest an offender or suspected offender for an offence against a person other than the applicant or his or her dependant or against such person’s property, or assisting a peace officer in executing his or her law enforcement duties; or

(c) preventing or attempted to prevent the commission of an offence or suspected offence against a person other than the applicant or his or her dependant or against such person’s property.

15The CICB has carefully considered the available evidence, including the documentation from the Applicant, the GSPS and the medical reports from HSN. The only injury the Applicant reported from the incident is the displaced metacarpal fracture to his left hand. In the Applicant’s written evidence to the CICB, he admit that he suffered the injury after arresting the Alleged Offender for the outstanding bench warrant and taking him to the ground causing him to fall on his left hand and that he also fell on his own left hand.

16Compensability under Section 5(a) of the CVCA requires both a crime of violence (e.g. an assault) and a resulting injury. The CICB notes that the Alleged Offender was never charged with assaulting the Applicant as a result of his injury. While the CICB acknowledges that the Alleged Offender may have resisted being arrested by the Applicant by struggling not to be handcuffed, the CICB has no evidence to show on a balance of probabilities that the Applicant was injured as a result of a crime of violence. His injury may very well have been an accident. As a result, the Applicant is not compensable under Section 5(a) of the CVCA.

17In relation to Section 5(b) of the CVCA, while the CICB acknowledges that the Applicant’s injury occurred in the context of attempting to arrest the Alleged Offender for an outstanding bench warrant. To be compensable under this provision of the CVCA, an Applicant must be “arresting or attempting to arrest” an individual “for an offence against a person or property other than the Applicant or his or her dependent.” In this case, the Applicant has indicated that he was injured after arresting the Alleged Offender and in an attempt to place handcuffs on the Alleged Offender, both the Alleged Offender and the Applicant fell to the ground; thereby causing the injury to the Applicant’s left hand. Nonetheless, the arrest came in the context of an outstanding bench warrant rather than another person or his/her property as required by the provision. Accordingly, the CICB finds that the Applicant is not compensable under Section 5(b) of the CVCA.

18Similarly, Section 5(c) of the CVCA allows for an Applicant to be compensable where he is injured while “preventing or attempting to prevent the commission of an offence against a person other than the Applicant or his or her dependent or against such person’s property.” The Applicant’s injury occurred while he was attempting to arrest the Alleged Offender for the outstanding bench warrant rather than an offence on another person or his/her property as required by the provision. Accordingly, in the CICB’s view, under any reasonable interpretation of subsection 5(c) of the CVCA, the Applicant is not compensable under this provision.

19Therefore, while the CICB is sympathetic to the Applicant in the light of his injury, the CICB finds that the Applicant is not compensable under Sections 5(a), 5(b) or 5(c) of the CVCA.

20The Applicant’s claim must be denied.