CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Louise Charette
Decision Date: March 06, 2019
Indexed as: (Re) 1804-01465
DECISION
INTRODUCTION
1The Applicant applied to the Criminal Injuries Compensation Board (CICB) seeking compensation for pain and suffering and expenses for injuries resulting from an assault that occurred on [..] .
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 onus is on the applicant to prove, on a balance of probabilities, that he was a victim of a crime of violence and that he suffered an injury as a result.
4The Board must also determine whether there are any issues with respect to sections 17(1) and 17(2) of the CVCA that would affect the award of compensation in this case.
5The Applicant must also provide reliable evidence to support his claim for expenses actually and reasonably incurred as a result of his injury pursuant to subsection 7(1)(a) of the CVCA.
HEARING
6The hearing was conducted on January 3^rd^ 2019. The Applicant appeared by teleconference and provided oral testimony.
7At the beginning of the hearing, the Board confirmed that the Applicant was advised of subsection 17(1) and 17(2) of the CVCA and that he was aware the Board would consider those parts of the CVCA when deciding the application. These subsections read 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.
17(2) The Board may, in its discretion, refuse to make an order for compensation or ordered a reduced amount of compensation where it is satisfied that the applicant has refused reasonable co-operation with, or failed to report promptly the offence to, a law enforcement agency.
8The Applicant confirmed he understood the meaning of the above sections and, after having been offered an adjournment and an opportunity to consult counsel, the Applicant indicated that he did not wish to adjourn the matter and was prepared to proceed with the hearing as scheduled.
Evidence
9The Board reviewed the following documents; the application, police information, court documents, hospital records and pictures.
10The documentary evidence shows that the Applicant was stabbed five times by the Offender. The information suggests that prior to the assault, the two men exchanged text messages and had entered into dispute over a female that they were both interested in.
11The Applicant testified that he was upset at how the Offender was treating the female and the exchanges of texts between the two was over this issue. The Applicant stated that at some point during the exchanges, the Offender told him that he was coming over to his house. He advised the Board that at that time he was at home with his son. Once at the location, the Offender texted him to come outside. He stated that he did however as he could not see anyone, he went back inside.
12The Applicant stated that he received another text moments later telling him to go further. He stated that he went back outside and this is when the Offender came up behind him and stabbed him. The Applicant testified that he then chased the Offender. When he returned to his home he saw blood all over his shorts.
13The Applicant testified that he did not know the Offender at all. He advised the Board that this was not a consensual fight. When asked to explain why the police report notes he went outside with a twenty pound dumbbell, he advised the Board that he lifts weights and it appeared he was avoiding answering the question. When asked again, he stated that he does not know for sure if he went outside with a dumbbell. When asked if he was intoxicated as police mention in the report, he admitted to having had a few drinks that evening however denied being intoxicated.
Police Evidence
14The police synopsis indicates that both the Applicant and the Offender have a lengthy history with the police. On the day of the incident, police received information that a male party had been involved in what appeared to be a consensual fight or disagreement. Police noted it was the Applicant’s twelve year old son who called 911 advising that his father needed medical assistance after being struck in the mouth with a steel pipe. The initial information received by the police led the officer to believe that the confrontation was a result of the two male parties exchanging text messages which originated over a female.
15The investigating officer provided testimony by phone at the electronic hearing. He advised the Board that the Applicant originally told police he knew the Offender and that this was related to a dispute over a girl. He believes this is a situation of two grown men unable to resolve their issues resulting in sending each other offensive text messages. He testified that he personally read the history of text messages between the Applicant and Offender. Based on these messages, it would appear that the officer was of the view that the Applicant was being deceitful at the hearing.
16The investigator pointed out the following inconsistencies in the Applicant’s testimony.
With respect to his consumption of alcohol, the officer testified that he saw fifteen tall cans of beer on the counter and from his seventeen years of policing he would describe the Applicant as intoxicated that night. He felt that his intoxication lead to a complete lack of common sense or awareness.
The officer also noted that the Applicant was not truthful in his testimony with respect to not knowing the Offender. He stated that the Applicant told police during his video statement that he knew him, that he had seen him around as they lived in the same apartment complex. He told police however that he had not spoken to him.
The officer also pointed out that on the night of the incident, the Applicant was at home with not only one child as he testified to but two children. One other small child was sleeping at the time of the incident.
The officer also testified that the evidence showed a different tone to the text messaging. He noted that the Applicant was not texting to defend the woman’s honor as he suggested.
The officer was of the view that the Applicant was a willing participant from the beginning. There was texting back and forth between the two men and at some point the offender said “I am here” and the Applicant responded “sweet, I will be right out”. In another response, the Applicant tells the Offender his door is always opened.
The officer also pointed out that at some point the Applicant told the Offender he “has twenty minutes to come over, if not he is going there”. Ten minutes later, the Offender sends a text saying “I’m here”. From these text messages, the officer also believed the Applicant was accepting the challenge. That being said, the Applicant testified at the hearing that during the exchanges it was the Offender who said he was coming over to his house.
The officer also referred to the utterances that were made with respect to the use of a dumbbell. Even though the Applicant said he didn’t recall using a dumbbell, the officer believed the Applicant went outside with it. This was his recollection of the evidence. In addition, the officer testified that he saw a twenty pound dumbbell inside the house covered in blood.
17In response to the officer’s testimony, the Applicant maintained that he did not know the Offender aside from some texting. He stated that this does not mean they knew each other. He also added that he could not answer how they got each other’s numbers and who texted who first.
18The officer was of the view that the Applicant contributed to his injuries. He testified that the Applicant had the opportunity to keep his door closed or call the police but he didn’t, he accepted the challenge and then chased the Offender. The officer also noted it could have easily been the Offender who had received injuries from this incident as opposed to the Applicant.
19The officer testified that charges were laid against the Offender because of the injuries, because “he won the fight”. His belief is that both men had armed themselves prior to the incident and both had the intention to inflict injury on the other. He stated that had the Applicant not suffered injuries, he would have also been charged.
Injuries
20The Applicant noted that as a result of the incident, he suffered from five stab wounds. He stated that four of the wounds on his body were treated with steri strips however, he required actual stitches on the cut between his nose and lip. He provided pictures in support of these injuries and blood loss after the assault. He also noted that after the incident he had difficulties eating and that he experienced pain. The Applicant stated that he has difficulties lifting weight, laying on his side and that he has some numbness.
21The Applicant reported that the incident has also impacted him psychologically. He noted in his application that he suffered from “bad anxiety” before the incident however it has gotten worse since. He testified that he has difficulties taking a shower unless someone is home and going out. He also advised the Board that he has not attended counselling in the past however recently considered starting therapy.
22The police synopsis notes stab wounds to the Applicant’s back, upper left shoulder, upper left portion of his back, and lower left abdomen as well as a large wound beginning at the left nostril ending at the lip.
23Police determined that the wounds had been caused by an edged weapon due to clean edges and that it was not consistent with blunt force trauma. It was noted that all stab wounds were not deep enough to be of immediate concern.
24The hospital records show the Applicant attended the emergency department as a result of five stab wounds. The diagnostic report notes the patient had been in an altercation earlier in the day and that he had been brought in by EMS on account of stab wounds.
25Upon physical examination, it was noted his left upper lip had been sutured however there were also wounds on the left upper arm, two on the left side of his chest and back as well as in the abdomen. All wounds were explored and put together with steri strips and covered.
26The Applicant did not submit any other medical or therapy reports in support of his application. He indicated that the medical report would not have assisted further as he did not attend for any follow up.
ANALYSIS
27In order to be compensable, the Applicant must show the Board that he was a victim of a crime of violence and that he suffered injuries as a result. Section 11 of the Act indicates that a conviction is conclusive evidence that the Applicant was a victim of a crime of violence. In this case, the information submitted confirms a conviction. The Applicant is then required to prove, on a balance of probabilities that his injuries resulted from the crime of violence. In light of the information provided, the Board also concludes that the Applicant suffered injuries as a direct result. The Board must then consider 17 issues.
Section 17 issues
28The CVCA gives the Board broad discretion to determine whether compensation ought to be awarded in any given case and, if so, the amount. Section 17(1) of the CVCA requires that the Board take into consideration “all relevant circumstances” including any behavior of the Applicant which may have contributed to his injuries. In this case the Board had to determine if the Applicant’s behavior contributed to his injuries. The police evidence suggests that this incident was a result of an ongoing feud between the two men and that the Applicant agreed to a consensual fight, arming himself with a twenty pound dumbbell. Police information also suggested that he was intoxicated at the time of the incident.
29The officer was of the view that the Applicant contributed to his injuries and that had the Applicant not suffered injuries, he would have also been charged. The officer testified that text messages between the Applicant and Offender suggests the Applicant had incited the Offender to attend his home and that he had armed himself with a weapon. Under these circumstances the Board finds that he contributed to his injuries.
30Under section 17(1), the Board may also consider an Applicant's criminal behaviour when determining the amount of compensation. This has been upheld by the Ontario Divisional Court in Sweet v. Ontario (Attorney-General), 20110NSC 2650 (Div. Ct.). In this decision, the Court said that the requirements of 17(1) does not in any way limit the meaning of “all relevant circumstances”. In following the broader instructions of the Court, the Board therefore finds that it is not limited to considering only circumstances related to the incident but also any convictions for crimes of violence committed by the Applicant before and after the incident in question.
31The Applicant advised the Board that his criminal record dates back to 1999 and that it consists of approximately ten convictions. He stated that his record consists of the following convictions; driving while intoxicated, break and enter, an assault on a stranger as well as a conviction for domestic violence. The longest sentence served was ninety days and was in relation to the domestic violence. The most recent conviction was in 2018. The Applicant is currently bound by a probation order.
32The investigating officer noted that the majority of police interaction with the Applicant is due to his alcohol intake. He noted that the Applicant is flagged as “violent” however could not indicate why. The officer reported that Applicant’s criminal record dates back to 1993 and that there are fourteen convictions on file. Some of the convictions are for driving while intoxicated, assault with a weapon, possession of a controlled substance and also for failing to comply with court orders for breaching his recognizance as well as probation. The officer also confirmed that there is also a conviction for assault and break and enter. The officer confirmed that the Applicant’s last conviction was in January of 2018 for break and enter, mischief and assault with a weapon. The Board considers the Applicant’s criminal court convictions as evidence of his victimization of others. In the Board’s view, the fact that the Applicant, who has been convicted of victimizing others through crimes of violence now seeks award for pain and suffering is a “relevant circumstance” for the purposes of his request.
33The Board has also considered as relevant the fact that awards are not paid from the wrongdoer as would be the case if an applicant pursued compensation through a civil action, they are paid using public funds.
34In this context, the Board must also weigh the proportionality of the injury with the circumstances that it has found to be relevant and whether to refuse or reduce an award. The Board has considered the nature of the Applicant’s injury against a number of other relevant factors such as the Applicant’s contribution to his injuries as well as his criminal history and current involvement in the criminal justice system. The main physical injuries noted by the offender were stab wounds which required treatment with steri strips for four wounds and stitching for one. Some emotional/psychological injuries were also noted as related above.
35Notwithstanding the emotional impact and the physical injuries suffered by the Applicant, the Board has considered the contributory behavior of the Applicant as well as ‘relevant circumstances’ of the Applicant’s history of convictions for violent crimes and finds that they outweigh the injuries.
36Based on the totality of the information before it, the Board does not consider the provision of compensation to the Applicant out of public funds for a pain and suffering award to be reasonable under the CVCA. The Board therefore denies the applicant’s claim for pain and suffering.
37It should be noted that 17(2) was not found to apply in this case. Although the Applicant declined to provide a statement initially, he eventually cooperated with the police after consulting counsel.
38In light of the above analysis, the Applicant is not eligible for compensation for expenses. Even if it were reasonable to award compensation despite section 17 issues, the Applicant would not be eligible as he has not provided documents to support this portion of the claim.
39The Board denies the Applicant’s claim.
Dated at Toronto, Ontario this 6th day of March , 2019
Louise Charette, Board member