(Re) 1805-01717, 2019 ONCICB 91

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Janet MacEachen

Date: June 5, 2019

Indexed as: (Re) 1805-01717

DECISION

Introduction

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

Decision

2In accordance with the Compensation for Victims of Crime Act, RSO 1990, c.C24, as amended (CVCA), the CICB grants the Application and awards the Applicant $6,000.00. The reasons for this Decision follow below.

3The Applicant appeared in person and provided testimony.

Evidence

3The Applicant testified that on January 22, 2018, he had made plans to meet his girlfriend that night. He left his residence and walked toward his vehicle. He said that he was walking between 2 buildings to get to his car when he heard a gunshot that felt like it came from behind. He saw a flash, crouched over and held his stomach. He said he did not see anyone. Someone called 911 and an ambulance and the police arrived. He was taken to hospital. He testified that he was unable to speak to the police at the time due to injuries, but that later, he told them everything he knew. He said he had no idea who the perpetrator could have been. The Applicant testified that he felt like he was set up but doesn’t know why. When asked if he learned anything about what happened after the event, he said that he did not, that he didn’t inquire about it and didn’t hear anything about the incident. He testified that he was not involved in any criminal activity at the time, He said he didn’t recall if he signed a statement for the police. He did remember signing a consent for the release of medical records.

4A Police Officer, the officer in charge, testified as to the results of the investigation. He referred to the contents of a surveillance video of the incident which showed the Applicant in front of his building. A dark car came by and 2 suspects exited the vehicle. Both suspects shot at the victim. After the shooting, police on the scene interviewed witnesses. Someone in the Applicant’s family suggested the Applicant was set up. The police witness thought this was plausible as a friend of the Applicant got shot a couple of weeks prior. He said there was an ongoing feud between 2 gangs in the area. The police witness testified that the Applicant hung around with members of one of the gangs but he couldn’t confirm that he was a member. He added that the gang was involved in drugs, pimping and weapons offences. The police witness indicated that the police believe it is all connected to a homicide wherein the gang that the Applicant had some connection to, had killed a member of the other gang. That was the theory the police worked with. The police witness testified that a uniform officer spoke with Applicant on the scene and assisted with some medical aid. The officer accompanied the Applicant in the ambulance when he was taken to the hospital. He said the Applicant provided his name and age but no further details. The Applicant was seriously injured and the police waited until he was able to speak clearly to get more information. The police witness testified that he later made a number of attempts to get a statement from the applicant but he was unsuccessful.

5On one occasion the police witness attended the hospital when the Applicant’s girlfriend and mother were in the room. The police witness was hoping to get a video statement from the Applicant but the Applicant refused. His girlfriend and mother also encouraged him to not give a video statement. When asked to give a statement, the Applicant stated that he did not want to go on camera. He also refused to give a written statement. He did acknowledge that he remembered a car that night, a blue vehicle, with 3 or 4 persons in it.

6Near the end of the investigation, the police witness tried to get passwords for the Applicant’s phone. Although the Applicant provided passwords, they were not successful in accessing the information in the phone.

The Applicant was asked why he initially testified that he did not see anyone and did not report seeing a vehicle during the incident. He insisted that he hadn’t seen anyone and did not see a car. He said he might have told police at the hospital that he saw a car, perhaps because people were talking about cars. He said he did talk to people afterward, particularly family, and he tried to imagine from what he heard, what had happened. Initially he testified when asked if he learned anything after the incident, that he didn’t hear anything from anyone.

The police witness confirmed that during the hospital visit referred to above, the Applicant did give a vague description of 2 suspects: a light skinned black male and a dark skinned black male.

This was a troublesome area of inquiry and testimony.

Analysis

Crime of Violence

7There was no conviction in respect of the incident.

8Section 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 injuries.

9The 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 injuries resulted from the crime.

10I find the Applicant is a victim of a crime of violence because he was shot by 2 perpetrators during an apparently unprovoked incident.

Injury

11I find the Applicant’s injuries resulted from the crime of violence as this is confirmed by the medical information included with the application.

Section 17

12Sections 17 of the CVCA read as follows:

(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.

(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.

(3) In assessing compensation, the Board shall take into consideration any benefit, compensation or indemnity paid or payable to the applicant from any source other than social assistance.

13In this case, I find the Applicant’s lack of cooperation with the police to be relevant to s. 17(2). The Applicant refused to provide a written statement to the police and refused to provide a videotaped statement. The Applicant also provided passwords to his phone that were not helpful. In addition, although the Applicant gave some statements to police while in the hospital that, according to police, provided minimal information, there are conflicting statements that render this information incomprehensible.

Compensation

Pain and Suffering

14In assessing the claim for pain and suffering I considered the extent of the Applicant’s injuries. The Applicant received five gunshot wounds in the back, abdomen and hand, requiring six surgeries. A further surgery is scheduled for early 2019. He spent approximately six months in the hospital, followed by rehabilitation including considerable physiotherapy which he continues on a weekly basis. He had to relearn how to walk, he lost his voice and was unable to eat a regular diet until June. He describes feeling a lot better now although he still suffers with some pain and says he still has a long way to go. A current medical report has not been filed.

15The Applicant also has suffered an emotional impact as a result of the incident. He has symptoms of PTSD including paranoia, anxiety and flashbacks among others He testified that he continues with therapeutic treatment.

16The amount of the award for pain and suffering will be reduced pursuant to Section 17 (2) As noted above, the Applicant refused to provide police with a written or video statement and gave inoperable passwords to his phone. As a result, the police were unable to take the investigation further. The perpetrators have not been apprehended and it is not unreasonable to assume that they may have carried out further violence to unsuspecting victims. Although I believe there is sufficient reason to deny compensation pursuant to Section 17 (2), the information the Applicant did give to police, described as “minimal”, along with his consent to the release of medical records, suggests that the lack of cooperation was not total and for that reason, the amount of compensation will be reduced.

Expenses and Income loss

17The Applicant must provide reliable evidence to support the claims for:

• expenses actually and reasonably incurred as a result of injury

18The Applicant made a claim for expenses in his application materials. The Applicant claimed expenses for ambulance fees, travel to treatment expenses, physiotherapy expenses and for medication. No supporting documentation is provided. It also appears that these expenses may have been provided through another source. The Applicant did not pursue a claim for these expenses at the Hearing. The claim for these expenses is denied.

Award

19The CICB orders compensation as follows:

Subsection 7(1)(d) Pain and Suffering

$ 6,000.00

Total Current Award

$ 6,000.00

Payment

20The CICB orders the following be paid immediately to:

Applicant

$ 6,000.00