CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Louise Charette
Indexed as: (Re) 1806-01956
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 the following forms of compensation; pain and suffering as well as treatment expenses.
Decision
2In accordance with the Compensation for Victims of Crime Act, R.S.O. 1990, c.C24, as amended ("CVCA"), the CICB denies the Application. The reasons for this Decision follow below.
Hearing
3The CICB reviewed the documentary evidence in the application prior to the hearing.
4An oral hearing was conducted on June 17, 2019. The Applicant appeared by teleconference from a provincial jail and provided oral testimony.
5At the beginning of the hearing, the CICB advised the Applicant of subsection 17(1) and 17(2) of the CVCA and that the Board would consider those parts of the CVCA when deciding the application. These subsections provide 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.
6The Applicant confirmed she understood the meaning and implications of section 17 of the CVCA and, after having been offered an adjournment and an opportunity to consult counsel, the Applicant indicated that she did not wish to adjourn the matter and was prepared to proceed with the hearing as scheduled.
Evidence
7The documentary evidence suggests that the Applicant was assaulted by another inmate while detained in a correctional facility. Institutional staff responded to the emergency and as a result, both inmates were charged with misconduct.
8The Applicant wrote that she was sitting down reading the paper when the Alleged Offender came up from behind and started punching her. She noted that she tried to get up however was held down by the sleeve of her shirt. As she tried to defend herself, the Alleged Offender continued to punch her. She believes that the assault lasted for approximately two or three minutes.
9The Applicant testified that she was punched numerous times, estimating that there were more than ten hits. It was noted that there were punches to the back of the head and neck as well as in the face and lower rib area. She reports that as a result, she also fell onto the metal table and hit her back and that her knees hit a metal chair. The Applicant maintains that there had been no conflicts between themselves prior to this incident.
10Institutional records submitted to the CICB detailing the circumstances of the incident confirm that this incident occurred on a unit and involved two inmates. A Use of Force statement provided by the institution indicates that both inmates were involved in a physical altercation and that the Alleged Offender appeared to be the main aggressor. One Officer stated that he saw the Alleged Offender "throwing" punches at the Applicant and her defending herself.
11Another report indicates that the Officer ordered the Applicant and the Alleged Offender to stop fighting however they refused and continued. Due to their refusal to comply with an order, two officers had to physically intervene. One officer held the Alleged Offender, while another officer held the Applicant. As a result, both inmates were charged with institutional misconduct.
12The CICB also reviewed a police synopsis in relation to this incident. The report confirms the assault as described by the Applicant. The police report notes that the Applicant was punched as described the Applicant and that it is believed that this assault was unprovoked. The police report synopsis indicates that unit staff observed both the Applicant and the Alleged Offender engaged in a physical altercation and as a result attended the area giving direction for both of them to stop fighting. Unit staff had to engage with both the Applicant and the Alleged Offender in order to separate the two. Both the Applicant and the Alleged Offender were physically restrained to secure the unit and both were charged with internal misconducts for their actions.
13The police synopsis confirms that the Applicant requested that charges be laid against the Alleged Offender however due the Alleged Offender's upcoming transfer and the likelihood that no criminal conviction would result, the police advised her that no charges would be laid.
Injuries
14The application mentions the following physical injuries as a result of the assault; scratches, bruising, pain in the jaw causing difficulties eating for two days. The Applicant also mentions pain in her hand, knee and back. She also notes a pre-existing condition of "joint problems."
15The Applicant testified that because of the assault she sustained bruising and redness. She wished to clarify that as she was on hormone medication at the time and that this made her injuries "worse". She explained that the medication causes muscle deterioration which resulted in the pain being greater.
16The Applicant also testified that she injured her hand while trying to block the punches and while attempting to push the Alleged Offender off her. She confirmed with the CICB, as stated in the institutional file, that she had undergone hand surgery prior to the assault and that she had experienced pain at times however testified that the assault caused an exacerbation of her pre-existing condition. She notes that as a result, she now must take pain and anti-inflammatory medications to alleviate the pain.
17The Applicant also testified that she sustained an injury to her knee. She advised the CICB however that she experienced issues with her knee prior to the assault, explaining that it was sore at times due to her arthritis. She testified that as a result of hitting it during the assault, it swelled up and then the pain got worse. She maintains that there has been an exacerbation of her pre-existing condition and that she is now on pain and anti-inflammatory medication for her knee as well.
18The Applicant writes that she also suffered emotional/psychological injuries because of this incident. She considers this assault to be a hate crime and considers that she is now unable to be by herself in the institution, living in fear of being attacked again by other inmates. The police synopsis indicates she did not fear for her safety shortly following the incident. In copy of a statement she provided three months after the assault, the Applicant notes that she did not fear for her safety and that she "felt safe" continuing to live on the "range."
19At the hearing, the Applicant clarified that she does not fear the Alleged Offender however fears being attacked because inmates found out she tried to pursue criminal charges. She also reported that as a result of this incident, she has no friends and is treated differently. She also mentioned suicidal ideations but states that she did have them prior the assault.
20The institutional records provided to the CICB confirm that the Applicant sustained redness to the face and neck area as a result of the assault. It was noted that both inmates were examined by the nurse at the institution and that the Applicant's injuries were classified as minor. As such, the Applicant was not sent to the hospital for further treatment.
21The police synopsis also indicates that the Applicant was assessed by the nurse at the institution and that no outside medical follow-up treatment was required. Redness to the face and neck is noted in the report.
22No medical report or hospital records are available to substantiate the physical injuries to her hand, neck and back. After being examined by the nurse, no follow up medical treatment was required.
23No therapy report was provided in support of her psychological/emotional injuries however there was no mention if psychological support was offered to her within the institutional setting.
24The Applicant submitted a report prepared by a physiotherapist at the institution which indicates that she was seen for complaints of bilateral knee pain and low back pain. She was instructed to follow up with exercises. The physiotherapist was not made aware that these complaints were in relation to a crime of violence and as a result, notes that the cause of the injury is unknown.
The s. 17 evidence
25Institution records show that the Applicant has been detained since 2015. A warrant of committal confirms original charges of second-degree murder. It is also noted that she was remanded in relation to another set of charges for assault police, resisting arrest, uttering threats and mischief.
26The Applicant testified that she is currently serving an 8-year sentence, having been convicted of manslaughter. She also advised the CICB that she entered a plea to two counts of uttering threats as well as mischief in relation to the other incident, noting that one of the victims was a police officer and the other a manager at a shelter.
27She also testified that she was recently granted parole and was to be released in the community last May. Prior to being released however, she was charged and detained on allegations of sexual assault on another inmate, allegations which she denies. She notes that the Parole Board has since reviewed her file and has determined that she can still be released from custody. She was expecting a bail hearing to proceed in the near future and if bail is granted, will be released from custody.
28With respect to her past criminal history, the Applicant advised the CICB that there is also a prior conviction for solicitation with associated breaches of a court order for non-compliance with a condition not to attend a specific area.
Institutional behaviour
29A history of misconduct within the institutional setting was provided to the CICB.
30A misconduct report from October 2015 reveals that the Applicant was involved in an altercation. Both inmates were said to have been shoving and swinging at each other. The Applicant was described as not compliant with the officer's orders to stop when instructed to do so. Use of force records note that force had to be used in this incident. The Applicant admitted to being involved in a physical altercation with the other inmate however reported that this was in self-defense.
31Another misconduct report from October 2015 alleges that the Applicant had groped and grabbed another inmate without permission and that she was exposing herself. It was further alleged by the other inmate that during the night she had "done stuff" while he was sleeping. As a result, the Applicant was charged with commits or threatens to commit an assault upon another person. The Applicant denied the allegations and was eventually found not guilty.
32An occurrence report dated February 17, 2018 confirms that as a result of the assault before the CICB, the Applicant was charged with misconduct; commits and threatens to commit an assault upon another person. She was found not guilty. It should be noted however that in this case, force was used by the officers and the Applicant was considered non-compliant with the orders to stop when told to do so.
33Another occurrence report dated May 2018, approximately three months following the assault, notes the Applicant was charged with "colluding with inmates against staff." The report from the officer notes he was threatened and intimated by inmates and that although he had no conversation with the Applicant, he reported that she was amongst the other inmates who were attempting to intimate and threaten him with legal action. The officer believed that the Applicant was colluding and obligating other inmates to take legal action.
34Several inmate statement forms were also provided to the CICB. Some were reviewed, however most were not legible. The CICB asked counsel for other copies however was told that their copies are also faint and as such the handwriting could not be read.
Analysis
Crime of Violence
35The incident was reported to the Police however did not result in charges being laid. The evidence obtained from the institution indicates that the Alleged Offender appeared to be the main aggressor, and this was considered an unprovoked attack.
36Section 16(1) of the CVCA provides that compensation may be awarded whether or not a person has been prosecuted for or convicted of the offence giving rise to the injuries. In this case, the Applicant is required to prove, on a balance of probabilities, not only that she was a victim of a crime of violence but also that the injuries resulted from the crime.
37I find on a balance of probabilities, that the Applicant is a victim of a crime of violence in this case. The documentary evidence confirms the assault and as well that the Applicant sustained minor physical injuries as a result of this crime of violence.
38With respect to her emotional/psychological injuries, no documentary evidence was provided in support of this claim. However, the CICB is mindful that this may be related to the fact that services available in detention may be limited. The Applicant testified to fearing being attacked again for having tried to pursue criminal charges however the police synopsis indicates she did not fear for her safety shortly following the incident. A copy of a statement she provided three months after the assault notes that the Applicant did not fear for her safety and that she "felt safe" continuing to live on the "range." The Applicant also notes that she experienced suicidal ideations prior to the assault.
39Based on this evidence, the CICB is unable to conclude that the emotional/psychological injuries are a direct result of the alleged crime of violence as it seems other factors may have contributed to her difficulties.
Section 17
40Section 17 of the CVCA requires the CICB to consider whether:
- the Applicant's behaviour may have directly or indirectly contributed to the injuries.
- the Applicant refused reasonable cooperation with, or failed to report the incident promptly to a law enforcement agency.
- any benefit, compensation or indemnity was paid or is payable to the Applicant from any source other than social assistance.
41Having considered all the relevant circumstances, I find that s.17(1) is an issue in this Application for the following reasons.
42Section 17(1) requires that the CICB take into consideration "all relevant circumstances." The CICB has considered an Applicant's past criminal behavior as well as his current reasons for his decision when deciding entitlement to compensation as a "relevant circumstance." See, Sweet v. Ontario (Attorney-General), 2011 ONSC 2650 (Div. Ct.).
43In Sweet, above, the Divisional Court held that the requirements of section 17(1) does not in any way limit the meaning of "all relevant circumstances." In following the broader instructions of the Divisional Court, the CICB therefore will not limit itself to considering the circumstances related only to the incident, but it may also consider any convictions for crimes of violence committed by the Applicant before and after the incident.
44The CVCA gives the CICB broad discretion to determine whether compensation ought to be awarded in any given case and, if so, the amount. The awards from the CICB 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.
45The CICB considers the Applicant's criminal court convictions as evidence of her victimization of others. The Applicant was serving an 8-year sentence, having been convicted of manslaughter. She also advised the CICB that she entered a plea to two counts of uttering threats, noting that one of the victims was a police officer and the other a manager at a shelter. In the CICB's view, the fact that the Applicant, who has been convicted of victimizing others through crimes of violence and now seeks award for pain and suffering is a "relevant circumstance" for the purposes of her request.
46In this context, the CICB must also weigh the proportionality of the said injury with the circumstances that it has found to be relevant and whether to refuse or reduce an award. The CICB has considered the Applicant's noted injuries against her criminal history and involvement in the criminal justice system. The documentary evidence seemed to suggest that the Applicant's physical injuries were minor. The Applicant noted that some of the physical injuries she listed were pre-existing and that she believed that there was an exacerbation. The psychological/emotional injuries noted were not supported by any documentary evidence and are considered minor as well.
47Notwithstanding the injuries noted, the CICB has considered the "relevant circumstances" of her history of convictions for violent crimes and finds that they outweigh the said injuries.
48It should be noted that 17(2) was not found to apply in this case.
49Based on the totality of the information before it, the CICB 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.
50The Applicant's claim for pain and suffering is denied.
Dated at Toronto on June 17, 2019
_______________________________
Louise Charette, Board Member