(Re) 1811-04347, 2020 ONCICB 23

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Laura Goulet

Date: October 8, 2020

Indexed as: (Re) 1811-04347

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, medical and treatment expenses, dental expenses, and travel to treatment 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 by teleconference and provided oral testimony and submissions.

Evidence

4In his application, the Applicant advised that he “was visiting a licensed medical facility and there were armed gunmen there to rob it.” He stated that they shot, maced, and repeatedly kicked him in the head to stop him from screaming.

5At the hearing, the Applicant testified that he is the owner of a farm. He leases this farm to some individuals who grow marijuana on the land. He testified that they are licensed to grow marijuana as they were provided with “scripts” from a doctor. On September 17, 2018, he received a call from one of the individuals who was staying at the farm (“RM”) advising that there had been some problems with people looking at the farm. The people who were growing marijuana on the farm were concerned that someone was going to steal the plants as they were growing in the open and people could climb the fence.

6The Applicant testified that on the September 17, 2018, when he arrived at the farm, JC (“AO1”) came out. He was staying at the farm. The Applicant believed that AO1 had a license to grow the marijuana. AO1 seemed nervous and the Applicant was concerned about AO1 as he looked like he was high. The Applicant introduced the friends he was with to AO1. They all walked around the property, looking for “weak spots.” They then went into one of the trailers. The Applicant later came out by himself and went around the corner where he was met by someone who looked like FC (“AO2”). AO2 is AO1’s father. He could not be sure it was AO2 because there was a black bandana on his face and he was wearing a black ball cap. The applicant testified that he told the officers this. The Applicant said his body outline looked like AO2.

7The Applicant testified that AO2 had a firearm and shot him in the pelvic area. He hit the ground and then got maced. He could hear it was AO1 who was swearing, yelling, kicking him in the face and spraying him with mace.

8The Applicant said he dialed 911 and “another officer” showed up [a different officer than the one who testified before the CICB]. The Applicant testified that this officer “would have had the proper information.”

9Although he gave testimony that AO1 and AO2 were the perpetrators, he also testified that he did not know 100 percent that it was them. . He did give a statement to police but according to police wasn’t good enough.

10I asked the Applicant whether he was the one who put the individuals who lease his farm in touch with the doctors who provided the prescriptions for growing marijuana. The Applicant replied that he did, but he did not know the name of the doctors. He would provide them with a website where they would find “random doctors” who would give them a prescription. He said it was legal. He did not know the doctors’ names. He would just provide people with the website. He provided the name of the website at the hearing.

11When I asked the Applicant what his intentions were in going to the farm with the others, he replied that he went with them “as security.” He went with RH, RH’s brother (he forgets his name)[KO] and RH’s friend E (“EZ”). The three of them were going to stay on the farm to provide security. They would “walk along the property at night and whatnot.”

12RH provided a letter in support of the Application. He stated that he attended at the farm with his brother, a friend and the Applicant to provide security as one of the people from the farm said there were people there to steal the cannabis crops. RH stated in his letter:

I walked around a vehicle and saw [the Applicant] confronted by 2 individuals, an older gentleman and another man. The older man was armed with an assault rifle he fired it at [the Applicant] and missed and then I heard another shot and it hit [the Applicant] and he fell to the ground. I ran away right afterwards and once the guys had left I went back to help my friend [the Applicant] who had been shot and sprayed with mace.

13The Applicant advised at the hearing that he had also sent in two other letters of support that were not received at the time of the hearing. I allowed the Applicant to send them in post-hearing.

14After the hearing, a letter was provided by RH’s brother, KO. He advised that he was asked to provide security at the farm with his roommate EZ as there were rumors that people were out to rob it. He wrote:

I was sitting inside the trailer and when we had come out. I heard two gun shots there was [AO2] kicking [the Applicant] in the head while another guy with a hat and bandana was holding an assault rifle pointed at his body. The guy with the gun pointed the gun at us and we ran away and hid in the bushes. I watched the two guys load up a black SUV with plants and drove away. We all ran back to help [the Applicant] who was shot and bloody all over.

15A letter was provided by EZ. He advised that he was hired by the Applicant through his roommate. When he was at the farm he witnessed the Applicant get shot by a large man with a bandana over his face and a black ball cap. He heard two shots and saw the Applicant fly backwards and land on his face. Then he saw AO2 spray him with mace while the other guy pointed the assault rifle at him. AO2 then started kicking the Applicant in the head while he screamed. When the guys saw them watching, the guy with the gun chased them off the property. They hid in the bushes. After this, the two guys loaded a black SUV with plants. They ran back to the Applicant and sat with him until the ambulance came.

16Court information revealed that three individuals were charged with various criminal offences in relation to the incident. AO1 was charged with 2 counts of Discharging a Firearm, Aggravated Assault, Administer a Noxious Thing, 2 counts of Possession of a Firearm and Possession of a Restricted Firearm. AO2 was charged with Assault and Administer a Noxious Thing. A third AO, a female, was charged with Accessory After the Fact.

17All charges against all three AOs were withdrawn.

18The Police Officer, who was the officer who investigated the Applicant’s shooting, testified at the CICB.

19The Officer testified that the Applicant and his friends were not cooperative with the investigation. The Applicant did not return his calls, nor did he wish to participate in the investigation.

20The Officer testified that on September 18, 2018 he received information that there was an illegal marijuana grow operation at the farm in question and that there were three people tending to the plants. It was old farm land with a trailer on it and people would sleep there in a makeshift camp.

21When asked to explain why he felt it was an illegal grow operation, he advised that there were too many plants and that three people were given fraudulent “scripts.” He stated that one of the three individuals was paid to get the license and he was never there to maintain the plants. The other two had fraudulent “scripts.” They were introduced to a “corrupt” doctor by the Applicant. The Officer said the doctor was licensed but that he was giving false “scripts” to people and that he was getting paid handsomely to give those “scripts.” This information was received by one of the individuals who was tending to the plants.

22The Officer testified that RH was one of the people who had a license to grow the plants. He was one of the individuals who attended on September 18 with the Applicant. The Officer said that RH had never been there prior to September.

23The Officer received information from an intelligence led investigation by the Guns, Gangs and Grow unit. He was not able to discuss the details of the investigation as they involve ongoing investigations. The Officer received all of his information from the Guns, Gangs and Grow unit after he attended the call on September 18. It was their information that the Applicant facilitated the meetings with the doctor and provided the land.

24On September 18, 2018, the officer received a call to attend a shooting at the farm. He learned that the Applicant had suffered a gun shot wound. Three other individuals were with him. None of them would cooperate with the investigation.

25No gun was recovered. The Officer was unsure where the gun was and who brought it.

26The Officer tried to obtain a statement from the Applicant at the hospital. He said the statement was somewhat vague. He tried again days later but the Applicant would not cooperate.

27The Officer said the Applicant confirmed there was a grow operation, that he had arranged for 3 individuals to grow the marijuana on that property, and that he had gone there with 3 friends. There was an altercation he was shot. Basically, the Applicant confirmed what the police had already learned. There was no real detail.

28Charges were laid against 3 individuals however all charges were withdrawn because the Applicant advised the Officer he did not want to participate.

29The Officer felt that the Applicant would have seen the individual who was standing before him with a rifle in his hand but he refused to tell him, or in the alternative, the Officer felt that the Applicant may have brought the gun. All he knew was that nobody cooperated. The officer said he asked the Applicant three times and the Applicant advised that he did not want the charges to proceed. The investigation took days and was a waste of time.

30The Applicant questioned the Officer, challenging the fact that this was an illegal grow operation. The Officer insisted that it was illegal and that in fact 3 people had been charged with the illegal grow operation. However, the Officer was not involved in this investigation; he was only involved in the shooting investigation.

31The Applicant questioned the Officer with respect to his cooperation with the investigation, suggesting to the Officer that he was in fact cooperative. The Officer reiterated that the information initially provided by the Applicant at the hospital was very vague. The Officer stated that when we went back to the Applicant to obtain clarification, the Applicant advised “I have nothing to say.”

32The Officer advised that the charges were laid based on minimal information and they needed the Applicant to talk to the Crown. The Applicant would not meet with the Crown.

33In response to questioning from the Applicant, the Officer agreed that the Applicant did return one of his calls. They discussed the issue of the Applicant retrieving some of his belongings. The Applicant advised the Officer that he wanted to speak to his lawyer first and get back to the officer. The Officer responded that he had asked the Applicant blatantly if he wanted to proceed with the charges and the Applicant responded “No, I am done with this.” The Applicant denied that he said this. The Applicant mentioned more than once that he recorded this phone call; however, he could not produce this recording because his phone broke and he now has a new phone.

34In response to my questioning, the Officer stated that initially, based on one person’s information (another individual, RM, who was at the scene), they believed that AO2 shot the Applicant. RM thought that AO2 brought the gun to the scene; however, he did not actually see the gun. He assumed it was AO2 who shot the Applicant. The police did not receive any more information from the Applicant or his friends who were part of it. Without any cooperation, the police could never confirm whether the Applicant or AO2 had the gun. The police did not know where the gun came from or where it went.

35The Officer testified that once he learned that the Applicant traveled there with his three friends, police investigated his travel with his friends and viewed videos at Canadian Tire. Just hours prior to the incident, when they would have been on their way to the property, one of the individuals with the Applicant went into Canadian Tire and purchased bear spray and twist ties. These items were later recovered at the scene.

36When I questioned the Officer about his knowledge of the Applicant’s injuries, he advised that the Applicant had a bullet wound and he believes he was sprayed with bear spray.

37The Applicant advised that prior to attending at the farm on the day in question, he drove to […] to pick up his friends and then drove them to […]. When I asked whether they stopped at Canadian Tire on the way, the Applicant advised that he did not stop. That did not happen with him.

38After the Officer was excused from the hearing the Applicant advised in his testimony that after he had spoken to his lawyer he was prepared to make a statement; however, the Officer came to his house to advise him that the charges had been dropped. The Applicant did not put that to the Officer while he was in the hearing.

39The Applicant also stated that although he was scared of AO1 and AO2 and feared for his safety, he did not avoid making a statement because of fear. The reason why he did not give a statement is because the charges were dropped.

40When I questioned the Applicant about the “vague statement” the Officer said that he gave initially, the Applicant denied that this was his statement. He insisted that his statement to the Officer was the same as what he said in the hearing here today.

41When I asked how the Applicant responded to the Officer’s assertion that they could not proceed with the investigation because he did not make a statement, the Applicant said: “It’s a lie.”

Analysis

Crime of Violence

There were no convictions in respect of the incident. Section 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.

42The 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.

43I find the Applicant is a victim of a crime of violence. The evidence clearly shows that he was shot by someone, which would be classified as an assault with a weapon or an aggravated assault pursuant to the Criminal Code, and as I find below, he was injured as a result.

Injury

44I find the Applicant’s injuries resulted from the crime of violence. The gun shot to the pelvis was the cause of the injuries.

45The Applicant suffered the following injuries:

• A gun shot wound to his pelvis – the bullet is still embedded there
• damage to intestines
• extraperitoneal rectal injury for which he underwent exploratory laparoscopy and loop sigmoid colostomy
• prostatic urethral injury for which he underwent a suprapubic Foley catheter placement
• micro tears in his right shoulder
• difficulties urinating, walking up stairs and sitting
• Lack of sleep
• Paranoia / hypervigilance
• Sexual dysfunction
• Has to eat a special diet

Section 17

46Before making a determination as to whether compensation should be awarded, the CICB must consider section 17 of the CVCA. Section 17 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.

47With respect to the issue of 17(1), although the circumstances of this case are very suspicious, I am unable to say on a balance of probabilities that I find that the Applicant contributed directly or indirectly to his injuries.

48On this issue of section 17(2), however, I find the Applicant’s lack of cooperation with the police investigation to be relevant.

49I found the Applicant’s testimony with respect to his level of cooperation with the police to be lacking in credibility. He insisted that he provided more detailed information to the police (the same information that he provided in this hearing). However, the Officer provided testimony contrary to that assertion. Further, the Applicant alleged that he recorded the conversation with the Officer; but he was unable to provide this recording as his phone had since been broken.

50The Officer testified that he pursued the Applicant several times to obtain a more detailed statement and in fact laid charges against three individuals based on the limited information that he had. The Officer insisted that the Applicant refused to cooperate. In his cross-examination of the Officer, the Applicant suggested to the Officer that he was in fact cooperative. After the Officer was excused from the hearing, the Applicant testified that after he spoke to his lawyer he was prepared to make a statement and the Officer then advised him that the charges had been withdrawn. This was not put to the officer. I find that this statement by the Applicant was not believable in the circumstances.

51In comparing these two scenarios, I am simply not convinced on a balance of probabilities that the Officer chose to withdraw the charges for any reason other than the Applicant’s lack of cooperation. The Applicant’s suggestion to the Officer that he was in fact cooperative and then his inconsistent statement after the Officer left the hearing – that he wanted to cooperate but the Officer had decided to withdraw the charges is simply not believable. The Officer’s testimony was consistent and credible throughout the hearing. He presented as genuinely frustrated by the Applicant’s unwillingness to cooperate and by the fact that the investigation was a waste of time and that the charges had to be withdrawn. In all of the circumstances, I do not accept the Applicant’s testimony in that regard.

52Although the individuals who were present with the Applicant on the day in question provided letters in support of his Application, they did not provide statements to the police in support of the investigation. Further, the authors of the letters were not present at the hearing to give evidence, so I do not give them much weight.

53All of the above would lead me to conclude that the Officer was trying to investigate this matter and that the Applicant and his friends would not cooperate.

54As a result of the lack of cooperation by the Applicant and his friends who were witnesses in this case, some very serious charges were withdrawn against three alleged offenders.

55The Applicant was involved in something that he did not want to be pursued by the police. There is no evidence that the Applicant was un cooperative because he was fearful of the perpetrators. He simply did not want the police involved. As a result, serious offences occurred without legal consequences to the perpetrators. It is apparent from the Applicant’s testimony at the hearing that he had enough information to assist with the police investigation had he chosen to cooperate. He simply chose not to. In these circumstances, I do not consider the provision of compensation to the Applicant out of public funds to be warranted under the CVCA.

56As such, the Application is dismissed. The claims pain and suffering, medical and treatment expenses, dental expenses, and travel to treatment expenses are denied.

Dated at the City of Greater Sudbury on October 8, 2020.

_______________________________

Laura Goulet, Board Member