Criminal Injuries Compensation Board forced to receive application

TORONTO – June 20, 2008 –  The Divisional Court of the Ontario Superior Court of Justice released its reasons today explaining why it has ordered the Criminal Injuries Compensation Board to to issue an application package to Aqeel Ahmed.

Mr. Ahmed, a 37-year-old father of three with an acquired brain injury, was seriously injured in the course of an arrest by members of the Toronto Police on February 21, 2007. The arrest followed a dispute with a parking enforcement officer as Mr. Ahmed attempted to drop his children off at school. The injuries alleged included an exacerbation of his brain injury, affecting his balance and impairing his ability to walk. All charges against Mr. Ahmed were eventually stayed at the request of the Crown.

Mr. Ahmed complained about the conduct to the police using the procedure in Ontario's Police Services Act, which requires members of the public to make their complaints to the police themselves.  Mr. Ahmed also requested that the Board issue him an application package. The request was necessary because the Board, established in 1971 to compensate victims of crime, controls access to its application forms.

After Board staff initially refused to issue an application package, Mr. Ahmed's lawyer Barry Swadron questioned the Board's jurisdiction to do so. In her final decision dated January 16, 2008, Board Chair Marsha Greenfield cited the absence of charges laid against the officers in response to Mr. Ahmed's public complaint and upheld the refusal. Mr. Ahmed's only option was to apply to the Divisional Court for judicial review to compel the Board to issue an application package.

Writing for a unanimous panel including himself and Justices Frances Kiteley and Wailan Low, Mr. Justice John Jennings wrote, "[b]y its somewhat baffling insistence on "credible evidence" the Board must be taken to have determined that the facts put before it by the applicant's counsel cannot be proved.  Nowhere can I find authority in the enabling legislation or the rules for that degree of prejudgment."  He further pointed out that the Compensation for Victims of Crime Act did not exclude police officers from the definition of persons who might  cause compensable injuries by criminal acts.

The decision raises yet more concerns about whether the troubled Board is capable of changing its ways. In his February 2007 report, Adding Insult to Injury, Ontario's Ombudsman André Marin described the Board as a colossal failure, greeting victims of crime with bureaucratic indifference and suspicion, trading in technicality and embracing delay. In response, then Attorney General Michael Bryant appointed recently retired Chief Justice Roy McMurtry to study the problem and recommend changes for victim compensation in Ontario.

Barry Swadron and Ameena Sultan of Swadron Associates represented Mr. Ahmed in the Divisional Court.  David Fine was counsel to the Board.  Please click here to read the Court's full reasons for decision, which are reported at (2008), 90 O.R. (3d) 475 (Div. Ct.).