Public Decisions | The Appeal Commission

Decision #07/02 - Type: Victims' Rights

Preamble

(DECISION ORIGINALLY PUBLISHED AS CRIMINAL INJURIES DECISION 1/02)

An Appeal Panel hearing was held on June 17, 2002, at the request of legal counsel, acting on behalf of the appellant. The Panel discussed this appeal on June 17, 2002.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

In 1996, the appellant applied for criminal injuries compensation benefits indicating that he was mugged at a Scotia Bank around 2:00 a.m. on June 6, 1996 after a "night out". Police investigation noted that the appellant was found in the lobby of the bank and was very intoxicated. He was taken to a local hospital and was given an incident card to contact the police once he sobered up.

During a July 12, 1996 telephone conversation with the police constable involved in the case, a staff member with the Criminal Injuries Compensation Board (CICB) noted that the appellant contacted the police one week after the incident. He could not remember anything about the entire day. The appellant was very intoxicated and was also on medication. There was nothing found on the bank videotape. The constable advised that the appellant had nothing stolen from him at the time. The bank in question was not the appellant's bank so he could not have been robbed while withdrawing money from the bank machine. The police constable could not provide further details as to how the injuries occurred. "He could have been in a consensual fight."

On July 15, 1996, the CICB denied the claim as there was "no evidence to indicate that the applicant was a victim of a crime in accordance with Schedule I of The Criminal Injuries Compensation Act (the Act)."

On November 30, 1999, the manager with the Compensation for Victims of Crime program (formerly the Criminal Injuries Compensation Board) wrote to the appellant. The manager noted that Section 6(2) of the Act states that the Board may not provide compensation where the crime was not reported within a reasonable time period or where the appellant did not render assistance in the apprehension of the offender. While the police did attend the crime scene, the appellant did not provide sufficient details of the event within a reasonable time period. As a result, the police were unable to use his information in attempting to apprehend the offender.

The manager noted that section 11(1) of the Act, stated that the Board must consider whether or not the appellant's behavior directly or indirectly contributed to the injury. Given the circumstances, it was possible that the appellant's behavior was a contributing factor. The manager concluded that because of the delay in reporting and investigating the incident, the program was unable to confirm that the appellant's actions did not contribute to the injury.

On May 31, 2000, a solicitor acting on the appellant's behalf, requested that the decision to deny the claim be reconsidered. The solicitor provided the following information in this regard:

the appellant recalled walking outside a bar and walking to the bank with two men following him. At some point, the two men asked the appellant for a cigarette and the appellant told them he did not smoke and not to bother him. The two men knocked the appellant down to the ground and struck him and hit him in the head. The appellant was knocked unconscious.
initially, the appellant did not have a recollection of the incident. Legal counsel indicated that this was understandable given the fact that the appellant suffered a concussion. He later recollected the events on the evening of June 8, 1996.
the injuries sustained by the appellant were consistent with an assault. He was knocked unconscious and his nose was deformed. The appellant was assaulted at a banking machine and from this evidence one can infer that the appellant was the victim of crime. In all probability the two assailants tried to rob him.
the appellant notified the police approximately one week after the assault. He was unable to provide details of the incident owing to the concussion. He did notify the authorities in a reasonable period of time.
there was absolutely no evidence to support the allegations that the appellant directly or indirectly contributed to the injuries. The appellant maintained that he asked the two men not to bother him so he did not provoke the assault.

In response to the above appeal, a claims adjudicator wrote to the solicitor on June 7, 2000. The adjudicator noted that given the state of intoxication of the appellant on the night in question, there were at least two possible scenarios other than an assault, i.e. that the appellant got into a physical confrontation with another person and was injured or he fell or tripped and accidentally injured himself. In addition, the program was unable to obtain further evidence to substantiate the assault due to the following reasons:

There were no witnesses to the alleged assault;
The appellant was unable to provide police with any details surrounding the incident; and
The appellant did not contact the program for 3 years after the initial decision to deny the claim.

Information was obtained from the hospital where the appellant was admitted on June 8, 1996 with respect to blood test results. It was determined that the appellant's blood alcohol concentration was likely in the range of 92 mg% to 136 mg% or between .09 and .13.

On May 11, 2001, Review Office considered the case in conjunction with Section 6(1) and 11(1) of the Act. Review Office noted that at the time of the claimed incident the appellant had absolutely no recall of the events of June 8, 1996 which led to his injuries. The appellant claimed that he was assaulted in the lobby of a bank or at an automated telling machine found within a bank as this is where he was found by the police. The appellant did not utilize this particular bank and had stated that he did not have any money or articles of clothing stolen from him. The camera in the bank did not add anything to the matter, and therefore it would appear that an assault, as claimed, did not occur while he was in the bank.

Review Office members did not believe the weight of evidence established that the appellant was a victim of a crime and therefore the decision to deny the claim was confirmed. On March 4, 2002, the appellant appealed Review Office's decision and an oral hearing was arranged.

Reasons

This appeal is pursuant to The Criminal Injuries Compensation Act (the Act), which was in effect at the time of the incident. The claimant is seeking compensation benefits for injuries he alleges were sustained in an assault on June 6, 1996. The issue under appeal is whether or not the claimant has an acceptable claim and is, thus, entitled to benefits.

Subsection 6(1) of the Act defines eligibility for compensation. The relevant portions of the section read as follows:

6(1)

was caused by any act or omission of another person that occurred in Manitoba and is within the description of any of the criminal offences set out in Schedule 1; ..

to or for the benefit of the injured person; ..

In addition subsection 11(1) of the Act will affect the claimant's entitlement to compensation. The section states as follows:

11(1)

The details of the alleged assault, as well as of the claim, are set out in the Background and will not be repeated under this heading.

For this appeal to succeed, the Panel would have to find - on a balance of probabilities - that a criminal assault did occur as alleged by the claimant. Were we to find that such an assault did occur, we would then have to find that the claimant did nothing that might have contributed to his injuries.

It is the position of the claimant that his injuries resulted from an unprovoked assault on him by two unknown assailants.

At the appeal hearing, counsel for the claimant argued that there is sufficient evidence to support a finding - at least to a balance of probabilities - that an assault did indeed occur. He noted that the victim's injuries were consistent with an assault. He argued that a blood test taken at the hospital is proof that the claimant was not as drunk as reported by the police. And, it was his position that the reason the claimant could not recall the details of the incident in the immediate aftermath was due to his having sustained a concussion, not because he was too intoxicated.

After consideration of all the evidence on the file, and after hearing the evidence of the claimant and the argument of his counsel, we are unable to find that there is sufficient evidence to support that the claimant was the victim of a criminal assault, as alleged. Thus, we also conclude that he does not have a valid claim to compensation as provided in the Act.

We are not saying that the claimant did not suffer any injuries. Obviously, he did. We are not saying that he provoked a fight, or in any way contributed to his injuries. We simply do not know that.

What we are saying is that there is not enough evidence to allow us to determine the manner in which he sustained his injuries - even on a balance of probabilities. Without such evidence, we cannot award compensation.

Accordingly, the appeal is dismissed.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 15th day of July, 2002

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