Public Decisions | The Appeal Commission

Decision #01/99 - Type: Victims' Rights

Preamble

An Appeal Panel hearing was held on September 27, 1999, at the request of the claimant. The Panel discussed this appeal on September 27, 1999.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

In April 1999, the claimant submitted an application for compensation benefits to the Manitoba Compensation Victims of Crime regarding an assault which occurred on April 1, 1999. The claimant described the assault as follows:

"I asked this guy in [location] vendor for a smoke and next thing I remember I was being beat up. I don't know why. This guy was with his girlfriend and probably just wanted to show off or something."

The above incident was reported to the police on April 3, 1999 by the claimant's neighbor who was asked to do so by the claimant as "he was beaten up real bad and wanted to speak to them about where and when this occurred." According to the police report, the incident was alleged to have occurred on April 1, 1999 at the Merchant's Hotel. The claimant indicated he was intoxicated at the time of incident having consumed 12-16 beers. The police officer stated that the claimant was very untruthful about what transpired and for some reason fabricated a story about being robbed by 3 gang members and that he had been robbed of $250.00 in the lane between Manitoba and Pritchard. After the claimant was further questioned by the police officer, the appellant admitted he was lying and stated he was calling police because he only wanted an incident card so he could go to the criminal compensation board. The claimant indicated that they fixed a tooth in the past and he had a top middle tooth knocked out this time. He also suffered two black eyes, a swollen sore wrist and soreness in both shoulder areas. The police officer warned the claimant about public mischief. The claimant then stated that he never called police until today since he was too sore and did not want this person charged because he was scared and did not want it to go any further. "In his original lie he stated that he was robbed in the lane. This was not a robbery, at most it was an assault, more probably a fight." The claimant stated he was not alone and that the culprit was with a female. The claimant insisted that he did not know the male who assaulted him. The claimant stated that he approached a male and female outside the bar and asked for a cigarette, and this was refused. The male then attacked the claimant. The police report ended by stating that the police left the claimant with an incident card and informed him there were still serious doubts as to the validity of this story as he seemed very untruthful.

The claimant was claiming for dental injuries as a result of the assault and for time lost from work.

On April 8, 1999, the claimant called a representative at the Manitoba Compensation Victims of Crime office as he had some concerns about the outcome of his application for benefits. The claimant indicated that he lied to police in his initial statement as he told them that $250 was stolen from him. The claimant said that, in the end, he gave the police a truthful statement. The claimant was concerned that the police report would indicate that he lied and he did not want this to influence the decision made on his application. The claimant also stated that he did not press any charges against the offenders for fear of retaliation.

In a letter dated May 5, 1999, the claimant was advised that pursuant to section 31(d) of the Victims' Rights and Consequential Amendments Act, his claim was not approved. On May 6, 1999, the claimant appealed this decision to the Director of the Compensation for Victims of Crime. In a letter to the claimant dated May 12, 1999, the Director indicated the following:

"I have reviewed your letter of May 6, 1999 requesting reconsideration of our decision to deny your claim and the policy information regarding your incident. It is clear that you initially mislead the police with regard to several facts about the incident. As you state in your letter you did contact the police to correct some of the information which you had previously provided to them. However there is still sufficient reason for the police, and our Program, to believe that you are not being truthful about the details of the incident. As an example you state that you only "lied" to the police about the stolen money. It also appears that you misinformed them about the identity of the offender. Further there seems to be some uncertainty as to where the incident actually occurred.

As a result of these discrepancies and the fact that you were intoxicated at the time of the incident I have decided to support the Program's decision to deny your claim."

On July 28, 1999, the claimant appealed the above decision to the Appeal Commission. On September 27, 1999, an Appeal Panel hearing was held and two police officers were subpoenaed to attend.

Reasons

This appeal is pursuant to the Victims' Rights and Consequential Amendments Act of Manitoba (the Act). The claimant is seeking compensation benefits for injuries he alleges were sustained in an assault on April 1, 1999, in Winnipeg. The issue under appeal is whether or not the claimant has an acceptable claim and whether he is entitled to compensation for dental work and benefits as a consequence of an assault.

Section 23 of the Act defines the circumstances under which an individual may make an application for compensation under the Act. The relevant portions of the section read as follows:

23(1) An application for compensation may be made, in accordance with this Act and the regulations, to the director in respect of a person who is injured or dies as a result of an event that occurs in Manitoba and that

23(2) For the purpose of subsection (1),

In addition, we note that Section 31 of the Act will affect the claimant's entitlement to compensation. It states as follows:

31 Subject to the regulations, the director may refuse to award compensation, or may reduce the amount of compensation payable if he or she is of the opinion that

the event that resulted in the victim's injury or death was not reported to law enforcement authorities within a reasonable time after it occurred;
the applicant has not assisted law enforcement authorities to apprehend or prosecute a person whose activities resulted in the victim's injuries or death;
the victim's injuries or death occurred while participating in a criminal offence;
the victim's conduct directly or indirectly contributed to the victim's injury or death; or
the applicant has not provided information requested by the director, or in the form requested by the director, within a reasonable time after the request was made.

After consideration of all the evidence on the file, and after hearing the evidence of the claimant and the two police constables who first spoke to the claimant two days following the alleged assault, we find that the evidence does not support , on a balance of probabilities, that an event occurred, as described in the Act, that would entitle the claimant to compensation.

In making these findings, we note the following evidence:

the claimant's testimony at the hearing was that he was assaulted by an man on the evening of April 1, 1999, after asking the individual and his girlfriend repeatedly for a cigarette, at the beer vendor of a local hotel. He later related to police that this took place at approximately 11:30 p.m., following which he went home;
the claimant did not report the event to the police until he asked a friend to contact the police during the afternoon of April 3, 1999, two days later. At the hearing, the claimant advised that he did not contact the police because he was sore, with two black eyes and loose teeth, and "the idea didn't pop into my head about this." We note that the claimant did not seek medical attention or contact his physician until several days later and then for the specific purpose of obtaining a medical certificate for his work absence to his employer;
police notes made during their interview of April 3, 1999 indicate that the claimant had apparently consumed 12-16 beers. At the hearing, the claimant's evidence was that he had consumed 6-7 beers prior to the incident and was "feeling cheerful." Upon questioning, the claimant indicated that he must have provided an estimate at that time, and that he did not count his beers;
the claimant's first story to the police regarding the incident suggested that he had been assaulted in a back lane by three gang members whom he could not identify, and that he had been robbed of $250 in cash. When pressed about inconsistencies within his story and warned about the possibility of charges for public mischief, the claimant recanted his original story, and related that he had been assaulted in or near the beer vendor of a local hotel, by a single individual, after asking for a cigarette. He also acknowledged that he had not been robbed;
the evidence of the police was that they had problems with the veracity of both of the claimant's account of events, because of changes continually made by the claimant with respect to the incident, his vague and evasive answers, and his reluctance to participate or assist in an investigation of the assault, identification of a suspect, or to press charges if the perpetrator of the assault were to be identified or located;
the police also note, confirmed by the claimant at the hearing, that the claimant's contact with the police was triggered by his familiarity with the Criminal Injuries Compensation Act through a prior claim for similar injuries and that the purpose of the contact with the police was not to assist in the apprehension or prosecution of the person causing his injuries, but rather to establish an incident report in order to seek compensation under the Act;
the claimant gave evidence that a friend had counselled him to indicate that he was robbed of cash, prior to the call to the police to report the incident and that he was afraid that a second claim for similar injuries would not be accepted;
the claimant indicated at the hearing that he could have identified the assailant from photographs, right after the incident, and that he later saw the person who assaulted him, on the street in his neighborhood, approximately two weeks after the incident. We note however, as previously outlined, the claimant's complete lack of assistance to the police in substantiating that the alleged assault had occurred.

After reviewing all the evidence on file and as presented at the hearing, we accept the evidence of the police constables regarding the inconsistencies and inaccuracies in the claimant's report of the circumstances leading to his injury, which were evident in both versions presented to the police during their interview and which undermine the credibility of the claimant and his claim. While the claimant suffered some physical injuries some time prior to his report to the police, there is little to support, on a balance of probabilities, that these injuries occurred as a result of an assault. We note that the claimant acknowledged a high level of intoxication at the time of the incident, and a reluctance to participate in the identification or apprehension of a perpetrator. We note the considerable delay in reporting an incident to the police, the inconsistent accounts of what occurred and the claimant's focus on getting a police report for the purposes of compensation rather than in assisting them to establish evidence of criminal or other activity.

We find that the evidence on a balance of probabilities supports a conclusion that an "event" did not occur as required under the Act. In any event, we would have disallowed benefits under Section 31 of the Act, by virtue of the claimant's delay in reporting, his failure to assist the police in apprehension or prosecution of the person whose actions may have resulted in his injuries and to assist in establishing what occurred. Therefore the claimant's appeal is denied.

Panel Members

D.A. Vivian, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

D.A. Vivian - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 3rd day of November, 1999

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