Decision #02/00 - Type: Victims' Rights
An Appeal Panel hearing was held on March 22, 2000, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on March 22, 2000.
Whether or not the claim is acceptable.
That the claim is acceptable.
On June 20, 1998, the claimant claimed he was the victim of an assault whereby he sustained facial lacerations and bruising and both eyes were swollen shut. Police information revealed that the claimant was taken to hospital and received medical attention. When the police attended at the claimant's residence the following day, the claimant indicated he could not remember anything about the assault, as he had been extremely intoxicated at the time. There were no suspects and no known witnesses. The claimant allegedly advised police that he was not interested in pursing the matter any further.
In a decision dated October 28, 1998, the claimant was advised that in accordance with Section 6(2)(b) of the Criminal Injuries Compensation Act his claim was not acceptable.
On April 22, 1999, a solicitor acting on behalf of the claimant appealed the above decision. The solicitor contended that the claimant was very helpful with the police and that the claimant had reported the matter to the authorities at a very early opportunity. The claimant did not recall indicating to the police that he was not interested in pursuing the matter. "In fact, he has indicated to me that he would be very interested in seeing the accused persons charged and for them to have to face trial. Unfortunately, he was attacked from the rear, he was not able to provide enough information to assist the police in making any arrests, so the chance of these fellows being apprehended and tried is quite remote."
In a decision dated May 7, 1999, the Assistant to the Registrar confirmed the decision to deny the claim. It was felt that there was no new evidence provided which would change the earlier decision.
On November 4, 1999, the solicitor appealed the decision to deny the claim to Review Office. The solicitor indicated that the claimant tried to co-operate with police as best he could. The solicitor stated the claimant was not aware of who assaulted him. "Even if he had adamantly demanded that the police fully investigate the matter at the time, no suspects would have been arrested. Mr. [the claimant] did speak to the police and there is some discrepancy as to whether or not he wanted to press charges or not. I must say that I find it unfair for the Board to take the position that he should not be compensated as he may not have been extremely interested in proceeding with the charges. He maintains that he was. Assuming that he was not, he is nonetheless an injured person. He was injured in a criminal action and I think the evidence shows that he is severely disabled as a result of this matter."
In a decision dated December 10, 1999, Review Office confirmed the decision to deny the claim under Section 6(2)(b) of the Criminal Injuries Compensation Act. Review Office noted several factors, which, in its opinion, made the claimant's subsequent recollection of events and interest in seeing his assailants captured questionable. In particular, Review Office noted the following:
- that following the assault, the claimant could not remember anything. Subsequently, information received from the claimant and his solicitor showed that he remembered the assault taking place at approximately midnight, that he was riding a bicycle, and was struck from behind and lost consciousness as a result of the attack.
- information from the hospital documented that the claimant could not remember what happened to cause his injuries, when the doctor saw him later the morning after the assault.
- evidence provided by the ambulance attendants regarding the extent of the claimant's intoxication when he was brought to the hospital.
- there was an absence of evidence that the claimant ever attempted to provide additional information to police to assist them in their investigation or clarify his position on the issue of pressing changes. The claimant was aware that the police needed more information from him and Criminal Injuries Compensation staff were awaiting confirmation from police that this information was received.
On December 21, 1999, the solicitor appealed Review Office's decision and requested an oral hearing.
As the background notes indicate, the applicant's claim for compensation was rejected because it did not meet the requirements of Section 6(2)(b) of The Criminal Injuries Compensation Act (the Act). This particular section states that an order for compensation shall not be made where the crime of violence was not reported to the police within a reasonable time or, if reported, the claimant did not provide reasonable assistance in the apprehension of the offender. In the opinion of Review Office, the claimant was less than co-operative in assisting the police.
After reviewing the evidence, we do not come to the same conclusion as Review Office. The claimant's evidence was that he informed the police he would not be able to identify his three assailants. The Act does not specify that there must be a conviction before a victim qualifies for compensation. There is no question that the claimant was a victim of a vicious assault. The fact that he could not identify the assailants does not, in our view, necessarily amount to non co-operation or disqualify him from receiving compensation. Accordingly, we find the claim acceptable.
R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner
Recording Secretary, B. Miller
R. W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 28th day of March, 2000