Decision #03/02 - Type: Victims' Rights

Preamble

Appeal Panel hearing was held on June 24, 2002, at the request of the claimant. The Panel discussed this appeal on June 24, 2002.

Issue

Whether or not the application is acceptable.

Decision

That the application is not acceptable.

Decision: Unanimous

Background

On November 20, 2001, the claimant filed an application with the Manitoba Compensation for Victims of Crime program for an incident that occurred on January 7, 2001. On this date, the claimant indicated that he was leaving a hotel and "got jumped" whereby he sustained a broken jaw and stitches under his left eye. The claimant advised that the delay in reporting was due to the fact that he was incarcerated after the incident.

In addition to the above, the claimant noted that the offender did not use a weapon and that alcohol was a factor in the incident. The claimant was claiming for stolen eye glasses, clothing and for ambulance bills.

On December 7, 2001, the Victims of Crime Program denied the claim based on the following factors:
  • Sections 54(b) of The Victims' Bill of Rights. - The claimant was uncooperative with the police; and

  • Section 54(d) of The Victims' Bill of Rights - The claimant had been removed from the hotel for starting fights. It was a possibility therefore that his injuries were a result of one of the fights that he had attempted to start earlier.
On February 19, 2002, the claimant requested reconsideration of the above decision based on the following commentary:
    I was very upset after being jumped, and had my face cut under my eye and a broken jaw. I told them where they went and they did not go after them right away. I did not get into any fights with anybody in the bar. I had a game of pool with some guy who got very upset with me and told me that I was cheating but I was not. So I just let him have the game, then I left the bar. Then when I was walking home two guys and one girl jumped me. I tried to run but they chased me, got me to the ground. They started kicking me about the body and my head plus the guy who I had that game of pool with was known to the bouncer. I think that is why they said I was trying to start fights. Yes I was drinking but not to the point I did not know what I was doing. This was not my fault. I did not deserve to be jumped for my clothes, I was just very upset with being jumped, plus the bouncer does not even work at the [name] hotel. He was fired after this incident.
On March 26, 2002, the program's Director determined that the denial of the claim was appropriate. The Director noted that the application was denied, in part, on the basis that the claimant failed to cooperate with the police. "The police report states that you were 'uncooperative and belligerent' at the time of the incident. The report also states that the police contacted you several weeks later and you were still uncooperative." The Director noted that the claimant did not provide any new information to contradict witness statements that he was attempting to start fights.

Subsequent file information revealed that the claimant met with staff members of the program on April 2, 2002, to discuss his claim. In a letter dated April 11, 2002, the claimant was advised that no change would be made to the decision to deny his claim based on the following factors:
  • The claimant was uncooperative according to police and he refused to provide a description of the offender;

  • The hotel manager was contacted. The videotape of the night in question would have been taped over long ago. The hotel manager did not recall the incident;

  • The bouncer had been deported;

  • The claimant was on probation at the time with a condition not to consume alcohol. The police would have breached the claimant had they been aware of the probation order.
It was concluded that the claimant participated in a criminal offence by breaching his probation order. "The fact that the police failed to lay the charge does not mean that the offence didn't occur."

On April 24, 2002, the program's Director confirmed to the claimant that he agreed with the decision rendered on April 11, 2002. The Director advised that the program could not cover the claimant's eye glasses, jacket and vest as these items were stolen and legislation only provided for coverage of clothing and property that the victim was wearing and was damaged in the incident. The ambulance bill invoice could be covered through Employment and Income Assistance.

On May 31, 2002, the claimant appealed the decision made on his claim and an oral hearing was arranged.

Reasons

This appeal is pursuant to The Victims' Bill of Rights (the Act) of Manitoba.

The claimant alleges that he was assaulted in an unprovoked attack by three persons unknown to him. As a result of the assault, he sustained a broken jaw, as well as losing some personal items, including eyeglasses and some clothing.

The claimant's application for compensation was denied, based on three subsections of the Act. This decision was upheld upon reconsideration by the program director. The claimant then appealed to this commission.

For the appeal to be successful, the Panel would have to determine that there is sufficient evidence to support the claimant's version of events, as opposed to that of the city police. We were unable to make that determination.

In coming to a decision on an appeal, the Panel is bound to comply with the provisions of the Act.

The relevant subsections of the Act read as follows:
    54 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
    1. the applicant has not assisted law enforcement authorities to apprehend or prosecute a person whose actions resulted in the victim's injury or death;
    2. the victim's injuries or death occurred while participating in a criminal offence;
    3. the victim's conduct directly or indirectly contributed to the victim's injury or death .
The claimant denied a number of the points raised by the Compensation for Victims of Crime program in its decisions to deny his application.

It is sufficient for the Panel to find that any one of the above subsections applies for the appeal to be dismissed.

In respect of subsection (b), we were presented with two conflicting versions of events. For his part, the claimant argued before us that, when the police arrived, he pointed them in the direction that the assailants had gone, but that they didn't pursue them.

The attending police officer wrote, in the Incident Report:
    "Unit attended and located victim, [claimant's name], at bus stop at corner of Euclid and Main. Male was bleeding from mouth and left eye. Winnipeg Ambulance service attended, treated male and transported him to Seven Oaks Hospital. This unit attended to the hospital and [claimant] related that he was assaulted by two males, no descriptions. [claimant] was very uncooperative and belligerent to officers and as a result was given an incident card and informed to contact this unit should he wish to pursue the matter further.

    ..

    This unit contacted [claimant] back several weeks later and he again refused to cooperate."
The claimant argued that it was he who called the police a few weeks later, not the other way around.

The Panel has chosen to give more weight to the police version of events. We note that, in his testimony, the claimant did admit that, if he drinks, he tends to become quite aggressive. We conclude that - on a balance of probabilities - the police version is correct and that the claimant did not cooperate, sufficiently, with the police.

Therefore, pursuant to subsection 54 (b) of the Act, the claim is not allowed.

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 22nd day of July, 2002

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