Decision #04/00 - Type: Victims' Rights
Preamble
An Appeal Panel hearing was held on March 13, 2000, at the request of the claimant. The Panel discussed this case on March 13, 2000 and again on June 8, 2000.
Issue
Whether or not the claim is acceptable.
Decision
That the claim is acceptable.
Background
At approximately 1:30 a.m. on May 29, 1999, the claimant indicated that he was walking down Main Street when he was jumped by three individuals and was robbed and severely beaten. Injuries reported by the claimant were a severe concussion, injuries to his right shoulder, back and both knees, as well as lacerations to the head and right side of the face.
A police report was subsequently obtained regarding the above incident. It was noted that the police attended the claimant's home at 0235 hours and the claimant was found to be bleeding from a small laceration to the top of his head. The claimant was also intoxicated and admitted to being so. He stated that he had been drinking heavily at a local hotel and that he had been dancing with three women which made some other patrons upset. When he left, the claimant could only describe that he was attacked by 3 native males. The claimant could not give any further description or direction of travel.
The police report further indicated that the police attended at the hotel with a member of neighborhood watch in an attempt to identify a suspect. The head bouncer told police that the claimant had been quite intoxicated and was causing a disturbance with several other patrons. The bouncer stated he called a cab for the claimant. While en route to the exit the claimant allegedly attempted to start fights with numerous patrons. The bouncer indicated that once the claimant left he did not observe anyone following him. A check of the hotel was met with negative results. The claimant was transported to a hospital and was given an incident card. He was again told to phone the police when he sobered up.
On September 24, 1999, the Director of Compensation for Victims of Crime denied the claim for compensation in accordance with Sections 31(d) and 31(b) of The Victims of Rights Act. The Director noted from police documents that the claimant had been causing a disturbance with patrons of the hotel and attempted to start fights as he was leaving the hotel. He concluded that the claimant's conduct directly or indirectly contributed to the injury (Section 31(d)).
The Director further concluded that the claimant had been uncooperative with the police even though he had been given a police incident card and asked to call police when he sobered up. Records indicated that the claimant did not contact the police again and therefore he did not assist the law enforcement authorities in identifying and apprehending the offenders. According to Section 31(b), this was the second ground to deny the claim.
On September 28, 1999, the claimant appealed the above decision to the Appeal Commission and an oral hearing was arranged.
Reasons
The Victims' Rights and Consequential Amendments Act of Manitoba (the Act) confers on individuals, who are injured as a result of a criminal offence committed by an act or omission of another person, the right to make an application for compensation. According to section 24 of the Act, "Compensation payable to a victim in respect of his or her injury is determined in accordance with this Act and the regulations, and consists of expenses incurred by the victim in respect of the injury and, (a) if the victim is disabled by the injury, compensation for loss of wages; and (b) if the victim is permanently impaired by the injury, compensation for the impairment."
In the particular case at hand, the applicant was the victim of an alleged assault occurring in the early morning hours of May 29th, 1999. The victim's application was initially rejected because Manitoba Compensation for Victims of Crime Program (the Program) was "unable to locate any police information regarding the alleged assault." The applicant then appealed this decision to the Director of the Program indicating that he had cooperated with the police and in support quoted a police incident number.
The Director decided to uphold the initial decision to deny the claim on the following grounds:
- The police record "states that you were causing a disturbance with patrons of the hotel and attempted to start fights as you were leaving. This information causes us to conclude that it is likely that your conduct directly or indirectly contributed to the injury. Section 31(d) of the Victims Rights Act allows us to refuse to award compensation in these circumstances."
- "The police indicate that you were uncooperative with them. Further they added that you were given a police incident card and were asked to call them when sober. Their records indicate that you did not contact them again and therefore did not assist the law enforcement authorities in identifying and apprehending the offender. According to section 31(b), this is a second set of grounds to deny your claim."
As to the first ground for refusal, the applicant testified before the Panel that he was not causing a disturbance. "That's another thing, you know, if - they would probably kick me out if I would, you know, cause things like that, but he just let me go out the back door." In addition, the hotel bouncer, when interviewed by a private investigator, stated that he vaguely recalled having dealings with the victim and to his recollection the victim was not the instigator of any disturbance.
The victim testified that the bouncer let him out the back door of the hotel and when the door closed the assailants came at him from the side. They started to chase him and when caught they began to hit and kick him. A witness arrived on the scene very shortly after the assault and encountered the victim staggering around. "He was staggering really bad. At the same time I saw a native male running east on Dufferin Avenue, then turned south on Main Street. There was four more aboriginal males following him. I would guess all five aboriginal males were between 20 and 30 years of age. They all disappeared running south on Main Street."
As to the second ground for refusal, the applicant denies that he was uncooperative. He informed the police that several natives had attacked him. "And they just ask me who they are and I say it was three guys anyway, natives in this place and that's what they ask me. And that's it. And they give me the number, you know, of, you know, like, a police number and that's what happened." The victim stated that he attempted to contact the police officers the next day but they were off duty. From all accounts, the victim was quite intoxicated at the time of the assault and in all likelihood would not have been able to identify his attackers.
We find that the applicant was indeed the victim of a criminal assault and that his claim is therefore acceptable in accordance with the provisions of the Act.
Panel Members
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 29th day of June, 2000