Decision #06/02 - Type: Victims' Rights

Preamble

An Appeal Panel hearing was held on October 17, 2002, at the claimant’s request. The Panel discussed this appeal on October 17, 2002.

Issue

Whether or not the application is acceptable.

Decision

That the application is not acceptable.

Decision: Unanimous

Background

In November 2001, the claimant filed a compensation claim with the Manitoba Compensation for Victims of Crime Program for an incident that occurred on October 19, 2001. At this time, the claimant indicated that an altercation took place between himself, his sister-in-law and common law wife and that he sustained a stab wound and liver laceration as a result of the altercation.

Following review of the application along with police investigative reports, the program’s claims adjudicator wrote to the claimant on November 23, 2001. The claimant was informed that his application for compensation had been denied. The letter stated, in part, “We note that the injuries you received were the result of an altercation between your wife, your sister-in-law and yourself. As a result, you have all been charged with assault. Subsequently, we have denied this claim pursuant to section 54 ( c ) of The Victims’ Bill of Rights, which states:

"The Director may refuse to award compensation if he is of the opinion that the victim’s injuries occurred while participating in a criminal offense.”

On January 24, 2002, the claimant requested reconsideration of the above decision. The claimant stated that he spoke with the Crown Attorney on January 23, 2001 and was told that no charges had been laid against him. The claimant advised that he was still on medication and was having nightmares. He stated that he had a scar on his stomach that he had to live with for the rest of his life.

In a letter dated April 18, 2002, the program’s manager advised the claimant that the original decision was correct. The manager noted that it had been confirmed through the police that the claimant had been charged with an assault in relation to the incident. In addition, the claimant had been charged with a breach of probation as he had been drinking while a probation order was in place prohibiting him from doing so.

The claimant submitted an Application to Appeal dated June 11, 2002, appealing the decision made on his claim. On October 17, 2002, an oral hearing took place to consider the claimant’s appeal.

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 his sister-in-law. During the assault, he was stabbed in the abdomen. He suffered a laceration of his liver, which required surgery.

The claimant’s application for compensation was denied, based on subsection 54(c) of the Act. This decision was upheld upon reconsideration by the program manager. 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

(c) the victim's injuries or death occurred while participating in a criminal offence;

(d) the victim's conduct directly or indirectly contributed to the victim's injury or death ….

In coming to our decision, we conducted a thorough review of the claim file, as well as holding an oral hearing, at which we heard testimony from the claimant.

The claimant denied that he was engaged in a criminal offence as maintained by the Compensation for Victims of Crime program in its decisions to deny his application.

We would note that, in his testimony to the Panel, the claimant was unable to recall with much certainty at all the events that led up to his injury. As a result, we gave somewhat more weight to the statements given to the police at the time of the incident, as well as the evidence gathered by the police, at that time.

We made the following findings in our consideration of this matter:

  • The claimant consumed a number of beers on the night of the incident.
  • At the time, he was under a court order not to consume alcohol.
  • His common law wife consumed an even greater amount of alcohol, albeit over a longer period of time.
  • His sister-in-law consumed a number of beers.
  • At some time in the early morning, the claimant and his common law wife became embroiled in an argument, which escalated into a physical assault on each other.
  • While he and his common law wife were fighting, the sister-in-law stabbed the claimant.
  • As a result of these events, the sister-in-law was charged with assault with a weapon, which charge was stayed.
  • The claimant was charged with assaulting his common law wife and with breach of probation. Both of these charges were stayed.

Having found that the claimant was engaged in two criminal offences at the time of his injury, we conclude that he is properly denied benefits, pursuant to subsection 54(c) of the Act.

Although not referred to by the program, we note that there is further support for denying benefits in subsection 54(d), quoted above. The claimant's conduct clearly contributed to his injury.

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 11th day of December, 2002

Back