Decision #07/07 - Type: Victims' Rights
Preamble
The appellant filed a claim for benefits from the Manitoba Victims of Crime Program (the Program) claiming that he was the victim of an altercation that occurred on April 29, 2007. His claim for compensation was denied by the Program based section 54(b) and 54(d) of The Victims’ Bill of Rights (the VBR). The appellant appealed the decision to the Appeal Commission and a hearing took place on August 21, 2007.
Following the hearing, the appeal panel sought and obtained additional information from the Winnipeg Police Service which was provided to the appellant for comment. On November 8, 2007, the panel met to render its final decision.
Issue
Whether or not the claim is acceptable.
Decision
That the claim is not acceptable.
Decision: Unanimous
Background
In May, 2007, the appellant filed a claim with the Program for an assault that occurred on April 29, 2007 when he was struck with a baseball bat and sustained a fracture to his right ulna.
On June 1, 2007, the Program denied the claim for compensation pursuant to section 54(b) and 54(d) of the VBR. The Program based its decision on police information which showed that the appellant was involved in a mutual fight and that his involvement in the fight indirectly contributed to his injuries. It also denied the claim on the basis that the appellant and the other parties involved in the assault were not interested in pursuing charges.
On June 11, 2007, the appellant asked the Program to reconsider its decision to deny his claim in accordance with section 59(3) of the VBR. The appellant stated, in part, that he was now ready to press charges against the people who assaulted him.
In a further decision dated June 28, 2007, the Program’s acting director confirmed that the claim for compensation was not acceptable on the grounds that the appellant initiated the altercation that led to his arm being broken and because he did not press charges against any of the involved individuals. The appellant appealed the decision to the Appeal Commission and a hearing was held on August 28, 2007.
Reasons
Appellant’s Position:
At the hearing, the appellant said he felt his claim should be accepted because he suffered an unexpected attack while walking, resulting in a broken arm and eventually a termination from his employment because of his injuries.
He claimed he and his cousin were walking on a Winnipeg street and three guys jumped them. The appellant claimed he was hit with a baseball bat and ran to a nearby service station where he obtained police assistance. The police drove him to hospital for medical treatment. The injury was diagnosed as a fracture to the right ulna.
When questioned about a reported fight from the police records, the appellant denied that he and his cousin were assaulting a native male on the evening in question. He claimed they were being assaulted. With respect to whether charges were laid in this matter, he confirmed at the hearing it was his intent to pursue charges but never did finalize them.
Analysis:
Compensation for victims of crime is provided in accordance with the VBR. To be eligible for benefits, a victim must have been injured as a result of an event that occurred in Manitoba that is caused by specified offences under the Criminal Code of Canada. Section 54 of VBR describes a number of circumstances where an individual may nonetheless be denied compensation. The panel finds the appellant’s claim fails to meet this criteria.
In reviewing the police report, the panel notes the report refers to a call history of the incident indicating “2 black males had been seen assaulting 1 native male.” The panel notes the report does not mention the use of a baseball bat in the assault. No baseball bat was found in the area following the reported incident. The appellant certainly was involved in an altercation, however, there is no clear evidence that he had been attacked and further, no evidence that a baseball bat was used as a weapon against him. The panel also notes that the police reports and interviews do not support the appellant’s evidence that he and his cousin were directly fighting against three individuals, but rather against one. While the evidence is consistent that the native male had taunted the assault, the panel nonetheless concludes that the fight was a mutual one.
Regarding charges being laid, the panel has reviewed the police report of this particular incident and notes “As neither party involved were interested in pursuing charges, this report is being submitted for info purposes only.” The appellant confirmed at the hearing that he considered filing charges after the incident however never followed through with it. The panel notes that even if the appellant had been a victim, his failure to pursue criminal charges would have precluded the appellant from coverage under the VBR; section 54(b) requires a victim to assist the police and that failure to do so means there is no coverage under the VBR.
The panel is unable to conclude, on a balance of probabilities, that the appellant sustained an injury as a result of a criminal act. While he has sustained an injury, there is no clear evidence that this injury was a result of a criminal act. He has not pursued any charges against his attacker and had full opportunity to do so following the incident. The panel finds that the appellant’s disinclination to assist the police is again consistent with its findings of a mutual fight. We find, therefore that his claim in not acceptable and his appeal is denied.
Panel Members
M. Day, CommissionerA. Finkel, Commissioner
Recording Secretary, B. Kosc
M. Day - Commissioner
Signed at Winnipeg this 27th day of November, 2007