Decision #04/05 - Type: Victims' Rights

Preamble

An Appeal Panel hearing was held on July 20, 2005, at the victim's request. The Panel discussed this appeal on the same day.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On September 22, 2003, the victim's mother filed a claim with the Manitoba Compensation for Victims of Crime Program (the Program) for an incident that occurred on August 19, 2003, when her son was physically assaulted while awaiting a city bus.

Following discussions that took place between representatives of the Program and the Winnipeg Police Service, the claim for compensation was denied in accordance with Section 54(d) of The Victims' Bill of Rights (the VBR). It was determined by the Program that the assault was due to the victim's involvement in criminal activity and that his actions contributed to his injuries. A social worker acting on behalf of the victim appealed this decision on January 22, 2004.

Following further discussions with the Winnipeg Police Service, the claim for compensation was again denied by the Program on April 13, 2004. The reasons to deny the claim were as follows:
  1. the victim refused to cooperate with the police regarding the investigation pertinent to the assault; and
  2. witnesses refused to provide any formal statements about the incident to the police.
On May 19, 2004, the Program's Director reviewed the file information based on a Request for Reconsideration dated April 21, 2004. The Director confirmed that the original decision to deny the claim was correct. Reasons for the decision were outlined as follows:
"Staff has had an opportunity to speak to the Winnipeg Police Service officers who have been involved with the investigation of your assault on August 9, 2003. The police have clearly indicated to the Compensation for Victims of Crime Program that you were involved in the drug trade and that the unfortunate injuries that you sustained were definitely related to your participation in criminal activity. Police have also advised staff that neither yourself nor any witnesses to this incident were willing to provide any information whatsoever that would assist them in an arrest or prosecution of the individuals who caused your injury."
On January 26, 2005, an oral hearing was held at the Appeal Commission to determine whether the claim for compensation was acceptable. The hearing was adjourned so that the victim and his advocate could obtain additional information. On May 11, 2005, the advocate advised the Appeal Commission that they were now ready to proceed and another hearing was arranged.

Reasons

Applicable Law

This claim is adjudicated under the VBR. Section 54 of the VBR provides the grounds under which the program may refuse to award compensation.

Director may refuse or reduce compensation

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 event that resulted in the victim's injury or death was not reported to law enforcement authorities within a reasonable time after it occurred;
  2. the applicant has not assisted law enforcement authorities to apprehend or prosecute a person whose actions resulted in the victim's injury or death;
  3. the victim's injuries or death occurred while participating in a criminal offence;
  4. the victim's conduct directly or indirectly contributed to the victim's injury or death; or
  5. the applicant has not provided information requested by the director, or in the form requested by the director, within a reasonable time after the request was made.
The above section is directly applicable to this claim.

The Panel was asked to determine whether the victim's claim for compensation from the Program is acceptable.

The victim's claim had been denied on the basis that victim did not meet the program's eligibility standards and specifically:
  • the victim has not assisted law enforcement authorities to apprehend or prosecute the person whose actions resulted in the victim's injury, and;
  • the victim's conduct directly or indirectly contributed to the victim's injury.
With regard to the first reason for the denial, the victim acknowledged at the hearing that he received information regarding the assault and that he did not cooperate with authorities. He was asked whether he made a decision not to help the authorities:

"Q. That's one of the two reasons that they gave and this is why I'm asking you some of these questions, because it looks like you made the decision not to help the police. Am I right about that?

A. Okay, I made the decision not to help the police, that is right, like I admit that with you, but -- and the other part, me admitting to the police that I can't tell them nothing is because I just couldn't remember anything, you know."

The victim advised the Panel that he did not tell the authorities because he was concerned for his and his family's safety. He also indicated that he wants to put this event behind him and start over. The victim maintains that he suffered a memory loss with respect to the events of the assault. However, since the assault he has gained information about the event but has decided not to share this information with the authorities. The Panel finds that the victim has not assisted law enforcement authorities to apprehend or prosecute the person whose actions resulted in his injury.

Dealing with the second reason for the denial, the information on file establishes that the assault took place in a park at approximately 1:30 AM. Police records identify a number of persons who were allegedly present in the park at the time of the assault. When asked at the hearing if he knew these persons, the victim acknowledged that he did and acknowledged that some were involved in the drug trade.

At the hearing the worker acknowledged his past involvement in the drug trade but insisted that at the time of the assault was not involved. However, the Panel finds that the victim attended at the park on the night of the assault in the presence of persons involved in the drug trade and that this action contributed to the victim's injury.

There is also information in the police records that suggests the assault is related to the victim's involvement in the drug trade. When asked about a drug debt, the victim denied this indicating that he was not involved in the drug trade at the time of the assault.

Conclusion:

As noted above the Panel finds that the victim has not assisted police in apprehending or prosecuting the person who caused his injury and that the victim's conduct in being in the park at the time of the assault with persons involved in the drug trade, contributed to his injury.

Given these facts, the Panel further finds that pursuant to subsection 54 (b) and (d) of The VBR, the victim is not entitled to receive compensation. The victim's claim is not acceptable and his appeal is denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 14th day of September, 2005

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