Public Decisions | The Appeal Commission

Decision #04/02 - Type: Victims' Rights

Preamble

An Appeal Panel hearing was held on June 12, 2002, at the request of legal counsel, acting on behalf of the claimant's mother. The Panel discussed this appeal on June 12, 2002.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

In September, 2001, the deceased's mother filed a claim with the Compensation for Victims of Crime program due to the death of her son which occurred on September 15, 2001. On this date, it was alleged that the deceased went outside to have a cigarette and was assaulted by another youth(s) which led to his death.

Following receipt of a police report along with information provided by the Winnipeg Police Services, the Compensation for Victims of Crime program determined that the claim for compensation was not acceptable based on the following factors:

No charges were laid against the youth who caused the deceased injuries as it was determined that the youth was acting in self-defence;
Section 31 ( c ) of The Victims Rights Act which states in part, that "The Director may refuse to award compensation if he or she is of the opinion that the victim's death occurred while participating in a criminal offence."
It appeared that the deceased was committing a criminal offence as the evidence indicated that he was robbing the youth at knifepoint at the time he sustained the fatal injuries.

On October 15, 2001, the deceased's mother requested reconsideration of the above decision. On November 29, 2001, the decision to deny the claim was confirmed by the Compensation for Victims of Crime program based on the following factors:

a videotape statement indicated that the deceased was involved in breaking into vehicles at the time of the incident. The witness also indicated that the deceased said he was taking a knife with him for the purpose of committing a crime.
the claimant's death was not the result of a criminal offence.

In a letter dated April 12, 2002, legal counsel, acting on the claimant's mother's behalf, appealed the above decision to the Appeal Commission. Legal counsel made reference to an autopsy report which indicated that the deceased's death was caused by a number of blows to the head with a blunt instrument which "corroborates the position that the Deceased died as a result of a criminal assault and not from an act of self-defence." On June 12, 2002, an oral hearing was held at the Appeal Commission to consider the appeal.

Following the hearing and discussion of the case, the Panel requested that additional information be obtained from the Winnipeg Police prior to rendering its decision. On August 16, 2002, the Panel met further to discuss to the case and render its final decision on the issue under appeal.

Reasons

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

The claimant in this case is deceased, having died as a result of injuries incurred in an altercation. His mother has applied for compensation pursuant to the Act. It is her position that her son died as a result of the commission of a crime - that he was assaulted in an unprovoked attack by a person unknown to him - and, thus, is entitled to benefits.

The application for compensation was denied, based on subsection 31(c) of The Victims' Rights Act (subsection 54 (c) of The Victim's Bill of Rights.) 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 appellant'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:

the victim's injuries or death occurred while participating in a criminal offence;
the victim's conduct directly or indirectly contributed to the victim's injury or death .

Prior to coming to our decision, we held an oral hearing, at which we heard testimony from the appellant, from the fiance of the deceased and from other members of his family. We also heard argument from legal counsel representing the appellant.

Subsequent to the hearing, we reviewed statements made by several witnesses to the police, as a well as the videotaped interview with the prime suspect in the police investigation. It should be noted that charges were not pursued, as it was determined that the suspect had acted in self-defence against an alleged knife-point attack.

In coming to our decision, we came to the following conclusions, based on the evidence before us:

The victim was very likely intoxicated at the time of the incident. We base this on:
- The statement given by his fiance to the police to the effect that the victim was drinking a mickey of vodka;
- His blood alcohol level was found to be .10;
- He was found to have THC in his system, from recent marijuana use; and
- His fiance, in her statement, said that, when she saw him laying down outside, her initial thought was that he had passed out.
The victim did have a knife with him when he was outside:
- His fiance, in her statement, said that she saw a knife beside him, when she went to try to help him after the incident. In fact, she drew a picture of it on the statement.
- A knife, similar to the one she drew, was found at the scene of the incident, underneath an article of clothing the victim had been wearing.
- Three witnesses observed the victim in his back yard, shortly before the incident, waving around what appeared to them to be a knife.
The victim may have been involved in a crime shortly before the incident:
- His fiance stated that, at one point, he came into the house to get some tools - a hammer and screwdriver - and went back outside. A few minutes later, she followed him outside and found him in a car with the window smashed.
- While this is not directly related to the incident which led to the victim's death, it is relevant in that it supports that the victim was in an aggressive frame of mind.
We were not able to corroborate statements made at the hearing to the effect that an ex-girlfriend of the victim had been phoning him that evening, nor that she had come to the house asking to see him outside. It was stated that her present boyfriend may have been responsible for the death of the victim. We found no evidence to support this, beyond these statements.

In fact, in a statement to police, the victim's fiance specifically stated that no one had called the house that night and that no one, other than the victim's grandfather had come to the house. She also said that the victim had not talked to anyone on the phone that night.

We found the version of events given by the person responsible for the death of the victim to be very plausible. It was his position that the victim advanced on him with a knife in an attempt to rob him. He says he responded in self-defence.

We do not mean to imply that the evidence given by the family members at the oral hearing was not credible. However, none of them witnessed the event. In fact, no one did. Thus, they were not able to present us with any evidence corroborating the occurrence of a crime - even, on a balance of probabilities.

We have concluded that the victim was likely involved in the perpetration of a crime, which would disqualify him (and his survivors) from benefits under subsection 54(c) of the Act.

We have further concluded - on a balance of probabilities - that his conduct did contribute to his death, thus disqualifying him and his survivors under subsection 54(d) of the Act.

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 13th day of September, 2002

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