The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The appellant filed a claim for benefits from the Manitoba Victims of Crime Program (the Program) arising from an assault that occurred on a hotel parking lot in August 2004. His claim was denied as the Program found the appellant was involved in the illegal drug trade which contributed to his assault. The appellant appealed this decision.

A hearing was held on October 26, 2006. At the commencement of the hearing, the appellant advised that he did not have his copy of the file information as he had left the file at a lawyer’s office, which disposed of it. The panel agreed to the appellant’s request for an adjournment to obtain another copy of his file. The panel also informed the appellant that the Program gives access to limited information and that he may need to apply to the City of Winnipeg Police for information collected by the police. The appellant advised that he had previously applied to the City and received some information which was with his file.

The hearing reconvened on January 17, 2007. The panel discussed this appeal on the same day and rendered its final decision.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

In June 2005, the appellant filed a claim with the Program for being the victim of an assault that occurred on August 18, 2004. In a letter attached with his application, the appellant provided details of the events that took place on August 18, 2004. He stated, in part:

“On Tuesday, August 17, 2004, several friends of mine came to my home for a barbeque. Around 9 P.M., we all decided to go to the [hotel name]. Our girlfriends … decided to go to [second hotel]. We agreed that we would pick them up from the [second hotel] later, and maybe proceed to a private houseparty from there.

We had just arrived at the rear parking lot of the [second hotel]. It was around 2 a.m. on August 18, 2004.

I spotted my girlfriend standing at the backdoor of the hotel. I walked over to her and gave her a hug. The next thing I know, some guy tapped me on the shoulder and asked if he could speak to me for a minute. I said, “sure” and the guy turned and proceeded to walk back towards the rear parking lot. I followed behind him.

Without warning another guy came out from between 2 parked cars toward me…The next thing I recall, is he reached under his coat, pulled out a firearm and shot me in the stomach. I instinctively clutched my abdomen and turned to stumble back towards the hotel backdoor. My girlfriend hollered “what’s wrong” I answered, “I’ve been shot.” I fell to my knees but managed to get up and stumble into the back lobby entrance of the hotel where I collapsed…Everything happened so quickly and I don’t recall much more than that. I did not know these guys and I definitely was not drinking with them. And I don’t know why they would want to kill me…I do not belong to a gang and I am not a gang member. Again, I do not know the people involved with my shooting.”

Staff from the Program gathered additional information from the Winnipeg Police Service which included various witness statements. A review of this information suggested that the appellant was active in trafficking drugs and that he may have known the identify of his assailants even though he denied this fact to the police.

In a letter dated July 4, 2005, the appellant’s claim for benefits was denied by the Program as it felt that his involvement in the illegal drug trade indirectly contributed to his assault. Subsection 54(d) of The Victims Bill of Rights was quoted in the decision.

On August 29, 2005, the appellant filed a Request for Reconsideration based on the Program’s decision of July 4, 2005. The appellant advised that he was not doing anything wrong on the night he was shot and he objected to being accused of involvement with any form of illegal activity. He also pointed that he was not charged with anything by the police.

On October 4, 2005, the Program’s Director confirmed that the claim was not acceptable pursuant to subsection 54(d). He stated that the Winnipeg Police informed the Program’s staff that the appellant was known to have gang affiliation and involvement in the illegal drug trade in Winnipeg. He noted that it was not necessary for a person to be arrested for a criminal offence at the time of the incident in order for the contributory behaviour clause to be applied in this situation. On October 26, 2005, the appellant appealed the decision and a hearing was requested.

Reasons

The Appellant’s Position

The appellant was represented by his brother who made a submission on his behalf. The appellant answered questions posed by his representative and the panel. The appellant also called his former girlfriend, as a witness. She was with the appellant at the time of the assault. A friend of the appellant, who was with him on the night of the incident, was to be called as a witness, but he failed to attend the hearing. The appellant’s mother also attended the hearing.

Witness’s Evidence

The witness advised that she was the appellant’s girlfriend at the time of the incident and that she was present when the appellant was shot. She described the incident, provided information on her activities on the night of the incident, and gave information about the appellant’s activities and character. She advised that the appellant was not a drug dealer, was not selling drugs on the night of the incident and was not involved in any gang activity.

Regarding the incident, the witness indicated that she was standing with the appellant when a person who she did not know asked if he could speak to the appellant. Initially she advised that she had never seen him before and would not recognize him if she saw him again. When asked by the panel whether she had seen this person before, she said that she had seen him around but did not know who he is. She also provided a statement to police in which she acknowledged seeing the person in the hotel before the incident and would recognize him if she saw him again.

Appellant’s Evidence

The appellant described the incident.

He advised that he was standing outside the hotel with his girlfriend when a person called him aside and that he proceeded into the parking lot with the person. Before he could say anything another person came out from between parked vehicles and shot him. He stated that he did not know the person who shot him and had not seen this person before nor since the incident. He noted news reports that a person, JB, was charged with the assault but that charges were stayed. He denied knowing JB and advised that based upon the description he received of JB, it was his opinion that JB was not the person who shot him.

The appellant advised the panel that he does not know the person who called him aside but that he has seen this person on more than one occasion since the incident. He stated that he recognized him right away.

When asked whether he reported seeing this person to the police he replied “No. When I tried to call the police, nobody called me back, nothing at all from them.” He added that he tried calling “one of those card numbers”.

The appellant was asked whether he has inquired into the status of the investigation into the incident. He replied “The police haven’t talked to me at all, nothing, nothing at all. I didn’t get - absolutely nothing from them.”

When asked about whether he had any criminal convictions he initially replied “No”. He later advised that he had been convicted of “… two theft unders, assaulting a police officer and a couple failure to appears.”

Regarding the identification of the persons involved in the assault, the appellant indicated that the police tried to get him to identify a person who did not participate in the assault. He stated in reference to the police that “They were trying to get me to finger out somebody else.”

The representative referred to a newspaper report which identified the appellant as a drug dealer. He was critical of the police for making this comment. The appellant denied any involvement in the drug trade. He also denied that he owed money to anyone.

Regarding his activities prior to the incident, the appellant indicated that he was at another hotel and was dropped-off by himself near 2:00 AM. He advised that his friend CS was not with him at the other hotel. This is inconsistent with CS’s statement dated August 25, 2005 which indicated that he and the appellant had been at another hotel and that “Around 2am we went back to the [hotel] to pick up the girls in the parking lot….”

Applicable Legislation

The appellant has applied for compensation under Part 5 of The Victims’ Bill of Rights.

Subsection 46 (1) of this legislation provides, in part, that an application for compensation may be made in respect of a person who is injured as a result of an event that occurs in Manitoba that is caused by an act or omission of another person that is an offence under the Criminal Code (Canada). Section 54 outlines the situations where compensation may be denied or reduced. This section provides:

Director may refuse or reduce compensation 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

(a) 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;

(b) the applicant has not assisted law enforcement authorities to apprehend or prosecute a person whose actions resulted in the victim's injury or death;

(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; or

(e) 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.

Analysis

Before detailing the reasons for its decision, the panel finds the witness’ evidence, at times, to be inconsistent and was unable to attach significant weight to the evidence. The panel also found that the appellant was not forthcoming in answering questions posed by the panel, provided inconsistent, and incorrect information, and accordingly was unable to attach significant weight to his evidence.

The issue before the panel was whether the appellant’s claim is acceptable. The panel has no difficulty finding that the appellant was assaulted and seriously injured in the incident on a hotel parking lot in August 2004. However The Victims’ Bill of Rights provides authority to refuse to award or to reduce the amount of compensation payable in certain circumstances. The panel finds that this is an appropriate case to apply section 54 of the noted Act and determines that no compensation should be paid to the appellant.

On July 4, 2005 the program applied Section 54(d) and refused compensation on the basis that “…it appears that this incident was likely the result of a dispute over drugs…your involvement in the illegal trade of drugs has indirectly contributed to your being assaulted…”

On October 5, 2005 in reconsidering the decision, the director of the Program also applied section 54(d) noting “The police advised program staff that you are known to have gang affiliation and involvement in the illegal drug trade in Winnipeg.”

Although the appellant, the witness and the representative deny that the appellant is involved in the illegal drug trade, there is evidence on the file provided by the City of Winnipeg Police that the appellant was involved in such activity. In light of this evidence, the panel finds that this is an appropriate case to apply section 54 (d) and refuse to award compensation.

The panel also notes that Section 54 (b) provides that compensation may be refused where the applicant has not assisted law enforcement authorities to apprehend or prosecute a person whose actions resulted in the victim’s injury. The panel finds that the worker did not assist the police in apprehending the person whose actions caused his injuries. Evidence provided at the hearing by the appellant is that he has seen the person who lured him into the parking lot since the incident and has taken no reasonable steps to inform the police of his identity or whereabouts. The panel finds that section 54(b) is applicable and that compensation should be refused.

As well, evidence on the file indicates that the appellant was able to identify the person who shot him while he was sedated at the hospital but later claimed he did not know the identity of the person who shot him.

The appellant’s appeal is declined.

Panel Members

A. Scramstad, Presiding Officer
J. MacKay, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 12th day of March, 2007