Decision #02/07 - Type: Victims' Rights
Preamble
In 2005 the appellant sought compensation for injuries suffered as a result of an alleged assault that occurred approximately 15 years earlier. The Manitoba Compensation for Victims of Crime Program (the Program) refused the appellant’s application as it was filed after the expiry of the time limit provided in legislation for filing of applications. The application was also declined because the appellant did not assist in the investigation and prosecution of the alleged offenders. The appellant appealed to the Appeal Commission and a hearing was held on March 7, 2007.Issue
Whether or not the time for making an application for compensation should be extended; and
Whether or not the application for compensation is acceptable.
Decision
That the time for making an application for compensation should not be extended; and
That the application for compensation is not acceptable.
Decision: Unanimous
Background
On October 27, 2005, the Program received an Application for Compensation by the appellant for a crime that occurred in the spring or fall of 1989 or 1990 (his application said the crime occurred in 1992).
The Program advised the appellant that his claim for compensation had been denied based on subsection 51(1) of The Victims’ Bill of Rights (the VBR). The case manager noted that the appellant’s application for compensation was received beyond the legislated one year time limit for applying to the program. She pointed out that the appellant did not report the incident to the police until August 17, 2005 and that legislation required that victims assist in the investigation or prosecution of a case and thus it was essential that incidents be reported to police as soon as possible. Any failure to report within 3 days would result in the denial of the application unless there was reasonable cause for the delay. In this particular case, the case manager felt the appellant did not have a reasonable explanation for his delay in filing a claim.
On December 19, 2005, the appellant completed a “Request for Reconsideration” and outlined reasons why he believed the decision should be rescinded. He stated that he did not report the incident to police as one of his four assailants was a sibling who had a child and he did not want Child & Family Services to take the child away.
In a decision dated December 12, 2006, the Program advised the appellant that no change would be made to its original decision. The appellant was advised that under subsection 54(b) of the VBR, victims were required to assist in the investigation and prosecution of the alleged offender(s) in order to be eligible for compensation benefits. When the appellant did report the incident to police in August 2005, he insisted that no charges be laid against the individuals who assaulted him. As the appellant did not lay charges, this further disqualified him from being considered for compensation benefits related to the assault.
In January 2007, the appellant appealed the Program’s decision and a hearing was held at the Appeal Commission.
Reasons
Appellant’s Position
The appellant provided details surrounding the alleged assault that occurred in 1989 or 1990. The appellant did not provide a specific date. He believes he was 15 at the time. He was visiting his younger brother’s apartment. There were four people present at the apartment, specifically; his brother, his brother’s girlfriend, the appellant’s former girlfriend and her boyfriend. He described the four people as intoxicated. He said they were drug addicts and were on drugs.
He advised that he drank some alcohol. He decided to leave and was putting his shoes on when he was attacked by all four people. He stated “And all of a sudden they just started tripping, flipping out and freaking out.” He managed to get away and later attended at a hospital.
He advised that when he was in the hospital his mother visited and asked that he not report the incident to the police. She was concerned that the younger brother and his girlfriend would lose custody of their child if they were charged with assaulting the appellant. The appellant agreed with this request and did not report to the police.
The appellant suffered serious injuries including a broken jaw. He continues to have pain from the injury and requires further surgery. At one point he approached his brother to assist with the medical costs but his brother refused.
He advised that his relationship with his brother has been poor. He also advised that years later, his former girlfriend made allegations about his conduct during their relationship and that he was charged, convicted and incarcerated as a result. His brother supported the allegations against him.
The appellant was asked why he went to the police in 2005.
Q So what made you decide to go to the police station?
A Instead of me going and taking care of the situation myself, I decided the police should have to take care of the situation somehow.
Q So what situation did you need to take care of?
A They needed to get justice done on these people who had put me into the position I had been in. I had approached them without the police and they had laughed. Like I told them, “I have to get some surgeries and my work won’t pay for it. I have to pay 90 percent of the surgeries”, and they just laughed at me and that even made me more irate.”
It was noted that information on the appellant’s file provided by the police indicates that the appellant insisted to police that no charges be laid. When asked about this, the appellant initially responded that he didn’t think that it would make the situation better if they were charged. He stated that they would be unable to help him with the medical bills if they were in jail.
The appellant later advised that he thought he was charging them when he gave the statement to police. He stated that he wanted them to be charged but not imprisoned.
In answer to a question, the appellant advised that the police told him about the Program. He advised that the police told him on more than one occasion and prior to the August 2005 meeting with police.
The appellant advised that he did not want the Program to take responsibility for the costs of his treatment. He stated that he wants the people that caused the injuries to take responsibility.
Analysis
1. Whether the time for making an application for compensation should be extended?
The alleged crime, in this case, was one of assault against the appellant. As the assault that caused the injury is alleged to have occurred in 1989 or 1990, the time period for filing a claim is that provided under The Criminal Injuries Compensation Act (CICA) as it existed in 1989 -1990. In all other respects the application is adjudicated under the VBR.
For incidents that occurred in 1989 or 1990 the CICA provided a two year period for filing applications. The appellant did not file his application within this time limit. It is noted that the appellant was a minor at the time of the alleged assault. Even if the time frame was extended to 18 plus 2 years, we note that the appellant did not file his application until he was approximately 30 years old, well after he ceased to be a minor.
The appellant advised that he became aware of the program through dealings with police. He was unsure of the exact date but advised that it was prior to August 2005 when he finally reported the incident to the police.
The panel notes that the appellant clearly did not file the application within the allotted time. The VBR provides that the period for applying may be extended in appropriate cases. The panel has considered the facts of this case and the Program’s policy dealing with extension of time and has concluded that this is not an appropriate case to extend time for filing an application. The appellant has not advanced a valid reason for his significant delay in making an application and accordingly the time for making an application should not be extended.
2. Whether the claim for compensation is acceptable?
The second issue before the panel was whether the appellant’s application for compensation is acceptable. The panel notes that subsection 54(b) of the VBR provides that compensation may be refused or reduced where the applicant has not assisted law enforcement authorities to apprehend or prosecute the persons responsible for the applicant’s injuries.
The panel finds, on a balance of probabilities, that the appellant has not assisted law enforcement authorities to apprehend or prosecute the person whose actions resulted in the appellant’s injuries. The panel concludes that the appellant’s application for compensation is not acceptable and that compensation should not be awarded to the appellant in accordance with subsection 54(b) of the VBR.
In hearing this appeal, the panel was presented with somewhat conflicting versions of the appellant’s efforts to assist authorities. The file information from the Winnipeg Police Service notes that the appellant advised police that he will not pursue the matter and is only wishing to have it noted for the record. Information also indicates that the appellant insisted that charges not be laid and was opposed to the police obtaining a crown opinion. At the hearing the appellant indicated that he wanted charges to be laid but did not want the alleged offenders to be incarcerated.
The panel preferred the evidence on the file from the police over that of the appellant. Specifically the panel accepts the evidence of the police that the appellant did not want charges to be laid.
The panel also finds that the lengthy delay in reporting the incident to authorities is not consistent with the appellant’s duties to assist authorities.
The appeal is denied on both issues.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 2nd day of May, 2007