The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This is an appeal by the applicant of a December 11, 2006 decision by the Compensation for Victims of Crime department that the applicant was not entitled to compensation.

On July 5, 2005, the applicant applied for compensation under the Manitoba Compensation for Victims of Crime Program (the “Program”) for an incident that occurred on July 9, 2004. Her application was denied on July 14, 2005 on the grounds that she did not meet the eligibility criteria under The Victims’ Bill of Rights (the “Bill”); particularly, there was insufficient evidence that a Criminal Code offence had occurred. This decision was upheld by the Director of the Program on December 11, 2006. The applicant appealed this decision to the Appeal Commission on December 20, 2006. A file review was held on April 3, 2007.

On May 16, 2007, the appeal panel wrote to the Program to obtain its position regarding the interpretation of Section 13 of the Criminal Code as it relates to the Bill. On June 27, 2007, the applicant was provided with a copy of the response that was received from the Program’s legal counsel dated June 19, 2007 and was asked to provide comment. The applicant’s legal guardian replied on July 17, 2007. On July 19, 2007, the panel met to consider the case.

Issue

Whether or not the application for compensation is acceptable.

Decision

That the application for compensation is not acceptable.

Decision: Unanimous

Background

Reasons

Introduction

The issue before us is, as stated above, one of eligibility for compensation under the Bill. More precisely however, given the particular circumstances of this case, it involves the issue of whether a victim of the actions of an eight year old child can claim compensation under the Bill.

Background

On July 9, 2004 the applicant was hit in the mouth by a stone that had been catapulted with a sling shot by an eight year old child. As a result, she lost two teeth and now requires dental surgery.

The incident was reported to the R.C.M.P. The R.C.M.P. occurrence summary records the report as an assault. It notes that the eight year old told the R.C.M.P. that he was trying to help the applicant from being beat up and that he would apologize to her. No charges were laid against the eight year old child. The applicant disputes that the child was attempting to help her; she says that he intended his actions. She says that he and several other children had come to her house and began attacking her younger siblings and pets. As she assisted them into the house to safety, she was hit in the mouth with the stone.

As indicated previously the Program appears to have denied the applicant’s claim for compensation on the basis that the eight year old child intended to help the applicant and not hurt her. To our mind, the issue is much more fundamental and turns on whether the applicant can claim compensation under the Bill for the actions of a child under the age of twelve.

Analysis

To accept the applicant’s appeal we must find on a balance of probabilities that she is entitled to compensation under the Bill. We are unable to make that finding.

Eligibility for compensation is set forth is section 46 of the Bill. It reads as follows:

“46(1) An application for compensation may be made, in accordance with this Act and the regulations, to the director in respect of a person who is injured or dies as a result of an event that occurs in Manitoba and that

(a) is caused by an act or omission of another person that is an offence under the Criminal Code (Canada) specified in the regulations; or

(b) occurs while the person does or attempts to do any of the following:

(i) lawfully arrest a person or preserve the peace,

(ii) assist a peace officer in the execution of his or her duty, or

(iii) lawfully prevent the commission of an offence or suspected offence under the Criminal Code (Canada).

46(2) For the purpose of subsection (1),

(a) it is not a requirement that a person be charged with, or convicted of, an offence in respect of the event that results in an injury or death; and

(b) a person incapable of forming a criminal intent is deemed to have intended the act or omission that results in an injury or death.”

In our reading of subsection 46 (1), eligibility for compensation arises in two situations: 1) where the victim suffers injury as a result of a Criminal Code offence; 2) where the victim suffers injury as a result of carrying out peace officer-like duties.

Eligibility under Subsection 46(1)(a)

With regard to the first situation (subsection 46(1) (a)) the issue arises as to whether an act or omission by a child under twelve could qualify for eligibility. Indeed, subsection 46(2) stipulates that it is not necessary that the wrongdoer be charged with or convicted of the offence, or be capable of forming a criminal intent – intent is deemed.

To our mind, subsection 46(2) does not cover the acts or omissions of a child under the age of twelve. We come to this conclusion based on the intent of the Bill and the wording of section 13 of the Criminal Code.

The purpose and intent of the Bill is set forth in its preamble which stipulates that victims of crimes and offences have needs, concerns and interests and that they should be provided information about the criminal justice system as well as appropriate protection and assistance. As we understand this stated purpose, the Bill is intended to include victims in the criminal justice system and compensate them for injury suffered at the hands of criminals within the meaning of the Criminal Code. This interpretation is consistent with the definition of a victim in subsection 1(1) - an individual against whom an offence is or is alleged to have been committed - and the reference to a Criminal Code offence is subsection 46(1).

These specific references to the Criminal Code make it clear that the Bill’s intent is to only compensate for criminal offences identified in the Criminal Code. Its intent is not to compensate for all wrongs that cause injury. Those wrongs are actionable under the common law and other specific legislation that is within the jurisdiction of the civil court system.

To be clear, the Bill does not intend to create its own ‘compensable offence’. It relies on the Criminal Code offences. Given this reliance on the Criminal Code, it is important to refer to its exemption of children under the age of twelve. This exemption is contained in section 13 of the Criminal Code which provides that children under the age of twelve cannot be convicted of an offence. The common law interpretation of this section is simply that children are incapable of committing crimes as they are deemed to be “morally innocent” and incapable of fully understanding the nature of their conduct or the risks and dangers inherent in their actions.

Given this exemption of children’s actions and omissions, and the conclusion that such actions and omissions cannot be characterized as an offence under the Criminal Code, it logically follows that a person cannot claim compensation under subsection 46(1) of the Bill for injury suffered at the hands of a child.

A similar interpretation was made by the Ontario Superior Court of Justice Divisional Court in the case of Skunk v. Criminal Injuries Compensation Board, 2006 CanLII 11440 (ON S.C.D.C.) which, although not binding on this panel, is extremely persuasive. In that case, a minor was injured after being struck in the right eye by a stone from a slingshot that was shot by one of the other children she was playing with. The Compensation for Victims of Crime Act, R.S.O. 1990, c.24 was considered. The Court wrote in part:

“[10] The Act s. 16.2 provides:

Even though a person for any reason is legally incapable of forming criminal intent, the person shall, for the purposes of this Act, be deemed to have intended an act or omission that caused injury or death for which compensation is payable under this Act.

[11] Counsel for the appellant argues that s. 16.2 of the Act overrides Criminal Code s. 13 and allows for compensation to be paid under the Act for what would be criminal acts by a person under 12, that there is a presumption of criminal intent and that the decision of a board should be based solely on the actus reus. Section 13, he suggests, can relate only to the mental element of an offence and when read together with the Act s. 16.2, the result is that in relation to children under 12, not only is there no protection given by Criminal Code s. 13, but the reverse is the case. Section 16.2 creates an irrebuttable presumption of intention. Since a claimant need only prove the actus reus the Board was wrong in law in dismissing the claim on the basis of an absence of intention on the part of the alleged offender.

[13] In my view there is no dissonance between Criminal Code s. 13 and the Act s. 16.2. Section 16.2 confines itself to the intention to commit an act or omission. Section 13 is sweeping in its scope. It creates a blanket prohibition against conviction of an offence in respect to any act while under the age of 12. In effect, then, it eliminates criminal accountability for anyone below the age of 12.

[14] Criminal Code s. 13 has a lengthy common law background. It essentially codifies the common law rule of doli incapax: that young children are incapable of committing crimes. Whatever the evidence of actus reus and mens rea, children are “morally innocent”. They are deemed not to fully understand the nature of their conduct or the risks and dangers inherent in their actions or that their conduct is blameworthy.

[15] There are practical difficulties in the interpretation of the Act put forward by appellant’s counsel.

[16] Any violent act by a child would be deemed to be a crime, not an accident, and compensation would be payable, while the same act committed by an adult might amount to only civil negligence or pure accident. This would be contrary to the intention of the Act to compensate for crimes of violence.

[17] Theoretically at least, compensation would be awarded not only for the usual schoolyard confrontations and accidents but also as a result of innocent aggression by the youngest of infants.

[18] The results of a compensation order made in relation to an infant would not necessarily be benign. The infant would carry the stigma of having committed a crime of violence and by s. 26(2) of the Act the Board may pursue a subrogated proceeding against the “offender” to recover the compensation paid and the costs.

[19] I conclude it was not the intent of the legislature in enacting s. 16(2) to displace the effect of Criminal Code s.13 that children under 12 are incapable of committing crimes. Compensation, therefore, may not be awarded as a result of the conduct of children under the age of 12 years.”

Based on the foregoing, we find that the applicant is not entitled to compensation under subsection 46(1)(a) of the Bill.

Eligibility under Subsection 46(1)(b)

As noted above, subsection 46(1)(b) also provides for compensation for persons who suffer injury while engaged in peace officer-like activities – lawfully arresting a person or preserving the peace; assisting a peace officer in the execution of his or her duty; or lawfully preventing the commission of an offence or suspected offence.

Based on the evidence before us, we are unable to find that the applicant was engaged in this type of activity. Indeed, these types of activities are by their nature aimed at assisting third persons. In the case before us, the applicant’s actions, while highly commendable, were geared towards defending herself, her siblings and her pet. This situation does not meet the three scenarios identified in subsection 46(1)(b) of the Bill.

For these reasons we find that the applicant is not entitled to compensation under subsection 46(1)(b) of the Bill.

Accordingly, the applicant’s appeal is dismissed.

As a final note, we would like to express our sympathy to the applicant for the injury she suffered and the impact that it has had on her. Her actions in getting her siblings and pet to safety are highly commendable. In determining eligibility for compensation under the Bill however we are bound by the provisions of the legislation.

Panel Members

L. Martin, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Martin - Presiding Officer

Signed at Winnipeg this 22nd day of August, 2007