Decision #02/19 - Type: Victims' Rights

Preamble

The claimant is appealing the decision by the Manitoba Compensation for Victims of Crime Program (the "Program") denying his application for compensation under The Victims' Bill of Rights (the "VBR"). A hearing was held on January 24, 2019 to consider the claimant's appeal.

Issue

Whether or not the application for compensation is acceptable.

Decision

That the application for compensation is not acceptable.

Background

On January 10, 2014, the claimant filed an application for compensation under the Program for an incident that took place on December 22, 2013. The claimant reported that he was driving down a back lane behind a convenience store, when he was shot by an unknown assailant.

The gunshot wound to the claimant's back left shoulder caused damage to his C6 and C7 cervical vertebrae and resulted in the claimant becoming a quadriplegic.

On January 27, 2014, the Program advised the claimant that his application for compensation had been denied. The Program noted that court records indicated the claimant had been convicted of 19 offences within the five years prior to the incident, and stated that the amount of compensation he would be eligible to receive had to be reduced by 100% in accordance with subsection 54.1(4) of the VBR and regulations.

The Program further noted that the police report indicated the claimant refused to answer any questions from the police or provide a statement. The Program advised that under subsection 54(b) of the VBR, applicants were expected to fully cooperate in the apprehension and prosecution of a person whose actions resulted in the victim's injury, and failure to carry out these responsibilities could result in denial or revocation of the application.

On March 19, 2014, the claimant requested that the Program reconsider its decision. The claimant said he was aware that his criminal record stated he had been convicted of approximately 19 charges, but pointed out that 16 of those charges were breaches for not following his probation order. The claimant stated that he did not have a clear memory of the police approaching him to discuss the incident. He did not recall the details leading up to or after the incident. For the first several weeks in the hospital, he was in a state of shock and heavily medicated. He said that he was more than willing, if given the opportunity, to speak with the police services and attempt to answer any questions they had regarding the incident causing his injury.

On April 1, 2014, the Manager of the Program confirmed the decision to deny the application.

On May 1, 2014, counsel for the claimant appealed the April 1, 2014 decision to the Appeal Commission. The grounds for appeal as outlined in the Schedule attached to the appeal form included that section 54.1 of the VBR and resulting regulations were discriminatory and contrary to section 15 of the Canadian Charter of Rights and Freedoms (the "Charter") and that the actions of the Program in refusing the claimant's application were contrary to The Human Rights Code of Manitoba (the "Human Rights Code").

A pre-hearing meeting was held on July 9, 2018 with counsel for the claimant, legal representatives for the Director of Victim Services (the "Director") and for the Attorney-General of Manitoba, and the Appeal Commission, to discuss the issues to be considered on the appeal and how the hearing would proceed. It was agreed at that meeting that the appeal would be split into two separate hearings: the first to address the "merits" of the claimant's application for compensation, and the second, if necessary, to address the Charter and Human Rights Code arguments.

On January 24, 2019, an oral hearing was held to address the first of the two hearings, being the hearing on the merits of the application.

Reasons

Applicable Legislation

The issue before the panel at this hearing is whether or not the application for compensation is acceptable.

Provision for the compensation of victims of crime is set out in Part 5 of the VBR. Section 54 of the VBR provides, in part, as follows:

54. Subject to the regulations, the director may refuse to award compensation under this Part or may reduce the amount of compensation payable under this Part if he or she is of the opinion that 

… 

(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…

Preliminary Motion

Legal counsel for the Director submitted a Book of Documents in advance of the hearing, which included police report extracts and PRISM (prosecution's information systems management) extracts relating to the Manitoba Prosecution Service. At the commencement of the hearing, counsel for the claimant made a preliminary motion that the PRISM extracts be excluded on the basis that the prosecutor's statement was redacted, consisted of second or third hand information and purported to provide a conclusion on the ultimate issue the panel had to decide. After hearing argument on that issue from counsel for each of the parties, the panel determined that the extracts were relevant and would be admitted, subject to the issue of weight.

Claimant's Submission

The claimant was represented by legal counsel and was accompanied by his mother at the hearing. The claimant testified that on December 22, 2013 he had been driving down a one-way street heading west, on his way to visit friends. He said he had to turn around to go back home as he had forgotten something. He turned left onto the back lane behind the convenience store, to go through to the one-way street going east, and was shot from behind. The claimant said that he fell over the steering wheel as soon as he was shot, as he had a seatbelt on. He remembered that it seemed like a black tunnel and he saw his arm flopping by itself. He said he saw two "old ladies" pass by and tried to yell for help, but he could not talk, and blacked out.

The claimant said he remembered waking up in the hospital. He did not really remember the first or second day in hospital. He did not remember the police coming to talk to him on the day of the incident. He said that the police came and talked to him one other time, maybe two months later. He said "They asked if, if I, first name and all I told them is, I don’t know what to really to say because I, I didn't see anybody, I didn't see who shot me, it was from behind." The claimant said he saw the policeman writing in his pad, but he did not know what he was writing. He did not sign, nor could he have signed, a statement. He said the police never came to talk to him again after that. No crown attorney ever tried to set up an interview with him with respect to what happened and nobody else from the prosecution or police services contacted him about this incident.

The claimant said that he did not try to stop the police from prosecuting the person who shot him. He stated that the doctors told him he could leave the bullet in, as it would not really do any more damage than it had, but he chose to have the bullet surgically removed and provided to the police. He said he really had no use for the bullet and as far as he knew it was provided to the police.

Counsel for the claimant submitted that there was no issue that the claimant suffered his injuries as a result of a crime. He submitted that the evidence was fairly clear that the claimant was not involved in criminal activity at the time. Other than the statement of the convicted person, as reported by the prosecutor, there was no evidence to suggest that the claimant was somehow involved in an offence at the time of the incident or that he contributed to his injuries. Counsel submitted that the evidence as a whole pointed towards the claimant's version of the events that he was not involved with criminal activity. There was nothing to suggest that he was dealing drugs or involved in drugs. Once the claimant was shot, he could not move and was in no position to get rid of any evidence.

It was submitted that the evidence did not show that the claimant failed to cooperate with or assist law enforcement. The statement from the crown attorney did not say what the claimant did or did not do. The crown attorney just concluded that he failed to be involved. Counsel stated that we cannot change the fact that the claimant had no memory of this. The evidence showed he was shot from behind and did not see who shot him. The claimant's evidence was that he did not even know the police were there the first time. He admitted that he talked to the police one more time, but said he had no evidence to give.

Counsel submitted that it was unrealistic and unfair to say that the claimant should have done more. It assumed that the claimant knew something more, but there was no evidence to support this. The claimant said he talked to the police and gave them what he remembered, and there is no evidence that he knew more than what he said. Counsel noted that the prosecutor did not say he tried to contact the claimant. Counsel submitted that the fact the claimant's evidence was not helpful does not mean that he did not assist or cooperate with the police or prosecution. He was as helpful as he could be in the circumstances.

Counsel noted that the claimant consented to surgery. He chose to have the bullet removed and allowed it to be given to the police. He did not have to do this. Counsel submitted that this was a significant step in assisting the prosecution, and should not be underestimated. Counsel stated that just because the crown attorney did not have enough evidence to make a charge of attempted murder stick did not mean the claimant was holding back information. It simply meant that there was not enough information.

In conclusion, it was submitted that there was no basis to reduce the claimant's application for compensation based on involvement in criminal activity under subsection 54(c) of the VBR or on the claimant having contributed to his injuries under subsection 54(d). Further, there was no basis to reduce the claimant's compensation based on a failure to assist law enforcement under subsection 54(b). On the contrary, it was submitted that the claimant did cooperate. The section 54 exclusions should therefore not apply and the application for compensation is acceptable.

Director's Submission

Counsel for the Director began by commenting on the nature of the Program established under the VBR. He submitted that there is an important distinction between the Program and other compensatory systems, such as the Workers Compensation and Automobile Injury Compensation Appeal processes, which are mandatory no-fault regimes where people do not have the option of going to court to seek redress for personal injuries they suffer. The Program under the VBR is not a mandatory opt-in system of insurance, that people pay into and receive benefits from, but a beneficial program where people who have been victimized by a crime can get benefits. The intention of Part 5 of the VBR is to help victims of crime get redress for the personal injuries they suffer without having to go through the regular civil court process in every case. The system does not prevent a victim from going to court and getting compensation they are entitled to, if they wish to do so.

Counsel noted that section 54 of the VBR deals with disentitlements to that beneficial program, and sets out factors which ought to be taken into account in determining if an applicant should qualify for benefits. Section 54 is discretionary, the theory being that the Program should consider the circumstances of each case to see whether there is a reason to either disentitle an applicant to benefits or cause a reduction in benefits thereunder.

With respect to subsection 54(b) in particular and the question of cooperation, counsel noted that the Director, for victim's compensation purposes, does not have access to the entire police investigation file. Counsel acknowledged that the police information the Program had access to in this regard came down to the notation on the report from the night of the incident, that the police "attempted to speak with [the claimant], however, he refused/declined to answer any of our questions."

Counsel submitted that they had therefore requested information from the prosecution branch to see if there was anything else they could learn, and had been provided with the PRISM extracts which were included in the Book of Documents provided in advance of the hearing. Counsel noted that while this was not perfect, it was the best they could do. It was submitted that the extracts were taken from notes made by a prosecutor who had full knowledge of the prosecutorial responsibilities in assembling a case and eventually presenting it to the court. The notes provided the prosecutor's direct understanding of the extent of the information that was available to them in their attempt to pursue the charge of attempted murder, with the prosecutor saying that they did not have cooperation and did not have enough information to prosecute that offence, and therefore had to go with a lesser offence.

Counsel for the Director submitted that the evidence in this case is sufficient for the panel to find that the claimant is disentitled to benefits under the Program based on a lack of cooperation.

Analysis

The issue before the panel is whether or not the claimant's application for compensation is acceptable. The panel has no difficulty finding that the claimant was seriously injured in the incident on December 22, 2013. Based on our review of all of the information on file and as presented at the hearing, as well as the submissions of the parties, the panel is satisfied, however, that the claimant did not assist law enforcement authorities as required by subsection 54(b) of the VBR and the application for compensation should be refused.

In arriving at our decision, the panel finds that the claimant's description of the incident at the hearing was very different from the description he provided to the Program. Among other things, the claimant indicated in his application to the Program, filed less than three weeks after the incident, that he was driving down the back lane behind the convenience store, as he had missed the turn for the store's parking lot. According to this description, the claimant would have been going east before he turned. In his evidence at the hearing, however, he stated he was headed in the other direction, going west. In his application, the claimant also said he was going to park. At the hearing, he stated, for the first time, that he was turning around and going home to get something he had forgotten. The panel carefully questioned the claimant with respect to the different versions of the incident and inconsistencies within those versions, but the claimant was unable to provide clarification. The panel finds that these two different stories cannot be reconciled, and is unable to accept either version of the incident as being accurate.

The panel is satisfied, on a balance of probabilities, that the claimant was more alert and aware when he was first treated at the hospital than he has indicated. In this regard, the panel places weight on the hospital report which indicated that when the claimant was seen at 9:45 p.m., he was talking and alert, with a GCS (Glasgow Coma Scale) score of 15, which the panel understands to be the highest or best GCS score possible. The police record indicates, nevertheless, that the claimant refused/declined to answer any of their questions.

The claimant acknowledged that the police came to see him a second time, "maybe two months later," but he indicated that he told them he had no evidence to give. The panel finds the claimant's evidence that he had no evidence to give or did not know what to say to the police was not accurate, but rather what the panel would describe as an excuse to justify his remaining silent.

The panel is satisfied that the evidence shows that the claimant knew more than he had communicated to the Program or law enforcement authorities. The panel notes that significant additional and new information was provided at the hearing and is satisfied that this information could have assisted the police and prosecutor in their investigation and prosecution with respect to this incident.

Among other things, the panel notes that the claimant stated for the first time at the hearing that he saw two elderly women pass by after he was shot. The claimant acknowledged in his evidence that he did not think he told the police about these two women, adding "I might have but I can't remember if I did…I didn't even really talk to the police though…" Asked if he had mentioned this to the police later on, the claimant said "No, they never, they never really even came to ask me. I didn't think that was really important." As previously noted, the claimant acknowledged at the hearing that the police did come to see him a second time.

The panel notes that information with respect to the existence of these two women was not provided until more than four years after the incident and after the prosecution had been completed. When asked whether he would not have thought that the story he had told at the hearing about being on the way to visit his friends, and turning left to turn around and go home, and seeing these two elderly women, might have been relevant to the investigation or prosecution, the claimant said "I don't know if that's valuable information to them…I don't know what to give them, what to say."

The prosecutor's notes further indicate that questions had been raised as to whether a drug deal was taking place and whether the claimant was involved in a drug buy at the time. The claimant testified at the hearing that he was not involved in any criminal activity at the time he was shot. Given that drugs and a possible drug deal had been raised and was an issue in the course of the investigation, the panel is of the view that even the claimant's statement that he was not involved in any criminal activity may well have assisted the police or prosecution in pursuing or focusing their investigation. Instead, the claimant remained silent until after the prosecution was completed.

The panel notes that the Program denied the claimant's application for compensation on January 27, 2014, approximately five weeks after the incident occurred. The Program specifically stated at that time that the police report had indicated the claimant refused to answer any questions from the police or provide a statement, and advised that under subsection 54(b) of the VBR, applicants were expected to fully cooperate in the apprehension and prosecution of a person whose actions resulted in the claimant's injury. The evidence shows that in spite of that, the claimant made no effort to contact or assist the police or prosecution in the more than seven weeks following that advice and leading up to the filing of his appeal.

This stands in contrast to the claimant's appeal on March 19, 2014, where he stated that he was "more than willing, if given the opportunity to speak with the Winnipeg Police Services and attempt to answer any of the questions they have regarding the incident causing my injury." The evidence again shows, however, that having said that, the claimant made no effort to contact or initiate any contact with the police or prosecutor. When it was put to the claimant at the hearing that the next logical step would seem to be to contact the police and ask if he could help, the claimant said "I don’t know how to do those kind of things" and "How come they didn't just come…to see me?"

Based on the foregoing, the panel finds that the claimant failed to assist law enforcement authorities to apprehend or prosecute the person whose actions resulted in his injuries. Pursuant to subsection 54(b) of the VBR, the panel further finds that in the circumstances of this case, the claimant's application should be refused.

The panel further notes, given our finding that the claimant's application for benefits should be refused pursuant to subsection 54(b) of the VBR, that there is no need for a second hearing to address the Charter and Human Rights Code arguments raised in respect of the other grounds of appeal under section 54.1 of the VBR.

The claimant's appeal is therefore dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 25th day of March, 2019

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