The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The claimant is appealing the decision by the Manitoba Compensation for Victims of Crime Program (the "Program") denying her application for compensation under The Victims' Bill of Rights (the "VBR"). A hearing was held on March 11, 2020 to consider the claimant's appeal.

Issue

Whether or not the application for compensation is acceptable.

Decision

The application for compensation is not acceptable.

Background

On August 20, 2019, the claimant filed an application for compensation under the Program for an incident that took place on August 2, 2019. The claimant stated that she was a passenger in a vehicle when there was a "…big flash, hit to the passenger window of truck, twice loud ringing, buzzing, a piercing sound." The driver of the vehicle then proceeded to the nearest police station to report the incident.

On November 15, 2019, the Program determined that the claim was not eligible for compensation under s 46(1) of the VBR. The Program noted that an investigation had been conducted by the police service; however, the police service was unable to confirm that a criminal offence took place. The Program further noted that it was not necessary for criminal charges to be laid in order for an application for compensation to be approved but noted "…it must be clear that a criminal incident did likely occur." On December 5, 2019, the claimant submitted a Request for Reconsideration noting her belief that the police service report was not complete and provided photographs and information on a possible object that caused the damage to the vehicle.

On December 18, 2019, the Acting Executive Director of the Program confirmed the decision to deny the claimant's application. The Acting Executive Director found that the offence listed for the incident was not an offence that was covered by the Program and compensation could not be provided.

On December 23, 2019, the claimant appealed the decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation

The claimant is appealing the decision by the Program denying their application for compensation pursuant to s 46(1) of the VBR. Section 46(1) of the VBR states, in part, as follows:

Victims 

46(1) For the purpose of this Part, a person is a victim if he or she is injured or dies as a result of an incident that occurs in Manitoba 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…

Section 46(2) sets out that it is not a requirement for the purposes of s 46(1) that a person be charged with or convicted of an offence in respect of the incident that results in injury or death.

Regulation 214/98, Victims’ Rights Regulation (the “Regulation”) is applicable. Section 4 of the Regulation specifies that for the purposes of s 46(1)(a) of the VBR, the offences under the Criminal Code (Canada) in respect of which an application may be made for compensation are those set out in Schedule A to the Regulation.

Claimant’s Position

The claimant was represented in the hearing by legal counsel, who made submissions to the panel on behalf of the claimant. Counsel provided, in advance of the hearing, a book of evidence to be relied upon in the hearing, which formed part of the file materials received by the appeal panel prior to the hearing.

The panel heard testimony of the claimant in response to questions from legal counsel, as well as in response to questions from the panel. The claimant testified as to the events of August 2, 2019 that resulted in the claim under the VBR. She stated that the vehicle she was traveling in as a passenger was struck twice, approximately 5-10 seconds apart by what she believed to be gun shots. Immediately prior to the vehicle being struck, she saw a muzzle flash from a big house on the right side of the street. Upon impact, there was a loud, piercing sound that she described as both buzzing and ringing. She noted that the impact jolted the truck, and that her seatbelt tightened when that happened. They drove a bit further on and turned off the street, to stop and examine the vehicle, then proceeded to the nearest police detachment. The claimant stated that the photos of damage to the vehicle provided in evidence are of the passenger side window. She noted the “spider web” pattern of the one point of impact and a graze indicated on the other point of impact.

The claimant testified that as a result of this incident she lost hearing in her right ear, and partially lost hearing in her left ear. She noted that she did not have hearing loss prior to this event. The claimant also noted that when the truck jolted and her seatbelt tightened, she sustained a whiplash injury and sore back.

A witness also appeared in the hearing and provided testimony in support of the claimant, in response to questions from the claimant’s legal counsel as well as members of the panel. The witness testified that he was the driver of the vehicle involved in the incident on August 2, 2019 and is the fiancé of the claimant. He advised that he was driving his truck, with the claimant as passenger in the late evening of August 2, 2019 going a little faster than he thought. As he drove through an intersection, something hit the passenger window. There was a loud sound, such that he thought something was mechanically wrong with the truck. He stated that he kept control of the vehicle. There was another impact on the window immediately after the first, but no sound from the second hit. He stated that the first impact moved the truck a little bit to the side. The witness stated he had never been shot at before.

Counsel for the claimant argued that the evidence establishes that unknown projectiles hit the vehicle that the claimant was a passenger in on August 2, 2019. The claimant’s belief is that the vehicle was shot at. That belief is supported by a comment made by a police officer upon initial examination of the vehicle and confirmed by the repair person who worked on the vehicle. The claimant’s testimony that she saw a flash further supports that belief.

Counsel for the claimant argued that this incident represents more than just a mischief charge, as suggested by the police report, but could fall within the ambit of s 244 of the Criminal Code (Canada), which creates the offence of discharging a firearm with intent. Counsel directed the panel to consider case summaries submitted that indicate that even a pellet gun can be considered a “firearm” for the purposes of this provision. Counsel noted that it is not known what happened exactly or who caused the projectile to hit the vehicle that the claimant was traveling in, but that there is no reason to believe that the vehicle was targeted.

Analysis

The issue before the panel concerns the acceptability of the claimant's application for compensation. For the appeal to succeed, the panel must find, on a balance of probabilities, that the claimant is eligible to receive compensation under the provisions of the VBR. The panel is unable to make that finding.

Based on our review of all of the evidence which is before us, on file and as presented at the hearing, the panel is satisfied that the claimant does not meet the eligibility criteria set out in s 46(1) of the VBR and the application for compensation is therefore not acceptable. Section 46(1) requires that a criminal offence, as specified in the Regulation, has been committed, in order to be eligible to claim compensation under the VBR. The panel finds, on a balance of probabilities, that the evidence does not establish that a Criminal Code offence as specified in the regulations was committed.

The claimant's application for compensation shows that the claim was reported to the police and recorded as an occurrence of Mischief to Property. Information on file indicates that the information initially did not result in any further police investigation beyond the claimant’s report. Upon further follow up by the claimant, the matter was reviewed further by the police, and it was determined that there was insufficient evidence upon which to proceed. No charges have been laid with respect to this incident.

The panel notes that s 46(2) of the VBR does not require anyone be charged with, or convicted of, an offence in respect of the incident that results in an injury or death. The panel must nevertheless still be satisfied, on a balance of probabilities, that an offence has occurred. The evidence here does not provide a foundation upon which the panel could make that finding.

The police reports on file suggest that a charge of Mischief to Property may have been appropriate, but that there is not enough evidence upon which to lay such a charge. The panel notes that offence is not included in the Schedule A list of offences in respect of which an application may be made for compensation under the VBR.

Counsel for the claimant argued that the panel could consider that these facts would support a charge under s 244 of the Criminal Code, which is an offence in respect of which an application may be made for compensation under the VBR. The panel does not agree with the assertion of counsel that it could determine, on the evidence before it, that an offence occurred where the investigating body did not consider that offence to be appropriate under the circumstances as reported and investigated. Furthermore, there is no evidence other than the belief of the claimant and her fiancé to support a determination that a firearm was discharged with intent resulting in the damage to the vehicle and injury to the claimant. The panel noted that the police reporting does not suggest the use of a firearm but references an “unknown projectile” hitting the vehicle. Further, there is not corroborating evidence to support the claimant’s belief in this regard.

Based on our review of the evidence before us, the panel finds that something caused damage to the vehicle in which the claimant was a passenger on August 2, 2019, but the panel is not able to find, on a balance of probabilities, that there is evidence a criminal offence occurred as required by s 46(1) of the VBR.

The panel therefore concludes, on a balance of probabilities, that the claimant is not eligible to receive compensation pursuant to the VBR and the application for compensation is not acceptable.

The claimant's appeal is dismissed.

Panel Members

K. Dyck, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 24th day of April, 2020