Decision #02/20 - Type: Victims' Rights
Preamble
The claimant is appealing the decision by the Manitoba Compensation for Victims of Crime Program (the "Program") denying the application for compensation under The Victims' Bill of Rights (the "VBR"). A hearing was held on December 17, 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 May 24, 2019, the claimant filed an application under the Program for "Compensation for Immediate Family Member" in respect of an incident which took place on May 21, 2019. The claimant stated that her son was stabbed by an unknown assailant. He was taken to hospital where he succumbed to his injuries.
On May 27, 2019, the Program determined that the claim for compensation benefits was denied. The Program noted that a review of the Manitoba court records indicated the claimant's son (the victim) had been convicted of one prescribed offence within the past 10 years. Based on subsection 54.1(2) of the VBR, no compensation could therefore be paid on the claim.
On June 21, 2019, the claimant requested that the Director of Victim Services reconsider the Program's decision. The claimant noted that she and her son's children, brother and stepfather were all victims under the legislation, who had suffered from her son's death and should not be judged on his past choices.
On July 2, 2019, the Director of Victim Services confirmed the decision to deny the claimant's application. The Director noted that subsection 54.1(3) of the VBR stated that an exception to subsection (2) of the VBR may be granted by the Director if the victim's conviction for the prescribed offence occurred more than ten years before the incident and the claimant had not been convicted of any offence under the Criminal Code (Canada) or the Controlled Drugs and Substances Act (Canada) since being convicted of the prescribed offence. The Director found that court records indicated the claimant did not qualify for an exemption, and as a result, he was not eligible for compensation. The Director noted that the legislation was specific, and that as it appeared the victim had been convicted of one prescribed offence within the past ten years, as well as four non-prescribed offences, the claimant's application was not eligible for compensation.
On July 26, 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 her application for compensation pursuant to section 54.1 of the VBR.
Part 5 of the VBR addresses the subject of compensation for victims of crime.
Subsection 48(1) of the VBR provides for compensation to family members of deceased victims, and reads as follows:
Compensation to family members of deceased victims
48(1) If a victim dies as a result of an incident described in subsection 46(1), the spouse or common-law partner of the victim and a parent, child or sibling of the victim are entitled, in accordance with the regulations, to
(a) reimbursement for expenses prescribed by regulation that were incurred as a result of the death; and
(b) compensation for related counselling services.
Subsection 48(2) provides for additional compensation to dependants of the deceased victim.
Section 54.1 provides that no compensation is payable in certain circumstances. Subsection 54.1(2) prohibits compensation where a victim has been convicted of a prescribed offence, and reads as follows:
No compensation -- victim convicted of prescribed offence
54.1(2) No compensation is payable under this Part if the victim has been convicted of a prescribed offence.
"Prescribed offence" is defined in subsection 54.1(1) to mean "an offence under the Criminal Code (Canada) or the Controlled Drugs and Substances Act (Canada) that is prescribed in the regulations."
Subsection 54.1 (3) creates an exception to the prohibition in subsection 54.1(2), as follows:
Exception
54.1(3) As an exception to subsection (2), the director may, in accordance with the regulations, pay compensation under this Part if
(a) the victim's conviction for the prescribed offence occurred more than 10 years before the incident that resulted in the victim's injury or death; and
(b) the victim has not been convicted of any offence under the Criminal Code (Canada) or the Controlled Drugs and Substances Act (Canada) since he or she was convicted of the prescribed offence.
Claimant's Position and Evidence
The claimant was self-represented. The claimant made a presentation at the hearing, and responded to questions from the panel. A kinship worker also appeared at the hearing as a witness and provided oral testimony as well as answering questions from the panel.
The claimant said that she disagreed with the Program's decision. She said it was like telling her that because her son had criminal charges, he was not a victim. She described this as dehumanizing, where the Program just looks at the individual based on what they have been charged with.
The claimant described her son briefly, noting that he had been through a lot in his life. She said her son was not a bad guy. He was very much a family person and they were a very close family. The claimant submitted that her son was no less a person or a victim just because he had been in trouble at some time in the past.
The claimant said that the Program's decision was very unfair. She stated that in her view, she and her family, including her son's children, his brothers and his stepfather were all victims. They were all devastated by her son's death. The claimant said that since her son's death, she does not feel safe for herself or her grandchildren.
The claimant said that once they paid for her son's funeral, that took up almost all of her savings. She said that she needs help with her grandchildren, who no longer have a father.
The kinship worker testified that she worked with the claimant prior to the death of her son. She said that the claimant was very supportive of him through his issues, and noted that both the claimant and her son were involved with the Thunderwing - Block by Block initiative.
Analysis
The issue before the panel is whether or not the application for compensation is acceptable. For the claimant's appeal to be successful, the panel must find that the claimant is entitled to compensation under Part 5 of the VBR. The panel is unable to make that finding, for the reasons that follow.
The criteria for eligibility for compensation as a victim of crime under the VBR include that no compensation is payable under Part 5 of the VBR if the victim has convicted of a prescribed offence as defined by the VBR and the regulations.
A search of the Manitoba court records relating to the victim, as documented on file, indicates that he had one conviction in 2013 for the offence of trafficking or possession for the purpose of trafficking under section 5 of the Controlled Drugs and Substances Act (Canada).
The offence of trafficking or possession for the purposes of trafficking under section 5 of the Controlled Drugs and Substances Act (Canada) is identified as a prescribed offence for the purposes of subsection 54.1 of the VBR in Schedule B of the Controlled Drugs and Substances Act (Canada) of the Victims' Rights Regulation.
The VBR does not allow any discretion with respect to the application of the prohibition on compensation under subsection 54.1(2), unless the exception in subsection 54.1(3) applies.
On the facts which are before us, the panel is unable to find that the exception applies. The court records indicate that the victim's was convicted of the prescribed offence in 2013, less than 10 years before the incident in which he was killed. The claimant confirmed that she was aware of that conviction, which she said was for cannabis. As the victim was convicted of a prescribed offence within the past 10 years, he would not have been eligible to receive any compensation under the provisions of the VBR.
Subsections 48(1) and 48(2) of the VBR allow for compensation to family members of deceased victims. Those subsections are, however, also found in Part 5 of the VBR, and are therefore subject to the prohibition against compensation in subsection 54.1(2). Based on subsection 54.1(2), family members and dependants of deceased victims who have been convicted of a prescribed offence are similarly not entitled to compensation under the provisions of the VBR. In this case, given that the victim was convicted of a prescribed offence and based on subsection 54.1(2) of the VBR, the claimant is therefore not entitled to receive compensation.
The panel understands that the claimant has been provided with assistance and access to other kinds of services, such as assistance from Crown counsel under other Parts of the VBR.
In the circumstances, the panel is unable to find, however, that the claimant is entitled to compensation under the VBR.
The panel therefore finds that the application for compensation is not acceptable.
The claimant's appeal is dismissed.
Panel Members
M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 14th day of February, 2020