Decision #02/22 - Type: Victims' Rights
Preamble
The claimant is appealing the decision by the Manitoba Compensation for Victims of Crime Program (the "Program") that they are not entitled to compensation under The Victims' Bill of Rights (the "VBR"). A file review was held on December 8, 2021 to consider the claimant's appeal.
Issue
Whether or not the witness is entitled to financial compensation.
Decision
The witness is not entitled to financial compensation.
Background
On October 23, 2020, the claimant filed an application for compensation under the Program for an incident when they witnessed the homicide of their common law spouse in Manitoba.
On February 4, 2021, the Program determined the claim was acceptable and advised the claimant they were entitled to counselling benefits. On March 29, 2021, the claimant contacted the Program and requested reconsideration of the decision, seeking financial compensation for emotional trauma associated with witnessing a murder. On April 20, 2021, the Program provided the claimant with a copy of the February 4, 2021 decision letter and again advised that their application was accepted, and they were eligible for counselling services. On May 4, 2021, the claimant requested the Program again reconsider the decision not to provide financial compensation.
On June 2, 2021, the Executive Director of the Program confirmed the decision to deny the claimant's application for financial compensation, noting the Program agreed to provide counselling services to support the claimant as a result of the incident.
On June 28, 2021, the claimant appealed the decision to the Appeal Commission and a file review was arranged for December 8, 2021. Following the hearing, the appeal panel requested additional information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On February 15, 2022, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.
Reasons
Applicable Legislation
This is an appeal by a claimant under the Compensation for Victims of Crime Program. The panel is bound to apply the provisions of The Victims’ Bill of Rights and the regulations under that legislation.
The question for determination is whether the claimant, as a witness to a criminal incident, is entitled to financial compensation under the provisions of the VBR. Section 45(1) of the VBR provides that for the purposes of determining compensation, a person is a witness if they are in close proximity to and personally view an incident, as described in s 46(1) which includes acts or omissions of another person that are an offence under the Criminal Code (Canada), as specified in the regulations.
Section 48.1(1) provides that a person who is witness to such an incident is entitled to reimbursement for expenses incurred as a result of the incident, as set out in the regulations and to compensation for counselling services that are required to address psychological harm occurring as the direct result of witnessing the incident. A witness is entitled to such compensation regardless of the conduct of the victim who was injured or killed in the incident.
The Victims’ Rights Regulation, Manitoba Regulation 214/98 (the “Regulation”) provides in s 4 that for the purpose of s 46(1)(a) of the VBR, an application for compensation may be made in respect of the offences under the Criminal Code (Canada) listed in Schedule A to the Regulation.
Claimant’s Position
The claimant’s Appeal of Victim Compensation Decision dated June 28, 2021 indicates that they are appealing the decision of the Program Director that they are entitled to funding only for counselling. The claimant stated their belief that the June 28, 2021 decision should be overturned as they “should be getting some sort of financial compensation for [their] emotional pain and suffering.”
In the claimant’s letter to the Program received March 29, 2021, they requested review of the February 4, 2021 decision and set out their understanding that the Program “gives financial compensation for emotional trauma if someone witnesses a murder to try and help them rebuild their life.”
In sum, the claimant’s position is that as a witness to the murder of their common law spouse, they should also be entitled to financial compensation from the Program for their pain and suffering incurred as a result.
Analysis
The question on appeal is whether the claimant is entitled to financial compensation as a witness to a crime, in addition to the counselling benefit offered.
As outlined above, the VBR provides in s 48.1(1) that a witness to an incident as defined by the Act and regulations is entitled to reimbursement for expenses incurred as a result of the incident and to compensation for counselling services required to address any psychological harm resulting from witnessing the incident.
The claimant witnessed the murder of their common law spouse. The panel is satisfied the claimant is therefore entitled to make application under the provisions of the VBR as a witness to an incident. Although the VBR also provides for compensation to family members of victims of crime in specified circumstances, the appeal panel noted that the Program previously denied the Claimant’s application as common law spouse, in respect of the same incident because the deceased victim was convicted of a prescribed offence in the previous 10 years and the VBR does not allow for compensation in that circumstance. The claimant has not appealed that decision.
The claimant’s request is not for reimbursement of any specific expenses incurred as a result of the incident but for financial compensation for “pain and suffering” and “emotional trauma” resulting from witnessing the incident. While the panel accepts the claimant’s position that this was an emotionally traumatic experience for them, the VBR does not allow or provide for compensation for pain and suffering of a witness to an incident. It only contemplates compensating witnesses for specific directly related expenses and counselling expenses. There is no provision in the VBR that would permit the claimant’s request for compensation for their pain and suffering arising out of witnessing this incident to be granted.
The panel therefore determines, on a balance of probabilities, that the witness is not entitled to financial compensation other than the counselling expenses already authorized by the Program.
The appeal is therefore denied.
Panel Members
K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 22nd day of February, 2022