Decision #03/22 - 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 teleconference hearing was held on May 31, 2022 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 July 13, 2020, the claimant filed an application for compensation under the Program for an incident that took place on July 2, 2020. The claimant stated he was shot behind his left ear by an unknown assailant. An ambulance was called and the claimant was transported to hospital.

On August 5, 2020, the Program determined that the claim was not eligible for compensation under subsections 54.1(2) and (3) of the VBR. The Program noted that a review of the Manitoba court records indicated the claimant had been convicted of a prescribed offence within the past 10 years and did not satisfy the criteria for compensation under the VBR.

On October 19, 2021, the claimant re-submitted his application for compensation. On October 22, 2021, the Program advised the claimant that his application had previously been denied and provided him with a copy of the August 5, 2020 letter. On November 3, 2021, the claimant submitted a Request for Reconsideration indicating he did not agree with the Program's decision and felt he should not be discriminated against due to past mistakes.

On December 1, 2021, the Executive Director of the Program affirmed the decision to deny the claimant's application. The Executive Director noted that under section 54.1 of the VBR, there is no discretion to approve compensation where a victim has been convicted of a prescribed offence within the last 10 years. The Executive Director stated that the claimant appeared to have been convicted of a prescribed offence within the past 10 years, as well as four non-prescribed offences, and was therefore not eligible for compensation.

On December 17, 2021, the claimant appealed the Program's December 1, 2021 decision to the Appeal Commission and a teleconference hearing was arranged.

Reasons

Applicable Legislation

The claimant is appealing the decision by the Program denying his application for compensation pursuant to subsection 54.1(2) of the VBR.

Part 5 of the VBR addresses the subject of compensation for victims of crime.

Subsection 54.1(2) in Part 5 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) as "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.

The claimant has raised the issue on the appeal of whether subsection 54.1(2) is contrary to the Canadian Charter of Rights and Freedoms (the "Charter"). The Charter is part of the Constitution of Canada.

The Administrative Tribunal Jurisdiction Act deals with the ability of administrative tribunals to decide questions of constitutional law. Section 2 of The Administrative Tribunal Jurisdiction Act provides as follows:

Restriction re constitutional law questions 

2 Notwithstanding any other Act, an administrative tribunal does not have jurisdiction to determine a question of constitutional law unless a regulation made under section 6 has conferred jurisdiction on the tribunal to determine the question.

"Question of constitutional law" is defined in section 1 of The Administrative Tribunal Jurisdiction Act as follows:

"question of constitutional law" means

(a) a challenge to the constitutional validity or constitutional applicability of a law; or

(b) a determination of any right under the Constitution of Canada.

Claimant's Position

The claimant was self-represented, and provided several written submissions in advance of the hearing. The claimant made an oral presentation at the hearing and responded to questions from the panel.

The claimant's position was that as the victim of a serious crime, he is entitled to compensation under the VBR and to deny compensation based on a previous conviction for a prescribed offence is a direct violation of the Charter and his rights under the Charter.

The claimant described the incident on July 2, 2020, noting he was shot point-blank on the left side of his head through the earlobe, and was taken by ambulance to hospital where he remained for 12 days undergoing tests and treatments. The claimant said he has struggled since then and continues to suffer physically, mentally and emotionally from the effects of the incident and having been shot. The claimant said he is still on medication for his injuries and is still dealing with issues related to that incident, all without support.

The claimant submitted that he is a victim of a serious crime, and it is discriminatory and unfair to treat him as if he is not a victim and deny him any kind of compensation on the basis that he has a criminal record.

Analysis

The issue before the panel is whether or not the claimant's application for compensation is acceptable. For the appeal to succeed, the panel must find that the claimant is entitled to receive compensation under Part 5 of the VBR. The panel is unable to make that finding, for the reasons that follow.

The claimant has argued that he was the victim of a serious crime and denying him compensation under the VBR because he has been convicted of a prescribed offence within the last ten years is unfair and contrary to the Charter.

The panel advised the claimant at the outset of the hearing that pursuant to The Administrative Tribunal Jurisdiction Act, the Appeal Commission did not have jurisdiction to determine whether subsection 54.1(2) of the VBR and/or the denial of compensation to the claimant pursuant to subsection 54.1(2) violate the Charter. The panel advised that we could only address the issue of whether the application was acceptable based on the existing legislation.

In this regard, the panel notes that the criteria for eligibility for compensation as a victim of crime under the VBR includes, under subsection 54.1(2), that no compensation is payable under Part 5 of the VBR if the victim has been convicted of a prescribed offence as defined by the VBR and regulations.

A search of the Manitoba court records relating to the claimant, as documented on file, indicates that he had one conviction in July 2012 for an offence which is identified in Schedule B of the Victims' Rights Regulation as a prescribed offence for the purposes of subsection 54.1(1) of the VBR.

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 claimant was convicted of the prescribed offence in July 2012, less than 10 years before the incident in which he was injured. In response to questions from the panel, the claimant confirmed that he had been convicted of that offence. The claimant further confirmed that he had been convicted of several non-prescribed offences since July 2012 as listed in the court records, with one inaccuracy being noted. With respect to that inaccuracy, the claimant did not dispute the conviction, but indicated that the offence he was convicted of was not correctly identified. The panel therefore finds that the claimant does not meet the requirements for an exemption under subsection 54.1(3), and is not entitled to compensation pursuant to subsection 54.1(2) of the VBR.

As indicated previously, the claimant's primary position on the appeal was that denying him compensation under the VBR is contrary to the Charter, which is part of the Constitution of Canada. The Administrative Tribunal Jurisdiction Act provides that an administrative tribunal does not have jurisdiction to determine a question of constitutional law unless such jurisdiction is conferred on it by regulation. No such jurisdiction has been conferred on the Appeal Commission under the regulations.

Based on the foregoing, the panel finds that the claimant is not entitled to compensation under the provisions of the VBR.

The claimant's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 27th day of July, 2022

Back