Decision #01/25 - Type: Victims' Rights
Preamble
The claimant is appealing the decision by the Manitoba Compensation for Victims of Crime Program (the "Program”) denying their application for compensation under The Victims' Bill of Rights (the "VBR"). A hearing was held on October 21, 2024 to consider the claimant's appeal.
Issue
Whether or not the application for compensation is acceptable.
Decision
The application for compensation is acceptable.
Background
The claimant filed an application for compensation under the Program on July 14, 2022, for an incident which took place on May 18, 2022. The claimant alleges they were sexually assaulted and faced discrimination. The claimant indicated the incident had been reported to the police. The claimant further alleges they were forced to do their training in dangerous conditions.
On May 18, 2023, the Program determined that the claim was not eligible for compensation under Section 46(1) of the VBR as it had been determined there was not enough evidence to support that they were the victim of an eligible Criminal Code offence under the Program.
The claimant submitted a Request for Reconsideration to the Program on July 18, 2023, noting further investigations were being conducted by another federal government agency that may involve an individual being charged with eligible Criminal Code offences.
On July 31, 2023, the Director of the Program confirmed the prior decision to deny the claimant's application noting the evidence did not support an eligible Criminal Code incident occurred.
The claimant appealed the decision to the Appeal Commission on September 11, 2023, and a hearing was arranged. 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 26, 2025, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.
Reasons
Applicable Legislation and Policy
The panel is bound to apply the provisions of the VBR and the regulations under that Act. Part V of the VBR provides for the compensation of victims of crime.
The VBR provides at Section 46(1) that for purposes of determining compensation, a person is a victim if he or she is injured or dies as a result of an incident that occurs in Manitoba that is caused by an act or omission of another person that is an offence under the Criminal Code (Canada) as specified in the regulations.
There is no requirement under the VBR that a person be charged with, or convicted of, an offence in respect of the incident that results in an injury or death. This is set out at Section 46(2) of the VBR.
Section 47 of the VBR provides that a victim who is injured as a result of such an incident is entitled to reimbursement for expenses prescribed in the regulation that were incurred as a result of the injury, compensation for related counselling services, compensation for loss of wages if the victim is disabled by the injury and compensation for impairment if the victim is permanently impaired by the injury.
The VBR requires, under Section 51, that an application for compensation must be made within one year after the date of the incident that results in the victim’s injury or within one year after the date when the victim becomes aware of or knows or ought to know the nature of the injuries and recognizes the effects of the injuries.
The Victims’ Rights Regulation, Manitoba Regulation 214/98 (the “Regulation”) provides in Section 4 that for the purpose of Section 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 Submission
The claimant appeared before the appeal panel on their own behalf, with the support of their spouse, and made a presentation to the panel. The claimant provided a written submission in advance of the hearing and in response to the additional information requested by the panel following the hearing. The claimant also provided testimony through answers to questions posed by the members of the appeal panel.
The claimant’s position is that they should be eligible for compensation under the VBR as they were injured as a result of the sexual assault that took place on May 18, 2022. The claimant states the assault impacted their mental health and resulted in a lasting injury that has had ongoing effects.
The claimant described the circumstances of the assault to the panel and provided evidence that the assault was by their instructor during training they were doing at the time. The claimant’s evidence was that they sought assistance from their school and attended counselling sessions following this incident. The claimant also described experiencing nightmares following the incident and insomnia. The claimant confirmed that they reported the incident to the police, but no charges were laid.
The claimant is seeking that their application be accepted and that the panel find that the claimant is a victim and is entitled to compensation under the Program.
Analysis
The issue before the panel is whether the application for compensation is acceptable. For the claimant's appeal to succeed, the panel must find, on a balance of probabilities, that the claimant is eligible for benefits under the provisions of the VBR. The panel was able to make such findings for the reasons that follow.
Eligibility is based upon the whether the applicant meets the definition of victim under Section 46(1) of the VBR which sets out that a person is a victim if they are injured or die as a result of an incident that occurs in Manitoba that is caused by an act or omission of another person that is a specified offence under the Criminal Code (Canada) as set out in the VBR regulations. Schedule A to the Regulation includes sexual assault as a specified offence.
Assault is defined under Section 265(1) of the Criminal Code (Canada), and states that a person commits an assault when
(a) without the consent of another person, applies force intentionally to that other person, directly or indirectly;
(b) …
(c) …
Sexual assault is an assault and is not specifically defined in the Criminal Code (Canada) but falls within the definition above and is committed in circumstances of a sexual nature such that the sexual integrity of the victim is violated.
The panel accepts the claimant’s testimony of the events on May 18, 2022. The panel is of the view that the claimant was the victim of unwanted touching. The question is whether the unwanted touching was of a sexual nature. The panel accepts the evidence of the claimant that the unwanted touching was without consent. The evidence of the claimant was clear. The claimant viewed the touching to be in the circumstances of a sexual nature.
The panel has taken into consideration the relationship of the parties, which was one of an imbalance of power. The claimant was in a subservient position and the perpetrator had authority over the victim as their instructor. The panel has also considered the details of the space in which the unwanted touching occurred, which was a confined space and one in which a reasonable person may not have felt able to leave freely.
It is clear from the claimant’s testimony that this was a violation of their sexual integrity. Regardless of whether the unwanted touching was to an androgynous part of the body, the evidence is that the claimant believed it to be of a sexual nature, when considering all of the circumstances of the incident.
The effects of the incident on the claimant have also been considered, and the panel acknowledges that the claimant’s mental health has regrettably suffered as a result of the incident. The evidence shows that the claimant attended for counselling sessions following the event and the panel accepts the testimony from the claimant that they suffered from nightmares and insomnia and felt unsafe following the incident.
The panel finds, on a balance of probabilities, that an offence under Schedule A to the Regulation has been committed. Therefore, the claimant is eligible to make an application for compensation under the Program.
The panel has noted that the claimant has commenced a Human Rights complaint and continues to have the ability to also address the incident in that venue.
The appeal is granted.
Panel Members
R. Lemieux Howard, Presiding Officer
J. MacKay, Commissioner
S. Briscoe, Commissioner
Recording Secretary, J. Lee
R. Lemieux Howard - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 20th day of March, 2025