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The right to remain silent

Should a victim of a crime who fails to co-operate with police still be entitled to financial compensation?


 
The right to remain silent

Siede Preis/Getty Images

Richard Foo Ma was sitting behind the wheel of his Mercedes, the clock on the dashboard approaching 1:20 a.m., when a black Lexus pulled up beside him in the parking lot of a popular Edmonton nightclub. Even if he had spotted the ambush, there was no time to react. A flurry of bullets shattered Ma’s windshield and left him for dead, blood leaking from his brain.

Amazingly, the 22-year-old survived the gangland-style shooting. (“A miraculous recovery,” as one detective later wrote.) But when he was finally well enough to speak to police—to help investigators figure out who may have tried to assassinate him on that Wednesday morning in October 2009—Ma shooed them away from the hospital. He told the cops “not to bother him anymore” because “he just wanted to live his life,” and that he had no intention of ever testifying in court.

Ma did end up in a courtroom, but not to face the gunman (who, to this day, remains at large). Instead, he is fighting for financial compensation from an Alberta fund that, like many across the country, provides lump sum payments to victims of crime. At the heart of his case is a controversial question: should a victim who refuses to co-operate with police still be entitled to a cheque?

“Are there things about this man’s past that maybe I wouldn’t agree with? That is certainly possible,” says Steve Sullivan, the former federal ombudsman for victims of crime. “But he was shot in the head—a pretty serious crime—and is suffering the consequences of that. So we have to ask ourselves: what is the fundamental purpose of these programs? Are they to get victims to co-operate with police, or to provide assistance to people who have been victimized by crime?”

Most jurisdictions, except the Territories and Newfoundland and Labrador, provide some form of financial aid to casualties of crime. Typically a few thousand dollars, the payments are meant to cover everything from “pain and suffering” to counselling bills to lost wages. But in order to qualify, a victim must be willing to assist police in their search for the culprit. In Alberta, where Ma was targeted, the law specifically states that an applicant must “fully co-operate with any investigation into the events that resulted in the injury.”

Ma filed his forms on Jan. 10, 2010, three months after his attempted murder. “Victim is unable to move his right side of body efficiently,” the application states. “He is unable to care for himself such as going to the washroom/shower (needs support).” The bureaucrat assigned to his file had doubts about Ma’s claim, and after reading the police report asked for additional details from an Edmonton officer probing the shooting.

“Ma was very uncooperative and refused to provide any information as to who would have shot him,” the detective responded in an email. “He stated that he did not want the help of police in finding out who shot him and said it did not matter to him that he almost died that night.”

Ma’s application was denied a few days later; when he appealed to the chair of the province’s Criminal Injuries Review Board, the result was the same. So in April, Ma took his case to court, insisting that he told investigators everything he knows about the shooting: i.e., nothing. “I believe I have co-operated to the best of my ability with the police officers,” he wrote. “My injuries are pretty severe (bullet shot in the head—brain injury) and [I] do not recall in detail what may have happened that night of the incident.”

Doug King, a criminologist at Calgary’s Mount Royal University, says although he sympathizes with Ma’s situation, he supports the provision that forces victims to be honest with police. “Accessing this fund is not a right; it’s a benefit,” he says. “And because it’s a benefit, there is an onus of responsibility to meet certain conditions. There has to be some kind of filter, otherwise we might as well just go to a system whereby I do my claim online and you send me a cheque.”

Ma’s cheque is still in dispute. The judge who presided over the court case didn’t actually rule on whether or not Ma is telling the truth. But in his decision, released last month, Justice Brian Burrows did order a fresh hearing in front of the Criminal Injuries Review Board, concluding that Ma wasn’t given the chance to fully explain his side of the story—believable or not—the first two times around.

Jordan Stuffco, Ma’s lawyer, did not respond to messages from Maclean’s. But in the end, his client’s courtroom victory may prove pointless. Last June, in the midst of his appeals, Ma pleaded guilty to possession of a firearm (police found a handgun in his Mercedes that night). In Alberta, the same law that requires co-operation before compensation disqualifies victims who are convicted of a crime linked to their injuries.


 

The right to remain silent

  1. I thought this was pretty open and shut – the answer is no.

    After reading the story, I am convinced the answer is no.

    To quote Steve Sllivan :”“But he was shot in the head—a pretty serious crime—and is suffering the
    consequences of that. So we have to ask ourselves: what is the
    fundamental purpose of these programs? Are they to get victims to
    co-operate with police, or to provide assistance to people who have been
    victimized by crime?””

    If he was a ‘victim’, he would help the police. If he was involved in gang activity, and helped the shooter (not helping catch him), he is not a victim.

    Pretty closed case to me.

    • You’re wrong on the last point, modster. Even a criminal can be a victim of a crime. Now, if some mobster refuses to help police arrest another mobster that tried to put a hit on him but failed, he deserves no compensation if the man who tried to shoot him goes free. 

      • I agree to a point.
        Someone who is Driving Under the Influence and dies in an accident is, by definition a victim of a crime. The fact is that he is complicit in the crime, and therefore should lose the ‘victim’ status. That would be the same if the person who caused the accident was in the wrong.

        If a person
        is a ‘victim’ of a crime, and willfully does not help the police in the
        investigation, thereby allowing the person who did the crime to not be caught,
        or making it more difficult to catch them, they are proving themselves to be a collaborator,
        not a victim.

        I would
        submit that he deserves no compensation regardless of whether the man who
        pulled the trigger goes free or not. Also, this would set a president.

  2. I agree with the person below me, being a victim and being harmed is terrible but at the end of the day do your part as a human being who wants to stand up for themselves and help the police. In this circumstance the “victim” had a weapon in his car and proved completely uncooperative with the police who’s only concern would be to try and find his assailant. The only reason you wouldn’t cooperate is because you have something to hide.

    That’s the problem with the black market drug and sex trade, its not going anywhere and we are just putting more money into criminal hands. Legalize it, regulate it, tax it and shut up about it.

  3. Hey, police officers are claiming compensation and getting it.  Some families are not getting compensation because they did not witness a specific crime such as a murder of their son or daughter.

  4. Victims may choose not to cooperate with the police for various reasons, one of many may include the fear of retaliation (especially when the perpetrators are gang-related). The gun really threw his story off but then again, they have to somehow directly link that to the attempted assassination to prove he’s not a victim.

  5. If the victim is refusing to cooperate with the investigation, then how can one know that he wasn’t somehow involved? Why is he protecting the guilty, if he is innocent? Why should he be compensated, given his involvement cannot be ascertained and he shields the guilty?

  6. Let the guy sell his mercedes.  And he was packing heat.  He obviously is involved in crime.  People don’t pack heat unless they are involved.  And how did he buy the mercedes?  Probably it’s something like the hooker down the hall; no visible means of support.

    Police; do some more checking into this guy’s past.  And is he here legally?.

  7. A victim who fails to cooperate with the police should receive financial compensation. But whether he or she receives any monetary award should be based entirely on the evidence presented in court.  If the case is thrown out for lack of evidence, because the victim didn’t cooperate with the investigation, the victim cannot logically expect any compensation because there’s nothing to compensate. 

  8. Victim compensation is not an entitlement.  There may be a number of factors and relevant circumstances behind a crime of violence, all of which demand answers to some hard questions.  There are many reasons behind a victim’s unwillingness or hesitancy to cooperate (fear of retaliation, fear of being viewed as a “rat”, or self incrimination).  If the victim has failed to cooperate with police, the reason for that unwillingness to cooperate should be measured against the severity of the injuries.  The jobs of police are hard enough.  Generally, innocent victims want to do everything in their power to help police bring their perpetrators to justice.  By not cooperating with police, a victim has allowed the perpetrator(s) criminal behaviour to go unanswered and leaves them free to harm and victimize another.  Why should the government-funded programs turn a blind eye to that? 

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