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Some residential-school survivors seeking compensation for sexual abuse were wrongly required to try to prove their abusers’ motive, Manitoba’s Court of Queen’s Bench has ruled.
The recent decision from Justice James Edmond could set a precedent for how residential-school compensation claims are settled, affecting "at least dozens, possibly hundreds" of residential-school survivors, a Winnipeg lawyer says.
The case involves a man, identified only by his initials, J.W., who attended residential school in Manitoba. He told an adjudicator at his initial compensation hearing that he had been molested by a nun as a young boy – that she had called him over while he was waiting in line to use the shower and grabbed his penis. When he pushed her hand away, she took him by his left ear and tried to slam his head against the wall, he testified. The adjudicator said she believed J.W.’s account and didn’t question that what happened to him had caused him embarrassment and "certain harms," but she denied compensation because she was "not satisfied on a balance of probabilities that there was a sexual purpose associated with [the nun’s] conduct," the decision states.
That logic meant J.W. was held to a stricter standard of proof for sexual assault than is required under the Criminal Code, said his lawyer, Martin Kramer.
"The position taken by the adjudicators, and by the government of Canada, was to require survivors of residential schools to prove that there was a sexual motive in the mind of the abuser, when it’s clear when you read the rules that were set up for the evaluation of claims by survivors that such a motivation is not required," Kramer said. "In fact, the position taken by the government of Canada and by adjudicators would make it harder to show that sexual abuse occurred at a residential school than it is to prove sexual assault in a court of law."
Before taking the case to Manitoba’s superior court, J.W.’s lawyers exhausted their appeals through the Indian Residential Schools Settlement Agreement hearing process – the adjudicator’s decision to deny compensation was upheld twice. When J.W.’s case was reviewed the first time, it was decided the original adjudicator had not erred because the same "sexual motivation" requirement had been tested before, and ultimately upheld, in at least two other cases where the claimants asked for a review after being denied compensation.
The Court of Queen’s Bench decision ruled there is no need for residential-school claimants to prove intent while testifying about a sexual assault, and that the adjudicator had misinterpreted the rules that were already set out as part of the Indian Residential Schools Settlement process. The mistake should have been corrected as part of the review process, Justice Edmond wrote in his decision earlier this month.
"Regrettably, it was not. In my view, this resulted in a failure to properly apply and enforce the terms of the IRSSA (Indian Residential Schools Settlement Agreement) and the IAP (Independent Assessment Process) to J.W.’s claim," he wrote, ruling that J.W.’s case will be re-opened and sent back to the adjudicator for reconsideration.
But the judge stopped short of allowing a request from the Assembly of First Nations seeking a broader ruling for other affected residential-school survivors that could have made it easier for them to have their claims re-considered. A spokesman for the Assembly of First Nations declined to elaborate.
Kramer said his client is not the only one who has been affected by this "wrong legal standard" being applied in residential-school hearings. He estimated the affected cases, involving less severe abuse claims with a maximum compensation in the tens of thousands of dollars, number "at least in the dozens, possibly in the hundreds" across Canada. The case will set a precedent, Kramer said, and those residential-school students whose claims were denied because they couldn’t prove intent could now ask that their cases be reconsidered – if they have the legal resources to do so.
The Indian Residential School Adjudication Secretariat is wrapping up operations for the residential-school hearing process, which it says is 93 per cent complete. In an emailed statement, chief adjudicator Dan Shapiro said the secretariat has informed all of its adjudicators of the court’s decision, saying "We welcome the direction that Justice Edmond has provided in clarifying the interpretation of sexualized touching," in the rules set out as part of the hearing process.
"Justice Edmond’s decision addresses important jurisdictional issues in the IAP (Independent Assessment Process); it is one of only a few cases where a supervising judge has sent back a claim to an adjudicator in the IAP. We are still studying the decision to determine its impact," the statement reads in part.
The secretariat said it doesn't track how many of these types of sexual-abuse claims were either alleged or proven to have occurred.
The federal government can still appeal the court’s decision. A spokesman for the Attorney General of Canada deferred questions to the department of Indigenous and Northern Affairs, and a representative was not immediately available for comment.
Norman Rosenbaum, a lawyer at Merchant Law Group who is experienced in dealing with residential-school claims and represented the firm during the development of the residential-school settlement process, said Justice Edmond’s decision is a "very sensitive observation" of the realities of sexual abuse, one that contributes to the evolution of law.
"This is a further development of the understanding of appropriate compensation for people in a civil context — in this case the residential school settlement agreement — of the proper approach to providing true compensation to people," Rosenbaum said.
"I think it’s interesting for a better understanding of the actual lives of the survivors of sexual abuse."
Fewer than 100 residential-school hearings remain to be held, the Indian Residential School Adjudication Secretariat says. As of June 30, it had received 38,000 claims and awarded $3.024 billion in compensation.
Katie May reports on courts, crime and justice for the Free Press.
Updated on Monday, August 22, 2016 at 8:08 AM CDT: Corrects figure outlining compensation to "tens of thousands of dollars"