Canada, churches appeal residential school decisions

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The federal government may have apologized for, and acknowledged the existence of, sexual abuse in residential schools, but lawyer Peter Grant says the government is still doing its best to stall and minimize compensation for the victims.

In two civil cases in British Columbia, both involving proven sexual abuse, court decisions in favor of Native plaintiffs were followed by appeals from the Crown and the United and Anglican churches.

During Arthur Henry Plint's time as a dormitory supervisor at the United Church-operated Port Alberni residential school on Vancouver Island, he sexually abused the Native boys in his charge. He was convicted of abusing 28 of the boys and is finishing out an 11-year jail sentence.

During his time at the Anglican Church-run St. George's residential school near Lytton, dormitory supervisor Derek Clarke was found by a court to have repeatedly raped four Native boys. School principal Anthony Williams Harding escaped criminal conviction, but two courts later found he played a role.

"He was not convicted. In '79, he was charged. He was acquitted. But in the Mowatt decision, which was one of the earlier decisions at St. George's, the judge found that [Harding] was sexually abusing children as a fact and in this case the judge found that he was sexually abusing," Grant explained. "That was part of the reason he covered up the abuse on behalf of the church because if there was an investigation he himself would have been possibly exposed."

In June 1998, Chief Justice Donald Brenner of the British Columbia Supreme Court ruled the government and the churches were responsible for the schools and therefore were "vicariously liable" for the actions of the school employees. This allowed the victims to sue the government and church, as well as the perpetrator.

Since then, the government has sought to minimize its level of responsibility by including the churches in the civil lawsuits and by taking action to complicate court action, say lawyers representing Native clients. The federal government has come under pressure from the church officials, who say the lawsuits threaten the churches' very existence.

Justice Brenner presided over both cases. In the Port Alberni case he found the church 25 per cent liable to pay damages awarded to the victims. Because of the school principal's actions in covering up the abuse at St. George's, Brenner ruled the church was 60 per cent liable.

Grant's firm represented the plaintiffs in both cases. He told Windspeaker the appeals are a sign the federal government is still playing hardball on the residential school issue, despite claims to the contrary.

The Department of Indian Affairs and the Justice department have taken some steps to work out an alternative dispute resolution (ADR) process. The Prime Minister's Office, through the appointment of Deputy Prime Minister Herb Grey to the Office of Indian Residential Schools Resolution of Canada, which will work out a deal that will take the threat of financial ruin off the churches, has also intervened. But despite all this apparent activity, the lawyer said, nothing has changed.

"I think, the government and the churches, there's no urgency for them because the longer they wait, the more people die, the more people get discouraged. . . . I have someone that's very ill right now. I've written to the government and Anglican Church and said, 'Let's deal with this expeditiously on a humanitarian basis.' I don't think they will settle anything," he said on Sept. 24.

"The churches are very frustrated by this because the government . . . there has been no deal. They've been meeting for three years. The ADRs that had been going ahead have been basically stopped. I was involved in one myself where we were trying to address these issues out of court. The churches are withdrawing from the ADRs because there is no deal with the government. The government is fighting vicarious liability. They're fighting that they're nt vicariously liable. The churches are fighting that they're not vicariously liable. Meanwhile, of course, survivors are dying. I had one victim die of an illness and it saved [the defendants] enormous amounts of money. The estate still can make some claims, but effectively the claim is significantly reduced."

The government and the United Church filed appeals on the Port Alberni case on Aug. 9.

"Take notice that the appellant, Her Majesty the Queen in right of Canada as represented by the minister of Indian Affairs and Northern development, hereby appeals to the court of appeal for British Columbia from those portions of the judgement of the honorable Chief Justice Brenner . . . that . . . Canada is vicariously liable to the plaintiffs for the sexual assaults committed by the defendant," the government's notice of appeal reads.

Published reports show that government spokesman Shawn Tupper said the government is not appealing the 1998 finding of vicarious liability, although the quote above shows it is. Tupper said the government must challenge the court's finding that Canada is 75 per cent at fault in this way because of legal technicalities.

"They're appealing vicarious liability. So if Shawn Tupper's saying that, he should tell his lawyers, because his lawyers are appealing . . . specifically, the government appealed the finding of vicarious liability against them. That's in the notice of appeal," Grant said.

Native leaders reacted with outrage when the damage amounts in the Port Alberni were announced-the lowest was $10,000; the highest $185,000- saying the awards would barely cover the legal costs in some cases. In the St. George's case the awards are higher and the government is appealing to have them reduced.

"The Anglican Church and the government have appealed saying there's too much money awarded to these victims," Grant said. "In this case, all of the plaintiffs received more than $200,000. We'd asked for more and they'd sought way less. Our cliens are now cross-appealing in this St. George's case, but they were not going to appeal because they wanted it to come to an end. But the government and the church are appealing."

The St. George's decision has already had a disastrous effect on the Anglican Diocese of the Cariboo, which operated the school. A church spokesperson said the diocese will cease operation at the end of this year. Claims the church has been driven into bankruptcy are not accurate.

"They cannot declare bankruptcy," Grant said. "Their spokesperson, Bud Smith, concedes that now because they have too many assets. They're going to wind down. The bishop is going to retire. They can't declare bankruptcy, they have a lot of real estate."

Meetings through the Office of Indian Residential Schools Resolution of Canada involving the churches and the government show the government is trying to keep off the table an issue of great importance to Native people, one that could involve considerable cost to the Crown.

"The government wants the meetings to be confidential and the churches have refused. A person from one of the churches has told me what's going on in these meetings. All four churches want cultural loss to be part of the negotiation and the government refuses," Grant said. "They're not getting anywhere in terms of how they're negotiating a split. The meetings are not being controlled by Herb Grey's department but by the Department of Justice. So Justice lawyers are controlling the agenda and, needless to say, taking the position to basically act like it's a court process."

During the election campaign, when church members were pressuring the government to do something about the ballooning number of residential school claims and the harmful financial effect the claims were having on the churches, the government assured voters that something would be done.

Grant said the government may have created the appearance that something was being done, but that's about it.

"They're calling this a nw initiative but the point is this is the third or fourth new initiative they've had in the past two years, with no acceleration to get it resolved. And meanwhile the government is appealing. In the Port Alberni case, they had very little to appeal except vicarious liability and they appealed it. They're appealing everything, which effectively leads to further delays," he said.

A spokesperson for the Office of Indian Residential Schools Resolution of Canada said the government believes the ratio of fault in the Port Alberni case-25 per cent church, 75 per cent government - is unfair to the government. The appeal is all about changing the ratio.

"Therefore, the federal lawyers have to include the vicarious liability in the appeal for technical reasons," Nicole Dakin said.

In the St. George's appeal, the government believes the damage amounts the judge awarded are excessive.

"The question for appeal is not what happened. It is what is the appropriate compensation," Dakin explained. "Canada believes the court did not take into the proper account the other traumas in the plaintiffs' lives as contributing to ongoing problems. So aggravated damages and punitive damages should not have been awarded, noting that information as to the abuse was kept from the government by the principal and bishop. The punitive damages punish the government for covering it up but what the government is saying is it was kept from them."

Native leaders detest the legal strategy that seeks to reduce damage awards to Native victims by arguing the quality of life for Native people at that time was so unpleasant that they couldn't have been substantially harmed even by child sexual abuse by trusted authorities figures. That, they argue, is blaming the victim and ignoring the Crown's role in the disruption of functioning, happy Native communities.

They argue that colonial practices caused the trauma the government now asks the court to recognize by lowering the awards.

"When you're in the co