- Justice elusive for survivors of institutional abuse in Canada
April 15, 2003
TORONTO (CP) - Survivors of institutional abuse in Canada have for years
been thwarted in the quest for true justice by a legal system plagued
with prejudice and inexperience, experts say. The civil and criminal
justice systems in Canada are learning at glacial speed how to fairly
treat cases of systemic sexual and physical abuse, said Loretta Merritt,
a lawyer and specialist in institutional abuse cases. "The law
backward-looking, because it's based on the common law system of precedents
- you look at old cases to determine what you should do in the present
case," Merritt said. "It evolves very, very slowly."
Merritt represents dozens of men who allege being beaten, brutalized
and sexually abused during their time at government-run training schools
in Ontario between the early 1960s and early 1980s. More than 30 have
already filed lawsuits against the Ontario government, with several
more in the process of preparing their cases, Merritt said. The allegations
are also the subject of a lengthy provincial police probe; more than
3,000 former training school residents across Canada have been interviewed
But regardless of whether charges are laid - and even that's far from
certain at this point, investigators warn - victims are likely to be
less than satisfied with the results of their pursuit of justice. In
Quebec, victims and their advocates have been struggling for more than
a decade to win justice for the Duplessis orphans - poor or illegitimate
children who were abused in the 1940s and 1950s after being declared
mentally disabled by the province and placed in church-run institutions.
"In the justice system, there was no awareness of this, no experience,
no precedents," said Yves Manseau, co-ordinator of the victims'
rights group Mouvement Action
Justice. "It was like a wasteland."
Courts in Canada are also struggling with the issue of causation: accurately
determining to what extent historical sex abuse affected the life of
a victim, said Merritt - especially, as is the case with training school
victims, if they were having a hard time before they arrived. As a result,
it's next to impossible to determine what constitutes a fair settlement,
she added. "You can't say they had perfect lives and that every
problem they've had since training school is attributable solely to
Merritt and others who specialize in institutional abuse are awaiting
a ruling from the Supreme Court of Canada that they hope will clarify
the causation issue and clear the way for fairer settlements. Prior
when the true extent of the systemic sex abuse that went on at institutions
across Canada was just becoming known, settlements were often a pittance:
anywhere from $500 to $2,000.
Today, damages for pain and suffering are capped in Canada, Merritt
said: the most anyone who suffers the worst kind of "catastrophic
injury" can get is $292,000. "Sex assaults rarely reach that
cap," she said. "They get to $200,000, maybe." The courts
also struggle to deal fairly with criminal charges that are based on
allegations from victims who end up as career criminals, drug addicts
or both - people whose credibility on the witness stand is easy to destroy.
Often, it turns into a cruel Catch-22: the abuse itself leads to a life
of crime or a drug or alcohol problem, the very things that end up hurting
a victim's chances of being believed in court.
"If you take the typical test for establishing a witness's credibility,
and apply it to an abuse survivor, it doesn't work," Merritt said.
"Take the traditional legal principles and tests and apply them
to sexual abuse cases, and they don't result in fair and just results."
Manseau tells a similar story of victims, many of whom come from society's
lowest strata, complaining of being mistreated by both police investigators
and prosecutors alike. "The way they've been treated by the police
and the Crown attorneys is really terrible," he said. "You
see a lot of comments - and I still see it - that the victims were all
uneducated persons, they had some personal problems, some were almost
illiterate - you could see a lot of prejudice against the victims."
Dwight Wadel, 63, who worked as a housemaster at White Oaks Village,
a training school for boys aged eight to 12 near Hagersville, Ont.,
in the 1960s and 1970s, was acquitted in August 2001 on 15 sex-related
charges. In his 194-page ruling, Justice Walter Stayshyn said he simply
couldn't accept the stories of abuse told by five former White Oaks
residents who testified as Crown witnesses.
One of them had a criminal record with more than 200 different convictions;
another was serving a life sentence for two murders. "Has such
an unsavoury witness or witnesses invented or stretched their evidence
for personal gain, or are they motivated by more ethical persuasions?"
Stayshyn wrote. "I am not satisfied to the degree necessary that
I can accept the evidence of the complainants."
One of those complainants, Paul Waltenberry, had difficulty getting
his own family to believe his tales of abuse. In a recent interview,
Waltenberry's mother, Sandra, said her son was 11 or 12 and a chronic
troublemaker when he was shipped off to White Oaks in the late 1960s.
Shortly thereafter, she said, he began to complain that he'd been sexually
abused - an allegation she admitted she had a hard time believing. "Do
you want me to be honest with you? No," she said when asked whether
she believed her own son. Then: "Of course, he could be telling
the truth ... I don't know."
Canada's justice system needs to figure out how to deal with cases of
institutional abuse, because they're not going to go away, Merritt warned.
"We're still in the infancy of these cases coming out in large