In a decision released last week, the British Columbia Court of Appeal has found a probation officer and the mother of a boy who was sexually abused, equally responsible for sexual assaults on the boy, by a paroled sex offender.
The Court of Appeal confirmed that the province is vicariously liable (legally responsible) for the negligence of a probation officer who allowed a convicted sex offender on parole to live with a family with two young children.
You can read the full decision here.
JH was sexually assaulted by Kline, who was on probation for sexual offences against boys. He was on parole and under an order not to have unsupervised contact with children.
Despite the terms of the probation order, Kline's probation officer gave him permission to live in a suite in the same house as JH, and his sister and mother.
Kline became friendly with JH's mother, DH (a single mom). He actually TOLD her that he was not allowed to have contact with children under the age of 18. (Although he told her it was because he had been convicted of having sex with a 17 year old prostitute).
When the probation officer learned that Kline was living in the same house as two young children, he warned the mother DH not to allow Kline to be alone with her children but he did not tell her that Kline had been convicted of assaulting young boys.
DH lied to the probation officer and said that Kline had no contact with her children.
In fact, Kline spent lots of time with JH, babysitting him, watching movies, teaching him how to fish and ride a bike. He sexually assaulted JH over a nine month period.
The trial judge found that the probation officer was negligent and held the Province of British Columbia vicariously liable for his negligent acts. The trial judge also found the mother, DH 5% responsible for leaving JH with Kline when she had been warned not to do so.
The province appealed the finding of vicarious liability. DH appealed the finding that she was partly responsible.
The Court of Appeal confirmed the finding of the probation officer's negligence:
The probation officer was clothed with the responsibility to approve the residence of Mr. Kline, and was the only reliable channel of information to residents living near Mr. Kline as to the
danger he posed, and to whom.
The province argued that it should be immune from vicarious liability because:
...the decisions or actions in issue in this case were taken in the exercise of public discretion and therefore a duty of care should not extend to such discretionary decisions for reasons of public policy.
The Court of Appeal rejected the argument:
...the probation officer’s task was management of the parameters already put in place by the sentencing judge. As such, I do not view Mr. Gill’s function in relation to J.H. as reaching the high policy level contemplated by the authorities as required before immunity from liability is assured at this stage of the analysis.
The Court overturned the trial judge's ruling that DH was only 5% responsible, finding instead that DH was equally to blame for the sexual assaults and split liability (fault) 50-50 between DH and the province.
...D.H. contends that she is not at all at fault. I do not agree. D.H. was advised of the term of the probation order. Although she chose not to comply with it on the basis she did not know the underlying offence was a sexual assault against a person of her son’s profile, that is not an answer to her election to permit her children to be with Mr. Kline contrary to that order. Nor does she have a good answer to the falsehood told to the probation officers that Mr. Kline did not have contact with her children.
Some people may have a problem with holding a mother responsible for the sexual assaults of a convicted sex offender. Hasn't the family suffered enough?
I have to say I agree with the balancing act by the Court of Appeal in this case. The mother was told that Kline wasn't supposed to have contact with children. She knew he had been convicted of sexual assault. Frankly, what parent in their right mind would allow a convicted sex offender to be alone with their children?!
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Province & Mom Responsible for Sexual Assault on Child by Sex Offender: B.C. Court of Appeal