Sexual Abuse Claims Blog

Justice David Little issued a damning decision today castigating former Bishop John Sherlock and the Roman Catholic Church for years of covering up sexual abuse by Canada's most notorious pedophile Father Charles Sylvestre.

Cover Up

In a strongly worded judgement Justice Little stated:

"There was a coverup by the Diocese. There was a coverup by the Roman Catholic Church itself. The coverup was for the benefit of the Diocese and church and the expense of the victims..."

Victim Compensated

Justice Little awarded the plaintiff K.M.M. over $600,000.00 compensation for pain and suffering, income loss and out of pocket expenses.

No Punishment Necessary

Unfortunately Justice Little did not see fit to order the Diocese of London to pay punitive damages. Punitive damages are awarded when a defendant's conduct is so outrageous and reprehensible the court feels it is necessary to award further damages as a deterance.

Little said “the serious nature of the negative impact upon the victims” has only recently been studied and that the Diocese of London has taken “substantial steps to address the issue of sexual abuse.’

“It would appear that numerous positive steps have been taken to rectify the problem so that at least the Diocese itself need no longer be punished for failing to act appropriately...”

I say the same thing to all of my clients before they take the step to file a sexual abuse compensation claim. No amount of money is enough. No amount of money will make a survivor forget or erase what happened. Unfortunately money is the only way the civil courts have of holding abusers, and those that protect them, responsible.

However I have to say that I am disappointed that Justice Little did not think the Diocese intentionally covering up Charles Sylvestre's years of sexual abuse was worthy of punishment because the Diocese has issued an apology to victims.

I applaud K.M.M.'s courage for coming forward and actually proceeding through what was no doubt a difficult and exhausting trial.

More Information

Church Knew About Canada's Worst Pedophile Priest

Sex Abuse Help Fund Doubled

The Province of British Columbia was recently held vicariously liable for the sexual abuse of a convicted sex offender who sexually abused a minor hockey player that he was coaching.

Reasons for judgment were recently released by Justice Dley in D.K.B. v. Her Majesty the Queen in Right of the Province of British Columbia.

Failure to Notify

The plaintiff D.K.B. was described as a talented 13 year old hockey player. He was sexually abused by his coach, Richard Hall, a convicted sex offender, on two occasions. The Province of British Columbia was held to be vicariously liable for the sexual abuse because Hall's probation officer knew he was coaching hockey and the probation officer failed to notify the Minor Hockey Association that Hall was a convicted sex offender.

Professional Hockey Career

D.K.B. went on to play junior hockey and then professional hockey in the Western Hockey League.

When he was 17 years old D.K.B. was drafted in the eighth round of the NHL draft by the Toronto Maple Leafs. During his 9 year professional hockey career D.K.B. earned about $200,000.00. He claimed that, if it were not for the sexual abuse, he would have gone on to a much more successful and lucrative professional career.

Judges Reasons

Justice Dley concluded that:

“...the abuse likely resulted in an impairment of the plaintiff’s ability to earn income.”

Dley found that D.K.B. suffered from a personality disorder which:

“...caused significant interpersonal problems disrupting the plaintiff’s ability to develop close relationships with his peers.”

No Loss of Scholarship

The court held that D.K.B.'s decision to forgo an NCAA scholarship was not materially connected to his sexual abuse and awarded no damages for that loss.

However, the court was:

“...satisfied that the plaintiff’s disorders, which affected his mental health, had a negative impact on the mental and emotional tools required to fully realize ones potential as a professional hockey player”.

The court concluded that the losses suffered by D.K.B. amounted to the loss of a first contract (a 3 year contract) with an NHL team. The court believed that there was a reasonable possibility that the disorders from the sexual abuse were the cause of NHL teams not offering a contract to the plaintiff.

Loss of Signing Bonus

The court concluded that D.K.B. suffered a loss of a potential $175,000.00 as a signing bonus for joining an NHL team.

Loss of Salary

The court also found that the plaintiff had lost 3 years of salary as an NHL player which totaled $180,000.00.

Lessons Learned

The D.K.B. case points out that not only can sexual abuse have a significant financial impact on persons who are otherwise viewed as successful by the rest of society, it points to the responsibility that members of the justice system have to ensure that sexual offenders are prevented from coming into contact with children and are not provided with opportunities to commit further offences.

Continue reading " Probation Officer Lets Sex Offender Coach Minor Hockey: Province Responsible for Harm " »

While this blog is normally dedicated to cases and news involving sexual abuse, I thought a recent decision of the Nova Scotia Court of Appeal merited comment.

Landmark Decision

In a ground breaking decision, the Nova Scotia Court of Appeal has upheld the acquittal of school teacher Nicole Ryan who had been charged with trying to arrange for the murder of her abusive husband. Ryan was charged after hiring an undercover police officer to kill her estranged husband.

Chief Justice Michael MacDonald wrote the unanimous decision. The court recognized that the ruling was going to be controversial because it:

“Extends the boundaries of self defence in a manner that has never been recognized in Canadian jurisprudence.”

However, the court felt that the extreme circumstances of Ryan’s case merited application of the self defence doctrine. Justice MacDonald stated:

“Ms. Ryan was compelled to take the action she did by normal human instincts and self preservation…it would be inappropriate, under these circumstances, to attribute criminal conduct to her.”

Self Defence and Duress Defence

Self Defence

More than 20 years ago the Supreme Court of Canada ruled in R. v. Lavallee that a woman who shot her abusive husband after he threatened to kill her had acted in self defence. The Lavallee case is frequently referred to as the “battered woman” defence.

However, Justice MacDonald on behalf of the unanimous Court of Appeal distinguished the Lavallee case. MacDonald J. felt that Ms. Ryan’s situation was not one of self defence but rather that she acted under duress.

Duress Defence

Justice MacDonald stated:

“The rational for the defence of duress is quite different…it involves excusing a wrongdoing in circumstances where the accused is left with no other alternative. Therefore, unlike self defence, it is not the type of action society would support let alone applaud.”

The description of the life that Ms. Ryan had to endure with her husband makes for chilling reading. The Court of Appeal found that Ms. Ryan had been living in a “state of terror” from almost the moment she and her husband were married.

She had reported her abusive husband’s conduct to the police several times. Ryan’s husband had an explosive temper and regularly sexually assaulted her and threatened her life. Ryan finally undertook her desperate measures after her husband threatened to kill their daughter.

Limited Circumstances

The Court of Appeal was careful to point out that the defence of duress will only apply in very limited circumstances:

“The accused should be expected to demonstrate fortitude to put up a normal resistance to the threat…the threat must be to the personal integrity of the person. In addition, it must deprive the accused of any safe avenue of escape in the eye of a reasonable person, similarly situated.”

What Do You Think?

Most of my abuse claims involve representing people who are victims of historical abuse. In many cases, their abuser is dead. However, I have, from time to time, been contacted by desperate people, usually women, who are being subjected to brutal acts of abuse on a regular basis.

It appears that the Court of Appeal has recognized that, in some very extreme circumstances, the courts may not provide the victims with "any safe avenue of escape".

What do you think?

Reasons for judgement were recently released in the case of B.M.B v. Fallona et al. .

The plaintiff B.M.B. filed a claim accusing the defendant Fallona, a Roman Catholic priest, of sexually assaulting her.

B.M.B. applied to court for an order requiring Fallona to produce a copy of various physicians’ records who provided mental health services to the priest.

The defendants refused to provide the records.

Lawyers for B.M.B.argued that because she was a minor when she was allegedly sexually assaulted, the defendant priest, Fallona met the definition of a pedophile as defined in the 4th edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Health Disorders.

Therefore, argued B.M.B.'s lawyers, Fallona's mental health records were relevant to her lawsuit.

Justice McDermid reviewed the evidence submitted in support of B.M.B's application.

There was no medical evidence to indicate that the defendant had ever been diagnosed with pedophilia.

Justice McDermid stated in his decision:

“Generally speaking a plaintiff is entitled to disclosure of documents “relevant to any matter in issue in the action that is or has been in the possession, control or power of a party to the action” pursuant to R 30.02. Are Fallona’s medical records relevant to an issue in this action? It is elemental that the pleadings define the issues. There is no allegation in the statement of claim, either directly or inferentially, that Fallona is or was a pedophile at the relevant time or indeed at any time.

Therefore, in my opinion, there is nothing in the statement of claim that puts Fallona’s mental health in issue as between the plaintiff and Fallona. What the plaintiff alleges is that Fallona committed one or more sexual assaults, a physical act, against her. For the purposes of her claim for damages arising from those sexual assaults, Fallona’s mental health is not relevant. Moreover, the statement of defence does not put his mental health in issue.”

Justice McDermid denied B.M.B.'s request for an order requiring Fallona to produce his psychological and psychiatric records.

Lesson Learned?

It is trite to say that the pleadings (Notice of Claim) form the basis of the plaintiff’s claim. The facts alleged and causes if action claimed in the plaintiff’s notice of action form the foundation for all subsequent steps in the legal proceedings.

For the purposes of the motion, the court had to assume that the facts, as pleaded, were true. If B.M.B.'s Notice of Claim alleged that the defendant was a pedophile, or otherwise alleged facts that put Fallona's mental health at issue, it is clear that McDermid J. would have ordered production of the defendant’s mental health records.

Sometimes as lawyers we do not give enough thought at the beginning of a proceeding as to how the claim might develop as the matter proceeds. This decision simply points out that drafting the Notice of Claim is not just the first step in the litigation process; it may be the most important step.

UPDATE

I have been contacted by the plaintiff in this case, B.M.B. and she tells me that she has filed an appeal of Justice McDermid's decision.

I wish her the best of luck and applaud her for having had the courage to come forward.

Continue reading " Accused Abuser Doesn't Have to Produce Psychological Records " »

Father Donald Grecco has been waiting to be sentenced after being convicted of sexual assault charges last year.

He was released pending sentencing on conditions that he reside in Picton while waiting for his hearing.

However he ignored the court order and moved out without notifying the court of his change of address. Police arrested him in October.

Grecco has now pleaded guilty to breaching the conditions of his release. His sentence? Time served.

Think this guy has learned any lessons?