Sexual Abuse Claims Blog

One of my clients sent me a link to a page with a number of videos from last weeks Truth and Reconcilation Commission hearings in Halifax.

Of particular interest is a video montage titled Nora Bernard - Eastern Thunder.

There was a wonderful event Wednesday evening where Nora was honoured for her work on behalf of Residential School survivors. I was delighted to be invited by Nora's family to say a few words about Nora and her contribution to the National Indian Residential Schools class action.

Please take a look and join me in honouring a wonderful, courageous woman, Nora Bernard.

A Jesuit Order that established and ran Residential schools for mostly aboriginal children in the North West United States and Alaska has agreed to one of the largest abuse compensation settlements in United States history.

The $166 million settlement also requires the Society of Jesus, to offer written apologies to up to 500 abuse survivors. The Society is also required to turn over records of approximately 140 priests, nuns, brothers and lay workers accused of abuse from the 1950s through the 1980s.

Largest Catholic Abuse Settlement
The settlement is reportedly the largest abuse compansation settlement by a Catholic order since the world-wide priest abuse crisis began.

The proposed settlement is in addition to previous payments of $50 million in 2007 and $4.8 million in 2008 to other victims of sexual ause in the Jesuit run schools. The Order filed for bankruptcy protection in February 2009 in the face of hundreds of sexual abuse lawsuits.

Hopefully the settlement will provide accountability and some closure to hundreds of children who were abused in the schools.

Largest Abuse Settlement in the World

While the numbers of victims and the amounts of money involved are staggering, they pale in comparison to Canada's national class action settlement for Indian residential school survivors.

The $5 Billion settlement is still the largest historical redress settlement in the world.

Nora Bernard's Courage
I was honoured to have represented Nora Bernard who played a key role in bringing justice to up to 70,000 former residential school students. You can read more about Nora here.

Today's news about the American Residential School settlement reminded me of the first article I posted when I started writing this blog almost four years ago.

Indian Residential Schools: A Brief History of the Largest Abuse Claim Settlement Ever

A story about the survivors of the Shubenacadie Indian Residential School and their families.

I am proud to have played a small part in helping Nora Bernard (rest her soul) achieve accountability and justice for the Shubenacadie survivors and thousands of other residential schools students across Canada.

Two weeks ago I had the pleasure of being invited to present at the Canadian Institute's 9th Annual summit on Institutional Liability for Sexual Assault & Abuse.

The two day conference brought together plaintiff and defence counsel from across the country to discuss emerging issues in the law pertaining to liability for child abuse.

This is the third time I have been invited to speak by the Canadian Institute. I was asked to make two presentations. I presented on the use of class actions as a tool for the resolution of institutional sexual abuse claims.

My presentation: "Safe to Say You're Sorry (The Psychology of Apology)" was a review of a trend across Canada where provinces have introduced legislation preventing apologies from being used against defendants in court, as well as a discussion on the effective use of apologies in litigation.

I have been advised that part of my Apology presentation has been posted on the Canadian Institute's website. You can watch the presentation by clicking on the link.

A recent research project conducted by The Cedar Project in British Columbia has found that aboriginal youth who have relatives who attended an Indian Residential School have higher rates of Hepatitis C infection.

A similar study had already found that children whose parents attended a Residential School were more likely to have suffered sexual abuse as children.

The Public Health Agency of Canada estimates the incidents of Hepatitis C in the general Canadian population to be 0.8% but the latest study found that the disease is 7 times more prevalent among aboriginal people than non-aboriginals.

Of the aboriginal subjects who tested positive for Hepatitis having at least one parent who attended a residential school increased the chances of contracting Hepatitis by 1.9%.

While having a parent that attended an Indian Residential School does not, by itself, cause Hepatitis C it is clear that the learned behavior in the Residential Schools has a impact on how Residential School Survivors raise their own children.

Simply put, if you are raised in an institution how do you learn the types of good parenting skills that will help you keep your own children away from drugs and other high risk behavior?

One of the greatest honors I have ever had was representing Nora Bernard, and the survivors of the Shubenacadie Indian Residential School, in the negotiations that lead to the creation of the Indian Residential School National Class Action Settlement.

Former Supreme Court Justice Frank Iacobucci was the lead negotiator for Canada.

Slaw.ca has reported on a keynote speech given by Justice Iacobucci at the Federation of Asian Canadian Lawyers Fall Conference.

The article goes into great depth about what motivated Iacobucci during the negotiations. I have included a link to the article so that you can read it in its entirety.

Residential School Survivors Meet Pope

A group of Survivors from Canada’s Indian Residential Schools had a private audience with Pope Benedict. The delegation was led by assembly of First Nations Chief Phil Fontaine. The group also includes one of the survivors of the Shubenacadie Indian Residential School, Membertou Chief Terry Paul.

Pope Apologizes to Abuse Survivors

The Survivors received a personal apology from the Pope on behalf of the Roman Catholic Church for its "deplorable" role in Canada’s Indian Residential School system.

Late update: It appears that media reports of the Pope's apology (like Mark Twain's death) have been greatly exaggerated. Reports now indicate that the Pope did not apologize or acknowlege the Catholic Churches role in the abuse suffered by children in the residential schools. rather he expressed "sorrow" for the suffering of the children.

Students Suffered Physical and Sexual Abuse

There were about 130 Indian Residential Schools across Canada and 75% of the schools were run by the Catholic Church. Students at the schools were taken from their families and placed in the schools where many of them suffered horrible physical abuse, sexual abuse and loss of their language and culture.

Previous Apologies

Until today, the Catholic Church had never apologized for the horrible abuse at Church run schools. Other religious organizations that ran schools have long since issued apologies, including the Anglican Church in 1993, the Presbyterian Church in 1994 and the United Church of Canada in 1998. Prime Minister Stephen Harper also offered an apology on behalf of the Government of Canada in June of last year.

Nora Bernard Filed First Class Action

The greatest honour I have ever had as a lawyer was representing Nora Bernard and the other Survivors of the Shubenacadie Indian Residential School in their fight for compensation for what happened to them as a result of the Residential School system.

Nora filed the first class action against the Government of Canada and the Catholic Church seeking compensation for loss of language and culture for Residential School Survivors. Nora’s claim played an important role in the five billion dollar Indian Residential School Class Action Settlement, the largest historical redress settlement in the world.

I am sure Nora was watching today. I think I can sum up what her reaction would be in three words: "It's about time!"

Wela'lieg

Update:

I have been reading further media reports of this mornings meeting. Apparently earlier reports that the Pope apologized are incorrect. Instead the Pope expressed "sorrow" for the "deplorable" treatment of aboriginal children in catholic run residential schools.

But the Pope did not go so far as to apologize or admit that the Catholic Church had any responsibility for the physical and sexual abuse suffered by children in the schools.

The Canadian government and every single religious organization that ran the residential schools (except the catholic Church) have acknowledged their personal responsibility and apologized for the horrible abuse that took place in the Residential schools.

How can the Catholic Church ever hope to receive forgiveness from residential school survivors if it won't take responsibility for it's actions?

What do you think?

Technorati Profile

C.T.V.’s Native Affairs program First Story has aired a documentary on the life of Nora Bernard.

I was pleased to have participated in the documentary honouring my friend and client, Nora Bernard.

First Story takes a retrospective look at Nora’s fight for compensation for survivors against the Government of Canada and the Catholic Church on behalf of former residential school students across Canada and the legacy she left for Residential School Survivors across Canada.

You can watch the documentary by clicking here (Nora’s documentary is found in part 3 and part 4 of the program).

For more information about Nora Bernard, and the class action settlement on behalf of Indian Residential School students, you can check out my firm's website.

Yesterday the Supreme Court of Canada restored a finding of civil liability for sexual assaults committed by an Oblate Brother against a former Indian Residential School Student decades ago and confirmed the burden of proof that victims of historical sexual assaults must meet if they pursue civil claim for compensation.

In F.H. v. McDougall the Supreme Court of Canada upheld a finding of civil liability against Ian Hugh McDougall, a former teacher at the Meares Island Indian Residential school. McDougall was originally found liable in B.C. Supreme Court, but the judgment was overturned by the B.C. Court of Appeal.

The B.C. Court of Appeal ruled that the testimony of adult victims about sexual assaults that happened during childhood require independent corroboration.

“[t]o choose one over the other . . . requires . . . an articulated reason founded in evidence other than that of the plaintiff”

The judgment of the Supreme Court of Canada was delivered by Rothstein J. He considered whether there was a shifting burden of proof in Canada or if allegations of criminal misconduct should carry a higher burden of proof similar to the burden in criminal prosecutions.

Justice Rothstein emphatically laid the debate to rest:

"...I would reaffirm that in civil cases there is only one standard of proof and that is proof on a balance of probabilities. In all civil cases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred."

With respect to the supposed requirement for corroborating witnesses, Rothstein J. said:

"Corroborative evidence is always helpful and does strengthen the evidence of the party relying on it as I believe Rowles J.A. was implying in her comments. However, it is not a legal requirement and indeed may not be available, especially where the alleged incidents took place decades earlier. Incidents of sexual assault normally occur in private."

The McDougall decision is incredibly important for those of us that represent victims of childhood sexual abuse.

Had the B.C. Court of Appeal ruling not been overturned it would have created huge barrier for victims of childhood abuse to receive justice. Childhood sexual abuse is a crime of secrecy. There are rarely any witnesses to childhood sexual abuse and to require independent corroboration from witnesses would, effectively, deny the rights of victims to pursue justice in the civil courts.

You can read more about the burden of proof in civil claims on my website www.apmlawyers.com.

Continue reading "Supreme Court of Canada Clarifies Burden of Proof for Sexual Abuse Victims" »

I am pleased to announce that my friend and client, Nora Bernard has been named to the Order of Nova Scotia.

Yesterday the Protocol Office for the province of Nova Scotia released the names of this years recipients of the award. You can read the announcement here.

I was proud to have met Nora and honoured to have considered her my friend. Her death was a terrible loss.

You can read more about Nora on our website.

Related posts:

Remembering Nora Bernard

Prime Minister Offers Historic Apology to Residential School Survivors

Prime Minister to Apologize (finally) for Indian Residential School Abuse

Related Residential School posts

Today survivors of the Shubenacadie Indian Residential School gathered to hear an historic apology from Prime Minister Stephen Harper. They also gathered to pay tribute to Nora Bernard, whose tireless efforts played a key part in the multi-billion dollar Residential Schools class action settlement.

I was honoured to be invited by Nora's family to join the gathering.

Nora Bernard came to me 13 years ago to ask for help. She wanted to file a claim for compensation for all of the former residents of the Shubenacadie Indian Residential School for loss of their language and culture.

I told her that what she wanted to do had never been done before. She asked: "So does that mean it can't be done?"

Nora invited me to her home to hear her story, and the stories of other students from the Shubenacadie school. They convinced me that what happened to these children was incredibly wrong.

Nora Bernard filed the first class action against the federal government on behalf of survivors of a residential school, seeking compensation for loss of language and culture.

After Nora Bernard and the Shubenacadie survivors filed her claim, other survivors from other schools in other provinces filed similar class actions.

Nora was a lady of incredible warmth, strength and persistence.

She worked tirelessly for the Shubenacadie survivors, sometimes at the risk of her own health. She travelled across the country on behalf of survivors and I travelled with her to Ottawa where she testified before a Commons committee about the physical and sexual abuses that took place in the schools.

Eventually survivors across Canada began working together. In November 2005 former residential school survivors and Canada and the churches that ran the schools reached an Agreement in principle to settle the largest class action in Canadian history.

Nora never cared about money for herself. Her only concern was justice for her fellow survivors. She told me many times over the years that the most important part of any settlement had to be an apology to survivors.

Today residential school survivors heard the apology that they had been waiting for. I am honoured to have been invited to play a small part in this historic process. My only regret was that Nora was not with us today to hear the apology.

But I know she was watching...and smiling.

Prime Minister Stephen Harper issued an apology to survivors of Indian Residential Schools today.

In an historic moment, he apologized on behalf of all Canadians for the destruction wrought by Canada's policy of forced assimilation. CBC has extensive coverage of the apology and the history of the schools.

Two primary objectives of the residential schools system were to remove and isolate children from the influence of their homes, families, traditions and cultures, and to assimilate them into the dominant culture.

These objectives were based on the assumption aboriginal cultures and spiritual beliefs were inferior and unequal. indeed, some sought, as it was infamously said, “to kill the Indian in the child.” Today, we recognize that this policy of assimilation was wrong, has caused great harm, and has no place in our country.

The Prime Minister recognized the abuse that many children were subjected to in the schools:

While some former students have spoken positively about their experiences at residential schools – these stories are far overshadowed by tragic accounts of the emotional, physical and sexual abuse and neglect of helpless children and their separation from powerless families and communities.

Many survivors have waited decades to hear the words:

Therefore, on behalf of the government of Canada and all Canadians, I stand before you, in this chamber so central to our life as a country, to apologize to aboriginal peoples for Canada's role in the Indian residential schools system.

You can read the whole text of the apology here.

Today was an emotional day for the survivors of the Shubenacadie Indian Residential School, whom I have had the privilege of representing for the last 13 years. My only regret was that my friend Nora Bernard was not with us today to hear the apology.

But I know she was watching...and smiling.

In a long over due gesture Indian Affairs Minister Chuck Strahl announced today that Prime Minister Stephen Harper will officially apologize on June 11 on behalf of the government for abuses suffered by former residents of native residential schools.

Although she did not live to see it, I think my friend Nora Bernard would be pleased.

A Tribute to Nora Bernard

September 22, 1935- December 27, 2007

Nora was born, September 22, 1935, to the late Mary (Cope) and Michael Bernard. Her place of birth was the Mi'kmaq First Nation Community of Millbrook. She is survived by her six children, thirteen grandchildren, five great-grandchildren, and four of her seven siblings, an uncle, and hundreds of other relatives.

I first met Nora in 1995. She came to me and asked for help her with a claim on behalf of all of the former students of the Shubenacadie Indian Residential School. What Nora wanted to do had never been done before.

She felt that Indian Residential School System was wrong and that every child that had ever been forced to attend the Shubenacadie Residential School was entitled to be compensated for their experience. She wanted justice for the Survivors of the Shubenacadie Indian Residential School. She wanted to file a claim against the Government of Canada and the Roman Catholic Church and she asked me to help her. After hearing Nora's story and the stories of many of the other Shubenacadie survivors I agreed to help Nora with her goal.

Nora filed the first Class Action law suit against the government of Canada seeking compensation for Residential School Survivors. After Nora filed her claim other survivors from other schools in other provinces filed similar law suits. Eventually these claims joined together and the end result was the National Class Action Settlement, the largest class action settlement in Canadian history which will pay compensation to up to 70,000 former Residential School residents.

It took Nora twelve years to achieve her goal. It was not an easy fight and her role representing survivors often took a toll on her health. Sometimes it looked like the fight for survivors couldn't be won. But Nora never gave up hope and never stopped working for the Shubenacadie Survivors.

Nora was an incredible woman. She was a kind and gentle person. She had a giving heart and a great deal inner strength.

Nora's death was tragic and unfair. However, I take satisfaction in knowing that Nora was able to see the conclusion of the Class Action Law Suit on behalf of her fellow survivors before her untimely death.

Whenever Nora asked me to speak to survivors at the meetings that she organized she would say to me: "John, don't speak to the people like a lawyer. Speak to them like a friend."

I am proud and honoured to have called Nora my friend. I will miss her terribly.

May she rest in peace.

More about Nora Bernard:

Heart of a Soldier, Soul of an Angel

Nora Bernard Played Key Role in Multibillion-dollar Native-school Settlement

Bernard's Lawsuit Helped Natives Nationwide

The Canadian government has appointed Justice Harry LaForme, a senior Ontario judge and a member of the Mississaugas of New Credit First Nation in southern Ontario to head up a federal truth and reconciliation commission that looks into the abuse that occurred at Indian Residential Schools.

The commission is designed to provide those affected by the legacy of Indian Residential Schools with an opportunity to share their individual experiences in a safe and culturally appropriate forum.

Indian Residential Schools Resolution Canada's website has posted details of the commission hearings.

A coalition of Churches that ran some of the Residential Schools and the Assembly of First Nations toured Canada two months ago to promote participation in the Truth and Reconciliation hearings.

I was privileged to be a part of the committee that negotiated the Residential Schools claims settlement on behalf of my clients, the survivors of the Shubenacadie Indian Residential School.

The Indian Residential Schools class action settlement is the largest abuse claims settlement ever. The Truth and Reconciliation hearings were an important part of the settlement package. It is the first commission of it's kind in North America and an acknowledgement of the human rights abuses that were systemic within the Residential School system.

Read more about the Indian Residential School claims.

Indian Residential Schools: A Brief History of the Largest Abuse Claim Settlement Ever

Bishop sex abuser changed the law in Canada

Historic Abuse Claims Settlement Set to Pass Final Hurdle

History of Canada's Indian Residential School Claims

Indian Residential Schools Settlement Finalized!

Largest Class Action in Canadian History Moves Forward

Residential School Survivor Receives First Settlement Payment

The first compensation cheque in the largest abuse claims settlement in history was issued today.

An Alberta teacher who was forced to spend 10 years in one of Canada's Indian Residential Schools was presented with her cheque by Assembly of First Nations Chief, Phil Fontaine. You can read more here.

The Residential Schools settlement is the largest class action settlement in Canadian history and, I believe, is the largest abuse claims settlement in the world. I posted details here.

Kathy Shaw at bishop-accountability.org has posted a link to a story in the Anglican Journal about the Canadian Indian Residential Schools abuse claims settlement.

The article refers to the settlement as the largest class action settlement in Canadian history. It certainly is that. But more importantly it is the largest abuse claims settlement in the world. More than TWO BILLION dollars in compensation for loss of language and culture to 80,000 potential claimants . Plus a compensation program that will pay up to an additional $275,000.00 in compensation to victims of sexual abuse and serious physical abuse.

I have represented the Association for the Survivors of the Shubenacadie Indian Residential School for twelve years. I am proud to have been part of the team that negotiated what is sure to be an historic claims settlement.

The National Class action settlement to compensate up to 80,000 former residents of Canada's Indian Residential Schools passed it's final hurdle today.

The deadline for survivors to "opt out" of the settlement has passed and the deal is now final.

Our client, Nora Bernard was intrumental in achieving the deal, the largest class action settlement in Canada. You can read more about Nora Bernard, and the details of the settlement here and here.

I am proud to have represented Nora Bernard and the hundreds of other survivors of the Shubenacadie Indian Residential School and to have played a part in negotiating the largest abuse claims settlement in history.

For some background on the history behind the Indian Residential School claims, you can look here.

For some background on the claims that our firm has been handling for Survivors of the Shubenacadie Indian Residential School, check here.

The Globe and Mail has reported that the largest abuse claims settlement in history is likely to pass it's final hurdle today. Upwards of 80,000 former students of Church run Indian Residential schools are set to receive payments for sexual abuse, physical abuse and psychological abuse that they suffered in the schools.

Today is the deadline for former students to "opt out" of the class action settlement. If more than 5000 students drop out of the settlement, the court approval order considers the deal null and void. As of today, less than a hundred former students across the country have opted out and it is expected that the deal will be finalized today.

The class action settlement will pay out two billion dollars in compensation to students who were forced to attend the schools.

In addition, former students who were seriously physically abused, sexually abused or who suffered serious psychological effects from attending the schools will be entitled to apply for additional payments of up to $250,000.00 each. It is expected that these payments will total an additional one billion to two billion dollars.

I am proud to have represented hundreds of survivors of the Shubenacadie Indian Residential Schools over the last dozen years. I wrote about the history of the claims negotiations here.

When the opt out deadline passes the Shubenacadie survivors, and 80,000 other former residential schools students, will have taken the final step towards receiving a recognition of the harm that they suffered as a result of Canada's attempt at cultural assimilation to eliminate native people.

It's about time.

A disgraced former Roman Catholic Bishop convicted of sexual abuse has died. Hubert O'Connor was convicted of sexually abusing children at the Cariboo Indian Residential School in British Columbia.

During his trial O'Connor's lawyers sought access to the victims' psychological records. The right of an accused to make an application for a court order to receive copies of a victim's therapeutic records was eventually upheld by the Supreme Court of Canada; a procedure that became known as an "O'Connor application".

In response to an outcry from women's groups and abuse survivors, the Government of Canada eventually passsed Bill C-46 amending the Criminal Code of Canada to protect the privacy rights of victims of abuse.

You can read about O'Connor here and here .

A California judge has approved a $660 million sexual abuse settlement by the Roman Catholic Archdiocese of Los Angeles. The settlement means that 500 + victims of abuse will not have to testify in court.

Terms of the settlement also require the Church to release confidential internal files showing steps the RC Church took to cover up the abuse over many decades.

You can read more about the settlement here.

The settlement is being reported as a record breaking payment to settle abuse claims. While the agreement is certainly the largest to date in the U.S., the 660 million dollar payment pales in comparison to the 5 BILLION DOLLAR settlement that the Canadian government and several religious organizations have agreed to pay to 70,000 survivors of abuse in Canada's Indian Residential Schools.

I posted about the Indian Residential School's Abuse Claims settlement here.

Between 1920 and 1996 the Canadian government engaged in a concerted effort to eliminate Native Canadian Aboriginal people through a process of forced assimilation. Aboriginal children were taken from their families and placed in Church run "Residential Schools" where they were prevented from speaking their own language and practising their spiritual beliefs, and horribly mistreated.

By 1995 former Residential School students across the country had filed dozens of individual civil claims for compensation for physical and sexual abuse they suffered in the schools.

In 1996 the Royal Commission on Aboriginal Peoples described the Residential School Assimilation process:

"The removal of children from their homes and the denial of their identity through attacks on their language and spiritual beliefs were cruel. But these practices were compounded by the too frequent lack of basic care — the failure to provide adequate food, clothing, medical services and a healthful environment, and the failure to ensure that the children were safe from teachers and staff who abused them physically, sexually and emotionally. In educational terms, too, the schools — day and residential — failed dramatically, with participation rates and grade achievement levels lagging far behind those for non-Aboriginal students."

Here's the link to the full Royal Commission Report www.ainc-inac.gc.ca/ch/rcap/index_e.html

In 1996 I was retained by Nora Bernard to file a Representative Action on behalf of all of the former students of the Shubenacadie Indian Residential School in Nova Scotia. The claim was the first of it's kind in Canada to seek compensation for all former students of a Residential School and the first to seek compensation for loss of language and culture. Here's the link to Arnold Pizzo McKiggan's webpage for the Shubenacadie claims http://www.apmlawyers.com/irscu.htm

In 1997 my friend and colleage Russ Raikes filed the Cloud class action on behalf of all former students of the Mohawk Institute Residential School and their family members.

In 1998, facing more than a thousand claims from former Residential School students, Canada issued a "Statement of Reconciliation" apologizing for the "tragedy" of the Residential Schools.

In 2000 the number of claims filed against Canada had topped 6,000.

In 2002 more than 8,000 abuse claims had been filed against Canada. Thompson Rogers filed a National Class Action on behalf of Charles Baxter and Elijah Baxter seeking compensation for all former Indian Residential School students in Canada, and their family members. The Shubenacadie survivors joined the Baxter National Class Action.

By 2004 Canada was facing more than 12,000 Residential School abuse claims. In December 2004 the Ontario Court of Appeal certified the Cloud class action.

In 2005 the Supreme Court of Canada denied Canada's request for leave to appeal the Cloud decision. In May 2005 Canada appointed former Supreme Court of Canada Justice Frank Iacobucci to negotiate a "lasting resolution" to the legacy of Indian Residential Schools. Here's the full text of the announcement http://www.irsr-rqpi.gc.ca/english/news_30_05_05.html

I am proud to have participated in the negotiations with Canada on behalf of the Shubenacadie Survivors as part of the Baxter class action's negotiating team. Other stakeholders included the Assembly of First Nations, representatives for former students, and Religious organizations that ran the schools. After six months of negotiations the parties reached an Agreement in Principle to compensate former Residential School students and their families.

The settlement includes an immediate fund of 1.9 Billion dollars to compensate all former Residential School students, estimated to be as many as 80,000 people. The settlement also requires Canada to fund an ongoing "Individual Assessment Process" to provide additional compensation for former students who suffered serious physical abuse and sexual abuse. The IAP claims are estimated to require further payments of 3 Billion dollars to Residential School abuse survivors over the next five years.

So there it is. 80,000 potential claimants. Up to 5 Billion dollars in compensation. The largest abuse claim settlement ever. But for those children who suffered through Canada's misguided attempts at assimilation, and the generations that have felt the ripple effects of the harm caused by the schools, it is just the first step in a long process of healing and reconciliation.