Supreme Court of Canada Clarifies Burden of Proof for Sexual Abuse Victims

by John McKiggan

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

I have represented hundreds of victims of childhood sexual abuse in claims for compensation. As a public service I have prepared a resource guide for survivors of sexual abuse in Atlantic Canada. You can receive a free copy of this report by contacting me through this blog, or my website at or by calling toll free in Atlantic Canada 1-877-423-2050.

Comments are closed.