Top court’s ruling backing residential school student abused by nun gives hope to others

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Top court’s ruling backing residential school student abused by nun gives hope to others

by - 3 min read

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A former residential school student is entitled to compensation for abuse at the hands of a nun, the Supreme Court of Canada says in a decision that helps clarify the scope of appeals in such cases.

The decision came Friday in the case of an Indigenous man, known only as J.W. due to privacy considerations, who said he was assaulted at a residential school in Manitoba.

For over a century, tens of thousands of Indigenous children were required to attend residential schools, primarily run by religious institutions and funded by the federal government.

Students were not allowed to use their languages or cultural practices.

Former pupils provided accounts of physical, sexual and emotional abuse as part of an independent assessment process to determine how they would be compensated for what they went through, a program that flowed from a major 2006 settlement agreement aimed at ensuring a lasting resolution of the residential schools legacy.

Federal government appeals Manitoba decision

J.W.’s claim was rejected by an adjudicator on the grounds that he had failed to show the nun’s alleged act — grabbing his penis while he was lightly clothed, waiting in line for a shower — had a sexual purpose.

His efforts to have the decision overturned by other adjudicators failed, but a Manitoba judge found fault with the internal decisions and sent the case back to the initial adjudication phase. A reconsideration adjudicator decided in J.W.’s favour in September 2016, awarding him $12,720.

Meanwhile, however, the federal government successfully challenged the judge’s ruling in the Manitoba Court of Appeal, which said that, under the terms of the assessment process, judges can’t carry out detailed reviews of adjudication decisions.

In its decision Friday, the Supreme Court said the courts can intervene if there is a failure to apply the terms of the settlement agreement.

Implications for other cases

J.W.’s lawyer, Martin Kramer, said the decision will have implications for the outstanding claims of others denied compensation because they couldn’t prove motivation in cases of sexual abuse.

But while Kramer says he knows of other cases where the sexual motivation required was cited by adjudicators to deny compensation, he’s not sure how many of them remain outstanding.

“By this time, most of the cases in the adjudication process have been decided,” he said.

“There may be nothing that can be done except for cases that are still yet to be decided by adjudicators or have been recently decided by adjudicators.”

Kramer says Friday’s decision means J.W. will now be awarded the compensation originally awarded to him in 2016, plus interest.

However, in looking at the specific facts of J.W.’s case, only five of seven judges agreed that his appeal should succeed and that he should be compensated. Of the five, the judges split along two lines of reasoning.

In writing for three members of the court, Justice Rosalie Abella said while claimants in the assessment process do not have a “broad right” to judicial intervention, “they do have a right to the implementation of the terms of the settlement they bargained for.”

“The courts’ supervisory power must permit intervention when it is necessary to ensure the benefits promised are delivered.”

Ultimately, Kramer said the decision is about more than money for his client.

“Now, finally, after making it all the way to the Supreme Court, he has been vindicated,” he said.

“He was denied compensation for the sexual abuse that he suffered based on plainly wrong interpretations of the Criminal Code and specifically the Criminal Code provisions regarding sexual assault.”

This story originally appeared on CBC

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