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Justice elusive for survivors of institutional abuse in Canada

JAMES MCCARTEN
Canadian Press
April 15, 2003

TORONTO (CP) - Survivors of institutional abuse in Canada have for years been thwarted in the quest for true justice by a legal system plagued with prejudice and inexperience, experts say. The civil and criminal justice systems in Canada are learning at glacial speed how to fairly treat cases of systemic sexual and physical abuse, said Loretta Merritt, a lawyer and specialist in institutional abuse cases. "The law is inherently
backward-looking, because it's based on the common law system of precedents - you look at old cases to determine what you should do in the present case," Merritt said. "It evolves very, very slowly." Merritt represents dozens of men who allege being beaten, brutalized and sexually abused during their time at government-run training schools in Ontario between the early 1960s and early 1980s. More than 30 have already filed lawsuits against the Ontario government, with several more in the process of preparing their cases, Merritt said. The allegations are also the subject of a lengthy provincial police probe; more than 3,000 former training school residents across Canada have been interviewed to date.

But regardless of whether charges are laid - and even that's far from certain at this point, investigators warn - victims are likely to be less than satisfied with the results of their pursuit of justice. In Quebec, victims and their advocates have been struggling for more than a decade to win justice for the Duplessis orphans - poor or illegitimate children who were abused in the 1940s and 1950s after being declared mentally disabled by the province and placed in church-run institutions. "In the justice system, there was no awareness of this, no experience, no precedents," said Yves Manseau, co-ordinator of the victims' rights group Mouvement Action
Justice. "It was like a wasteland."

Courts in Canada are also struggling with the issue of causation: accurately determining to what extent historical sex abuse affected the life of a victim, said Merritt - especially, as is the case with training school victims, if they were having a hard time before they arrived. As a result, it's next to impossible to determine what constitutes a fair settlement, she added. "You can't say they had perfect lives and that every problem they've had since training school is attributable solely to training school."

Merritt and others who specialize in institutional abuse are awaiting a ruling from the Supreme Court of Canada that they hope will clarify the causation issue and clear the way for fairer settlements. Prior to 1990,
when the true extent of the systemic sex abuse that went on at institutions across Canada was just becoming known, settlements were often a pittance: anywhere from $500 to $2,000.

Today, damages for pain and suffering are capped in Canada, Merritt said: the most anyone who suffers the worst kind of "catastrophic injury" can get is $292,000. "Sex assaults rarely reach that cap," she said. "They get to $200,000, maybe." The courts also struggle to deal fairly with criminal charges that are based on allegations from victims who end up as career criminals, drug addicts or both - people whose credibility on the witness stand is easy to destroy. Often, it turns into a cruel Catch-22: the abuse itself leads to a life of crime or a drug or alcohol problem, the very things that end up hurting a victim's chances of being believed in court.

"If you take the typical test for establishing a witness's credibility, and apply it to an abuse survivor, it doesn't work," Merritt said. "Take the traditional legal principles and tests and apply them to sexual abuse cases, and they don't result in fair and just results."

Manseau tells a similar story of victims, many of whom come from society's lowest strata, complaining of being mistreated by both police investigators and prosecutors alike. "The way they've been treated by the police and the Crown attorneys is really terrible," he said. "You see a lot of comments - and I still see it - that the victims were all uneducated persons, they had some personal problems, some were almost illiterate - you could see a lot of prejudice against the victims."

Dwight Wadel, 63, who worked as a housemaster at White Oaks Village, a training school for boys aged eight to 12 near Hagersville, Ont., in the 1960s and 1970s, was acquitted in August 2001 on 15 sex-related charges. In his 194-page ruling, Justice Walter Stayshyn said he simply couldn't accept the stories of abuse told by five former White Oaks residents who testified as Crown witnesses.

One of them had a criminal record with more than 200 different convictions; another was serving a life sentence for two murders. "Has such an unsavoury witness or witnesses invented or stretched their evidence for personal gain, or are they motivated by more ethical persuasions?" Stayshyn wrote. "I am not satisfied to the degree necessary that I can accept the evidence of the complainants."

One of those complainants, Paul Waltenberry, had difficulty getting his own family to believe his tales of abuse. In a recent interview, Waltenberry's mother, Sandra, said her son was 11 or 12 and a chronic troublemaker when he was shipped off to White Oaks in the late 1960s. Shortly thereafter, she said, he began to complain that he'd been sexually abused - an allegation she admitted she had a hard time believing. "Do you want me to be honest with you? No," she said when asked whether she believed her own son. Then: "Of course, he could be telling the truth ... I don't know."

Canada's justice system needs to figure out how to deal with cases of institutional abuse, because they're not going to go away, Merritt warned. "We're still in the infancy of these cases coming out in large numbers."