SCOC affirms 40-year-old rape case at residential school

Top court refused to accept need for higher burden of proof in civil court

Janice Tibbetts, Canwest News Service

http://www.canada.com/theprovince/news/story.html?id=886f9729-2a26-4ea9-87aa-db85abfcd9b6
Published: Thursday, October 02, 2008

OTTAWA - The Supreme Court of Canada refused Thursday to make it harder for victims of childhood sexual assault to successfully sue their tormenters in a ruling that was a loss for a former Indian residential school supervisor who was found liable for raping a child in his care almost 40 years ago.

The court unanimously overturned a 2007 decision in the British Columbia Court of Appeal that found testimony of adult victims about events that happened long ago requires independent corroboration.

"Such evidence may not be available, especially when the alleged incidents took place decades earlier," Justice Marshall Rothstein wrote in the 7-0 ruling.

The court, in siding with a complainant identified as F.H., put to rest a percolating legal debate about whether the standard of proving liability in civil cases involving serious wrongdoing should be as high or even higher than it is for proving criminal guilt. The ruling reinforces the existing standard for being found liable in a civil suit - a judge must come to the conclusion that the wrongdoing probably happened.

"I think it is time to say, once and for all in Canada, that there is only one civil standard of proof . . . and that is proof on a balance of probabilities," wrote Rothstein.

In a criminal case, where there is a presumption of innocence and the freedom of the accused is at stake, the Crown must prove guilt beyond a reasonable doubt. However, even criminal cases do not require corroboration of sexual assault, noted Rothstein.

The complainant, F.H., was a student from 1966 to '74 at the Sechelt Indian Residential School, run by the Oblates of Mary Immaculate and funded by the federal government.

Ian Hugh McDougall was a supervisor at the school and F.H. said at his 13-day trial that he was repeatedly sexually assaulted in the supervisors' washroom when he was about 10 years old.

The Supreme Court decision restores the trial judge's finding that F.H. had been raped by McDougall four times during the 1968-69 school year.

"In serious cases such as this one, where there is little other evidence than that of the plaintiff and the defendant, and the alleged events took place long ago, the judge is required to make a decision, even though this may be difficult," said the decision.

"Assessing credibility is in the bailiwick of the trial judge for which he or she must be accorded a heightened degree of deference."

F.H's lawyer, Allan Donovan, said the ruling means the two sides can negotiate compensation, now that McDougall has been found liable.

The decision, he said, also clears up widespread confusion on whether judges in civil suits, particularly those involving serious allegations ranging from fraud to sexual assault, should follow a higher standard of proof. "This is going to be helpful across the board," said Donovan, predicting the decision could have a greater impact on sexual assault complainants who did not attend residential schools.

Many residential school victims are involved in an out-of-court resolution process with the federal government that precludes filing lawsuits.

© Canwest News Service 2008