Residential school claim adjudicators made mistakes, says judge

For years, J.W., a Manitoba survivor of the residential school system, has fought for compensation for a sexual assault that occurred when he was a young boy. Now a Manitoba judge says his case was repeatedly dismissed due to an incorrect interpretation of what sexual assault is.

Manitoba judge dismisses sexual intent as necessary for residential school abuse claims

A Manitoba judge says residential school survivors do not need to prove there was sexual intent on the part of perpetrators in cases of sexual abuse. (Edmund Metatawabin collection/Algoma University)

For years, J.W., a Manitoba survivor of the residential school system, has fought for compensation for a sexual assault that occurred when he was a young boy.

J.W. said he was assaulted by a nun but because he could not prove she had a sexual intent or motivation, the adjudicator who oversaw his case dismissed it under the Indian Residential Schools Settlement Agreement.

Manitoba Justice James Edmond now says that adjudicator made a mistake, as did the adjudicators who reviewed and re-reviewed the case during J.W.'s Independent Assessment Process.

While all residential school survivors are entitled to the Common Experience Payment, under the Independent Assessment Process, survivors who experienced sexual or serious physical abuse are entitled to thousands of dollars more in compensation.

J.W. said he was waiting in the back of a line to use the shower as a boy when the assault took place. Wearing only aprons, some of the other boys were "horsing around" and touching themselves, said court documents.

A nun called J.W. over and tried to grab his penis through the apron, then "got a better grab" of his genitals, the documents say. J.W. said he got angry and pushed the nun's hand away. She then grabbed his left ear, shook him by the ear and tried to bang his head against a wall.

Until now, adjudicators have dismissed J.W.'s claims because he could not prove the nun had sexual motivation or intent.

Edmond said demanding that of J.W. was unreasonable.

"In my view, the interpretation … adopted by the adjudicator and approved by the review adjudicator and the re-review adjudicator is fundamentally inconsistent … with the criminal law jurisprudence regarding sexual assault," said Edmond.

"When a child's penis is deliberately grabbed by an adult for no recognized clinical or therapeutic purpose, it is hard to imagine why an inquiry into whether the child's sexual integrity was violated depends on whether the claimant can now prove that the adult had a sexual purpose or sexual intent."

J.W.'s lawyer, Martin Kramer, said the judge has effectively given his client a fresh start for seeking compensation for sexual abuse.

While the judge did not say J.W. was automatically entitled to compensation, he has ordered the case be re-adjudicated with the correct interpretation of the rules.

That sexual abuse includes "any touching of a student, including touching with an object, by an adult employee or other adult lawfully on the premises which exceeds recognized parental contact and violates the sexual integrity of the student."

Broader implications of case

Kramer said there is no way he could know exactly how many cases were adjudicated incorrectly but believes there could be dozens of survivors now entitled to another Independent Assessment Process.

While some adjudicators did not require residential school survivors to prove perpetrators were sexually motivated, more than one did, he said.

"In my opinion this case does have implications for a certain number of cases which may have also been wrongly dismissed," Kramer said.

"I don't know how many such cases there are. I am aware of other cases, how many more of such cases is unclear to us and that's really an important question."