Federal court tactics abused the abused

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There are two categories of harm in the federal government's residential school alternative dispute resolution (ADR) process: Category A and Category B.

The first category is for survivors claiming physical abuse with injuries that lasted more than six weeks or that required hospitalization. It also includes sexual abuse.

Category B involves claims for less serious injuries and for wrongful confinement. Category B claims are capped by the government at $1,500 unless there are aggravating factors. In that case the cap is set at $3,500.

Compensation in Category A cases is determined by a points system. An adjudicator can set the point value for sexual abuse at up to 60 points. Physical abuse has a maximum point value of 25 points. Loss of opportunity is rated on a range from zero to 15 points. Aggravating factors can raise the compensation amount by a maximum of 15 per cent. If future care is required to deal with the lasting effects of physical or sexual abuse, the government has limited that amount to $25,000.

The task force that conducted the Assembly of First Nations review of the ADR process concluded that the point system is "problematic." They concluded it treats survivors unequally because award limits are lower in some regions than in others and focuses on the injuries, rather than on the consequences of the injuries.

"The First Nation perspective is largely absent" from all of these processes, their recently released report stated.

A list of common complaints heard from survivors was compiled: "The current model does not address emotional abuse, neglect, forced labor, loss of family life and parental guidance and their consequences. The present measure of compensation does not consider the injuries and consequences associated with racism, forced assimilation, and destruction of culture. The provisions for compensating survivors from abuse by other students are too limited. Survivors, regardless of health or age status, cannot access interim awards. The application form is complicated, confusing, and intimidating.

"The process takes too long. The model does not take into account the healing needs of survivors, their families, and their communities. The model does not take gender differences into account, neither for the gender-specific injuries inflicted nor for the gender-specific consequences of the injuries. The model errs in its evaluation of abuse by referring to the standards of the time it was administered. The model does not address the need for truth sharing, public education, or awareness of the Canadian public about residential schools."

The very first recommendation from the task force panel is that, because school policy "was based on racial identity" that every person who attended a school should be awarded $10,000 plus $3,000 for every year of attendance.

That money would "recognize the duration and accumulation of harms, including the denial of affection, loss of family life and parental guidance, neglect, depersonalization, denial of a proper education, forced labor, inferior nutrition and health care, and growing up in a climate of fear, apprehension, and ascribed inferiority."

The panel also suggested that Canada follow the Irish model and adopt a new definition for abuse of a child.

"The willful, reckless or negligent infliction of physical injury on, or failure to prevent such injury to, the child. The use of the child by a person for sexual arousal or sexual gratification of that person or another person. Failure to care for the child which results in serious impairment of the physical or mental health of the child or serious adverse effects on his or her behavior or welfare. Or any other act or omission towards the child which results in serious impairment of the physical or mental health or development of the child or serious adverse effects on his or her behavior or welfare."

Underscoring how Canada's approach is seen around the world, the repor quotes Tom Boland, deputy minister formerly in charge of the Irish compensation plan for industrial school survivors in Ireland, who stated the Canadian compensation for Indian residential schools was "de minimus and grudgingly given."

The idea that certain forms of abuse are not worthy of compensation because they were the "standards of the day" was attacked with great vigor by the task force.

"To require that physical and emotional punishment be judged by the standards at the time the abuse occurred considers only the perspective of non-Aboriginal people and what they thought was reasonable at the time, incorporating a race bias into the calculation of compensation. The reasoning that supports use of the accepted standard of the time defeats the whole purpose of reconciliation for it could be similarly argued that it was also considered reasonable at the time to assimilate First Nations children by means of residential schools," the report states.

The report notes that non-Native people are being compensated at a higher rate in comparable cases and suggested there is, at the very least, the appearance of racism.

A case was cited where non-Native plaintiffs who were sexually abused by a priest were awarded $400,000, well above the absolute maximum ADR award of $245,000.

One other tactic employed by federal lawyers in court cases brought by Native residential school victims was addressed by the experts.

Called the "crumbling skull doctrine" by legal scholars, Canada argued that the damages of sexual and physical assault should not receive high compensation because the harms would have happened anyway as a result of being in the highly harmful residential school setting.

The experts cited the British Columbia Law Institute's opinion that someone "who takes advantage of a pre-existing condition for his own personal gain should not then be permitted to argue that the existence of this condition relieves him of full responsibility for paying damaes.

The institute further points out that the 'thin skull doctrine' is the more appropriate doctrine, saying not only does the defendant take the victim as he finds him or her, but where the plaintiff's prior condition was already vulnerable, he actually exploits the plaintiff's pre-existing condition of vulnerability," the report states.