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Allowing the balm of justice to heal the wounds of abuse

By Vaughn Marshall

That the RCMP will not be laying criminal charges following its investigation into allegations of abuse at Mt. Herbert orphanage comes as no surprise to civil lawyers who have worked on institutional child abuse cases in Canada. This does not mean child abuse did not occur. Indeed, the RCMP investigation confirmed that acts of physical and sexual abuse took place there.

It is clear from what we know from similar cases and the findings of bodies like the Law Commission of Canada in reports such as Restoring Dignity: Responding to Child Abuse in Canadian Institutions, (March 2000), that it would be a mistake to interpret the RCMP's decision as vindication of Mt. Herbert's treatment of orphans.

The RCMP no doubt agrees with the Law Commission's view that the criminal justice system is not a forum to remedy damage done to victims, who have no say in prosecutorial or investigatory decisions, but is focused on the accused wrongdoer because it is fundamentally designed to ensure a fair criminal trial for the accused, which is particularly difficult when accusations date back 30 to 50 years.

Civil trials focus on victims to redress the damage done to them. These cases often succeed as they are easier to prove in court because the degree of proof in civil trials is weighed on "a balance of probability", which is much lower than the substantial standard required in criminal cases of "proof beyond a reasonable doubt". Moreover, victims get to press their civil cases to completion through their own lawyers.

With greater public discussion in the past 20 years has come greater awareness that systemic child abuse has commonly occurred in residential institutions for as long as they have existed. There is no reason to believe Mt. Herbert was an exception.

Orphans placed in institutions were particularly susceptible to victimization. The commission noted that such children usually came from the most underprivileged and marginalized groups in society. A significant power imbalance existed between the children and those in charge, exacerbated by orphanage staff having the added weight of institutional authority and moral sway of religion behind them. Little independent monitoring occurred inside these institutions and the desire to preserve the good name of the institution sometimes took precedence over a concern for the welfare of children.

The claims of Mt.
Herbert survivors focus mainly on physical abuse and the systemic neglect and abuse common in institutions housing vulnerable children. Mt. Herbert survivors deserve the opportunity to come forward and give testimony in civil court of their abuse and be fully heard. Only then will the balm of justice allow healing to begin.

Vaughn Marshall is a Calgary lawyer with 10 years experience handling institutional child abuse lawsuits cases and is co-counsel for the victims in the Mr. Herbert case.

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