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Saturday, February
25, 2006
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Allowing the balm of justice to heal the
wounds of abuse
By Vaughn
Marshall
Commentary
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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