Sexual Abuse Claims Blog

Sports and Scouts at Risk of Liability for Sexual Abuse

Fri, 03 Feb 2012 13:15:45 -0400

Vicarious Liability for Sexual Abuse Claims: What does the Future Hold for Sports Organizations, Scouts and Not-For-Profit Organizations?

Recently CBC’s Fifth Estate aired a report exposing Boy Scouts Canada’s system for recording the names of pedophiles within the organization, euphemistically referred to as the “ineligible volunteer list”.

Graham James recently pleaded guilty to repeated sexual assaults on former NHL star Theo Fleury and another unidentified junior hockey player.

Will this media attention result in litigation similar to that experienced by the Catholic Church? If so, what’s the basis for potential liability?

The Beginning

Vicarious liability for sexual abuse really started with the Supreme Court of Canada decisions in Bazley v. Curry 4 and Jacobi v. Griffiths.

The Court confirmed the traditional Salmond test for vicarious liability which holds an employer liable for the actions of an employee where the abusive acts were authorized by the employer or may be considered “modes” of acts authorized by the employer.

Where it is difficult to apply the Salmond test, the court endorsed a new enterprise liability test. In short, vicarious liability exists when there is a significant connection between the creation or enhancement of risk by the employer and the harm that flows from the risk.

These decsions were hailed as groundbreaking or criticised as dangerous, (depending mostly on whether counsel represented abuse survivors or institutions who employed accused abusers).

Employers Offered Relief

The Supreme Court of Canada denied vicarious liability for sexual abuse in three decisions from British Columbia, KLB v. British Columbia ; MB v. British Columbia and EDG v. Hammer .

In KLB and MB vicarious liability was denied for sexual abuse by foster parents. The court stated the close relationship between creation of risk and harms from wrongful acts normally wouldn’t exist in cases involving independent contractors.

In EDG a school janitor sexually abused a student for several years starting when she was in grade 3. Binnie J. stated opportunity without authority will “seldom” be sufficient to establish vicarious liability.

The trilogy decisions appeared to significantly limit the circumstances where victims of childhood abuse could receive compensation.

Focus on Psychological Intimacy

Doe v. Bennett was decided shortly after the trilogy. The Supreme Court confirmed vicarious liability of the Diocese of Saint George’s Newfoundland and Labrador for sexual abuse by Father Kevin Bennett stating:

First, the bishop provided Bennett with the opportunity to abuse his power. Second, Bennett’s wrongful acts were strongly related to the psychological intimacy inherent in his role as priest. Third, the bishop conferred an enormous degree of power on Bennett relative to his victims.

McLachlin, C. J. concluded that:

The enterprise substantially enhanced the risk which led to the wrongs the plaintiff – respondents suffered. It provided Bennett with great power in relation to vulnerable victims and with the opportunity to abuse that power.

Liability of Religious Organizations (Mostly) Clear

Bennett has, for the most part, established religious organizations are vicariously liable for acts of sexual abuse by religious employees. For example in Doe v. Fifield vicarious liability was imposed for sexual abuse committed by a volunteer minister with the Salvation Army. Dunn J. placed weight on the psychological intimacy the Salvation Army encouraged it’s ministers to develop with their congregations.

An exception is Wilson v. United Church of Canada . The court refused to impose vicarious liability for sexual abuse by a volunteer lay minister. The court held there was insufficient evidence of “job created intimacy” to establish vicarious liability.

Independence, Discretion and Intimacy

In BMG v. Nova Scotia the province was vicariously liable for sexual assaults by a probation officer. Our Court of Appeal stated:

In short, the province’s probation service gave Lalo independence and discretion in carrying out his duties and these enabled Lalo to assault BMG repeatedly.

The Court turned to one of the key elements in Bennett, finding Lalo’s assaults:

…were strongly related to the psychological intimacy inherent in his role as a probation officer and that this psychological intimacy encourages victim’s submission to abuse and increases the opportunity for abuse.

Liability of Sports Organizations and Scouts Canada

So when will vicarious liability be imposed and when will it be denied?

Where courts have imposed vicarious liability, they have focused on the power and authority given the abuser by the institution. Independence and discretion has been critical. Vulnerability of the victim is a given. Finally, physical or psychological intimacy has been important.

Where vicarious liability has been denied, courts have held the abusers employment was not connected to the risk or that the abusers actions were not connected to the employer’s enterprise.

Sports and Scouts

Where does this leave amateur sports, the Boy Scouts and other non-profit organizations?

It goes without saying that young children are vulnerable to psychological manipulation and intimidation. But one might argue a child athlete’s vulnerability increases as he or she advances to the higher levels of amateur sports and gets closer to the “holy grail” of a professional sports career (or university scholarships).

In his autobiography “Playing with Fire” Theo Fleury says:

The most influential adult in my life at the time was telling me that what I thought was wrong was right. I no longer had faith in myself of my own judgment.

Given the highly competitive nature of amateur sports today there is little doubt coaches ( who potentially control a child athlete’s future) wield tremendous influence, power and authority. I would suggest amateur sports organizations are at significant risk of being held vicariously liable in future sexual abuse litigation.

The scouting movement (like the Catholic Church) has a strict hierarchical structure. Scouts belong to small groups called dens or patrols. The small groups are combined into larger groups called packs or troops under an adult volunteer known as the scout master. Scout Masters have a great deal of independence in how they run their troops.

Those seeking to impose liability on the Boy Scouts would be wise to investigate the independence granted to the scout leader, the authority the leader exercised over the troop and the degree to of physical or psychological intimacy between the scout leader and the victim.

The Future

What does the future hold? As always these cases will depend on their own facts. Claimants’ counsel will focus on vulnerability and psychological intimacy while defence counsel will argue lack of connection between the risk and the enterprise.

A shorter version of this article originally appeared in the February 3, 21012 edition of Lawyers Weekly Magazine.

Crazy Decision of the Month: Greece Defines Pedophilia as a Disability

Wed, 18 Jan 2012 10:32:59 -0400

In what has to be one of the most stunning examples in history of government incompetence, the Greek government has decided to expand a list of categories that entitles persons with disability to receive financial support.

I can hear you say..."But wait John, isn't helping persons with disabilities a good thing?"

Yes it is. Extending aid to persons with legitimate disabilities is not the problem. That's something any forward thinking person can agree with, right?

Molest a Child Get Paid By the Government

What is ludicrous, indeed even offensive to persons with real disabilities, is that Greece has decided to define pedophilia as a disability. The decision means sexual deviants who molest children will be entitled to receive financial assistance from the government! Pedophiles will be entitled to receive “disability” pay up to 35% of their “pre-disability” income.

Incomprehensible

Greece’s national confederation of disabled people referred to the decision as “incomprehensible” and warned adding pedophiles (as well as exhibitionists and kleptomaniacs) to the list of people entitled to financial assistance means that there will be fewer financial resources available for persons who are truly disabled and in need.

I rarely post on matters outside of North America. But this decision is just so completely and mind-bogglingly wrong that I felt I had to comment. No wonder Greece is in the economic situation it is in.

What are your thoughts? Let me know in the comments.

Court to Rule on Reliability of Repressed Memory in Abuse Case

Mon, 16 Jan 2012 16:15:33 -0400

Sexual abuse victims often struggle for years with memories of the traumatic abuse they suffered as children. In some cases, the experiences are so traumatic that they block out (or repress) the memories.

This week the Minnesota Supreme Court is hearing a motion to determine the validity of repressed memory in sexual abuse cases.

Courts will not allow expert evidence unless the party seeking to submit the evidence can establish that the evidence is reliable.

In Canada, the Supreme Court of Canada in R v. Mohan decided the test to be applied when considering expert evidence. Mohan sets out four specific criteria for the admissibility of expert evidence. They are:

1.Relevance;
2.Necessity in assisting the trier of fact;
3.Absence of any exclusionary rules; and
4.A properly qualified expert.

The Supreme Court recently weighed in on this issue again in R. v. Trochym where the majority of the Supreme Court Justices reiterated that reliablity is an essential component when determining the admissibility of expert evidence.

Is Repressed Memory Reliable?

Determining the accuracy of a plaintiff’s memory in cases of childhood sexual abuse is critical to the success of a plaintiff’s claim.

When considering evidence relating to repressed memory syndrome the court needs to understand how human beings store memories.

Experts agree that there are three components to our memory:

1.Sensory memory;
2.Short term memory; and
3.Long term memory.

The scientific literature generally agrees that although our ability to store and retrieve memories is usually accurate, memories naturally tend to fade over time.

Factors Resulting in Better Memory

Psychologists have found that there are five factors that tend to result in clearer or better memory retrieval over time:

1.Recency;

2.Meaningful memories (you are more likely to remember the details of your marriage twenty years ago than what you had for breakfast a week ago);

3.Emotional events are more likely to be remember than neutral events. (So you are more likely to remember the drive to work where someone almost crashed into your car than the hundreds of other routine commutes you made every other day of the year);

4.Paying attention. Obviously if someone is focused on paying attention to events around them they are more likely to remember the act than if they are not paying attention; and

5.Reviewed after the event. If you are in a car accident and write down what happened or give a statement to the police or an insurance adjuster you are more likely to remember the event because you have reviewed or repeated the event over again in your mind.

Dates are Difficult

Experts have found that specific dates are very difficult to remember unless they can be tied to a specific event or milestone. In other words, you are more likely to remember an event that happened in the past because you remember that it happened after your birthday party than you are to remember an event that happened on a random uneventful day.

Does Trauma Effect Memory?

Sexual abuse lawyers, and experts who treat survivors of childhood abuse, have to consider what effect trauma has on memory. The weight of scientific evidence appears to indicate that the content of traumatic memories are usually accurate and can be retained over very long periods of time.

Traumatic memories appear to be different than ordinary memories. They tend to be very vivid despite the passage of time and often are re-experienced as flashbacks (one of the symptoms of post traumatic stress disorder).

One of the most common differences between traumatic memories and ordinary memories is that gaps in recall or fragmented memories are very common. Memories tend to be disjointed or lack detail.

Fragments?

Psychologists believe in situations of extreme emotion, a victim’s attention may be narrowed, causing fragmentation of their memories.

Victims may dissociate during and after traumatic events.

Finally, victims may repress the memories all together. Psychologists believe that repression of traumatic memories may be a means of coping. The fact that child abuse often takes place secretly means that the events are not likely to be reviewed at a later date (one of the factors which helps increase recall).

What about False Memories?

Defendants in sexual abuse cases often claim the victim is experiencing false memories. See for example:

Priest Sex Abuser Appeals Conviction: Denies Existence of Repressed Memory

Repressed Memory of Sexual Abuse a Creation of the Media?

Can False Memories be Created?

It does appear that false memories can be implanted. The ability to create and implant false memories tends to depend on the importance of the event and the likelihood or plausibility of the memory.

Experts agree that false memories are more likely if the suggested event is believable, plausible or has some basis in reality.

For example, I normally stop at a local drive through for a coffee on my way to work in the morning. Experts suggest that it would be possible to implant a false memory that in addition to my coffee I bought a donut on my way to work. On the other hand, it would be unlikely that I would go to the drive through and buy a watermelon.

Experts have determined false memories for positive events (like a birthday party) and neutral events (wearing a blue baseball cap) are more likely to be produced than false memories for negative events (like sexual abuse).

Amnesia

Can you forget traumatic events?

It is well documented that traumatic events can be forgotten. Studies of war veterans has determined that combat trauma can result in amnesia.

There are well documented studies proving amnesia for victims of childhood physical abuse, rape victims, car accident victims and survivors of natural disasters.

Childhood Sexual Abuse

Studies of victims of documented childhood sexual abuse have shown that between 20% to 60% of abuse survivors are reported having times in their lives when they had no memory of their childhood abuse.

Studies also appear to confirm that recovered memory is as reliable and accurate as continuous memory in studies that compared abuse that was documented in hospital records.

What does it all mean?

Victims of childhood sexual abuse can have periods where the abuse is forgotten and then remembered at a later date.

Traumatic memories may be fragmented or disjointed but generally tend to be accurate.

False memories can be implanted but it is unusual and very unlikely if a memory is of an improbable or unusual event.

Finally, memories can be recovered and corroborated by objective third party evidence.

Former Bishop Lahey to be Sentenced on child porn charges today

Wed, 04 Jan 2012 10:58:23 -0400

Raymond Lahey, the former Bishop of Antigonish, will hear today how much time he is to serve for his admitted possession of child pornography.

In May last year Lahey surprised the court by pleading guilty and asking to go to jail pending his sentencing hearing.

I speculated at the time that Lahey's guilty plea was less a sign of contrition and more likely a legal tactic to gain advantage during his sentencing. Courts in Canada have typically granted a two for one credit for time served while awaiting sentencing. Last year Canada changed the law forbidding the 2 for 1 sentencing credit. But Lahey's lawyer successfully argued that because Lahey was charged in 2009 and the sentencing rules were not changed until 2010, he should still be entitled to the 2 for 1 credit.

So the eight months he has served so far will translate into sixteen (16) months in the eyes of the court.

Lahey's lawyer has asked for a one year sentence, the minimum that the court can impose under federal sentencing rules. The Crown has asked for a sentence of 18 to 22 months.

So there's a good chance that Lahey will be walking out of court a free man after his sentencing hearing this morning.

Update

The judge has sentenced Lahey to 15 months in jail and two years probation. So with the 2 for 1 credit for time served, Lahey will be released today!

What do you think? Has justice been served? Is the sentence appropriate?

Are Sexual Abuse Injuries Indivisible Invisible, or Both? - Estable v. New

Mon, 21 Nov 2011 17:13:28 -0400

Invisible Injuries

One of the greatest challenges in representing survivors of childhood abuse is the fact that, for the most part, the injuries are invisible. That is to say, they are primarily psychological. You cannot point to an x-ray, CT scan or MRI to show the nature and extent of a psychological injury. So in that sense, sexual abuse claims cause "invisible" injuries.

Sad Life Defence

Frequently survivors of childhood sexual abuse will have experienced other traumatic events (either before or after the abuse that is the subject of litigation). In these circumstances defendants usually argue that the pre or post traumatic incidents are the true cause of the plaintiff’s injuries. Therefore because the plaintiff has lead such a sad life, his or her compensation should be reduced (or eliminated) because the plaintiff’s harms and losses were actually due either in whole or in part to other sad and traumatic events.

Indivisible Injuries

My colleague Erik Magraken summarized a recent decision of the BC Supreme Court Estable v New, that deals with how to determine appropriate compensation when injuries are "indivisible".

Although the case Erik references is a motor vehicle claim the legal principles involved in calculating losses are the same as those that apply in sexual abuse cases.

Madam Justice Gropper explains that divisible injuries are those which can be clearly determined and separated. For example, injuries to different parts of the body which were not caused by the defendant’s actions.

In sexual abuse compensation claims where the injuries are almost entirely psychological it is rarely the case that one can clearly establish cause and effect between traumatic events that predate and postdate the abusive acts.

As Justice Gropper explains:

Indivisible injuries are those that cannot be separated, such as aggravation or exacerbation of an earlier injury, and injury to the same area of the body, or global symptoms that are impossible to separate… If the injuries are indivisible, the Court must apply the “but for” test in respect of the defendant’s act. Even though there may be several tortious or non-tortious causes of injury, so long as the defendant’s act is a cause, the defendant is fully liable for that damage.

What Does it Mean?

The decision clearly shows that defendants who spend a great deal of time in pursuing the “sad life” defence are, from a damages calculations standpoint, wasting their time.

However, I think it is unlikely defence counsel will stop pursuing these types of defences if only because they “muddy the water” and make cases more confusing and complex.

Human nature being what it is when something is confusing or complex we tend to revert to the status quo. Which, in the case of a sexual abuse survivors, means not awarding fair and adequate compensation.

Did Penn State Steal the Catholic Church’s Playbook?

Tue, 15 Nov 2011 10:11:26 -0400

Football fans and Penn State alumni around the world have been shocked by the criminal charges against Jerry Sandusky a former defensive coach for Penn State’s perennial powerhouse football team.

Just Horsing Around?

The criminal charges allege that Sandusky sexually abused eight young boys that he met through a charity that he founded, The Second Mile. Sandusky has denied all the charges, admitting only that he only "horsed around" in the shower with one of the boys that is the subject of some of the criminal charges.

Superiors Failed to Report

It is troubling that Penn State athletic director Tim Curley and Penn State Vice President Gary Schultz have been charged with perjury and failure to report sexual abuse to authorities.

Particularly disgusting are the allegations that Second Mile "pimped out" young boys to wealthy Penn Sate donors.

The turmoil has claimed the job of legendary football coach Joe Paterno.

Keeping in mind that at the moment the criminal charges are accusations only and no one has been convicted, the charges raise interesting civil-legal issues.

The charges against Curley and Schultz allege that they were aware of allegations that Sandusky was sexually abusing children on Penn State property but failed to report the disturbing allegations to campus or state police or to state child protection officials.

It appears that the Penn State employees have borrowed the playbook from the Catholic Church. Media reports from around the world have uncovered repeated incidents where officials within the Catholic Church have ignored or covered up allegations of sexual abuse against Catholic priests. See for example: The Catholic Church and Sexual Abuse

Legal Issues

The Penn State allegations raise some interesting legal issues. In cases around North America the Catholic Church has been found liable for sexual abuse by catholic priests. Churches around North America have been ordered to pay compensation to priest sexual abuse victims.

The question this brings to mind is whether Sandusky’s sexual abuse victims (if the allegations are proven to be true) could file civil suits for compensation against Penn State.

Vicarious Liability for Sexual Abuse

In Canada employers were traditionally responsible for acts of employees committed in the course of their employment. For many years criminal acts (including sexual abuse) were considered by the courts to be outside the scope of an employee’s duties. Therefore, employers were rarely found to be vicariously liable for sexual abuse committed by employees.

This changed in 1999 when the Supreme Court rendered its landmark decisions in Bazley v. Curry and Jacobi v. Griffiths.

In those decisions the Supreme Court of Canada set out the criteria for when an employer can be held vicariously liable for sexual abuse committed by an employee.

The Supreme Court said that consideration must be given to:

(1) Policy reasons to determine if vicarious liability should or should not apply; and

(2) Whether the wrongful act is sufficiently related to the employment to justify imposing vicarious liability.

The court went on to explain that vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of risk and the wrong that flows from the risk. It is not enough that the wrongful act or abuse took place on company property.

Vicarious liability was extended to the Catholic Church by the Supreme Court of Canada in a case known as Doe v. Bennett in 2003.

The Supreme Court of Canada said:

The relationship between the bishop and the priest in the Diocese is not only spiritual but temporal. First, the Bishop provided Bennett with the opportunity to abuse his power.

Second, Bennett’s wrongful acts were strongly related to the psychological intimacy inherent in his role as priest.

Third, the Bishop conferred an enormous degree of power on Bennett relative to his victims.

Should Penn State be held Responsible like the Catholic Church?

Sandusky's alleged child abuse was perpetrated through a charity he founded. His "charity" work were not part of his job duties at Penn State.

Although some of the abuse allegedly occurred on the university property, the SCC's reasoning in Bazley would suggest that isn't sufficient to create liability.

On the other hand, Sandusky's standing in the community and as hea of his charity were due to his reputatiion as one of Penn States coaches.

If it turns out to be true that Penn State was benefiting financially from acts of child abuse, then I think the legal responsibility becomes clearer.

Given the reasoning in the Supreme Court of Canada’s decision in Doe v. Bennett I think a strong argument could be made that if the abuse happened in Canada, Penn State could be held vicariously liable for Sandusky's (alleged) actions.

More Information

Duty to Report Child Abuse in Canada

Children and Family Services Act (Nova Scotia)

What do you think?

In Remembrance

Fri, 11 Nov 2011 00:39:46 -0400

Is Archbishop Penney Guilty of Perjury?

Wed, 09 Nov 2011 11:55:26 -0400

Former Saint John's Archbishop Alphonse Penney was aware of sexual abuse allegations against former Roman Catholic Priest James Hickey as early as 1980. This according to evidence filed by the diocese’s insurers who are seeking to deny responsibility for paying civil suits filed against the diocese by Hickey’s sexual abuse victims.

Testified Under Oath

In 1992 Archbishop Penney testified during the Winter Commission investigation that he was not aware of any abuse allegations against Hickey until 1986.

But according to affidavit evidence filed by Guardian Insurance, Penney was advised about Hickey's sexual misconduct by a Catholic seminarian, Randy Joseph Barnes.

If the insurance company’s allegations are proven correct (at this point they are only allegations) then it would appear that Bishop Penney committed perjury when he testified during the Winter Commission Inquiry.

Will Police Investigate Possible Charges Against Penney?

If so, we hope police in Newfoundland and Labrador will take appropriate steps to investigate and, if appropriate, lay criminal charges against Penney.

Hold Those Resposible to Account

The only way to stop the rampant sexual abuse within the Catholic Church is to hold those responsible for allowing the abuse to continue to account.

Recently criminal charges were laid against Bishop Finn of Kansas city in the United States. The charges allege Bishop Finn was aware of allegations of sexual abuse by priests within his diocese and failed to report them to the authorities as required by law.

Law Requires Reporting of Abuse

Every province in Canada has legislation that requires persons in authority (including Bishops) to report suspected cases of child sexual abuse to the appropriate authorities.

However, I am not aware of any cases in Canada where a Bishop (or for that matter any religious authority) has been charged for failing to report allegations of child sexual abuse. This despite the fact that there have been dozens of priests across Canada accused or convicted of childhood sexual abuse.

Perhaps the police need to be urged to be more aggressive in their investigation of potential failures to meet the statutory obligations.

What do you think? Please let me know in the comments

Boy Scouts Canada Kept Secret List of Abusers: Players are different but the script is the same.

Mon, 07 Nov 2011 11:26:42 -0400

Boy Scouts Canada kept a secret list of scout leaders and volunteers who had been convicted of, or accused of sexual abuse according to an investigative report by CBC’s Fifth Estate.

Secret List of Abusers

According to media reports the Boy Scouts of America have long maintained a list of scout leaders and volunteers who had been accused of inappropriate sexual behavior with children.

The investigation in Canada indicates that Boy Scouts Canada maintain a similar list.

The spokesperson for Boy Scouts Canada claims Scouts Canada has never maintained a list of scout leaders and volunteers who have been accused of abuse.

Safety Requires a List

It is not surprising to me that an institution like the Boy Scouts, where volunteers are in a position of authority over young vulnerable children, would maintain a list of volunteers who had been found to have acted inappropriately.

In fact, I think it would be prudent for any organization involved with children to maintain such a list. I would go so far as to say that it would be negligent for Scouts Canada not to maintain this kind of a list. What raises concerns is the fact that these lists (if they exist at all) were secret.

Secrecy Protects the Abusers

Child abuse is a crime of secrecy. Pedophiles use their influence and authority to prey upon vulnerable children. They threaten, intimidate or cajole their victims into maintaining their silence which enables pedophiles to continue their predations.

Reporting Abuse is the Law

The fact that children who are being abused may not be in a position to report what is happening to them is what lead the governments of every province to enacted legislation requiring persons in authority to report suspected cases of child abuse.

Unfortunately, there are some institutions that believe that the reputation of the institution is more important than protecting children. Therefore, persons in authority within the institution fail to notify authorities when an adult within their ranks is found to have committed inappropriate acts with children.

Churchs Fail to Report

We have seen this time and time again with religious institutions, particularly the Catholic Church.

The Catholic Church is perhaps unique in that the Code of Canon Law requires the Bishop of each diocese to maintain a “secret archive” of any accusations of inappropriate conduct made against priests. Canon 1719

Litigation against Catholic Churches throughout North America has uncovered many examples of instances where the bishops or officials from the Vatican have sought to interfere the obligation to report to the authorities.

See for example:

The Catholic Church and Sexual Abuse

Different Players - Same Script

Unfortunately, it appears from the Fifth Estate Investigation that the Boy Scouts of America and Boy Scouts Canada felt that it was more important to protect the reputation of the Scout movement than it was to protect the children who were being preyed upon by pedophile scout leaders.

Silence Protects Abusers

Sexual abuse is a crime of secrecy. Pedophiles can only commit their offences when they are protected by the shadows of secrecy. It is only when pedophiles are exposed by the glaring light of public disclosure that they can be held accountable.

That is why I say to abuse survivors" If you have been sexually abused tell someone!"

Be it a family member, a friend, a health professional or a counselor. The best way to get help and to prevent the abuse from happening to others is to disclose what happened.

As a public service we have prepared a directory of professionals who provide counseling services to abuse survivors in the Atlantic Provinces. If you would like to receive a copy of the directory, at no charge, please feel free to contact me through this blog.

Former Catholic Priest Picot Appeals to Supreme Court of Canada

Thu, 03 Nov 2011 14:00:28 -0400

Charles Picot, a former Catholic priest employed by the Diocese of Bathurst in New Brunswick was acquitted of indecent assault against a former altar boy in March 2010. Picot had previously been convicted of other sexual assault charges involving other young boys.

The alleged victim appealed, and in a two to one decision Justice Bell ruled for the New Brunswick Court of Appeal that the trial judge didn’t properly consider all of the evidence. The Court of Appeal ordered a retrial.

It has come to our attention that Picot has now requested leave (permission) to appeal to the Supreme Court of Canada.

In the meantime his alleged victim still waits for justice.

Tribute to Nora Bernard

Thu, 03 Nov 2011 13:52:16 -0400

One of my clients sent me a link to a page with a number of videos from last weeks Truth and Reconcilation Commission hearings in Halifax.

Of particular interest is a video montage titled Nora Bernard - Eastern Thunder.

There was a wonderful event Wednesday evening where Nora was honoured for her work on behalf of Residential School survivors. I was delighted to be invited by Nora's family to say a few words about Nora and her contribution to the National Indian Residential Schools class action.

Please take a look and join me in honouring a wonderful, courageous woman, Nora Bernard.

Does Celibacy Cause Sexual Abuse: Debunking Myths about sexual abuse by Catholic priests

Sat, 08 Oct 2011 19:41:07 -0400

Myths About Priest Pedophilia

A reader sent me a link to an article published by the Catholic Education Resource Center titled 10 Myths about Priestly Pedophilia. The article purports to correct some of the "myths" about Catholic priest sexual abuse.

Admittedly the article is rather dated. But some of the arguments it makes to defend the Catholic Church are still being made today. So I thought some of the wildly inaccurate claims in the article were worth addressing, and correcting.

Continue reading Myths and Facts about the Catholic Sexual Abuse Crisis

McKiggan nominated for journalism award

Thu, 06 Oct 2011 13:15:06 -0400

I am honoured (and surprised) to say that I have been nominated by Beyond Borders for their 2011 award for exemplary journalism covering issues related to the sexual exploitation of children.

Beyond Borders ECPAT Canada is a national non-profit organization that advances the
rights of children to be free from sexual exploitation.

I have been nominated in the print category for my article that was published in The Lawyers Weekly:
The Catholic Church and Sexual Abuse : Is the Church’s response real action or window dressing?

The 9th annual Beyond Borders Media Awards takes place on Monday, November 21 in Winnipeg, Manitoba.

I have to say it is a tremendous honour to be nominated

PRINT CATEGORY (ENGLISH)

1. Bob Weber, The Canadian Press, Women link up on the web to bring convicted pedophile priest back to Canada

2. Daphne Bramham, The Vancouver Sun, Evidence rules leave disabled Canadian girls open to sex abuse

3. Daphne Bramham, The Vancouver Sun, Polygamy in Canada: The ongoing saga

4. Meagan Robertson, The Chief, Raising awareness about sexual exploitation

5. Mike Howell, Vancouver Courier, Predator bait

6. Alison Langley, Niagara Falls Review, The fight against human trafficking

7. John McKiggan, The Lawyers Weekly, The Catholic Church and Sexual Abuse : Is the Church’s response real action or window dressing?

ELECTRONIC CATEGORY (ENGLISH)

1. & 2. Helen Slinger, Bountiful Films for CBC Passionate Eye & Vancouver International Film
Festival, When the Devil Knocks, (#1- 44 minute version, #2 - 90 minute version)

3. Joan Weeks, CBC Maritime Magazine, Fenwick MacIntosh: Pursuing a pedophile

4. Linden MacIntyre & Neil Docherty, CBC News – The Fifth Estate, Betrayal

5. Alan Mendelsohn, Cogent Benger for Vision TV (Zoomer Media), Sex Scandals & Religion: The wall of silence

PRINT CATEGORY (FRENCH)

1. Kathleen Frenette, Journal de Québec, series, Des collections presque sans fin, Magasiner sa victime sur le net , Des signes révélateurs, Patients et sournois, Un jeu habilement monté

2. Hugo Meunier, La Presse, series, Tourisme sexuel en République Dominicaine, Le Bordel
caché des Québécois

ELECTRONIC CATEGORY (FRENCH)

1. Carl Thériault, Télé-Québec, Une Pilule, Une Petite Granule, Agressions sexuelles: les garçons aussi

2. Normand Grondin, Radio–Canada, Enquête, Silence religieux

3. Raymonde Provencher, ONF & Télé-Québec, Grace, Milly, Lucy… des fillettes soldates

4.Emmanuelle Latraverse, Radio-Canada, Téléjournal, Enfants esclaves

5. Mario Proulx et Eugénie Francoeur, Radio-Canada Première Chaîne, Une enfance pour la vie

6. Lisette Marcotte et Maryse Chartrand, Canal Vie, De l’ombre à la lumière, Tout se joue après 6 ans

STUDENT CATEGORY

1. Lisa Mayor, Lakehead University, Polygamous Leaders Welcome RCMP Probe

2. Anton Mwewa, Niagara College Canada, Letting go of the past: Sexual abuse survivor finds
strength to cut ties, and love again

Disclosure of Names of Pedophile Priests – A Good First Step

Wed, 31 Aug 2011 14:38:19 -0400

The Archdiocese of Boston recently decided to post the names of 159 priests who have been accused of sexual abuse. The Archdiocese also noted they have received allegations against 91 other priests. However, the names of the priests involved have not been made public. There is no indication if this is because the allegations have not been validated by the Church.

Change in Policy

The disclosure represents a rather radical shift in the traditional approach taken by the Catholic Church towards allegations of sexual abuse.

In the past, when a Diocese has validated claims of sexual abuse and compensated victims the church has often insisted on confidentiality or non-disclosure clauses as a condition of settlement.

Cardinal Sean O’Malley says the new approach is an attempt to help the church reach out to victims of abuse and their families. In a letter accompanying the announcement O’Malley stated:

“It is my deepest hope and prayer is that the efforts I am announcing today will provide some additional comfort and healing for those who have suffered from sexual abuse by clergy and will continue to strengthen our efforts to protect God’s children…”

What Will Canadian Bishops Do?

The disclosure is a good first step to ensuring transparency over the issue of childhood abuse by priests. I support the initiative and would call on the Canadian Conference of Catholic Bishops to instruct Diocese in Canada to adopt similar policies in Diocese's across Canada.

What Do You Think?

Should the names of priests accused of sexual abuse be made public? What if there is no criminal conviction but the claim has been validated by the Church? What if the priest is dead?

Let me know what you think.

Date Set for Albert LeBlanc Sex Abuse Trial

Tue, 30 Aug 2011 11:50:57 -0400

Former Yarmouth priest Albert LeBlanc is facing 50 criminal sexual abuse charges involving allegations of indecent assault and gross indecency.

LeBlanc was scheduled to appear in court yesterday to schedule a date for his trial. LeBlanc did not atend court. Instead Yarmouth criminal defence lawyer Phil Star appeared for LeBlanc to set dates.

The trial has been scheduled to starty May 14, 2012 in provincial court.

The charges span more than 20 years, involving offences that are alleged to have taken place between 1964 and 1985.

Different Employers

Some of the charges relate to the time period that LeBlanc was employed as a priest in the Yarmouth Diocese. After he left the priesthood, LeBlanc worked as a caseworker for Family and Children’s Services in Yarmouth, and then started work as a probation officer in 1975.

Potential Civil Liability?

I have posted an article about the legal issues involved in the LeBlanc case on my Atlantic Canada Personal Injury Lawyer blog. Please take a look and let me know what you think.