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Court rules churches still liable for abuse.

The Supreme Court of Canada has ruled that churches are liable for abuse suffered by Indian children in a now-defunct residential school system, but that liability should be shared with the federal government.

In a ruling released Oct. 21, the high court restored an earlier British Columbia Supreme Court ruling that said the federal government should bear 75 per cent of the cost of any judgments awarded to plaintiffs who attended the schools and the churches should pay 25 per cent. The government operated the system and the Roman Catholic, Presbyterian, Anglican and United churches administered various schools.

The Supreme Court decision overturned a British Columbia Court of Appeal judgment that in December, 2003 applied a doctrine of "charitable immunity" to exempt churches from any liability. The case was based on a lawsuit brought against the federal government and the United Church of Canada by seven former students of the Port Albemi Indian Residential School on Vancouver Island. It is known as the Blackwater case.

The unanimous Supreme Court judgment said that "the church exerted sufficient control over the operations at the residential school that gave rise to the wrong to be found vicariously liable with Canada." Plaintiffs said they had been sexually and physically abused by a dormitory supervisor, Arthur Henry Plint, who worked at the school for 20 years until 1968. In 1995, Mr. Plint was sentenced to 11 years in prison for indecent assault.

"The trial judge's factual findings clearly support a conclusion that the church was one of (Plint's) employers in every sense of the word. None of the considerations relied on by the Court of Appeal--Canada's degree of control over the residential school, the church's specific mandate of promoting Christian education and the difficulty of holding two defendants vicariously liable for the same wrong--negate the imposition of vicarious liability on the church. Similarly, the Court of Appeal erred in exempting the church from liability on the ground of charitable immunity," the judgment read.

Anglican Church of Canada officials consulted with their legal counsel after the judgment, said Ellie Johnson, acting general secretary. Under an agreement with the federal government reached in 2002, the Anglican church pays 30 per cent of any damage judgment and the federal government, 70 per cent. The 75/25 ruling by the Supreme Court may change that, however the church will not currently seek to reopen the agreement, she said. "We are going to sit tight and monitor the situation," she said. The church's legal counsel noted that several things are in flux, including a series of negotiations among plaintiffs' lawyers, former students and the government aimed at compensating all former students.

Under the accord signed in 2003, Anglican liability is capped at $25 million, and the Supreme Court decision does not change that, she noted. "But the money would be spread more widely and potentially not run out quite as fast," she said. "It is also clear from this judgment that the government is primarily responsible but that the churches, too, bear some responsibility. This, for the Anglican church, is not different from what we have already acknowledged," Ms. Johnson added.

Jim Sinclair, general secretary of the United church, said the church is "satisfied with the decision." He noted that it "clarifies the legal situation. It doesn't knock us off the track because our priority remains the interests of the survivors. We have been settling on the basis of 25 per cent (in Port Alberni cases). It is not just a matter of legal accountability; we felt we had a moral and theological obligation."

The United church's liability is not capped and it has paid out about $5-6 million in damages, according to James Scott, responsible for residential schools at the United church office.

The United Church of Canada ran about 13 schools in the 80-school national system and the Anglican church operated about 26.
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Title Annotation:CANADA
Author:De Santis, Solange
Publication:Anglican Journal
Date:Dec 1, 2005
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