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Canadian church and government found liable

OTTAWA -- When Leroy Barney took the witness stand in British Columbia
Supreme Court in Nanaimo in 1998, he held a single eagle feather in his
tightly clasped hands. With his head hanging low, he slowly and softly
recounted the horrific abuses he suffered at the hands of dormitory
supervisor Arthur Henry Plint.

Taken from his west coast Vancouver Island home in Ucluelet at age 5,
Barney suffered through five years of sexual and physical abuse at the
Alberni Indian Residential School. He told the court about being severely
beaten if he refused Plint's late-night advances and how, after reporting
the abuses to his mother, he was strapped and threatened by both Plint and
Principal John Andrews for "speaking badly about the people taking care of

Today, the 48-year-old former logger still carries the scars from being
whipped across his back, and the deep emotional scars from the trauma.

Now, after seven years, survivors of the school have received finality from
Canada's top court, but they remain dissatisfied.

"The children were cut off from their families and culture and made to
speak English," the Supreme Court judges wrote in their decision. "They
were disciplined by corporal punishment. Some, like the appellant Mr.
Barney, were repeatedly and brutally sexually assaulted."

The AIRS case was the first Indian residential school case to go to trial
in Canada when 29 former students launched a lawsuit against the United
Church of Canada and the Canadian government for their role in the
operation of the institution where many students were physically and
sexually assaulted by people entrusted with their care.

A few years earlier, Barney and more than a dozen other men faced Plint in
a Port Alberni courtroom, where he was charged with 16 counts of indecent
assault of aboriginal boys aged 6 to 13 from 1948 -- '68. Before sentencing
Plint to 11 years in prison, Supreme Court Justice Douglas Hogarth said the
former supervisor was a predator, a "sexual terrorist" allowed to prey on
young people unchecked.

"As far as the victims were concerned, the Indian residential school system
was nothing more than institutionalized pedophilia," said Hogarth.
"Generations of children were wrenched from their families and were brought
up to be ashamed to be Indians," he said.

Opened in 1891, AIRS was located on the Tseshaht Reservation in Port
Alberni, overlooking the Somass River, and was officially closed in 1973.

After three years of hearings, Supreme Court Judge Donald Brenner ruled
that the United Church of Canada and the Canadian government were both
vicariously liable for the abuses suffered by students at AIRS. He gave
damage awards ranging from $10,000 to $125,000. Lawyers for the plaintiffs
sued for damages based on sexual, physical, verbal and psychological
assault, as well as the loss of language, culture, identity and parenting
skills. Only sexual abuse issues were compensated, as other issues were
barred by the statute of limitations, meaning they had failed to come
before the court within a set period of time.

All sides appealed the decision on various grounds, which led to a
provincial Court of Appeals unanimous determination in 2003 that agreed
with Brenner's ruling on damages, but dismissed the UCC's liability because
of its being a "charitable organization."

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On Oct. 21, the Supreme Court of Canada voted unanimously to uphold
Brenner's original decision that the UCC was indeed vicariously liable, and
assign 75 percent of liability to Canada, and the remaining 25 percent to
the church.

"The incontrovertible reality is that the Church played a significant role
in the running of the school," Supreme Court Justice Beverly McLachlin
wrote in her final report. "It hired, fired and supervised the employees.
It did so for the Government of Canada, but also for its own end of
promoting Christian education to Aboriginal children. I conclude that the
Church should be found jointly vicariously liable with Canada for the
assaults, contrary to the conclusions of the Court of Appeal."

The seven judges of the Supreme Court upheld the damage awards, which many
residential school survivors claim is not nearly enough.

"Leroy Barney is being totally ripped off," said Randy Fred, one of the
original plaintiffs in the Blackwater v. Plint case. "To award him a
pittance of only $20,000 for lost wages is, itself, criminal. The miniscule
award is not good for the protection of children. These awards are supposed
to be a detriment to ensure such criminal activity is discouraged. In
Leroy's case, it is not a detriment because the amount of money is so small
in comparison to the criminal acts and the negative impact it had on
Leroy's life," he said, adding he was pleased with parts of the decision.

"The good is that the United Church of Canada is back in the picture, as
they should be. Although they operated as a nonprofit society, they did
profit from operating the schools. They must accept their share of
responsibility because they knew about the sexual abuse that was taking
place," said Fred. "The entire case comes down to the protection of
children. We were children when we were being raped by those staff members.

"The United Church of Canada had a very visible presence in the Alberni
Indian Residential School; [the] Department of Indian Affairs [was] much
less visible. Any kind of reconciliation process will not be possible or
feasible without the churches being involved and taking their share of the
liability," he said.

According to Barney's lawyer, the case is both a win and a loss.

"It's a win because the finding of liability against the church will affect
how to resolve all residential school claims," said Grant. "The Catholics,
who ran most of the residential schools in Canada, have been reluctant to
accept liability, so this decision forces them to share responsibility with
the government," he said. "The second part of the case, in my view was a
significant loss.

According to Grant, because physical abuse claims are statute-barred after
30 years, the court determined that Barney was not entitled to full sexual
abuse compensation because he was in a weakened psychological state because
of the inadmissible abuses.

"This is very serious," said Grant. "What this means is that children who
have been physically abused, then are sexually abused by the same person,
their damages will be reduced as a result of the physical abuse unless they
bring their cases forward early on. This has implications for all survivors
of Indian residential schools because horrific physical abuse in those
schools was systemic and widespread," he said.

More than 80,000 survivors of the residential school system in Canada are
currently seeking compensation and redress for the horrors they suffered as
children. Federal Justice Frank Iacobucci was recently tasked with
developing a report for government on ways to address residential school
healing issues.

Legal counsel in the Blackwater case will now have to decide whether to
take the case outside Canada to the Inter-American Human Rights Commission.