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	Supreme Court Rules in Favour of B.C. Assault Victim By Kirk Makin Globe and Mail October 2, 2008 http://www.theglobeandmail.com/servlet/story/RTGAM.20081002.wsupremetwo1002/BNStory/National/home TORONTO — A sexual assault lawsuit launched by a former resident of a residential school in B.C. succeeded Thursday, when the Supreme Court of Canada ruled 7-0 to restore his successful trial verdict. Overturning the B.C. Court of Appeal for the second time on the same day, the Supreme Court said that it should have kept its hands off the trial judge's original verdict. "It must be recognized that the task of trial judges assessing evidence in such cases is very difficult indeed," Mr. Justice Marshall Rothstein said. "However, that does not open the door to an appellate court, being removed from the testimony and not seeing the witnesses, to reassess the credibility of the witnesses." The plaintiff, a resident of the Sechelt Indian Residential School in British Columbia from 1966-1974, alleged that he was sexually assaulted in a supervisor's washroom on four occasions when he was 10 years old. He alleged that the supervisor - Ian Hugh McDougall - brought him into the washroom on the pretext of inspecting him for cleanliness, and then fondled and anally raped him. The plaintiff - identified only as F.H - kept the assaults to himself until he told his wife in 2000. Soon after that, he sued Mr. McDougall, the Order of the Oblates of Mary Immaculate and the federal government, which funded the school. Mr. McDougall denied the allegations of sexual abuse and testified that he could not recall ever strapping F.H. He also denied ever conducting physical examinations of the boys and gave evidence that boys were not taken into the supervisors' washroom. In her trial ruling, B.C. Supreme Court Judge Kristi Gill acknowledged substantial inconsistencies in F.H's testimony as to the frequency and gravity of the sexual assaults. Nonetheless, she found him be a credible witness. The inconsistencies involved differing accounts given by F.H. about the number of assaults he suffered. At trial, he said that there were four incidents. On previous occasions, however, he had claimed that the abuse occurred every two weeks or ten days. There were also apparent contradictions in his account of school geography and the precise nature of the assaults. In ruling 2-1 to overturn Judge Gill's decision, the B.C. Court of Appeal had faulted Judge Gill for failing to adequately consider the inconsistencies. But the Supreme Court disagreed Thursday. Whether or not there were inconsistencies, appellate judges cannot nonetheless simply substitute their view of facts and credibility, it said. "Assessing credibility is clearly in the bailiwick of the trial judge and thus heightened deference must be accorded to the trial judge on matters of credibility," Mr. Justice Marshall Rothstein wrote. "Notwithstanding its own misgivings, it was not for the Court of Appeal to second guess the trial judge in the absence of finding a palpable and overriding error." The Court noted that Judge Gill made explicit reference to the contradictions in her judgment, and had clearly resolved them in favour of J.H. "The events occurred more than 30 years before the trial," Judge Rothstein reasoned. "Where the trial judge refers to the inconsistencies and deals expressly with a number of them, it must be assumed that she took them into account in assessing the balance of probabilities. "In the end, believing the testimony of one witness and not the other is a matter of judgment," he said. "In light of the inconsistencies in F.H.'s testimony with respect to the frequency of the sexual assaults, it is easy to see how another trial judge may not have found F.H. to be a credible witness. However, Judge Gill found him to be credible." In an important aside, Judge Rothstein delved into the vexing legal issue of whether findings of civil liability in serious cases ought to require a plaintiff to do more than simply prove an allegations "on a balance of probabilities." Judge Rothstein said that there has been intense debate in legal circles about whether the threshold of proof should be set higher in lawsuits involving fraud or sexual abuse. "These types of allegation are considered unique because they carry a moral stigma that will continue to have an impact on the individual after the completion of the civil case," he said. However, he concluded that, "I think it is time to say, once and for all in Canada, that there is only one civil standard of proof at common law, and that is proof on a balance of probabilities. "It is true that there may be serious consequences to a finding of liability in a civil case that continue past the end of the case," Judge Rothstein said. "However, the civil case does not involve the government's power to penalize or take away the liberty of the individual.
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