ST. JOHN'S (CANADA)
CBC (Canadian Broadcasting Corporation) [Toronto, Canada]
April 3, 2023
By Ryan Cooke
Lawyer calls for changes to Limitations Act to allow survivors a shot at compensation
Lawyer Lynn Moore says the government of Newfoundland and Labrador failed to protect her client — once a child in the care of his abusive father — and that he suffered horribly as a result.
The province agrees the man suffered horrendous abuse, and admits he was extensively involved with the child protection system during the abuse.
But its lawyers won’t be settling.
The reason? The man came forward too late, and rules are rules — even though Moore argues this rule is rare, cruel, and possibly unconstitutional.
“We’re not talking spanking, we’re not talking the strap,” said Moore, a veteran lawyer specializing in cases of child abuse.
“We’re talking a very high level of abuse involving firearms, involving whipping, involving broken bones. So it was a horrific childhood that my client suffered and the government had a responsibility to intervene and they didn’t and they are now saying that, well, ‘We didn’t, but you’re out of time to sue.'”
Newfoundland and Labrador is one of only two provinces in Canada with a statute of limitations on cases of physical abuse against children. They have two years from the time they turn 19 to file a lawsuit, otherwise they are out of time.
There is a clause that allows survivors of abuse to come forward afterwards, if they discover the source of their struggles later in life. A person has 10 years after the abuse occurred, or 10 years after they turn 19, to come forward in those cases.
Moore’s client, referred to as John Doe No. 4, didn’t meet either of those deadlines. He was diagnosed with post-traumatic stress disorder in 2015, about 40 years after the abuse he suffered at the hands of his father.
Moore said he was in no place to come forward during the limitations period.
The rule does not apply to sexual abuse. The man’s sister, for example, settled with the province and received compensation for the abuse she endured at the hands of the same father.
“It’s a real affront to his dignity as a human being, that this arbitrary piece of legislation says that well your sister, she was hurt in a different way so she can get compensation, but you were hurt this way, so you can’t,” Moore said.
In a statement to CBC News, the Department of Justice and Public Safety said the exemption stems from a dark time in the province’s history.
“The exemption for sexual abuse victims was included in the Limitation Act in the wake of the Mount Cashel Inquiry in the 1990s,” the statement reads. “This exemption took into account the unique circumstances of sexual abuse victims and the difficulty they often have in coming forward as supported by research in this are.”
Moore said an approach truly guided by research would also include an exemption for physical abuse against children, which affects their development in similar ways.
Child protection failure
The family had regular contact with the former Department of Social Services throughout the 1970s, with more than 60 home visits.
The first case of documented violence happened on Dec. 4, 1975, when the father came home after a night of drinking and went after his children. The mother fled with her six-month-old baby and called the police, who came and arrested the father.
The children were sent to the hospital and examined by a doctor, who said it was fortunate that John Doe No. 4 didn’t have broken bones in his head and face from the beating he endured. The father was sentenced to six months in jail for the attack, but returned home afterwards.
Despite the presence of the Department of Social Services in the home, the kids were still subjected to repeated abuse, including one terrifying instance where the father held a shotgun to John Doe No. 4’s head and pulled the trigger.
No consideration for trauma, Moore says
John Doe No. 4 moved out when he was 17 and did his best to put it all behind him. The trauma of his childhood later caught up to him, and he began to confront it with the help of a psychologist.
He hired a lawyer in 2016 and launched a court action. Moore is now challenging the province’s Limitations Act in court, arguing the trauma he endured is a mental disability, and that by not allowing him a chance to sue, he’s being discriminated against under the Canadian Charter of Rights and Freedoms.
Moore has to meet a very high standard for the court to say the legislation essentially amounts to cruel and unusual punishment. She’d rather see the problem fixed in the House of Assembly.
“The very, very simple fix is for the government to stop hiding behind this technicality and to amend the legislation so that physical abuse doesn’t have a time limit,” Moore said.
The government’s statement did not say whether or not it would consider changing the legislation, noting it couldn’t comment further because of cases before the courts.
“We encourage all victims of violence to reach out for help and speak to a lawyer for advice on legal options,” the department said in its statement. “The [Limitations] Act does not prevent those who have been physically abused from suing, they just must do so within the time limits prescribed by the Act.”
Ryan Cooke is a multiplatform journalist with CBC News in St. John’s. His work often takes a deeper look at social issues and the human impact of public policy. Originally from rural Newfoundland, he attended the University of Prince Edward Island and worked for newspapers throughout Atlantic Canada before joining CBC in 2016. He can be reached at ryan.cooke@cbc.ca.