Ottawa appeals Manitoba decision to ease compensation rules for residential school survivors

The federal government is appealing a decision made by a Manitoba judge that set a precedent that makes it easier for residential school survivors to receive compensation for sexual abuse.

J.W., as the claimant in the Manitoba case is called, alleges his genitals were grabbed by a nun and she threatened him with physical abuse while he was a student at a residential school.

After a lengthy battle fighting for compensation under the Indian Residential Schools Settlement Agreement, a Manitoba judge ruled in August that J.W. didn’t have to prove the nun’s sexual intention as a requirement for compensation.

All residential school survivors, including J.W., are entitled to the Common Experience Payment, but in cases of physical and sexual abuse, the Independent Assessment Process can grant thousands of additional dollars in compensation to survivors.

Manitoba Justice James Edmond said in his decision that requiring survivors to show an alleged perpetrator’s intent in order to be eligible for additional compensation was “fundamentally inconsistent” with Canada’s “criminal law jurisprudence regarding sexual assault.”

In other words, motive or intent is relevant but Crown attorneys are not required to prove it in sexual assault cases, so it shouldn’t be a requirement for residential school survivors seeking federal compensation.

Lawyer not surprised by appeal

Martin Kramer, J.W.’s lawyer, said he’s not surprised the federal government is appealing Edmond’s decision.

“We had already had some indications that they would be appealing,” he said.

“I’m disappointed that they are deciding to appeal it, but I’m not surprised.”

In the appeal, the attorney general argues Edmond’s decision should be dismissed because he did not have jurisdiction to rule in J.W.’s case and he misinterpreted the terms of the Indian Residential Schools Settlement Agreement.

Kramer said adjudicators’ misinterpretation of terms of the Indian Residential Schools Settlement Agreement are the problem — requiring victims to prove motive asks more of them than Canada’s criminal justice system asks of sexual assault victims.

“We agree with the judge that it was the adjudicators who had been interpreting the compensation rules incorrectly,” he said.

“The judge obviously felt that he had jurisdiction to decide the matter,” Kramer added.

Kramer said Monday he could not speculate on the government’s motivation for appealing the decision but noted in August that dozens of residential school survivors could be eligible for additional compensation if they do not have to prove their alleged abuser’s intent.

CBC has contacted Attorney General Jody Wilson-Raybould for a response and will update this story if her office responds.

A hearing for the appeal is expected in the coming months.

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