Prison sexual assault case involving allegations from approximately 200 inmates back in B.C. court

A sexual assault case involving allegations against a corrections officer from approximately 200 men was back in court in British Columbia this week.

The B.C. Court of Appeal was asked to look over a claim from two of the men who allege they were sexually assaulted by Roderick MacDougall.

What was before the court Tuesday was not the case itself, but whether a claim for damages should be allowed to go ahead to the next stage in B.C.’s legal system, after it was stricken by a previous judge.

The appellants were among those who filed claims against MacDougall. They made a last-minute amendment to their notice of civil claim to add a claim for damages for alleged Charter rights violations.

The men are identified by name in court documents and there is no publication ban on Tuesday’s proceedings, but because they say they’re victims of sexual assault, CTV News is referring to them only by their initials, EJ and CK.

The previous judge said no to the damages claim, but disagreed with an assertion by representatives for the provincial government that “there could be no basis for such an allegation,” as the province owed a duty of undivided loyalty to its inmates.

The province tried to get the judge to strike the appellants’ claim for breach of fiduciary duty, but the judge dismissed that attempt.

So EJ and CK took the case back to court, trying again to sue for damages under the Charter of Rights and Freedoms sections about life, liberty and security of the person, and cruel and unusual treatment or punishment.

200 ALLEGED VICTIMS

As it heard the case, the appeal court considered the background, which involved a man who’d worked as a corrections officer in B.C. for more than 20 years.

The assaults MacDougall allegedly committed occurred in 1986 and 1987, though there are other reports among the approximately 200 dating back earlier than that.

MacDougall quit his job 10 years later, when allegations became known, and was convicted in 2000 of indecent and sexual assaults of five inmates in incidents that occurred in the early ’80s.

He was sentenced to just four years in prison for those assaults, which are not related to offences against the appellants. Other claims have been made since the time of his conviction, and MacDougall has a dedicated case management judge for many of these actions, who has served in that role since 2008.

The province has acknowledged that it is vicariously liable for the sexual assaults and abuses committed by MacDougall if they’ve been proven at trial.

Several of the 200 cases have been settled, but several have made it to the trial stage and others are outstanding.

CLAIM ‘COULD NOT SUCCEED’

This particular case, that of EJ and CK, was meant to go to trial in February 2019, but instead, counsel for each side thought it would be, as described in court documents, “a good case” to use to assist in the remaining cases – essentially, it could be used to set something of a precedent for the others.

But the adding of the Charter breach and damage claims complicated things, and the trial date was pushed back. Instead of making a decision on the case itself, the court was asked to weigh in on what claims should be going forward.

Ultimately, the appellate court sided with the case management judge in dismissing the men’s argument, writing in a summary of the case posted online later, “It was obvious that a claim for Charter damages could not succeed.”

The decision went on to say, “Given the nature of the claims, and the province’s admission that if the sexual assaults are proved it is vicariously liable, there is no possibility that the appellants’ claim for Charter damages could succeed while the tort claims might fail. The judge was correct in concluding that the available remedies in tort would adequately meet the need for compensation, vindication and deterrence such that a further award of damages … would serve no purpose.”

WHAT’S CHANGING

The court’s verdict on the province’s cross-appeal differed from that of the initial judge in the case.

Instead, the court decided to allow the province’s argument, saying the first judge should have stuck the appellants’ claim for breach of fiduciary duty.

“That claim has no reasonable prospect of success. The amended notice of civil claim fails to allege that the province owed a duty of loyalty to the appellants as inmates, nor does it assert the existence of any undertaking, express or implied, to forsake the interest of all others in favour of inmates as beneficiaries.”

Essentially, as argued by the province, there is a duty of care for inmates that includes acting reasonably to keep safe, but there’s no basis to suggest the province owes the two men such loyalty that it should come before everything else.

The trio of appellate judges wrote that the men behind the appeal were unable to demonstrate any basis for such an undertaking, and that their argument that it’s an implication from the relationship between government and inmates is not supported by precedent.

They wrote that their decision was to strike the breach of fiduciary claim as well, meaning the appellants ended up worse off than before the case reached the court of appeal.

MacDougall did not take part in the latest proceedings.

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