Woodlands justice on hold

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      Wally Oppal says there was no widespread abuse, despite historical evidence.

      Education Minister Shirley Bond's proposal to develop provincially run segregated schools for children with disabilities should come as no surprise. After all, Bond's government still refuses to adequately compensate former special-needs child residents of the now-closed, infamous Woodlands School, or even to accept that children were victims of systemic abuse at the notorious institution.

      On November 24, 2005, Stan Hagen, then the Liberal minister of children and family development, said in the legislature that his government "disagrees" that there was "systemic abuse" at Woodlands. And in an October 5, 2006, letter to Vancouverite Gary Dobbin, the brother of a former Woodlands resident, Attorney General Wally Oppal wrote that the government "does not acknowledge that there was widespread abuse at Woodlands, or that Woodlands staff committed atrocities".

      This refusal to acknowledge widely accepted incidents of such abuse, coupled with recent wrinkles in a class-action lawsuit brought against the government, is extending Woodlands survivors' already long wait for justice.

      Can Oppal and his colleagues be unaware of former ombudsman Dulcie McCallum's 2002 administrative review of conditions in Woodlands, which chronicled decades of systemic abuse that included hitting, kicking, broken limbs, scalding, sexual assault, STDs, pregnancies, and uninvestigated deaths? Or how about the 2004 Public Guardian and Trustee of British Columbia report that reviewed McCallum's work–contacting all identified former residents and looking through 100,000 pages of documents–and concluded that "the most common issue in the documents was physical harm to the residents"? Did none of them hear of the Georgia Straight's March 2006 story wherein Woodlands survivor Gary Hill spoke of "a nightmarish practice: 'Lots of kids had all their teeth pulled so they couldn't bite staff.'"?

      The government even had shocking stories from Woodlands in its hands 45 years ago, when Victoria RCMP inspector H.F. Price sent lengthy and horrific reports about abuse and thefts at Woodlands to B.C.'s deputy attorney general, Gilbert Kennedy. Those reports were never released, and a freedom-of-information request finally yielded about 50 pages with all names deleted–including a November 2, 1962, sworn statement by one Woodlands aide.

      Staff member "X" chillingly told police (here transcribed exactly as written) about the extreme cruelty against children he'd witnessed:

      "One day when we were in the kitchen and the patients were in the dining hall eating their dinner, their was some patients sitting on the floor in the kitchen going with out dinner and one”¦saw a piece of bread crust on the floor and started to crawl for it. One of the”¦Nurses saw him and said, watch this and walked over and kicked him with all his might in the throught, when the patient straightened up grabing his throught the nurse kicked him in the stoumic and left him laying gasping on the floor. The nurse then came back to the rest of the aids laughing and asked us if we had saw the beautiful kick.”¦

      "This same patient has a small yellow duck toy that he treasures he always keeps it under his shirt for fear that one of the staff will take it away from him. Natcherally the staff are always trying they kick him slap him pull his head his arms legs punch him trying to get his little yellow toy duck”¦they just want the sadisfaction of hearing him schreem and the louder he schreems the harder they kick.”¦They don't let him have half his meals.”¦He asked why they hate him." (Excerpt from page 3, "8. Incident".)

      Another time X disclosed, after working on B Ward for only one day: "Just as they started to serve the kids breakfast”¦a little blond boy about seven dropped his plate and broke it. You could just see the fear in his eyes, as he looked at the nurse coming at him, sorry sorry won't do no more the little boy said as he covered his face and head waiting for the blows”¦the nurse slapped his face threw him down kicked him then draged him from the dining hall, I could hear the schreeming”¦all the way down the hall." Later that day: "The kids were running around playing enjouing themselves a cute little blond boy about ten years old named [deleted] ran passed him [an aide] got grabbed then thrown against the wall his head banged against it untill he was crying then thrown in a corner." (Excerpts from pages 6 and 7, "Ward B".)

      ESTABLISHED WITH A river view at McBride and East Columbia streets in New Westminster, the fortress-style facility that formerly housed the Public Hospital for the Insane between 1878 and 1950 finally closed in 1996 and was recently sold by B.C.'s Liberal government.

      In 2002, the government apologized to Woodlands survivors and promised $2 million in a "legacy trust" fund for counselling, but the money wasn't just for Woodlands survivors. It was also for survivors of three other provincially run institutions. In July 2006, Woodlands survivors finally received "legacy" cheques averaging $500.

      Survivors tried launching a class-action lawsuit in 2002, but that was blocked by legal wrangling until 2005, when B.C. supreme justice Nancy Morrison certified the class action, allowing North Shore law firm Poyner Baxter to represent Woodlands survivors. Initially, attorney Jim Poyner tried to have the case certified with Bill Richard as representative plaintiff. Richard, who lives in the Yukon, is reported to be reclusive and not in contact with the Lower Mainland Woodlands survivors. Poyner ultimately asked New Westminster resident Bill McArthur, an intelligent and articulate former Woodlands resident, to represent the class.

      Coincidentally, Richard and McArthur shared a ward at Woodlands, but McArthur left Woodlands before August 1, 1974–the date is pivotal.

      In 2005, an appellate court ruling–the Arishenkoff decision–found that the government couldn't be held liable for wrongdoing prior to the enactment of the Crown Proceedings Act, which became law on August 1, 1974.

      For almost nine months, Poyner worked with government lawyers to secure a settlement proposal. During that time, he told Woodlands survivors that he couldn't divulge details because he'd promised confidentiality. When the offer was presented to McArthur in June 2006, McArthur refused it and sought other legal advice, turning to David Klein of the law firm Klein Lyons.

      Despite a court decision to have their settlement offer kept confidential, Woodlands advocates held a news conference, released details, and decried the "point settlement" offer as dehumanizing. The offer requires Woodlands survivors to appear before a single arbitrator, who would determine the amount of compensation they would receive based on proof of injury or abuse. Under the offer, there would be a set number of dollars for a proven incident of, say, forced anal or vaginal rape, which would be worth more than forced oral sex.

      "There is no hierarchy for suffering and abuse," said Margaret Birrell, executive director of the BC Coalition of People With Disabilities. "The survivors don't want a settlement that divides them. They don't want an 'I've been raped more times than you' settlement. Government must act. We can't win in the courts."

      Point settlements for historic abuses were common in residential-school settlements. But those settlements also offer a "common experience" payment–so many dollars for each year spent at the institution–something the Woodlands settlement lacks.

      Poyner remains adamant that the settlement offer is the best possible opportunity for compensation for post-1974 survivors. "In the case of residential schools, government apprehended Native children, tearing them away from their villages and families," he told the Straight in a phone interview. Poyner, who has negotiated residential-school settlements, added: "Woodlands is completely different. Parents willingly gave up their children. This case is based on systemic negligence the government denies. Systemic negligence has never been accepted by any court in Canada.”¦We could go through a long, painful trial and still lose."

      But children who were abandoned at birth or displaced when orphanages closed were also sent to Woodlands. The courts also ordered children into care, and parents were pressured by doctors into sending their physically disabled children to Woodlands after being promised they would receive better care.

      Last September, Poyner tried to have the class litigants divided into pre- and post-1974 groups, arguing that McArthur, because he was not at Woodlands after August 1, 1974, when the Crown Proceedings Act became law, could not effectively represent the class and that Richard should be appointed primary class representative.

      Justice Morrison refused to split the class, but she allowed Richard to be named as co–class representative. She set a trial date for January 2008; the trial was expected to take 27 weeks. But following a February 27 hearing, Chief Justice Donald Brenner referred the matter to another judge at a future date.

      In late November, Birrell and Gregg Schiller, coordinator for the We Survived Woodlands group, asked the government to agree to an out-of-court settlement for all survivors. "We propose that the government of B.C. match the $18 million it received from the sale of Woodlands and”¦create a settlement fund of $36 million. This would provide a common [experience] payment of $15,000 to each former resident”¦thereby eliminating the need for a lengthy court process and sparing former residents from being revictimized by the point system."

      But Poyner told the Straight he believes that Birrell and Schiller are misleading the class-action participants and placing the settlement offer in jeopardy. "They want $15,000 for everyone. It's not fair and there's no basis for it.”¦Under the law, the government can't compensate the pre-1974 claimants."

      David Klein's firm now offers independent legal advice to about 130 Woodlands survivors on a reduced-contingency-fee basis. He has not applied for standing at the trial.

      In a January letter to class-action respondent Bill McArthur, Attorney General Oppal wrote that the $15,000 common-experience payment proposal was "not a viable option".

      But McArthur wants to see compensation for everyone. "We just want them to do the right thing."