Provincial responsibility off the table in alleged prison sex assaults case

Judge says court not the place for commission of inquiry

The lawyer for two former prisoners who claim a prison guard sexually assaulted them at B.C’s notorious Oakalla Prison is disappointed a BC Supreme Court judge has struck part of their claim dealing with alleged provincial responsibility for the situation.

“The effect of this judgment from the court is to deny the plaintiffs the right to even raise Charter breaches at trial,” Karim Ramji said. “We are going to be appealing the judgment.”

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In a case dating back to the 1980s when the Lower Mainland Regional Correctional Centre still existed, Errol Patrick Johnson and Cal Dean Kane seek damages arising from alleged sexual assaults or abuses by Roderic David MacDougall.

They’re not the only men alleging abuse. More than 200 men have come forward with similar allegations against MacDougall.

Most recently, McDougall and the province sought to dismiss parts of the plaintiffs’ case which would have put on trial alleged acts and omissions of the government for the entire 21-year period of Mr. MacDougall’s employment with the provincial Corrections Branch.

Specifically, the government had sought to exclude a report ordered by the plaintiffs. Justice David Masuhara agreed portions of the Dumond Report addressing the conduct of government in the years following the alleged sexual assaults should be struck.

Johnson and Kane said the application was a delaying tactic an attempt “to shield HMTQ BC from any meaningful scrutiny of its reckless disregard for the well-being of inmates by allowing Mr. MacDougall to sexually assault over 200 men over his 21-year career with the Corrections Branch,” according to Masuhara’s May 13 ruling posted online May 14

And, the judge noted, “With respect to the sexual assaults and abuses alleged, (the province) acknowledges it is vicariously liable for such wrongs, if proven.”

The province and MacDougall had also argued a Constitutional question brought by the plaintiffs was an attempt “to turn the current proceeding into a wide-sweeping inquiry into the conduct of government over the totality of Mr. MacDougall’s career.”

Masuhara agreed. He said, “There is no nexus or causative link to the present plaintiffs and the post-event wrongs,” adding such a move would make a trial into something of a commission of inquiry.

Ramji, though, called the constitutional breach very serious.

The material facts pled by the plaintiffs and admitted by the province in its reply are that over 200 men allege that they were sexually assaulted by Mr. MacDougall over the 21 years of his employment with the corrections branch,” he said.

Masuhara suggested the case might suit being handled as a class action. He also noted plaintiffs’ counsel have said damages sought would in in the millions of dollars.

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