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Citation:
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Arishenkoff et
al v. British Columbia
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Date:
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20020404
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2002
BCSC 488
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Docket:
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S011925
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Registry: Vancouver
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IN THE SUPREME COURT OF BRITISH COLUMBIA
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BETWEEN:
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PHILLIP ARISHENKOFF, HARRY ASTAFOROFF, TIM BABAKIEFF, GRACE
BURNETT, VIOLET CAMPBELL, MOLLY DUTOFF, MIKE ESOVOLOFF, LINDA ESSEX, RITA
HALTER, NAIDA HAMOLINE, ANGELA JMIO, CECIL JMIO, PETER KABATOFF, KATE KALLIN,
GRACE KINAKIN, KATHY KONKIN, NANCY KOOTNIKOFF, BILL MAKONIN, PETER MAKONIN,
TINA MAKONIN, JOHN MALOFF, MARJORIE MATVENKO, ELAINE MILLER, VIOLET NAULT,
BILL PEREPOLKIN, PAUL PEREVERSOFF, MIKE PICTIN, ANITA PLOTNIKOFF, BILL
PODMOROW, BILL POPOFF, LARRY POPOFF, LILLIAN POPOFF, PAULINE POPOFF, BILL
POTAPOFF, LAURA POWELL, LAWRENCE POZNIKOFF, SHIRLEY RALLOFF, VIOLET
RIEBALKIN, ELY SALIKIN, FRED SALIKIN, HARRY SAPRIKIN, PAUL SAVINKOFF, ANDREW
STUPNIKOFF, IRENE STUSHNOFF, WALTER SWETISHOFF, POLLY TARASOFF, LARRY
TOMILIN, MARCIE TOMLIN, FLORENCE TRASKA, ALEC VERIGIN, MICHAEL VERIGIN, FRED
VOYKIN, PAUL VOYKIN, CAROL WILSON and VERA ZADO
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PLAINTIFFS
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AND:
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HER MAJESTY THE QUEEN IN RIGHT OF
THE PROVINCE OF BRITISH COLUMBIA
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DEFENDANT
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REASONS FOR JUDGMENT
OF THE
HONOURABLE MADAM JUSTICE KIRKPATRICK
(IN CHAMBERS)
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Counsel for Plaintiffs:
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F.A.
Schroeder
A.
Berry
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Counsel for Defendant:
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W.A.
Pearce, Q.C.
M.
Huscroft
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Date and Place of Hearing:
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February
25 and 26, 2002
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Vancouver, B.C.
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INTRODUCTION
[1]
This action arises from the apprehension and
confinement from September 1953 to August 1959 of approximately 170 children
whose parents were members of the Sons of Freedom minority sect of the
Doukhobor religion. The apprehensions were purportedly made under the Protection
of Children Act, R.S.B.C. 1948, c. 47 for the failure of the
childrens’ parents to enrol the children in public schools. The children were
taken to live at a former tuberculosis sanatorium at New Denver, British
Columbia. The last of the children were released to their parents’ care in
August, 1959 on the parents’ promise that the children would attend public
school.
[2]
More than 42 years passed between the last time
that children were confined at New Denver until this action was filed in April 4, 2001. The immediate legal issue that
arises is obvious and fundamental: are the plaintiffs’ claims barred by the Limitation
Act, R.S.B.C. 1996, c. 266?
[3]
The trial of the plaintiffs’ claims is scheduled
to begin in January 2003 for six months. Counsel for both the plaintiffs and
the defendant submit, and I agree, that the Limitations Act
issues should be decided in advance of the trial so that significant time and
expense may be avoided in the event that the plaintiffs' claims are in fact
statute barred.
[4]
A discrete aspect of the Limitation Act
issues concerns the meaning of the phrase “misconduct of a sexual nature” in
s. 3(4)(k) of the Limitation Act and the applicability of
that phrase to the circumstances of this case. Counsel agree that
determination of this issue will move the litigation forward and will assist in
the efficient resolution of the proceedings.
[5]
Further Limitation Act issues are
scheduled to be argued over three days on April 29 to May 1, 2002. Counsel
agree that any appeal from that decision will be brought at the same time as
any appeal from this decision.
[6]
Both of these applications have been made within
the case management program imposed by the court on lengthy, complex trials.
The bifurcation of the applications is, in retrospect, not ideal. It would
have been preferable to have the entirety of the Limitation Act
issues heard at one time. However, given counsel’s calendars and the available
time to prepare, as well as the court’s schedule, the bifurcation has been
unavoidable.
BACKGROUND
[7]
This action is brought by 55 of the approximate
170 students who were confined at New Denver. In their statement of claim, the
plaintiffs allege that they were systematically and intentionally or
negligently maltreated, humiliated and degraded by the defendant. Paragraph 8
of the statement of claim particularizes the plaintiffs’ allegations that they
were:
(a) hunted and arrested by police officers;
(b) confined in a prison environment and
regime;
(c) denied
all proper access to their families; the one hour meeting with family on the
first and third Sunday of each month was, rather than comforting, extremely
hurtful, humiliating and degrading as the visits were conducted with the
children on the inside of the chain link perimeter fence and their families on
the outside, with RCMP police guards present;
(d) punished
by having their visiting rights with family cancelled;
(e) forbidden
to practice their religion or use their mother tongue, Russian;
(f) physically
abused including excessive strapping and beatings;
(g) sexually
abused including denial of all privacy including being forced to change, toilet
and shower in full view of the other children and the staff; some of the
Plaintiffs were sexually assaulted by staff and older children; all of the
Plaintiffs were forced to live in this state of sexual degradation and
exploitation;
(h) denied
proper food, accommodation, health care and education;
(i) forced
labour;
(j) denied
any and all cultural rights; the Defendant belittled and denigrated the
Doukhobor community, religion, language, values and customs; vegetarians were
forced to eat meat; passivists were forced to put on boxing gloves and fight;
the confinement and the regime were designed by the Defendant to drive the
Plaintiffs away from their family and community;
…
[8]
The plaintiffs say that the alleged treatment
and resulting injuries were caused by the defendant’s breach of fiduciary duty,
breach of trust, negligence and/or failure of the defendant to fulfill its
non-delegable duty or its duty of special diligence to them.
[9]
In its statement of defence, the defendant sets
out the history leading up to the apprehension of the plaintiffs and their
committal to the care and custody of the Superintendent of Child Welfare on the
basis that they were in need of protection because they were “habitually truant
from school and liable to grow up without a proper education.” The defendant
acknowledges that the parents’ refusal to allow their children to attend school
was based upon their religious beliefs as Doukhobors. Their opposition stemmed
from the parents’ conviction that the Canadianizing and socializing influences
of public school would undermine their religious beliefs.
[10] The defendant states that the Sons of Freedom not only refused to
send their children to school but also scorned all symbols of the Crown,
including their refusal to register their births, marriages and deaths. That
rejection of government institutions and federal and provincial laws the
defendant says manifested itself in repeated acts of terrorism, including the
burning of public schools, communal Doukhobor buildings, and private homes and
in the dynamiting of railroads, bridges, transmission lines and other public
facilities, and in nude public demonstrations.
[11] The defendant says that the wave of terrorism spanning 30 years
caused considerable damage in the West Kootenays and imposed a tremendous burden on the residents of the area and on
the people of British Columbia.
They demanded action by the provincial government.
[12] The Attorney General of the day, G.S. Wismer, requested in the
Spring of 1950 that the then president of the University of British Columbia, Dr. Norman MacKenzie, appoint a group to
research the situation and propose solutions to the “Doukhobor problem.”
[13] However, by 1953, an estimated 435 Doukhobor children were not
attending school in the West Kootenays. The then Attorney General, Robert Bonner, announced on April 16,
1953 that the new government’s policy promised wholesale arrests if any mass
demonstrations occurred and outlined a program aimed at an increasingly firm
attitude on school attendance, including apprehension of children under the Child
Protection Act.
[14] The defendant says that the incidents of arson continued unabated.
The climax came at the end of the summer of 1953 when more than 400 homes were
burned down, primarily in Krestova, the home of a large segment of the Sons of
Freedom community.
[15] Just before the opening of schools on September 8, 1953, a group of
mainly homeless Sons of Freedom set up a tent town at Perry Siding in the Slocan Valley. The
site was located adjacent to a school.
[16] The Attorney General directed the police to enforce the law if
public demonstrations were made. The police visited the camp on September 5
and advised the occupants that action would be taken if complaints were
received.
[17] On September 8, 1953, children arrived at the local school for
registration. Upon being dismissed later that morning, the children were
confronted by a large number of Sons of Freedom parading in the nude in plain
view of the school, in defiance of the warnings given to them on
September 5. Parents of the school children complained to the police.
[18] On September 9, 144
adults were arrested; 104 children were removed from the camp and transported
by bus to New Denver.
[19] Following the September 1953 mass arrest at Perry Siding, a local
committee based in Nelson and consisting of officials of the Departments of
Education, Health, Welfare, Lands, and Public Works and the RCMP was formed to
cope with the problems associated with the Sons of Freedom, including the
enforcement of school attendance. Between 1954 and 1959 more children were apprehended
and placed at New Denver under the care of the Superintendent of Child Welfare.
[20] The defendant acknowledges in its statement of defence that the
enforced separation from their parents was very distressing to the children,
but says the enforced separation was necessitated by the Freedomite parents’
refusal to abide by the school attendance laws.
THE
APPLICATION
[21] The defendant’s notice of motion was brought pursuant to Rule 18A of
the Rules of Court. The motion asks for an order that the claims of one of the
plaintiffs, Lawrence Poznikoff, be dismissed. At the close of the defendant’s
reply submission, Mr. Pearce acknowledged that the court would not be in a
position to dismiss Mr. Poznikoff’s claim because not all of the arguments in
respect of all of the Limitation Act defences have yet been
heard.
[22] Following the hearing of the defendant’s motion, I advised counsel
by memorandum of the Court of Appeal decision in Bacchus v. Phillippe
Dandurand, [2002] B.C.J. No. 377 (C.A.) in which the appeal court cautions
the trial court of the potential mischief of “litigating in slices.” Both
counsel have asked that the court decide the narrow issue of whether Mr.
Poznikoff was subjected to misconduct of a sexual nature while in the care of
the defendant. Provided that any appeals from this or the later decision to be
made in respect of the Limitation Act issues are taken together,
I do not see that the mischief addressed in Bacchus need arise.
Rather, I see real saving of time and expense in proceeding in this fashion.
STATUTORY
FRAMEWORK
[23] The Limitation Act limits the time after which a
person may not bring certain actions. However, s. 3(4)(k) states that:
(4) The
following actions are not governed by a limitation period and may be brought at
any time:
…
(k) for a cause of action based on misconduct of a sexual
nature, including, without limitation, sexual assault,
(i) where the misconduct occurred while the person was a
minor, and
(ii) whether or not the person’s right to bring the action
was at any time governed by a limitation period;
[24] In J.P. v. Sinclair 1997 CanLII 12500 (BC C.A.), (1997), 37 B.C.L.R. (3d) 366 (C.A.) Newbury J.A., in concurring
reasons, noted at para. 11 that the Supreme Court of Canada in Tolofson
v. Jensen, 1994 CanLII 44 (S.C.C.), [1994] 3 S.C.R. 1022, established:
…that in Canada limitations legislation is regarded as substantive as opposed to
procedural, and that the purpose of such legislation is to ensure that lawsuits
are brought within a reasonable time. As Diplock, L.J. stated in Letang v.
Cooper, [1965] 1 Q.B. 232 (Eng. C.A.), at 246, “The mischief against which
all limitation Acts are directed is delay in commencing legal proceedings; for
delay may lead to injustice, particularly where the ascertainment of the
relevant facts depends upon oral testimony.” (See also Lui v. West
Granville Manor Ltd. 1985 CanLII 155 (BC C.A.), (1985), 61 B.C.L.R. 315 (B.C.C.A.) and Law Reform
Commission of British Columbia, Report on Limitations (1974)
at 8.) It is also beyond doubt that generally speaking, statutes,
including limitation statutes, are not to be construed as having retrospective
operation unless the construction is expressly or by necessary implication
required; and that vested rights are not to be affected unless the legislation
is clear: see Perrie v. Martin, 1986 CanLII 73 (S.C.C.), [1986] 1 S.C.R. 41 (S.C.C.) at 49; and Bera
v. Marr 1986 CanLII 173 (BC C.A.), (1986), 1 B.C.L.R. (2d) 1 (B.C.C.A.), at 17-23 per Esson,
J.A.
[25] Newbury J.A. held that the amendments contained in s. 3(3)(k)
of the Limitation Act, S.B.C. 1994, c. 8 must be applied
retrospectively, even though such application has the unusual effect of
reviving causes of action that were previously extinguished under earlier Limitation
Act legislation. As Newbury J.A. observed at para. 14:
Obviously, this amendment will permit the
prosecution of many claims that are difficult to defend, especially by
employers such as the School Trustees in this case: the alleged misconduct here
took place in 1978 and the action was not begun until 1993. One must, however,
assume that the legislature took this into account when the law was passed and
that it viewed the objective of permitting “actions based on sexual misconduct”
to proceed even decades after the misconduct, as outweighing the policy
objectives of certainty and finality behind the Limitation Act.
[26] As can be seen, Mr. Poznikoff and his fellow plaintiffs may escape
the temporal confines imposed by the Limitation Act if they can
prove, on a balance of probabilities, a cause of action based on misconduct of
a sexual nature.
[27] The nub of the issue is this: what constitutes misconduct of a
sexual nature?
MR.
POZNIKOFF’S CIRCUMSTANCES
[28] Mr. Poznikoff was born on October 23, 1944 at Winlaw, British Columbia. His parents were Sons of Freedom Doukhobors. He was the youngest
of five children and the only son.
[29] Mr. Poznikoff remembers his childhood, until 1953, as happy and
secure. His parents were deeply religious and the Doukhobor faith was the main
focus of family life.
[30] Mr. Poznikoff was apprehended at Perry Siding on September 9, 1953,
when he was almost nine years old. He recalls that there was violence by the
RCMP against adults. He remembers seeing blood on the faces of one or two
adults, which frightened him. Mr. Poznikoff escaped by running into the woods
with other children and hiding there until older children came to the woods one
or two hours later and told them to return to the camp. He joined his sister
and all of the children at the camp who were put on buses and taken to New
Denver.
[31] In his affidavit sworn on December 13, 2001, Mr. Poznikoff described
the conditions at New Denver:
12. Being
in New Denver was the first time I was separated from my parents. I had never
before been without at least one of my parents. I desperately missed them. I
remember crying a lot.
13. I
found the complete lack of privacy in the New Denver institution totally
unbearable. The beds were very close to one another in the dormitory. On one
occasion, another boy crawled into my bed while I was sleeping. I can’t
remember what happened, but the boy in my bed made me extremely uncomfortable.
14. There
was also no place to change one’s clothes in private. We all had our beds in
one large room, so when changing clothes it was inevitable that other children
and staff would see you. There was no place to hide.
15. There
was no privacy in the bathroom at New Denver. Although the toilets initially
had doors on them, these doors were removed, leaving the stalls exposed to
view. The showers and the bath tub were also open to view. Both the showers
and the tub were used communally and in high demand. In the shower, we took
turns standing under the water. There would frequently be more than one person
in the bath tub at the same time.
16. Other
inmates of the institution saw me using the toilet, the shower and the bath. I
found this very embarrassing and disturbing because I was shy as a child and
very self-conscious of the way I looked. Boys picked on me because I was small
for my age and shy. They ridiculed me about the small size of my penis. With
the passage of time, it is hard to remember exactly who said what on which
occasions, but I do remember that the abuse was more or less constant during
the time that I was in the New Denver institution.
17. On
at least one occasion that I can remember, a staff person was present when
other inmates were ridiculing me about the size of my genitals. I think this
happened either in the dormitory or in a hallway.
18. The
constant needling by other inmates humiliated me. I became very self-conscious
of the way my genitals looked. I developed a mental block and could not urinate
if other boys were around. I felt intense pressure and embarrassment if I
needed to relieve myself when others were present.
19. I
felt that there was no one I could talk to at the new Denver institution about what was happening to me. I was too embarrassed
to even conceive of talking to anyone. I accepted as a fact what was suggested
in the ridicule. I felt like a freak of nature.
[32] Notwithstanding Mr. Poznikoff’s stated desire for privacy, he
testified at his examination for discovery that in the early months at New
Denver he joined with other students in resisting the attempts to school them,
including public disrobing as a form of protest. His counsel attempted to
distinguish Mr. Poznikoff’s public displays of nudity as a form of protest from
the institutionally imposed nudity, on the basis that Mr. Poznikoff was
accustomed to the former which was voluntary and condoned and encouraged by his
parents. He argued that the institutional nudity was forced. That distinction
does not adequately explain why Mr. Poznikoff felt embarrassed by the
institutional nudity and was not apparently embarrassed by his voluntary nude
protests. This dilutes the credibility of his assertion that he was a shy and
private child who was very self-conscious of his appearance. But, in any event,
the test that I conclude is applicable, is an objective one. Mr. Poznikoff's
subjective feelings of embarrassment are largely irrelevant.
[33] Mr. Poznikoff also cited numerous complaints about New Denver and
certain staff members, most of which cannot reasonably be equated to misconduct
of a sexual nature. For example, Mr. Poznikoff remembered that he had been
“kicked in the behind” by a matron because he had written “a nasty note” to
her. He also objected to being called “Sandy” by a guard in reference to his light blond hair. Mr. Poznikoff
says that the name confused him because, “I was Larry, that is all I wanted to
be.” Mr. Poznikoff hated a nickname given to him by other children, “The
Horse”, in reference to his father who was known to personally skid logs
because there were no trucks or horses available.
[34] The evidence that Mr. Poznikoff says amounts to misconduct of a
sexual nature focuses primarily on the lack of privacy at New Denver and the
opportunity that gave to other boys to observe Mr. Poznikoff without clothes
and the resultant teasing about the size of his genitals.
[35] Mr. Poznikoff testified that he was ridiculed about “certain parts
of his body” which, he believes, “had the most damaging impact on his adult
life.” At his examination for discovery, Mr. Poznikoff testified that he
believes that staff at New Denver “might have been aware” of the teasing, but
he cannot remember an incident when teasing occurred in the presence of a staff
person. In his affidavit in support of this application, he deposed that he
remembered that a staff person was present on at least one occasion when he was
ridiculed about the size of his genitals.
[36] Mr. Poznikoff recalled one incident in which another boy crawled
into bed with him, but nothing untoward seems to have happened.
[37] The main complaint, shared by other plaintiffs, was the lack of
privacy at New Denver. At his examination for discovery, Mr. Poznikoff
testified that:
…the reality of dorm life which required us to,
to (sic) disrobe, undress, in the presence of other children and sometimes in
the presence of staff too, while taking showers, and dressing, undressing,
toilet use, whatever. …
[38] Mr. Poznikoff testified that the dormitories were segregated by
sex. At the beginning of their confinement, the boys slept in one big room;
the smaller and younger children along with the older. The boys were later
also segregated according to their ages.
[39] Mr. Poznikoff’s sensitivity did not go entirely unnoticed by the
staff. In a report dated April 2, 1954 to the Superintendent, Child Welfare
Division, the supervising social worker noted:
…There has been a tendency for some of the boys
to annoy some of the smaller ones, but this has been overcome, mainly by having
‘man to man’ talks with the older boys and getting their cooperation to assist
a younger child rather than tease him. An example of this is the case of Larry
Poznikoff, who has been a very shy, retiring youngster, overly protected by his
older sister, Marilyn. Through talking about Larry with the older boys they
have gone out of their way to encourage his participation in group activities.
Larry is responding very well to this new ‘one of the gang’ feeling and is
becoming quite a changed youngster. The staff, of course, is also doing their
part to encourage Larry, being careful not to single him out as a favorite.
The boys’ cooperation is gratifying here because otherwise the extra attention
on our part alone would smack strongly of favoritism and have the opposite of
the desired effect.
…
POSITION
OF THE PLAINTIFF, MR. POZNIKOFF
[40] In his argument in opposition to the defendant’s motion, counsel for
Mr. Poznikoff outlined the plaintiffs’ case generally, including the alleged
illegality of the plaintiffs’ confinement; the defendant’s alleged disregard
for the plaintiffs’ welfare; and the alleged improper motive of the defendant
in apprehending the plaintiffs ─ to punish and subdue their parents.
[41] As counsel for Mr. Poznikoff acknowledged, those are not issues to
be decided on this application.
[42] The narrow issue to be decided, as I have noted, is the meaning of
the phrase “misconduct of a sexual nature” in s. 3(4)(k) of the Limitation
Act.
[43] The plaintiff submits that the words of s. 3(4)(k) should be
construed broadly, to include any improper conduct that affects a person’s
sexual integrity. In this regard, the plaintiff notes that actions based on
“misconduct of a sexual nature” as set out in s. 3(4)(k) are separate and
distinct from actions based on “sexual assault” as set out in s. 3(4)(l).
The plaintiff says that misconduct of a sexual nature is clearly meant to be
the broader phrase, as evidenced by the fact that s. 3(4)(k) expressly
provides that “misconduct of a sexual nature” includes without limitation
“sexual assault.”
[44] It may be said that one intention of the legislature in enacting s.
3(4)(k) was, as stated by the then Attorney General, Colin Gabelmann, “to
enhance access to justice for people who have faced barriers to the court
system in the past.” The plaintiff contends that the phrase “misconduct of a
sexual nature” should be interpreted in accordance with the generous
legislative intention signalled by the changes to the Act which
permitted the enhanced right to bring an action.
[45] The plaintiff further relies on an extrinsic means of interpretation
which, it is argued, favours a broad meaning of the phrase “misconduct of a
sexual nature.” In this regard, the plaintiff relies on the decision in Janzen
v.Platy Enterprises Ltd., 1989 CanLII 97 (S.C.C.), [1989] 1 S.C.R. 1252. That decision
concerned the sexual harassment of two employees of a restaurant by another
employee. The two employees filed a complaint with the Manitoba Human Rights
Commission against the employer company. The adjudicator found that the two
employees had been subjected to sexual discrimination contrary to the Human
Rights Act. That decision was largely upheld by the Court of Queen’s
Bench but reversed by the Court of Appeal. The Supreme Court of Canada allowed
the appeal. The Chief Justice, speaking for the court held, at 1284:
Without seeking to provide an exhaustive
definition of the term, I am of the view that sexual harassment in the
workplace may be broadly defined as unwelcome conduct of a sexual nature that
detrimentally affects the work environment or leads to adverse job-related
consequences for the victims of the harassment. It is, as Adjudicator Shime
observed in Bell v.
Ladas, supra, and as has been widely accepted by
other adjudicators and academic commentators, an abuse of power. When sexual
harassment occurs in the workplace, it is an abuse of both economic and sexual
power. Sexual harassment is a demeaning practice, one that constitutes a
profound affront to the dignity of the employees forced to endure it. By
requiring an employee to contend with unwelcome sexual actions or explicit
sexual demands, sexual harassment in the workplace attacks the dignity and
self-respect of the victim both as an employee and as a human being.
[46] The plaintiff says that the Supreme Court’s definition of sexual
harassment as “unwelcome sexual conduct” and the phrase “misconduct of a sexual
nature” are so strikingly similar that the rules of statutory construction lead
to the conclusion that the legislature adopted the language in Janzen
when it extended the protection of s. 3(4)(k) of the Limitation Act
to plaintiffs subjected to sexual misconduct as children, no matter how that
sexual misconduct occurred.
[47] I am not persuaded that “unwelcome sexual conduct” and “misconduct
of a sexual nature” have, or were intended by the legislature to have,
equivalent meaning. First, the decision in Janzen was made in
the context of human rights legislation, not limitations legislation. Janzen
was directed at sexual harassment of adults in the workplace, while the
limitations legislation was specifically enacted in order to deal with the
issue of sexual misconduct towards a special class, namely children. Second,
the phrase “misconduct of a sexual nature” is clearly directed at conduct or
behaviour that is sufficiently egregious as to warrant the loss of the
limitation defence and to protect victims who, by reason of the nature of the
misconduct, are emotionally or psychologically unprepared to bring action
against the perpetrator.
[48] The plaintiff further argues that misconduct of a sexual nature is
not confined to offensive touching or sexual contact as exemplified in the
decision in M.B. v. British Columbia, [2000] B.C.J. No. 909
(S.C.), rev’d on other grounds 2001 BCCA 227 (CanLII), (2001), 87 B.C.L.R. (3d) 12 (C.A.). There the
court held that a foster father’s inappropriate behaviour ─ i.e.
masturbating in public areas ─ created a sexually-charged atmosphere in
the house that was harmful to the plaintiff. I agree that misconduct of a
sexual nature is not confined to offensive touching or sexual conduct.
[49] Mr. Poznikoff asserts that the misconduct of a sexual nature in his
case can be found in the lack of privacy at New Denver and in the sexual
taunting of him by other boys.
LACK
OF PRIVACY
[50] As to the lack of privacy, Mr. Poznikoff says that the forced
exposure was especially distressing. The plaintiff says that being forced to
be naked in front of others was embarrassing and humiliating because it
involved the forced exposure of his private, sexual parts.
[51] The plaintiff relies on the decision in Doe v. Renfrow,
631 F.2d 91 (7th Cir. 1980). That decision concerned the strip
search of four junior high school students and the mass examination of 2,780
students by a “trained narcotic detecting canine.” The Appeal Court held that the search violated
the U.S. Fourth Amendment protection against unreasonable search. The court
further held, at 92-93:
It does not require a constitutional
scholar to conclude that a nude search of a thirteen-year old child is an
invasion of constitutional rights of some magnitude. More than that: it is a
violation of any known principle of human decency. Apart from any
constitutional readings and rulings, simple common sense would indicate that
the conduct of the school officials in permitting such a nude search was not
only unlawful but outrageous under “settled indisputable principles of law”
(420 U.S. at 321, 95 S.Ct. at 1000).
[52] Other American decisions were cited in which juveniles were
subjected to strip searches which were found to be unreasonable under
established Fourth Amendment principles: Flores v. Meese, 681 F.
Supp. 665 (C.D.C.A. 1988); Justice v. City of Peachtree, 961 F.
2d 188 (11th Cir. 1992); and Thomas v. Clayton County Board of
Education, 94 F. Supp. 2d 1290 (N.D. Ga. 1999).
[53] Two Canadian decisions were cited. In C.D. v. Newfoundland (Minister of
Social Services) 
reflex, (1996), 137 Nfld. &
P.E.I.R. 206 (S.C.), the court made passing reference to an incident in which
the plaintiff was forced to remove her clothes and be exposed. The court found
that to be abuse but did not define it as “sexual abuse.” The context of that
abuse was amid an array of extreme abuse by foster parents, including beatings,
being force-fed her own vomit, and being confined to a dog house.
[54] In Ontario Secondary School Teachers’ Federation, District 9
v. Greater Essex County District School Board (Bondy Grievance), [2001]
O.L.A.A. No. 561, a labour arbitrator concluded that the strip search of 16
high school students exceeded the established parameters for such searches laid
down in R. v. M.(M.R.), 1998 CanLII 770 (S.C.C.), [1998] 3 S.C.R. 393 which requires
searches to be carried out in a reasonable and sensitive manner and be
minimally intrusive in light of all of the surrounding circumstances.
[55] In my view, the authorities referred to by Mr. Poznikoff’s counsel
are of limited assistance in addressing the meaning of misconduct of a sexual
nature. The strip searches of juveniles may or may not constitute misconduct
of a sexual nature depending upon the manner in which they are carried out and
in light of the surrounding circumstances. In addition, the lack of privacy
asserted by Mr. Poznikoff and strip searches raise distinct issues, and the
authorities which address strip searches are not relevant to the question at
hand. The abuse in C.D. v. Newfoundland was not defined as
sexual abuse, but, in any event, was inflicted as part of a pattern of horrific
behaviour.
[56] In this regard, it is easy to see when certain conduct is so
obviously misconduct and so obviously sexual in nature. It is the less obvious
that poses the challenge of identification.
SEXUAL
TAUNTING
[57] As noted, Mr. Poznikoff says that he was teased “more or less”
constantly by older boys about the size of his penis. There is no medical
evidence that Mr. Poznikoff’s genitals are not of normal size or appearance. A
psychologist who has prepared an expert opinion report says that the “on-going
bullying in a non-supportive context during a period of three years during a
crucial time in a boy’s psychosexual development has been detrimental to Mr.
Poznikoff’s subsequent psychological development.”
[58] While the psychologist has chosen to use the term “bullying”, it is
important to make a distinction between bullying, as it is commonly understood
to be, and the “teasing” that was experienced by Mr. Poznikoff. Bullying
usually involves threats of violence against a person, while teasing involves
verbal taunts meant to embarrass.
[59] Be that as it may, the taunting in question must constitute
misconduct of a sexual nature if the cause of action on which it is based is to
survive the Limitation Act.
POSITION
OF THE DEFENDANT
[60] The defendant submits that the words of s. 3(4)(k) of the Limitation
Act speak directly to the protection of children from misconduct of a
sexual nature, including sexual assault. The defendant says that this is in
recognition that there are many offences in the Criminal Code
which exist to protect children from their inexperience, powerlessness and
vulnerability. Those crimes may be consensual in nature and may not involve
“assault” as, for example, in the former crimes of statutory rape, incest, and
carnal knowledge. Thus, the defendant argues that when the legislature used
the broader language of “misconduct of a sexual nature”, it had in mind what is
normally referred to as “child sexual abuse.” The defendant defines child
sexual abuse as any act involving the sexual exploitation of a child by an
adult.
[61] Counsel advised that there are no cases that specifically deal with
what is meant by “of a sexual nature” as those words are used in
s. 3(4)(k) of the Limitation Act. However, as counsel for
the defendant noted, the meaning of “sexual nature” was considered in the
context of “sexual assault” in R. v. Chase 1987 CanLII 23 (S.C.C.), (1987), 45 D.L.R. (4th)
98 (S.C.C.). McIntyre J. delivered the judgment of the court. He
formulated a definition of sexual assault, at 104-05:
…Sexual assault is an assault within any one of
the definitions of that concept in s. 244(1) of the Criminal Code
which is committed in circumstances of a sexual nature, such that the sexual
integrity of the victim is violated. The test to be applied in determining
whether the impugned conduct has the requisite sexual nature is an objective
one: “Viewed in the light of all the circumstances, is the sexual or carnal
context of the assault visible to a reasonable observer?” (Taylor, supra,
per Laycraft C.J.A., at p. 162 C.C.C., p. 269 C.R.). The part of the
body touched, the nature of the contact, the situation in which it occurred,
the words and gestures accompanying the act, and all other circumstances
surrounding the conduct, including threats which may or may not be accompanied
by force, will be relevant: see S.J. Usprich, “A New Crime in Old Battles:
Definitional Problems with Sexual Assault”, 29 Crim. L.Q. 200 at p. 204.
The intent or purpose of the person committing the act, to the extent that this
may appear from the evidence, may also be a factor in considering whether the
conduct is sexual. If the motive of the accused is sexual gratification, to
the extent that this may appear from the evidence it may be a factor in
determining whether the conduct is sexual. It must be emphasized, however,
that the existence of such a motive is simply one of many factors to be
considered, the importance of which will vary depending on the circumstances.
[62] In W.R.B. v. Plint 2001 BCSC 997 (CanLII), (2001), 93 B.C.L.R. (3d) 228
(S.C.), Brenner C.J.S.C. held, at para. 262 and 263:
In my view the phrase “misconduct of a
sexual nature” is not to be interpreted narrowly. It includes all matters that
are ancillary and reasonably related to the tort of sexual assault, such as a
physical assault that occurs as part of a sexual assault.
In the case at bar the plaintiffs have
advanced claims which are not based on “misconduct of a sexual nature”. They
are claiming damages as a result of only physical and not sexual assaults.
Their breach of fiduciary duty allegations include isolation from family and
community, prohibition of the use of Native language, religion and culture, use
of racist epithets, physical beatings, abuse, degradation and humiliation,
creation of an environment of coercion and fear, overcrowded and inhumane
residence conditions, and serving of rancid food.
[63] In determining the meaning of “misconduct of a sexual nature”, it is
useful to consider other extracts from Hansard in which the Attorney General,
Colin Gabelmann, described the underlying rationale for the amendments to the Limitation
Act when he called the second reading of the amending Bill 38 (British
Columbia, Legislative Assembly, Debates of the Legislative Assembly (9
June 1992) at 2406):
One of the things we have learned is that a
great many people who have endured such abuse suppressed the memory for many
years as a way of coping with the horror. We have also learned that one of the
most important healing factors is to have the opportunity, however many years
have passed, to confront the abuser … while it has become evident, however,
that the present provisions are inadequate to meet the needs of survivors of
sexual abuse.
[64] The defendant thus submits that when the legislature enacted this
extraordinary amendment to permit a person to commence an action at any time
for sexual misconduct, even outside the “ultimate” 30 year limitation period,
it had in mind serious sexual misconduct; conduct which seriously traumatizes
or injures the victim; and is so heinous as to demand that the perpetrator of
the misconduct be called to justice.
DECISION
[65] What, then, is the meaning of the phrase “misconduct of a sexual
nature”?
[66] If one deconstructs the phrase and applies the ordinary dictionary
definitions of the words, the phrase means improper behaviour relating to the
sexes or the relations between them. See: The Concise Oxford Dictionary,
9th ed., s.v. “misconduct”, “sexual.” “Improper” simply
means unseemly or indecent or not in accordance with accepted rules of
behaviour. See: The Concise Oxford Dictionary, 9th ed., s.v.
“improper.”
[67] Taking the ordinary meaning of the words and considering them in the
context of the legislation as a whole and the remarks recorded at the time the
amendments were introduced into law, as well as decisions which have shaped the
definition of comparable phrases, I conclude that s. 3(4)(k) applies in
circumstances where:
(a) the victim of the sexual misconduct was a child when the
misconduct occurred;
(b) the misconduct constituted a real affront to the sexual
integrity and dignity of the victim;
(c) the misconduct caused serious trauma or injury to the
victim; and
(d) the misconduct is sufficiently egregious so as to demand
that the perpetrator be brought to justice so that the victim may confront the
abuser.
[68] Misconduct of a sexual nature is behaviour that falls outside of
accepted societal norms. It is conduct that offends the sensibilities of
society because it interferes with the sexual integrity of a vulnerable group
in society, children, who are incapable of protecting themselves. The conduct
may but is not required to be criminal behaviour.
[69] This definition of misconduct of a sexual nature must be considered
in the context of all of the circumstances prevailing at the time the
misconduct is alleged to have occurred. One must ask, as the Supreme Court did
in R. v. Chase, supra, would the sexual misconduct be
visible to a reasonable observer?
[70] I turn now to consider the misconduct of a sexual nature alleged by
Mr. Poznikoff, viewed through the eyes of a reasonable observer. Mr.
Poznikoff’s complaints may be summarized as follows:
(a) the dormitories at New Denver were cramped and
overcrowded, allowing no privacy for the children;
(b) he was required to dress and undress in the presence of
his peers and occasionally in the presence of staff members;
(c) the showering, bathing, and toileting facilities were
communal and there were no doors on the toilets; and
(d) older boys teased him about the size of his genitals.
[71] I understand the distress that Mr. Poznikoff experienced at New
Denver. However, I am unable to conclude that the physical conditions at New
Denver, the resultant deprivation of privacy and the opportunity that provided
for him to be teased by his peers, constitutes misconduct of a sexual nature.
[72] There is no evidence before the court to suggest that the physical
conditions at New Denver were any different from most summer camps, then or
now, or that the showering facilities were any different from those in most
school gymnasiums or public pools of the day or now. Mass housing of people,
including children, necessitates communal facilities. One can conceive that,
for safety reasons, it would be preferable to have children shower or bathe in
a group setting so that supervision could be maintained over all of the
children and not leave room for some unfortunate accident. Toileting
facilities for males are well-known to be open and, not infrequently, communal.
[73] While I have no doubt that Mr. Poznikoff had a sensitive
personality, I cannot say that the lack of privacy constituted a real affront
to his sexual integrity.
[74] In my view, a reasonable observer would not regard the lack of
privacy or the teasing to which Mr. Poznikoff was subjected as conduct falling
outside the accepted societal norms of the day.
[75] First, while the reasonable observer might well regard the
apprehension and confinement of the children at New Denver as unfortunate or
even abhorrent, because it separated children from their parents, the actual
circumstances of their confinement were consistent with dormitory life in other
schools or other institutions. In other words, the sensibilities of society
would not be offended because the facilities were not out of the ordinary at
the time or even now.
[76] Second, there is no evidence that the teasing of Mr. Poznikoff about
his genital size was encouraged or countenanced, by the staff. The only
evidence suggests that the staff acted appropriately in respect of general
teasing of Mr. Poznikoff by encouraging the older boys to treat him as “one of
the gang.” Furthermore, I cannot say that juvenile teasing by peers in regard
to the sexual development of their peers is conduct which is sufficiently
egregious so as to demand that either the perpetrators or the staff charged
with their supervision be brought to justice so that Mr. Poznikoff may confront
them. First, as I have noted, there is no compelling evidence that the staff
was made aware of the teasing. There is only the vague recollection that one
of the staff may have been present on one occasion when Mr. Poznikoff was
teased about his genitals. Second, it is behaviour that, while it may be
offensive and juvenile, it is also characteristic of adolescents. It is a
passing phase which most, if not all, children endure to one degree or
another. In other words, it is a commonplace of life, despite adults trying to
make it otherwise.
[77] I therefore conclude that Mr. Poznikoff was not exposed to
misconduct of a sexual nature as that phrase was intended by the legislature to
be applied in its enactment of s. 3(4)(k) of the Limitation Act.
“P.A. Kirkpatrick, J.”
The Honourable Madam Justice P.A. Kirkpatrick
May 21, 2002 – Corrigendum to the
Reasons for Judgment issued by Madam Justice P.A. Kirkpatrick advising
that counsel has pointed out that:
1. On page
2, paragraph 2, line 3, “in December 2001” should read “on April 4, 2001; and
2. On page
4, paragraph 7, line 1, “49” should read “55”.
Those changes
are noted and have been applied.
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