Inside B.C. jails: A decades-long battle through the courts
Credit to Author: Dan Fumano| Date: Wed, 27 Nov 2019 00:16:15 +0000
A long and winding legal road has led to a lawsuit alleging sexual assault against former B.C. jail guard Roderic David MacDougall and the provincial government, in which 61 former inmates are seeking the court’s approval to band together as joint claimants.
The claim, called a representative action, was filed last month in B.C. Supreme Court, but it was preceded by years of legal wrangling, including the plaintiffs’ lawyers alleging provincial “delaying tactics” and disputes over the disclosure of government evidence.
MacDougall worked from 1976 to 1997 in Oakalla and other B.C. jails, and some plaintiffs have died while waiting for their day in civil court. The claim filed last month alleges that six plaintiffs have died since 2016 alone, “as a result of their own attempts to self-medicate and/or addictions.”
In the criminal courts, MacDougall was convicted in 2000 of sexually assaulting five former prisoners, but has faced no charges since. The RCMP recommended additional charges in both 2002 and 2010, but Crown prosecutors refused to approve them, according to the representative action.
Over the past two decades, more than 200 former inmates have filed individual civil suits against MacDougall and the province. About half have been concluded, with payouts by the province, private out-of-court settlements or dismissals. The other half are still before the courts.
Before Vancouver lawyer Karim Ramji filed last month’s representative action — which is similar to a class-action lawsuit — he was already representing dozens of former prisoners in their individual civil suits. Many of those claims had been dragging through the courts for more than a decade without a trial. For some plaintiffs, Ramji is the second or third lawyer handling their cases.
A photo of Roderic MacDougall taken before 2005.
Cristen Gleeson, a lawyer with Baker Newby in Chilliwack, represented about 70 inmates who have alleged sexual abuse by MacDougall. At first, in the early 2000s, many of the cases were being settled, she said, but around 2006 the province “started defending them a lot more vigorously.”
The province started challenging plaintiffs’ memories and credibility, something that was difficult for many of the plaintiffs, who argued their drug addictions and criminality worsened after the alleged sexual assaults, said Gleeson.
“These individuals had very patchy life histories, very difficult life histories. They were (alleged) victims of abuse, they were usually people living on the margins of society already,” she said.
She disagrees with the decision not to approve additional criminal charges. “There probably just wasn’t a high level of public interest, unfortunately, and it is sad to say that.”
Postmedia requested an interview with Attorney General David Eby, who took over that job in 2017, but he instead released a statement that said it would be inappropriate for him to discuss the civil cases. He also directed all questions about not approving additional criminal charges to the B.C. Prosecution Service, which said the decision regarding the 2010 recommendations was made based on the standard criteria of whether there is a substantial likelihood of conviction and whether the prosecution is in the public interest.
B.C. Attorney General David Eby earlier this year.
As the number of civil lawsuits grew, B.C. Supreme Court Justice David Masuhara has been case-managing many of them since 2008.
In a May 2019 judgment, Masuhara wrote that the plaintiffs had accused the B.C. government lawyers of engaging in “delaying tactics that are an abuse of process … and serve only to suppress the rights of the plaintiffs to assert their Charter claims.” The plaintiffs had also alleged that the government was trying to shield itself 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,” Masuhara wrote.
However, the province, according to Masuhara’s judgment, argued the plaintiffs were inappropriately trying to put on trial the “omissions of the government for the entire 21-year period of Mr. MacDougall’s employment with the Corrections Branch,” rather than just the years when the specific abuse claims before the judge occurred. The province said this “risks making the trial and preparation for trial far lengthier and more expensive than ought to be the case.”
In May, Masuhara ruled in favour of the government lawyers’ application to block the plaintiffs’ attempts to claim breaches of their constitutionally protected Charter rights. Ramji has appealed that May judgment, which has meant all of those individual civil suits that Masuhara was case-managing have been put on hold, possibly for years.
In the meantime, Ramji has filed the representative action, which claims it would be the most effective way to ensure the plaintiffs, “who are some of the most vulnerable citizens of society,” get access to the courts.”
Neither the province nor MacDougall have filed a response to the representative action. MacDougall has rarely participated in any of the civil cases, but when he has filed a statement of defence it has denied the allegations.
Oakalla Prison in January 1988.
Over several months leading up to Masuhara’s May ruling, Ramji and the province had clashed over the government’s disclosure of evidence and other legal material, including letters filed with the court in which Ramji accused government lawyers of “a pattern of not producing documents in a timely way.”
And early this year, a lawyer for the B.C. government appeared in a Vancouver courtroom and apologized, on behalf of the province, to a B.C. Supreme Court judge for failing to disclose relevant documents in another civil claim naming MacDougall and the province.
In that case, a B.C. Supreme Court judge had ruled in December, 2018, that the plaintiff had been “sexually assaulted by several inmates at Oakalla prison due to the actions of a corrections officer,” but she concluded the evidence did not prove the allegation that MacDougall’s conduct allowed the assault to occur.
However, a month after that judgment, Andrew Gay, a lawyer for the government, was back in court to apologize. He explained the province had found “a file of relevant documents that was not disclosed pretrial to the plaintiff,” an error that he said was inadvertent.
Lawyers for both sides agreed the newly disclosed information would have, if produced before trial, affected the credibility of a former jail guard called as a witness for the province. The plaintiff decided not to appeal, but his lawyer Jason Gratl said that decision had “more to do with his weariness than a lack of a sense of injustice.”
Oakalla prisoners in 1975.
Vancouver lawyer Megan Ellis represented about 20 of MacDougall’s alleged victims, including one high-profile case that went to the Supreme Court of Canada. Changes over the years by the provincial government, including to legal aid, have made it increasingly more difficult for these plaintiffs to pursue legal actions, she said.
She argued the federal government and some other provinces have negotiated settlements in institutional sexual abuse cases, and would like to see that happen here.
“Really what the province ought to have done a long time ago was step up to the plate and come up with a less adversarial process,” Ellis said. “Accept responsibility for the victims, and pay them out.”
The government has settled at least one case recently, involving a former prisoner who filed a civil claim against MacDougall and the province in August. Gratl, who was also the lawyer for that plaintiff, said the lawsuit was settled out of court for an undisclosed amount.
Since Postmedia first broke the story last month of the representative action, Ramji said at least four new potential plaintiffs for the representative action have contacted his office. Other former Oakalla inmates have also contacted Postmedia reporters directly to share their stories.
Saturday: A jail guard, the government and 200 inmates
Monday: A failure to improve oversight
Tuesday: Life sentences of shame and fear
Wednesday: A long road through the courts
Twitter: @loriculbert
With research from Postmedia librarian Carolyn Soltau.