— Sexual abuse survivors say they’re revictimized during civil process
Lawsuits provide alternative recourse, but can retraumatize victims
By Julie Ireton
When John Cody decided to sue his former Ottawa high school teacher and the institutions that allegedly failed to stop his sexual abuse, the 60-year-old braced himself to face his perpetrator again.
But the treatment he said he received during mediation was worse.
At one point, Cody, diagnosed with a terminal illness, recalled the mediator relaying a haunting message from the opposing side that implied he wouldn’t live long enough to see a resolution.
“This was the most traumatizing thing I’ve ever experienced,” Cody told CBC in a recent interview from his Montreal apartment. “This was inhumane treatment, and I can’t level any reasonable or logical explanation.”
Cody is one of several abuse survivors across Canada who describe feeling revictimized through the civil process.
Their stories provide a rare glimpse into what can happen in civil litigation involving large institutions such as school boards, hospitals, scouting and religious organizations. These cases often don’t make it into the public record due to the confidentiality around settlements.
While lawyers representing defendants are bound by professional obligation to defend their clients’ interests, one Toronto lawyer says some of the interactions with survivors could use less bravado and aggression.
“I think that everyone involved in the system needs education or should have ongoing education around this, including judges, mediators as well as lawyers,” said Carole Jenkins, who often represents parties being sued.
‘I would be dead’
Cody’s former teacher Bob Clarke was sentenced to prison for abusing Cody and nine other boys at Ottawa high schools in the 1970s, 80s and 90s. He has since been released.
In 2021, six survivors — all in midlife — launched lawsuits against Clarke, his former wife, the Ottawa-Carleton District School Board (OCDSB) and the Royal Ottawa Mental Health Centre where the teacher had been treated, alleging negligence and other wrongdoing.
For several years, Cody, a songwriter and musician, has suffered from cancer and a degenerative neurological disease. His case went to mediation this summer.
What happened next, Cody said, was shocking and crossed an ethical line.
“Opposing counsel said they were willing to fail the mediation because I would be dead before we got a court date, and they wouldn’t have to pay out,” Cody said, referring to what the mediator told him.
“To reduce me down to nothing more than a medical file that will expire before they have to pay out to someone as sick as me is beyond reprehensible.”
Featured VideoJohn Cody is one of several abuse survivors across Canada who describe feeling revictimized through the civil process. During mediation, Cody said he had to deal with ‘shocking’ and ‘cruel’ comments allegedly said by the opposing counsel, and said it was a traumatic experience. Lawyers for the OCDSB, who Cody was suing, said their client would not violate the confidential nature of mediation by discussing Cody’s case, but added those comments “would not be made to any claimant.”
Ottawa-based lawyer Colin Dubeau, who represents the OCDSB, said in an email to CBC that his client would not violate the confidential nature of mediation by discussing Cody’s case.
However, he said school board representatives have never intentionally failed at mediation to “exact a more favourable settlement.”
“Comments, as you have outlined … have not and would not be made to any claimant, as doing so would run contrary to the principles of fairness, respect, and dignity with which the OCDSB and its legal counsel handle all such claims,” Dubeau wrote.
Cody’s case was settled in July. Details of the settlement are not public.
Four of the six lawsuits are pending, and both the school board and The Royal deny vicarious liability for what happened to the plaintiffs.
‘Undignified,’ ‘inhumane,’ ‘wicked’
Civil cases launched by sexual abuse victims can be more wide-raging in scope than criminal charges because they can attempt to assign blame to institutions for allowing or enabling abuse, and hold them accountable for historical wrongs.
Litigation against the Catholic Church for sexual abuse, for example, has resulted in millions of dollars in payouts across Canada. A precise amount is impossible given the high number of confidential out-of-court settlements.
But several victims who have embarked on such a journey say the same civil court system can also be used to retraumatize them.
“I would describe it as undignified. I would describe it as inhumane. I would describe it as being either morally compromised or wicked,” said Patrick, referring to his experience with lawyers representing the Archdiocese of Ottawa-Cornwall.
CBC has agreed not to reveal Patrick’s full name because he was a 12-year-old altar boy when he was sexually assaulted by two priests.
One of his alleged abusers was convicted of sex crimes against other boys, but a second member never faced charges. Both men are now dead.
“During discovery, the church’s lawyers decided to take it upon themselves to ask me, a survivor of childhood sexual abuse, if I enjoyed the experience of being abused sexually by members of the clergy,” said Patrick.
According to court transcripts, the lawyer repeatedly asked Patrick if his body was aroused.
“They asked the question to signal to me that if you don’t like this question, you’re not going to like a lot of things that are about to happen,” he added.
The lead lawyer for the church issued a statement on Monday, explaining the intent of that line of questioning.
“I understand the plaintiff’s discomfort,” wrote Charles Gibson. “The question was a fact finding one and in no way was it meant to ask the plaintiff if he enjoyed the devastating impact of a sexual abuse.”
Adversarial system
Seven years after filing his lawsuit, Patrick’s case was settled after mandatory mediation, just weeks before it was set to go to trial. The terms of the settlement are not public.
“The system is not broken. The system is working the way it was designed to work,” Patrick said in an interview with CBC. “We need to ask ourselves if we’re OK with that.”
“I think we have a lot of work to do,” said Sandy Kovacs, a civil litigator who represents plaintiffs.
“I think an adversarial system doesn’t actually achieve what we’re trying to achieve, which is the truth and accountability, so that we can actually address this harm in our society.”
Kovacs has come up against institutional lawyers, including those representing Catholic Church defendants for years.
She points to questions a lawyer once asked her client, Rosemary Anderson, who was repeatedly sexually assaulted by a Kamloops, B.C., priest in the 1970s.
“She was exploited by a priest and opposing counsel asked her if she was jealous when she found out there were others,” said Kovacs, referring to other victims.
Anderson calls the defence lawyer’s assertion “sick.”
“He was allowed to get away with that,” she said.
Anderson said the opposing lawyer also belittled her, patronized her and repeated factual errors in an attempt to discredit her.
No apology from defendants
In the cases launched by Cody, Patrick and Anderson, each plaintiff asked for apologies and accountability, not just money.
All three have confirmed to CBC that their non-financial demands were not met.
“The civil system does not allow for anything other than financial compensation,” said Anderson. “The church didn’t apologize, in fact they worked very, very hard at defending themselves and trying to maintain their own honour.”
Anderson believes all lawyers dealing with sexual assault cases should be required to take sensitivity training.
Defence lawyer Carole Jenkins says these cases are rarely straightforward and often go beyond whether the alleged abuse took place.
“I owe a duty to my client and I advocate in their interest,” said Jenkins. “And sometimes, no matter how respectfully or kindly I ask a question, it’s likely to be traumatizing for the plaintiff.”
But Jenkins believes there are better ways to approach victims on the other side of the table.
Lawyer advocates ‘trauma-informed’ approach
In 2020, Myrna McCallum launched a podcast dedicated to addressing this very issue.
McCallum, who has worked as a defence lawyer, prosecutor and adjudicator, says it was her experience in the foster care and residential school system in northern Saskatchewan that drew her toward a career in law — and now, proselytizing a “trauma-informed” approach.
“Throughout law school and the bar course, never once did we talk about people, did we talk about trauma, did we talk about empathy, humanity,” said McCallum.
“We’re not taught anything beyond making your best possible argument at all costs. [It] doesn’t matter if you’re crumpling and collapsing in the witness box.”
Her aim is to educate lawyers, judges and police officers about “how to bring emotional intelligence to their practice.”
“I do think it can be fixed,” said McCallum, who is currently organizing a conference called Justice as Trauma, set to take place next spring.
“Do we, like physicians, have a duty to do no further harm to people? I think we should. I think we do,” she added.
A new law passed in 2021 requires new federally appointed judges to agree to training on sexual assault and systemic racism before they’re appointed to the bench.
Cody says he’s speaking out because he wants the system — and the people who operate in it — to change.
“Part of my end of life bucket list as it were, was just to get all of this as much behind me as possible and get down to the business of being at peace,” said Cody.
“I just didn’t think they’d be so cruel about it,” he said. “It felt like kicking someone when they’re down.”
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