Besides the somewhat dry legal discussions of vicarious liability and the relative responsibilities of the Anglican Church and the federal government in the victim’s abuse, Justice Janice Dillon’s 106-page decision also documents the horrific details of supervisor Derek Clarke’s eight-year reign of terror.
First, Justice Dillon noted Mr. Clarke had no training in child care. Indeed, he had been employed as a child-care worker at another Anglican institution for less than a year when he was asked to leave because he was unqualified. The supervisor, however, arranged for him to work at St. George’s.
Justice Dillon said the late Ralph Dean, who was bishop of Cariboo at the time, must have known of the abuse. She also believes the principal of St. George’s Indian Residential School, Anthony Harding, also dead, deliberately covered up the abuse because he too abused boys. (Mr. Harding was found not guilty of such charges in a criminal trial about 10 years ago.)
The victim lived at St. George’s in Lytton, B.C., from 1969 to 1976. He was nine years old in 1970 when dormitory supervisor, Mr. Clarke, began to sexually assault him. Dormitory supervisors oversaw all the boys’ activities from the moment they awoke until bedtime, except for school instruction.
Mr. Clarke began his assaults by fondling the child under his blankets under the guise of “looking for things.” All other assaults, including forced oral sex and sodomy, occurred in Mr. Clarke’s room next to the dorm. Five other men testified before the judge that Mr. Clarke had assaulted them as well.
Mr. Clarke would line the boys up outside his room after bath in the evening and inspect each to see if he were clean. One of the boys was then taken to Mr. Clarke’s room for the night.
The assaults began soon after Mr. Clarke came to St. George’s in 1965, the judge found. The victims said they were assaulted two or three times a week each.
“Mr. Clarke told each boy not to tell anyone,” the judge wrote. “He gave his favoured boys chocolates, pop, gum and weekend trips. When he took a boy away from the school for a weekend trip, sexual assault occurred in motel rooms. These trips required the permission of the principal.”
The boys’ behaviour revealed these secrets, however, Justice Dillon said. While the boys did not discuss with each other what happened, it was the known subject of ridicule, jokes, innuendo and nicknames. By this time, St. George’s was no longer a school, just a residence.
A teacher at the school the boys attended, Lytton Elementary, noticed sexually inappropriate incidents in the playground and overheard the ridicule and jokes. She told the court she went to the school’s principal, Joseph Chute, and demanded the boys be questioned. This led to Mr. Chute calling his friend, Mr. Harding, the residence principal, who in turn questioned the boys. The judge concluded Mr. Chute did not inform either the police or the Department of Indian Affairs of the abuse.
Mr. Harding asked Mr. Clarke to resign – which he did – leaving the residence in less than half an hour. Mr. Harding later wrote a letter of recommendation for Mr. Clarke, expressing appreciation for past services and expressing hope that his “personal problems” would be cleared up.
Mr. Harding wrote to the Department of Indian Affairs to inform them of Mr. Clarke’s “resignation” but did not reveal the reason, although serious disciplinary matters with respect to staff were to be mentioned in reports to the department.
Based on hearsay evidence and testimony from the current bishop of Cariboo, Jim Cruickshank, the judge concluded the bishop of the day was very likely informed of the incidents. She noted that Bishop Cruickshank thought it “unimaginable” the bishop would not have been told, although the church argued in court that the question was unanswered. She also noted the incidents were known to school staff and some local parishioners.
“Nothing was done,” after Mr. Mowatt left, the judge noted. “The parents were not informed. None of the boys received counselling or parental or spiritual assistance. Nobody made further inquiry.”
Justice Dillon concluded that Mr. Harding, whose rooms adjoined the residence, also sexually assaulted male students at St. George’s, as several men testified during the trial. “Although Harding denied this and was acquitted of sexual assault following trial, it is not known who testified against Harding at his trial,” she said.
One man said that a few years after he told the principals of the residence and school of being abused by Mr. Clarke, Mr. Harding – who was by now an Anglican deacon, on his way to becoming a priest – sodomized and had oral sex with him in his room.
“The involvement of Harding in sexual misconduct and his failure to do anything for the boys as a result of their disclosures leads to the obvious inference that he did not care about Clarke’s behaviour as long as it was not known,” the judge concluded.
“The fact that he did not tell the department about the reason for the ‘resignation,’ even though he told Chute that he would do so, indicates that Harding did not want an investigation at the school.”
On the question of whether the church as the employer should be held liable for the crimes of an employee, Justice Dillon said the case was similar to the recent Supreme Court decision in Bazley v. Curry. In that case, a non-profit group was found vicariously liable after its child-care worker sexually assaulted a child under his care.
(Vicarious liability involves an innocent employer being held responsible for an employee’s crimes.)
The Supreme Court said the stronger the connection between the type of risk created by the work, the more likely an employer will be found vicariously liable, particularly if the employee is placed in a parental-type relationship.
In this case, supervision of Mr. Clarke was minimal, if at all, the judge found.
“The employer could not possibly have given an employee a greater opportunity to abuse children, except, perhaps, allowing the children to reside away from others in the supervisor’s own home,” she said, noting this was sometimes done when Mr. Clarke would take children away for the weekend.
In its defence, the church said Mr. Clarke was an employee of the federal government during the years he abused the plaintiff from 1970 to 1973. Maybe so, the judge said, but the change in employee status had little immediate effect upon the operation of the school as an Anglican institution. “The church had at least a reasonable degree of control over the hiring and dismissal of Derek Clarke.”
The judge found both the church and the government vicariously liable for the abuse. She also found that they both owed a duty of care to the victim and both breached their duty. The church was also in a position of trust regarding the victim, and the judge found the church breached that as well.
Justice Dillon concluded the church bears greater fault than the government “because of the failure of the Anglican Church to disclose Clarke’s abuse so that adequate investigation and care could follow.”
Justice Dillon upheld the federal government’s claim against the diocese of Cariboo for breaching the advisory service and chaplaincy contracts it held with the government. It should have provided pastoral counselling, moral guidance and personal assistance to Mr. Mowatt after the disclosure, she said. If the government and the church cannot agree on an amount for that particular claim, the matter will be referred back to Justice Dillon.