Understanding the Survivor s Experience

Transcription

1 Understanding the Survivor s Experience DISCLAIMER Any legal information in this document is provided for educational purposes only. Every attempt has been made to ensure the information contained herein is valid as of March 31, 2005, but the law can change. For these reasons, this package does not replace the specialized information of lawyers and other experts. What Stages of Grief and Loss Does the Survivor Go Through? It is important that a survivor is able to express his or her anger and loss in a safe and supportive environment. The stages of grief include: Shock/denial Bargaining Anger/blaming Sadness Transition/acceptance Healing How Can the Survivor Deal with the Post-Traumatic Stress? Individuals who were abused can sometimes have what is termed posttraumatic stress. This is anxiety caused by memories of the traumatic events of the childhood abuse. The stress may lead to physical and mental health problems, and may make it difficult to function in social or family life. The steps to deal with post-traumatic stress include: Acknowledging what happened in these situations Affirming that it happened Taking the path to healing Seeking redress for these abuses Page 1 of 52 May 01, 2005 Version 1

2 Understanding the Survivor s Experience Trauma from Residential School System Abuse In the residential school system, the effects were felt by the whole community and created in some cases a legacy of abuse for everyone living in that community. The survivor also had to deal with the trauma related symptoms specifically related to the institution itself. If the survivor was abused by a teacher, then not only was there the specific abuse to deal with but also the betrayal of a valued social institution. This could be expressed in the fear to send their own children to school. How Does Abuse Effect the Survivor Culturally and Spiritually? Parenting and family life is learned in the home so children who lived in institutions were deprived of the chance to live as a family and to learn the skills of effective parenting within their culture. Removing Aboriginal children to residential schools disrupted the transmission of cultural values and practices from the elders. These children were forbidden to express their cultural experiences and values while at school and when at home they lost their ability to communicate and their sense of belonging. The children were deprived of the following essentials in their culture: Family-parents and siblings Language Customary clothing Cultural traditions Religion Traditional meals Knowledge of what it meant to be Aboriginal Capacity for social co-operation Options for Dealing with Abuse, Law Courts Society of BC, 2002 pages 1-24 to Restoring Dignity: Responding to Child Abuse in Canadian Institutions, Law Commission of Canada Report, 2000, pages 45-46; [ Page 2 of 52 May 01, 2005 Version 1

3 Understanding the Survivor s Experience Loss of Culture is Reflected in Social Problems This loss of culture and connection devastated many Aboriginal communities and is reflected today in a number of social problems such as: substance abuse violence crime domestic abuse family breakdown Many believe that the effect of the residential schools on the Aboriginal families and communities has been so pervasive as to actually amount to a larger campaign of cultural genocide practised by the governments and churches that ran these schools. How Does the Abuse Become Multigenerational? The lessons learned in childhood are often repeated in adulthood as those experiences deeply influence behaviour. Therefore, children who suffered in institutions carried that abuse with them into adult life, often with negative results, especially in the Aboriginal communities. Family is the Focal Point In Aboriginal cultures, the family is a focal point for transferring the spiritual values from one generation to the next. The organization of communities along kinship lines means that each member needs to connect as an individual to the larger group. An oral tradition grounded in the transfer of stories and fables reinforces this social bond. Grandparents play a key role in teaching children their place within the community. The children should have had an education, which complemented and reinforced the learning done in the home. Instead the residential schools weakened and severed relationships with the traditional community. Inability to Speak Their Language The inability to speak their language is especially damaging in cultures that have this oral tradition. Language is the basic medium through which the culture is expressed. It helps create and sustain a worldview. Removing the children from their families and forbidding them to speak there language led to a psychological disorientation and spiritual crises. Page 3 of 52 May 01, 2005 Version 1

4 Understanding the Survivor s Experience Legacy of Institutional Abuse The children were taught to be ashamed of their roots. Some survivors have had difficulty living productive lives and have become abusive themselves. Many were left unable to assume responsible positions as mothers, fathers and community members a persisting legacy of the institutional life. Researchers have confirmed that Aboriginal communities experience higher rates of violence, both physical and sexual. There is a lack of family and community togetherness. Suicide rates are six times higher and addictions and health concerns are a large problem. Poverty, unemployment, illiteracy and dropout rates are higher than in the mainstream society. Options for Dealing with Abuse, Law Courts Education Society of BC, 2002 pages and Page 4 of 52 May 01, 2005 Version 1

5 s of the Survivors of Institutional Abuse DISCLAIMER Any legal information in this document is provided for educational purposes only. Every attempt has been made to ensure the information contained herein is valid as of March 31, 2005, but the law can change. For these reasons, this package does not replace the specialized information of lawyers and other experts. This document explains the law in a general way. As each person s case is different, the package is not intended to provide legal advice about a specific matter. Any information related to healing from institutional abuse provides educational information and is not intended to provide therapy. If you feel any anxiety or unpleasantness while reading the content of this package, please contact Indian Residential Schools Survivor s Society for assistance. To speak with a counsellor you can them at reception@irsss.ca or call (Toll Free). IRSSS offices are located at Phone: (604) Suite Park Royal South, Fax: (604) West Vancouver, BC, V7T 1A2 If the counsellors at the Indian Residential Schools Survivor Society do not meet your need for assistance, please visit the Resources section of the website for a list of varying resources for Survivors of all backgrounds and needs. This package is produced by the Law Courts Education Society of BC (LCES), a non-profit organization that provides educational programs and services about the justice system in British Columbia and Canada. LCES cannot be held liable for any special, incidental, indirect or consequential damages of any kind, arising from the use of this package or other documents which are referenced by or linked to the web site This document is offered free-of-charge as a supplement to the website, For additional copies, please contact the Law Courts Education Society of B.C Hornby Street Phone: (604) Vancouver, BC V6Z 2C5 Website: Page 5 of 52 May 01, 2005 Version 1

6 Needs of the Survivors of Institutional Abuse DISCLAIMER Any legal information in this document is provided for educational purposes only. Every attempt has been made to ensure the information contained herein is valid as of March 31, 2005, but the law can change. For these reasons, this package does not replace the specialized information of lawyers and other experts. What Do Survivors Tell us They Need? The needs of survivors are as unique and varied as the survivors themselves. The types of needs discussed below are not a prescription for every survivor or a checklist for any particular group of survivors. They describe some of the primary areas of need as identified by survivors in the course of the Law Commission of Canada research and consultations in the report, Restoring Dignity. Survivors tell us they need: Remembrance Acknowledgement Apology Accountability Access to therapy or counselling Access to education and training Financial compensation Prevention and public awareness It is not an exhaustive list. The needs are not the same for each survivor, family or community involved. Remembrance: Establishing a Historical Record Survivors feel a strong need to ensure that their experience is not forgotten which includes the actual abuse itself and the fact that adults failed to protect them. Page 6 of 52 May 01, 2005 Version 1

7 Needs of the Survivors of Institutional Abuse The secrecy of the abuse was kept in the institutional setting as the children had so few opportunities to disclose the harm to people outside. Some survivors would like to have a physical memorial that serves as a concrete reminder of what they endured both individually and collectively. Others would like to have a place where they could record their experiences or those of friends or family members no longer alive to ensure that future generations will know how they lived and what they endured. The burden of suffering alone would be gone. These memorials would have an educational purpose and would be a caution to everyone to make sure this does not happen again. Above all, any kind of memorial should be a testament to the children of the institutions: those who disclosed what they went through and those who did not; those who survived and those who died; those who have healed and who help others to heal. The Report on Restoring Dignity has information about remembrance memorials on p To view this information about remembrance memorials visit Acknowledgement Those seeking acknowledgement are above all, asking the wrongdoers to admit that they know they violated moral standards. To be complete, an acknowledgement must have three other features: It must be specific, not general, and forthright, not reticent; nothing less than a detailed and candid description of persons, places and acts is required. It must demonstrate an understanding of the impact of the harms done and requires recognition of the consequences of the acts perpetrated. It must make clear that those who experienced the abuse were in no way responsible for it and there can be no shifting of blame to the survivors. Apology The elements necessary for a meaningful apology have been described as follows: Acknowledgement of the wrong done Accepting responsibility for the wrong done The expression of sincere regret or remorse Assurance that the wrong will not recur Reparation through concrete measures Reminder to the wrongdoer of the community norms because the apologizer admits to having violated them. Page 7 of 52 May 01, 2005 Version 1

8 Needs of the Survivors of Institutional Abuse An apology should be: Based on first-hand knowledge Explicit about the harm done Personalized in accordance with the wishes of the survivor(s) Given in a timely manner Culturally sensitive or otherwise appropriate to survivors Meaningful to the survivor and within the survivor s control as to whether it is accepted. To see the excerpt from the Statement of Reconciliation by the Federal Government in January 1998, in Acknowledgement and Apology, visit Accountability Accountability may take many forms such as: Setting the record straight by having the perpetrators identified Civil liability for negligence or willful blindness Pursuit of punishment in order to find out the truth Justice through criminal prosecution Administrative hearings and sanctions for those who have remained faceless and nameless Accountability in most cases is more than a need for revenge. It is a need to have a public denunciation of the whole institution and the perpetrators who made it possible for the abuse to occur. Access to Therapy or Counseling Survivors may need help from a person or persons that they trust in order to heal. A health care professional, a traditional Aboriginal healer, a community worker, or even a survivor who has gone through a similar experience may be the one to help. It is important that the survivors are not left on their own to deal with the stress of dealing with the past if they are encouraged or compelled to disclose experiences of past abuse. They may need to have immediate support as well as long term support to work through the emotional, psychological and physically consequences of the abuse. Page 8 of 52 May 01, 2005 Version 1

9 Healing Options for Survivors Access to Education and Training One consequence of institutional abuse is that some children did not receive a basic education. The abuse resulted in an inability to concentrate and study or the survivors were forced to do physical labour rather than study. Survivors should be made aware of the educational opportunities and support services that are available to them. They could upgrade their skills in a vocational or cultural setting. Improving their education or training is an important step towards taking control of their lives and overcoming some of the harm done by the abuse. Financial Compensation Money is the way the Canadian legal system compensates people for injuries wrongfully caused by others. The survivors must be able to demonstrate, according to the standards set by whatever judicial or extrajudicial process is being used, that wrongs were committed. Once they do so, they are entitled to compensation just like all other victims of crime or civil wrongs. Financial compensation is one of the most basic of needs as it helps the survivors seek counseling and further education but it is also the one that is the most contested. Courts, tribunals and redress programs have to come up with the appropriate compensation and this may be difficult and may vary from case to case. Prevention and Public Awareness Increasing public knowledge of institutional child abuse as a continuing social problem is a need felt by many survivors. Believing that society has the will to stop such abuse in the future is an important part of the survivors struggle to overcome the damage done to them. Helping to develop preventive strategies and measures as well as helping to educate others may even contribute to an individual s personal healing. For more on this topic, read Restoring Dignity: Responding to Child Abuse In Canadian Institutions, Law Commission of Canada Report, 2000, pages 45-46; [ Needs of the Families and Communities Families of survivors have been affected by feelings of guilt, by the abusive actions of the survivors and by the alienation of children who lost their language and cultural heritage at residential schools. They need to have counselling and a say in the preventive measures and awareness campaigns to bring forth their feelings and point of view. Page 9 of 52 May 01, 2005 Version 1

10 Healing Options for Survivors Communities are groups of people from an area who identify with each other in terms of common interests and characteristics. This could be a Inuit, Aboriginal or Deaf community where they have to cope with the consequences of institutional child abuse. The institution may still have a purpose and may need to remain in operation so it must be reformed, changed and supported. The community may need financial support to hire community workers and therapists to provide support services, programming, education and awareness. Ways in Which the Criminal Justice System Can Be More Responsive to Survivors A range of approaches and flexibility in justice system responses is required; but all must be grounded in dignity, courtesy and respect. Victims safety issues at bail hearings, protections while testifying in court and victim impact statements are some of the measures that address the needs and concerns of victims. Bail hearings In bail hearings, the judge will consider: the safety and security of the victim a condition of no direct or indirect contact by the accused with the victim the needs of the victim in imposing special conditions such as firearms restrictions or conditions in criminal harassment cases Trials For young victims, young witnesses and sexual assault complainants, some Criminal Code sections make it easier for them to testify in court. The judge has a number of options, which include: excluding members of the public allowing witnesses under the age of 18 who has difficulty testifying due to disabilities to testify outside of the courtroom or behind a screen so that the accused cannot see them allowing videotaped testimony of a sexual assault or child abuse victim if the witness is under the age of 18 permitting a person to support the witness or victim who has a physical or mental disability or who is under 14 years of age restricting cross-examination by a self-represented accused if the sexual assault victim is under 18 imposing a ban on publication on the identity of all victims and witnesses in sexual offences who are under 18 Page 10 of 52 May 01, 2005 Version 1

11 Healing Options for Survivors Sentencing hearings In sentencing hearings, the judge may: Hear a victim impact statement, which informs the court of the harm done to or loss suffered by the victim. One of the purposes of sentencing is to try to repair the harm done. There may be more than one victim. In the case of a child being sexually assaulted, the parents may also have suffered. Initiate restorative approaches such as sentencing or healing circles where the victims even have a greater role in the decision-making. Order restitution to be paid to the victim to cover the financial damages. Order a victim surcharge. It would be 15% of the fine imposed or, if no fine, then $50.00 for a summary conviction offence and $ for an indictable offence. This surcharge could be increased or waived depending on the circumstances of the accused and his or her ability to pay. Government programs Other government initiatives include: meeting the victims need for information by funding public legal education in all provinces educating the judiciary about the needs of victims planning for legislation that limits repetitive and abusive cross-examination introducing new legislation, which includes the offence of Internet luring making it illegal to communicate with a child for the purpose of committing a sexual offence against that child launching the Canadian Strategy to Promote Safe, Wise and Responsible Internet Use [ implementing the Canadian Statement of Basic Principles of Justice for Victims of Crime [ through legislation, policy and practice, in the form of victim services and training for victim service providers including those for the Deaf community making a commitment to enhance the victim s role in corrections and conditional release processes and to give additional and more timely information to the victims of crime consulting on better protection for child victims such as creating child-specific criminal offences Page 11 of 52 May 01, 2005 Version 1

12 Healing Options for Survivors DISCLAIMER Any legal information in this document is provided for educational purposes only. Every attempt has been made to ensure the information contained herein is valid as of March 31, 2005, but the law can change. For these reasons, this package does not replace the specialized information of lawyers and other experts. This document explains the law in a general way. As each person s case is different, the package is not intended to provide legal advice about a specific matter. Any information related to healing from institutional abuse provides educational information and is not intended to provide therapy. If you feel any anxiety or unpleasantness while reading the content of this package, please contact Indian Residential Schools Survivor s Society for assistance. To speak with a counsellor you can them at reception@irsss.ca or call (Toll Free). IRSSS offices are located at Phone: (604) Suite Park Royal South, Fax: (604) West Vancouver, BC, V7T 1A2 If the counsellors at the Indian Residential Schools Survivor Society do not meet your need for assistance, please visit the Resources section of the website for a list of varying resources for Survivors of all backgrounds and needs. This package is produced by the Law Courts Education Society of BC (LCES), a non-profit organization that provides educational programs and services about the justice system in British Columbia and Canada. LCES cannot be held liable for any special, incidental, indirect or consequential damages of any kind, arising from the use of this package or other documents which are referenced by or linked to the web site This document is offered free-of-charge as a supplement to the website, For additional copies, please contact the Law Courts Education Society of B.C Hornby Street Phone: (604) Vancouver, BC V6Z 2C5 Website: Page 12 of 52 May 01, 2005 Version 1

13 Healing Options for Survivors Healing Options for Survivors DISCLAIMER Any legal information in this document is provided for educational purposes only. Every attempt has been made to ensure the information contained herein is valid as of March 31, 2005, but the law can change. For these reasons, this package does not replace the specialized information of lawyers and other experts. For information on organizations that can help survivors, visit the Resources section of What are the Principles of Healing? Healing means coming to terms with the things that happened in your past so that they do not interfere with your everyday life. Healing involves maintaining one s balance: physically, mentally, emotionally, and spiritually. The principles basic to healing are safety responsibility respect co-operation Safety Safety means being free from physical, mental, spiritual and emotional threat. Safety is an individual, family and community responsibility. Responsibility Responsibility means that you are in charge of your life choices and actions and that you are willing to learn and change how you think about yourself and your behaviour. Responsibility means understanding that the abuse was not your fault; it also means that healing in your adult life is up to you. Respect means you treat others and yourself as being worthy human beings. Respect means that you accept an individual s choice of how to heal, and Page 13 of 52 May 01, 2005 Version 1

14 Healing Options for Survivors their beliefs about the impact of what happened Co-operation Co-operation involves people coming together to accomplish shared goals of healing. Co-operation supports healing through a balance or sharing of power in the family and community. Celebrate your survival For healing, it is important to take the time to celebrate your survival. You have made it this far despite the things that happened to you. Acknowledge and praise yourself for the healing that you have already done. Options for Dealing with Abuse, Law Courts Education Society, 2002, pages 1-53 to Residential School Healing Project and Mapping a Healing Journey: The Final report of a First Nation Research Project on Healing in Canadian Aboriginal Communities APC 21 CA, [ Being Healthy: Feeling Good About Yourself and Your Roots Kimberley Deborah Archambault wrote this story when she was in grade six. It shows that the key to being feeling healthy is feeling good about yourself and your roots. My Grandfather My grandfather is John Banek, who is in Wilps Wegyet of the Gitksan Nation. My grandfather was born December 23, 1923 in a beautiful place called Andimahl. I like to call him Pappa. Pappa was raised in Andimahl by his Mother and Uncles. He especially learned most of his skills from his uncle Simogyet (chief) James Wegyet. My pappa learned how to fish, hunt, trap and harvest real medicine, berries, cedar, tea, and whatever was needed for daily living. Pappa says that uncle James also taught him the very important things to become a good simgeget (house member) like Respect all that lives, take only what you need, and share what you have. All of these things he has taught by mother and my sisters, brothers and myself. My pappa is the best teacher in the world. In about 1929 when my pappa was six years old he was taken away from his home and family to the Edmonton Indian residential school. Pappa says this is Page 14 of 52 May 01, 2005 Version 1

15 Healing Options for Survivors where he stayed until he was in grade nine, then he was sent home because he was getting too smart. I can tell it wasn t a good time there for him. None of the Gitksan people or any other Native people were allowed to speak their language and if they did, they were punished. Pappa says the punishments were something he would have never done to any human being on earth. My pappa never forgot his language. He says nothing could stop him from forgetting who he was. Pappa is always teaching us our Gitksan language. This is something he is very proud of. In the residential school my pappa worked all morning and went to school in the afternoon for two hours. This he didn t mind. But one thing that he ll never forget is the gwe e (poor) meals everyone was fed for all of the very hard 10 hours of work that was done on a day. For breakfast they were fed mush, just mush, with a slice of bread, just bread. Pappa cooks us mush with ice cream and fruit in it, and fresh warm bannock with lots of butter and homemade jam. They were dressed very poorly in the residential school. He made sure my mom who makes sure all of us, are dressed very well. My heart hurts for him. He tells me his mother (my great grandmother) died while him and his brother Mike was there and the nuns and priests didn t even tell them, and they couldn t even make it to the funeral or feast. He says there is a lesson in all of this. My pappa makes sure that we make it to all funeral and all feasts. Pappa says he made sure every no good thing that was taught to him, he would never teach or do to others. No matter what they tried to take away from him..is with him, even stronger than ever now... My pappa is interested in passing our ancestors laws to young children. He means to teach us the old ways, and how to behave at all times. I want to be like my pappa. The thing I desire most about my pappa is his Love. He is very loving and caring of everyone and everything. I have learned how to cook and how to plant flowers so they can grow perfect. I have learned many more skills too, to live a good life, all from my pappa. The characteristics of him I hope to have is his knowledge about the past and his strength to hang on to, and pass onto me. I will never ever forget the times he brought me to Andimahl with him. I will never forget that one day when we saw fresh bear tracks in the wet sand by our boat that weren t there when we first got there. We were looking down at the tracks then when we looked at the Ksyan (Skeena) river there was the bear swimming across. That is the day I will never ever forget. My pappa wants to go home. He wants to live back in Andimahl where him and his family lived many years ago. I am very proud to say that I am John Banek s Grandaughter; or Ne Ye e John Banek. Page 15 of 52 May 01, 2005 Version 1

16 Healing Options for Survivors Kimberley Deborah Archambault, a Grade 6 student at Muheim Elementary, in Smithers, BC wrote this essay. It was entered into the Samuel J. Monroe contest in Terrace BC and won Kimberley a computer. The essay was sent to the project by her mother, Mavis M. Banek (Jefferies), a former student of a residential school. Where Can You Go to Ask for Help? If you ignore painful feelings, they will not go away. They come up in many ways, as negative and self-destructive attitudes and actions. The way to heal is by releasing your feelings. It may be frightening at first to reach out to strangers, but you will need support. Make sure that you feel comfortable and safe with the person or method you choose. If you go to an agency for help, do not be afraid to ask for a person who understands your culture such as an Aboriginal worker. The following are some of the places to look for help: Talk to a Friend Find someone who will listen without judging, denying or becoming overwhelmed. A trusted and understanding person can sometimes help you get in touch with your feelings. This way you no longer need to feel isolated and ashamed of things that were not your fault. Victim Services Line (VictimLINK) Immediate crisis support, information, and referrals to victim services and other support services and resources; Support to survivors testifying in court; Help with victim impact statements; Victim service workers available 24 hours a day, 7 days a week for emotional and crisis support; Information about transition houses, counseling resources, community services, the justice system, relevant federal and provincial laws and programs, crime prevention, safety planning, and protection orders registry. Page 16 of 52 May 01, 2005 Version 1

17 Crisis Line This is a 24 hour distress line available to people living in British Columbia. The line gives free, confidential, non-judgmental, emotional support, information, and referrals seven days a week. Crisis line numbers are: If you live in Greater Vancouver, call (604) If you live in Whistler, Squamish, Powell River, Pemberton, or the Sunshine Coast, call toll free If you live anywhere else in British Columbia, call toll free If you use a TTY machine and live in Greater Vancouver, call (604) If you use a TTY machine and live anywhere else in British Columbia, call the toll-free TTY number If you live anywhere in BC and you are in a suicide-related crisis, please call SUICIDE ( ). If you do not live in British Columbia please visit to find a crisis centre in your area. Sexual Assault Centre Please visit for information on finding a sexual assault centre in your area. Click on Anti-Violence Centres fro more details. Sexual assault centres are often open 24 hours a day. They respond to the needs of survivors of childhood sexual abuse. They may offer: Information and help in making a disclosure to the police; Short-or-long-term counselling; and Information and referrals. Private Counsellor or Therapist Aboriginal and living on the reserve: Your band will have a social worker or CHR It may also have a contract with a counsellor Indian Residential School Survivors Society Aboriginal Healing Foundation Aboriginal living off the reserve: You can access medical services sessions with an approved counsellor Mental Health, Friendship or Wellness Centres and other agencies offering free counseling Indian Residential School Survivors Society [ Aboriginal Healing Foundation [ Page 17 of 52 May 01, 2005 Version 1

18 Non-Aboriginal: Medical Services counselling available Professional counseling services related to jobs such as teachers, lawyers, dentists and doctors Traditional Aboriginal Methods Healing and talking circles Community feasts to honour and celebrate different stages of healing Prayer and meditation for grounding Traditional dance for a spiritual connection Fasting on sacred ground Sweat lodges for cleansing and purifying Naming ceremonies for a sense of identity and belonging within families and communities Medicine wheel for internal balance and harmony Smudge ceremonies for purification, cleansing, clearing Traditional healing ceremony for spiritual connection and cleansing What Questions Should You Ask When You Choose a Counsellor? It is important to choose a counsellor that can best help you with your healing process. The following checklist of questions to ask a counsellor before you work with them may be of some assistance in your search. Questions to Ask a Counsellor 1. Are you are approved by the Medical Services Plan? (Medical Services will pay for 20 crisis intervention sessions with a counsellor on their approved list. You will need a referral from your doctor.) 2. What is your experience and education in this type of work? (Think about whether they have the right kind of experience for you.) 3. Have you worked with First Nations people before? Or Have you worked with Deaf people before? 4. Do you know ASL (for Deaf survivors)? 5. Do you have TTY telephone in your office (for Deaf survivors)? 6. What do you know about residential school issues? (Make sure that their knowledge is not just in their head.) Page 18 of 52 May 01, 2005 Version 1

19 7. Do you work only with the head or with the whole person? (For holistic healing you need to balance the emotional, spiritual, physical, and mental.) 8. Do you have a wellness plan for yourself? 9. How do you work on your own issues? (Make sure that they are working toward their own health.) 10. Do you have any references? (Check out what other clients say about them.) 11. Do you belong to any associations? (If they do you can call the association to see if there are any complaints against them.) 12. Do you know how to explain things so that I can understand? (You can decide this during the interview from the counsellor s answers to your questions.) How Well Do the Healing Options Work? Culturally based healing options and traditional practices are being used with greater participation and success. Government institutions serving Aboriginal people such as the justice system, health care and educational institutions have a culturally based component often delivered by elders in the community. Aboriginal communities have traditional healing practices, which are also very effective. Sweats and Sundances are important in giving the survivor a sense of meaning and belonging. Aboriginal sex offenders in the prison system who participated in traditional healing showed a general increase in openness to treatment, a greater ability to accept feedback, an enhanced level of self-disclosure, a decrease in hostility and resentment, the development of trust and empathy and greater sense of grounding or stability. Mapping a Healing Journey: The Final report of a First Nation Research Project on Healing in Canadian Aboriginal Communities APC 21 CA, 2002 [ Aboriginal communities are using a combination of methods and are adapting techniques used in the mainstream systems as well. Existing mainstream systems are also starting to be open to the possibility of using traditional healing processes. For example, circle sentencing is becoming an accepted alternative to the sentencing hearing in criminal cases, especially for youth who offend. Page 19 of 52 May 01, 2005 Version 1

20 DISCLAIMER Any legal information in this document is provided for educational purposes only. Every attempt has been made to ensure the information contained herein is valid as of March 31, 2005, but the law can change. For these reasons, this package does not replace the specialized information of lawyers and other experts. This document explains the law in a general way. As each person s case is different, the package is not intended to provide legal advice about a specific matter. Any information related to healing from institutional abuse provides educational information and is not intended to provide therapy. If you feel any anxiety or unpleasantness while reading the content of this package, please contact Indian Residential Schools Survivor s Society for assistance. To speak with a counsellor you can them at reception@irsss.ca or call (Toll Free). IRSSS offices are located at Phone: (604) Suite Park Royal South, Fax: (604) West Vancouver, BC, V7T 1A2 If the counsellors at the Indian Residential Schools Survivor Society do not meet your need for assistance, please visit the Resources section of the website for a list of varying resources for Survivors of all backgrounds and needs. This package is produced by the Law Courts Education Society of BC (LCES), a non-profit organization that provides educational programs and services about the justice system in British Columbia and Canada. LCES cannot be held liable for any special, incidental, indirect or consequential damages of any kind, arising from the use of this package or other documents which are referenced by or linked to the web site This document is offered free-of-charge as a supplement to the website, For additional copies, please contact the Law Courts Education Society of B.C Hornby Street Phone: (604) Vancouver, BC V6Z 2C5 Website: Page 20 of 52 May 01, 2005 Version 1

21 Legal Options for Survivors DISCLAIMER Any legal information in this document is provided for educational purposes only. Every attempt has been made to ensure the information contained herein is valid as of March 31, 2005, but the law can change. For these reasons, this package does not replace the specialized information of lawyers and other experts. What Principles Govern These Options? Survivors should have the information they need to make an informed decision about which redress option to participate in. This includes an understandable explanation of the legal system and a chance to speak to others about the option they choose. Survivors need psychological and emotional support so that their participation in the option does not add to the harm they have already suffered. Those involved in conducting or administrating the redress option must have enough training so they understand the position of the survivors. The options should be reviewed, assessed and integrated to come up with even better ways to redress the harm Criminal Legal Proceedings What is the Primary Goal of the Canadian Criminal Justice System? To impose an appropriate punishment on the person who has been convicted of a crime. Who Prosecutes the Person Charged with the Crime? Criminal law is viewed as a statement of society s core values. Therefore, the government is responsible for proving that the accused committed the crime. The victim is not a party to the proceedings although the victim often gives evidence in court as to what happened. Page 21 of 52 May 01, 2005 Version 1

22 Legal Options for Survivors What is the Process for Starting a Criminal Case? The process starts with the making of a complaint and usually ends with a decision being made at trial. Restoring Dignity has an overview of the criminal justice process. Visit for more information. Restoring Dignity: Responding to Child Abuse in Canadian Institutions, Law Commission of Canada Report, 2000, pages Who Makes the Complaint? Anyone who believes they have been the victim of abuse may tell the police about the event and file a complaint against the person or people they believe committed the abuse. Other people can also lay a complaint, but in most cases the person who was actually abused must agree to testify or give information about the abuse. Who Investigates and Lays the Charge? Police start an investigation and look for evidence that the abuse happened. If they can find enough evidence, a charge will be laid either by the police or the prosecutor. If there is not enough evidence to prove the crime occurred, then no charges will be laid. The sexual assault laws were changed in 1983 and are not retroactive. Therefore, some cases of institutional child abuse would have to use the law as it was stated before 1983, which may make it more difficult to get a conviction. Can a Private Citizen Prosecute His or Her Own Case? Generally, all criminal matters are prosecuted by the Crown. It is possible to bring a private prosecution in certain circumstances, but this rarely happens as the Crown could still step in and take over the case. Is the Accused Held in Custody Until the Trial? An accused person can be held in custody if the judge believes it is necessary to protect the public or if the judge thinks the accused will not appear in court for trial or other proceedings. Usually, the accused is released before trial as he or she is presumed innocent until proven guilty. What Happens at a Preliminary Inquiry? The Crown presents its basic evidence to a judge. If the judge finds that there is at least some evidence upon which a judge or jury could convict, then the accused is committed to stand trial. If not, then the charges are dismissed. This may mean that the person who was abused needs to testify twice, once at the preliminary inquiry and once at trial. This may be very hard for the victim to do. Page 22 of 52 May 01, 2005 Version 1

23 Legal Options for Survivors What Happens at the Trial? The accused is asked to plead guilty or not guilty. If they plead guilty, then there is no trial and the judge decides on the sentence. If the accused pleads not guilty, the prosecutor presents the evidence against the accused, based on the testimony of witnesses. The complainant is an important witness, and will be cross-examined by the lawyer for the accused. Then the accused presents his or her defence, usually with the help of a lawyer. Witnesses for the defence may be cross-examined by the Crown prosecutor. What is a Finding of Guilty? Once all the evidence is given, the judge or jury has to decide whether the accused is guilty or not guilty. The rules of evidence will be followed and sometimes it may be difficult to prove the alleged offence especially if there are no other witnesses and no material or documentary evidence to present. In a sexual assault case, the credibility of the witnesses is key. The statements of the complainant will be tested when he or she is cross-examined. If there is a reasonable doubt as to the guilty of the accused, there must be an acquittal. Victims need to understand that an acquittal does not mean that the assault never happened but that the Crown was unable to prove beyond a reasonable doubt that it happened. Some victims may be disappointed and disillusioned by the criminal process. What Happens at Sentencing? If the accused is found guilty, the last step is sentencing. It is at this step that the victim can give a victim impact statement, which will express physical, mental, emotional and financial harm suffered. The judge may take such a statement into account in deciding what sentence to impose. The judge will have to balance this statement with the special circumstances of the accused to come up with a sentence that will not only punish but will rehabilitate the accused. This may involve a prison term, a monetary fine, community service or, more rarely, victim compensation. What is an Appeal? A person found guilty at trial often appeals the judgment to the Court of Appeal in the province, especially where a prison term has been imposed. The Crown can also appeal a decision of the trial court, though this happens less often. In some cases, a second round of appeal is made to the Supreme Court of Canada. These appeals can take several years to complete. How Effective is the Criminal Justice System in Dealing with These Cases? It may be good for limited fact-finding and is well suited to identifying and punishing individual abusers if convicted. Victims benefit from a number of protective measures within the process. For example, the giving of testimony Page 23 of 52 May 01, 2005 Version 1

24 Legal Options for Survivors has been made easier, a victim s safety is considered at bail hearings, victims may give a victim impact statement during the sentencing, victims receive better information about how the system works and the judiciary is being sensitized as to the needs of victims. What are the Disadvantages of the Criminal Justice System in Dealing with These Cases? Some disadvantages include: It does not meet some of the needs of survivors in that it does not promote acknowledgement, apology and reconciliation because the accused has the right to remain silent. The survivor may think that the process is unfair to him or her. This may create an even worse situation, especially if there is no support given to the survivor. The survivor may feel victimized again by the system. The criminal justice system does not allow for the whole story to come out as often the accused does not testify and holds part of the information that would complete the events. It does not address issues in the larger community. It does not deal with prevention or education. It is a formal system with a number of rules that make it difficult for survivors to sometimes understand the process and the protections for the accused that are built into the system. Victims need to be informed and participate in the decision-making process in their case. For more on this topic, visit Civil Legal Proceedings What is a Civil Wrong? If a person causes harm to another person intentionally, or even unintentionally, that harm may constitute a civil wrong. A civil wrong is called a tort. What is the Primary Goal of the Civil Justice System? To obtain compensation (usually money) for the persons who have been harmed from the person or persons who are proven responsible for the harm done. The person harmed must sue the person or persons who caused the harm. Can There Be Both a Civil and Criminal Case on the Same Facts? Yes, although both may deal with the same events, a civil action operates independently of the criminal justice process. It may be commenced whether or not there has been a criminal investigation or prosecution. Page 24 of 52 May 01, 2005 Version 1

25 Legal Options for Survivors There may be cases where the perpetrator is not held responsible in the criminal system, but is found civilly liable. This may happen as the burden of proof is beyond a reasonable doubt in a criminal case and on the balance of probabilities in a civil case. What Does Plaintiff Mean? The plaintiff is the person who starts the civil action ( sues ). The plaintiff is the one who suffered the abuse. The plaintiff is asking the court to do something about the wrong. The civil action is initiated, controlled and financed by the plaintiff, who usually has a lawyer to present the case. In cases of institutional child abuse, the plaintiff is usually the direct or immediate victim. If an immediate or an indirect victim dies before bringing a lawsuit, his or her heirs can act on his or her behalf, initiating the action of the deceased victim. Often, the heir and indirect victim are the same person, and as a result, can obtain dual compensation firstly as the heir and secondly as the indirect victim. Who Can You Sue? The primary defendant in a civil action will be the person alleged to have committed the abuse, or if that person dies before the lawsuit, his or her heirs. There is a risk that, if found liable, the perpetrator will be unable to pay damages. This may leave the plaintiff with a symbolic victory, but no money. Other defendants may be added such as the government or the churches that ran the institutions and employed the perpetrators. How Long After the Abuse Can the Victim Sue? The law limits the time within which victims can sue after they have been injured. Time limits in civil suits can be between two to six years. However, in 1992, the Supreme Court of Canada ruled that the limitation period in a case of incest does not begin to run until the victim becomes conscious of the damage suffered and its probable cause. This is known as the delayed discoverability rule. This delayed discoverability rule has been applied to actions for sexual abuse against those who had fiduciary or trust relationships with the victim such as teachers, priests and doctors. It is not yet clear, however, whether the delayed discoverability rule also applies to cases involving physical abuse of children. Some provinces have amended their limitation legislation in regard to allegations of sexual misconduct to be outside the usual limitation periods. What is a Group Action or a Class Action? A number of people who have suffered similar harm at the hands of the same person or persons may wish to sue together. Page 25 of 52 May 01, 2005 Version 1