IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Curran v. MacDougall and HMTQ,

 

2006 BCSC 933

Date: 20060619
Docket: No. S15945
Registry: Chilliwack

Between:

Dale Wesley Curran

Plaintiff

And

Roderick David MacDougall and Her Majesty the Queen
in Right of the Province of British Columbia

Defendants


Before: The Honourable Madam Justice Fisher

Reasons for Judgment

Counsel for the Plaintiff

D. Brent Adair, Q.C.

Counsel for the Defendant Crown

K. Johnston

No one appearing for the Defendant Roderick MacDougall

 

 

Date and Place of Trial/Hearing:

April 24, 25, 26, 27, 28, 2006

 

New Westminster, B.C.

[1]                This civil trial for historic sexual abuse involved allegations by a former inmate of the Lower Mainland Regional Correctional Centre, known as Oakalla, against Roderick MacDougall, a Corrections Officer formerly employed by the Crown.  The plaintiff, Dale Curran, was an inmate at Oakalla at various times between 1978 and 1988.  He alleges that Mr. MacDougall sexually assaulted him on two occasions, in 1979 and 1980.

[2]                In November 2000, Mr. MacDougall was convicted of nine counts of indecent assault or sexual assault of five individuals between 1980 and 1991.  The assaults took place at Oakalla, when Mr. MacDougall was a special services officer and the complainants were inmates.  The plaintiff was not one of the criminal complainants.  Mr. MacDougall was ultimately sentenced to four years imprisonment and has served this sentence.

[3]                Mr. MacDougall took no part in these proceedings.  The plaintiff obtained a default judgment against him on July 26, 2005, with damages to be assessed.  The Crown issued third party proceedings against Mr. MacDougall, seeking judgment for any amount that may be found due to the plaintiff.  At trial, the Crown entered a default judgment against Mr. MacDougall.

[4]                The Crown admits that if the sexual assaults took place, it is vicariously liable.  Liability and damages are in issue.

Background

[5]                The plaintiff has had a very difficult life.  He is 44 years old and has AIDS.  He is addicted to heroin and cocaine and is presently being treated with methadone.  He has an extensive criminal record, which mainly involves property and drug offences and charges of escaping custody.  He has spent most of his life in jail. 

[6]                From a young age, the plaintiff had difficulties at home and in school.  He was in and out of juvenile detention.  When he was about 12 years old, he was admitted to the Maples.  On his discharge, his parents refused to take him home and put him into care.  Over the following years, the plaintiff lived in many different foster and group homes.  When he was about 14 years old, he was sexually abused by a care worker.  He drank alcohol, smoked marijuana, and committed numerous crimes, mainly theft.  

[7]                The plaintiff has not seen his parents for many years.  He has an older brother who has also been in and out of jail, was addicted to drugs and who also has AIDS.  He rarely sees his brother.  He also has a younger sister who he was close to as a child, but he has seen her rarely throughout the years; the last time he saw her was in 1997.

[8]                The plaintiff has had several relationships with women, some quite long term.  In 1979, he had a child who, unfortunately, died in infancy.  In 1984, he began a 13-year relationship and was close to a stepson.  However, he has not seen his stepson for about five years.  He is not currently involved in an intimate relationship.

[9]                The plaintiff went to Oakalla for the first time in September 1978, when he was 17 years old.  In November 1978, he was transferred to New Haven Correctional Centre.  He escaped from there in December 1978 and was captured in March 1979.  He returned to Oakalla on April 27, 1979, on remand for some charges and to serve a 12-month definite/ 9-month indefinite sentence for break and enter and theft.  It was during this period that he first met Mr. MacDougall and when he says Mr. MacDougall sexually assaulted him for the first time.

[10]            In May 1979, the plaintiff was transferred from Oakalla to Ford Mountain Correctional Centre.  He escaped from there in October 1979 and was captured in February 1980.  He was sent back to Oakalla, where he stayed until September 1980, when he escaped again.  It was during this period that he says Mr. MacDougall sexually assaulted him for the second time.

Issues

[11]            This is one of many actions against Mr. MacDougall and the Crown.  The events in this action took place over 26 years ago.  This in itself presents challenges for both the plaintiff and the defendants.

[12]            The first issue is whether the assaults took place as alleged by the plaintiff. The plaintiff’s credibility is the key factor here.  The second issue relates to damages.  If the assaults took place, what amount of damages should be awarded to the plaintiff for general and aggravated damages, for past and future loss of income and for the cost of future care?

The standard of proof

[13]            The plaintiff must prove on a balance of probabilities that he was sexually assaulted by Mr. MacDougall.  Such allegations are subject to a heightened evidentiary standard, often referred to as the “clear and cogent” standard: B.G. v. British Columbia, 2003 BCSC 1890, at paras. 118-119; V.(J.L.) v. H.(P.) (1997), 31 B.C.L.R. (3d) 155 (S.C.), varied on other grounds (1998), 109 B.C.A.C. 165; Boyd v. HMTQ, 2001 BCSC 667, at paras. 40-41 and the cases cited therein.  There must be a high probability commensurate with the seriousness of the allegations: B. (M.) v. British Columbia (2001), 87 B.C.L.R. (3d) 12 (C.A.), 2001 BCCA 227 at para. 25.

[14]            The plaintiff advances serious allegations against Mr. MacDougall, who has chosen not to defend himself in these proceedings.  The only evidence about the sexual assaults comes from the plaintiff.  While I may accept the plaintiff’s evidence on its own, in these circumstances, such uncorroborated or unconfirmed allegations should be considered with great caution: Blackwater v. Plint (2001), 93 B.C.L.R. (3d) 228 (S.C.), 2001 BCSC 997; varied (2003), 21 B.C.L.R. (4th) 1 (C.A.), 2003 BCCA 671; aff’d [2005] 3 S.C.R. 3, 2005 SCC 58, at para. 16.

Evidence issues

[15]            In Blackwater, supra, Chief Justice Brenner aptly described the special challenges the court faces in historic abuse claims:

[337]    … With the passage of time objectively verifiable evidence of the assaults is generally long gone.

[338]    What remains for the Court to consider are the subjective reports of the plaintiffs concerning both the physical injuries, which are no longer objectively verifiable, and, more importantly, the psychological injuries which, by their very nature, were never objectively verifiable. The experts who assess a plaintiff are in the same position as the court: their opinions must necessarily be based on subjective information either directly from the plaintiff or from collateral sources who have recorded subjective information from the plaintiff. In such circumstances the reliability of such subjective evidence, and consequently the plaintiffs' credibility, become central issues.

[16]            It is not necessary for the court to conclude that the plaintiff has consciously lied before his evidence is not accepted; it may simply be unreliable.  The passage of time hampers the plaintiff’s ability to prove his claim, and also affects a defendant’s ability to locate and present evidence.  Accordingly, the court must be very careful when considering the plaintiff’s uncorroborated evidence.

The plaintiff

[17]            The Crown challenges the plaintiff’s credibility.  I have addressed this more specifically below, in analyzing the evidence relating to each of the sexual assaults.  It is true that a plaintiff such as Mr. Curran has an uphill struggle.  Not only has he spent most of his life in jail, he has also been diagnosed as having an anti-social personality disorder.  Expert evidence confirmed that individuals with this disorder are known to be deceitful.  I have considered these factors carefully.  I have also observed the plaintiff during the trial.  While at times he was angry and frustrated, he acknowledged this and was able to control his behaviour.

[18]            During his examination for discovery in November 2005, the plaintiff denied having been sexually abused when he was younger.  This was not true.  The plaintiff explained that he was asked this question in the afternoon and he was tired.  He did not want to discuss this earlier event and he wanted to leave the room.  This was an unacceptable way to handle the situation.  Although I accept his explanation, it does demonstrate that the plaintiff may not tell the truth in some situations.

[19]            This earlier sexual abuse took place when the plaintiff was living in a group home at Powell Lake, B.C.   The family services records indicate that he was there between June and September, 1977.   The plaintiff had become quite close to his care worker, who he described as his “partner in crime”.  He said that the two of them would break and enter cabins and sporting goods stores, stealing alcohol and guns.  He testified that the assault took place when he was staying at a motel with his worker.  The plaintiff had been drinking and smoking marijuana.  He fell asleep.  When he woke up, his shorts were around his ankles and the worker had his hands in his crotch area.  He pulled his pants up and went to sleep on the floor.  When he woke up again, the worker’s hands were in his pants again.  The plaintiff was upset and went outside to sleep in the car.

[20]            This description of the actual assault was substantially consistent throughout the plaintiff’s testimony and in previous statements.  His evidence about what happened after that assault was curious.  He said that he got into a fight with his worker and he was going to tell the police about the break and enters and the sexual assault.  The worker asked him not to do that.  He gave the plaintiff four Powell Lake Farm cheques to pay him for some guns and stolen property.  The cheques were blank and the plaintiff later filled them in and cashed them.  He could not explain why he was given four cheques.

[21]            In a description of this assault dated July 8, 2004, the plaintiff wrote that the worker paid him for his silence, in not reporting the sexual assault to the police.  Although the specific statement was not put to him in cross-examination, the plaintiff was asked if he received the cheques for the purpose of keeping him quiet.  He denied this, and reiterated that the cheques were payment for stolen property.

[22]            The plaintiff was questioned about the circumstances in which he left Powell Lake and about a report that he had stolen his care worker’s station wagon.  He denied that the worker had a station wagon.  He said that the worker had a Datsun 510 that he “was allowed to drive” and that he had a driver’s licence.  He described an occasion when he drove the Datsun from Powell Lake to Vancouver to sell some guns and other stolen property, with the worker’s permission.

[23]            The Crown submitted that the plaintiff’s evidence about these events is not credible and that more likely explanations are found in the plaintiff’s Family Services records.  However, these records were admitted into evidence for the purpose of showing that such records were made.  They contain a lot of second and third-hand information, much of it speculative.  The plaintiff did not accept any of the explanations suggested by the Crown. 

[24]            I find the plaintiff’s evidence about the specific circumstances of this early sexual assault credible.  However, I have some difficulty with his evidence about the events surrounding it.  He said he had a drivers licence at the time, but he did not turn 16 until August of 1977, and his explanation about the worker giving him four blank cheques on the Powell Lake Farm account is quite implausible.

[25]            Despite this, the plaintiff was sincere and consistent in his testimony about the assaults by Mr. MacDougall.  The allegations against Mr. MacDougall are not corroborated or confirmed by any other evidence.   I have been cautious as the law directs.  I have accepted the plaintiff’s evidence where it is not contradicted by other, reliable evidence.  My specific findings are set out below.

[26]            I note that the plaintiff’s sister, Kelly Pepper, testified about their family life and her observations of the plaintiff.  She described her parents as being very difficult and the plaintiff as a “Dennis the Menace” when he was a young boy.  Once the plaintiff went into custody, Ms. Pepper did not see him for many years.  She saw him in 1980. She noticed that he was changed, withdrawn, that “the light had gone out of his eyes.”  She suspected that something had happened to him, but never asked.  She said she knew the look, as she was a rape victim.

[27]            Ms. Pepper’s testimony was moving and sincere.  However, she had no personal knowledge about any of the matters at issue in this action.

Adverse inference

[28]            Mr. Adair submitted that the court should draw an adverse inference against the Crown for failing to call Mr. MacDougall to give evidence.  Although he acknowledged that there would be credibility issues, Mr. MacDougall could have given evidence about his job role and duties, at least in 1979.  The other former correctional officers called by the Crown could not give detailed evidence about what Mr. MacDougall was doing in 1979 as a corrections officer.

[29]            Mr. Johnston advised the court that Mr. MacDougall, despite his criminal convictions, continues to maintain his innocence, and his credibility would be questionable.  He submitted that Mr. MacDougall’s testimony would be of little probative value in these circumstances and that no adverse inference should be drawn.

[30]            Both counsel referred to the case of Boyd v. HMTQ, supra, where Madam Justice Stromberg-Stein considered this issue in the context of allegations of negligence and vicarious liability for sexual assaults that dated over 26 years.  There, both parties asked the court to draw adverse inferences for their failure to call certain witnesses.  At para. 45 she said:

The failure to call evidence may, depending on the circumstances, amount to "an implied admission that the evidence of the absent witness would be contrary to the party's case, or at least would not support it": Sopinka, Lederman and Bryant, The Law of Evidence in Canada (2nd ed. 1999) at para. 6.321; Murray v. Saskatoon, [1952] 2 D.L.R. 499 at 505-506 (Sask. C.A.).

[31]            The general rule goes back a very long way.  It was succinctly described by Lord Mansfield In Blatch v. Archer (1774), 1 Cowp. 63, 98 E.R. 969, at p. 65:

It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.

[32]            The party against whom the adverse inference is sought may give a satisfactory explanation for the failure to call the witness: R. v. Jolivet, [2000] 1 S.C.R. 751, 2000 SCC 29.  Such explanation must satisfy the trial judge that the circumstances would in “ordinary logic and experience, furnish a plausible reason for non-production”: R. v. Rooke (1988), 40 C.C.C. (3d) 484 (B.C.C.A.) at p. 513, quoting Wigmore on Evidence.  There is a stronger basis for drawing an adverse inference if the party has special access to the potential witness: R. v. Jolivet, supra.

[33]            In Boyd, Madam Justice Stromberg-Stein pointed out, at para. 46:

Reconstructing events from 26 years ago has posed challenges to both sides in this case. A case like this does not improve with age, as evidenced by missing and incomplete records, missing or dead witnesses, and faded memories, to name just a few of the challenges. It is Mr. Boyd who ultimately bears the burden of proof and runs the risk from a failure to call a material witness.

[34]            She concluded that no adverse inferences should be drawn against either party, particularly where the witness would be equally available to either party, if available at all.

[35]            Similar considerations apply here.  While it may have been helpful to the Court to hear evidence from Mr. MacDougall, the Crown no longer has special access to him, and its explanation for not calling him is plausible.  In my view, this is not a proper case to draw an adverse inference against the Crown.

Vicarious liability

[36]            As noted above, the Crown admits that it is vicariously liable if it is proven that Mr. MacDougall sexually assaulted the plaintiff.  This accords with the law as set out by the Supreme Court of Canada in Blackwater v. Plint, [2005] 3 S.C.R. 3, 2005 SCC 58, at para. 20.

The assaults

(a)        The first assault - April - May 1979

The plaintiff’s evidence

[37]            The plaintiff testified that he met Mr. MacDougall in April 1979 shortly after his second admission to Oakalla.  He said that Mr. MacDougall was introduced as his case worker.  Mr. MacDougall talked to the plaintiff about his sentence and asked how he was adjusting.  The plaintiff asked if it would be possible for him to serve his time at a camp, such as Ford Mountain.  Mr. MacDougall laughed at this because the plaintiff had just come back from escape.  He then said that the only way the plaintiff would get support for such a transfer was if they had sex.  The plaintiff thought this was a joke.  He called Mr. MacDougall a “fag” and said that was never going to happen.  When he returned to his tier, he told several inmates about this.  One of these inmates was a friend of his named Cordell Low.  Mr. Low is now deceased.

[38]            Several days later, Mr. MacDougall brought the plaintiff into his office.  Mr. MacDougall was angry.  He slammed the door and yelled at the plaintiff about telling other inmates that he was a “fag” and had propositioned him.  The plaintiff was scared.  He told Mr. MacDougall he thought it had been a joke.  Mr. MacDougall said that it wasn’t a joke, that he did not like the plaintiff spreading rumours, and that he should consider what he said to people.  Mr. MacDougall said he could have the plaintiff hurt.  He then asked him if he still wanted a transfer.  The plaintiff said he did.  Mr. MacDougall told him he could have his transfer if he had oral sex with him.

[39]            The plaintiff testified that he realized this was not a joke and that his “nightmare was standing in front of him.”  Mr. MacDougall told the plaintiff to sit down on the desk and open his pants.  Mr. MacDougall pulled up a chair and performed oral sex on the plaintiff.  The plaintiff had an erection but he did not ejaculate.  He told Mr. MacDougall he did not want to do this.  After a few minutes, Mr. MacDougall stopped and the plaintiff left the office.  The entire meeting took about five minutes. 

[40]            The plaintiff described the office where these events took place as having two desks, two chairs and two filing cabinets.  It was located beside the staff lunch room at Westgate B.

[41]            Several days later, Mr. MacDougall told the plaintiff that he would be transferred in a few days.  The plaintiff was transferred to the Chilliwack Sentence Management Unit on May 7, 1979, and then to Ford Mountain Correctional Centre on May 10, 1979.  He did not tell anyone about this incident with Mr. MacDougall.

Other evidence

[42]            The Crown submits that the plaintiff’s evidence about this assault is not credible, because it could not have happened in the manner described in April or May of 1979.  At that time, Mr. MacDougall was a corrections officer.  Corrections officers did not have their own offices and they did not routinely interview inmates.  Mr. MacDougall did not have his own office until January 1980, when he was appointed Special Services Officer.  In that role, he was responsible for temporary absences, escorting inmates, liaising with police, the courts, probation and the Ministry of Social Services, and establishing programs for alcohol and drug treatment, psychological counselling and education.  According to John Alexander, a former corrections officer who worked at Westgate B during this time, Mr. MacDougall’s office as Special Services Officer was in the front hall of Westgate B. The Crown says it is unlikely that Mr. MacDougall would have used someone else’s office in 1979 for the purpose of interviewing inmates.

[43]            Another former inmate of Oakalla testified for the plaintiff.  This individual, who has also commenced a lawsuit against Mr. MacDougall and the Crown, was remanded to Oakalla on May 22, 1979.  He testified that he was sexually assaulted by Mr. MacDougall at the time of his admission, during a classification interview, in an office located off the centre hall of the institution.  This is contradicted by the evidence of Hendrick Van Staalduinen, a former corrections officer who worked in the records office from 1977 to 1980.  He testified that all new admissions to Oakalla went to the records office.  Only sentenced prisoners had classification interviews; remanded prisoners normally did not.  Mr.  Van Staalduinen also said that there were offices off the centre hall, in administration, which were used by lawyers, immigration officers and others in similar circumstances.  These offices were all glassed and an officer was stationed outside at all times.  The Crown submits that there were no offices in the area described where such an assault could occur and that the evidence of this former inmate should be rejected. 

[44]            The Crown’s evidence raises questions of credibility and reliability regarding the evidence of this witness.  He was called for the purpose of verifying that as of May 1979, Mr. MacDougall was doing classification work for some inmates on admission and he had access to an office in which to do that.  The Crown did not object to this evidence being admitted for this purpose, and it called Mr. Van Staalduinen as a rebuttal witness.  Because of the limited purpose of his testimony, this witness did not testify about the assault in any detail, other than to describe where it took place.  In such circumstances, it is very difficult to assess the credibility of this witness and the reliability of his evidence.   While I have concerns about his credibility, I do not consider his evidence – whether or not there was an office off the centre hall in which Mr. MacDougall could have assaulted inmates – to be pertinent to the plaintiff’s case.   The plaintiff described an office in Westgate B beside a staff lunchroom.  I consider the evidence of this former inmate to have little, if any, weight, and I have not relied on it.

[45]            I accept that Mr. MacDougall did not have an office of his own in 1979.  However, there is evidence that a corrections officer could have had access to an office at that time.  It is not necessarily material that this would not be in the normal course, because the assaults were not in the normal course.  The plaintiff understood that Mr. MacDougall was the case worker for inmates under definite/indefinite sentences.  Neither Mr. Anderson nor Mr. Van Staalduinen had knowledge of what Mr. MacDougall’s specific duties were in 1979.  Mr. Anderson did not know who was dealing with definite/indefinite inmates. 

[46]            The Crown also says that the plaintiff’s conversation with Cordell Low several days before the assault could not have taken place, because Mr. Low was not at Oakalla in April and May of 1979.  Mr. Low’s client history record indicates that he was admitted into Oakalla for the first time on August 15, 1979. 

[47]            Rose Wilson, Acting Manager for the Systems Management Unit with the Corrections Branch, gave evidence about how these kinds of records are prepared and how the codes are used. 

[48]            Mr. Adair objected to the admissibility of Ms. Wilson’s evidence on the basis that it was expert opinion evidence, since Ms. Wilson was being called to interpret records, and no statement was provided under Rule 40A of the Rules of Court.  I ruled that the evidence was admissible.  In my view, Ms. Wilson did not give expert opinion evidence.  She simply explained how client history records are kept and how to apply the codes that are recorded or were used at the time.  In any event, regardless of Ms. Wilson’s interpretation of Cordell Low’s record, the document speaks for itself.

[49]            Ms. Wilson has been employed by the Crown as a systems analyst since 1983.  She also worked on an auxiliary basis for six months in 1981.  The client records in this case, while generated recently, record data going back to the early 1970’s.  Although the entries in issue are for a period of time before Ms. Wilson was employed by the Crown, Ms. Wilson had knowledge about the records that was applicable to information generated before 1983.

[50]            Ms. Wilson explained that client history records deal with movements within provincial adult and youth custody and community corrections.  She explained how the codes and locations shown on the record describe either an institution or a community office.  

[51]            In the early 1980s, records were sent from each institution or community office and the information was then keyed into the provincial case file.  Each “client”, identified by name and known aliases, was assigned a unique eight-digit Corrections Service number.  Information could only be entered into the system with this number.  In the 1990’s, photographs were included, which added another measure of reliability.  The process today is similar, but information is now transferred electronically through the Court Services Branch information system.

[52]            Regardless of the manner in which the information is recorded and transferred, it is clear that information in these records is generated by different individuals at different times.  Ms. Wilson acknowledged that the accuracy of a record depends on the efficiency of the individual who records the information, and that on occasion, individuals used incorrect codes.

[53]            Cordell Low’s client history report records the following:

·         August 18, 1978 – remanded at Vancouver Provincial Court on a Failure to Appear.

·         March 28, 1979 – a new admission to “Bail” on March 28, 1979; Ms. Wilson explained that the code “Bail”, which was used at the time, meant the Vancouver Bail office.

·         July 4, 1979 – released from bail at court.

·         August 14, 1979 – a new admission to the Maple Ridge Sentence Management Unit.

·         August 15, 1979 – a provincial transfer from the Maple Ridge Sentence Management Unit and an admission to Oakalla.

[54]            There appears to be a gap in Cordell Low’s record.  On August 18, 1978, the report records that Mr. Low was remanded at Vancouver Provincial Court.  However, there is no corresponding entry indicating an admission to any facility.  Ms. Wilson was not able to explain this.  She did confirm, however, that in 1978, the remand centre for the Vancouver court was Oakalla.  She also testified that for the period between March 28 and July 4, 1979, the record indicates that Cordell Low was not in custody, but under a community order.  This is the period in which the plaintiff says Mr. Low was at Oakalla.

[55]            The plaintiff challenged the accuracy of Cordell Low’s client history report.  He suggested that Mr. Low may have been remanded to Oakalla before August 1979 for a failure to perfect bail.  Mr. Adair submitted that the record may not be accurate, because it does not record an admission to a facility after the remand ordered on August 18, 1978.

[56]            The plaintiff was certain that he talked to Cordell Low about Mr. MacDougall’s proposition and he recalled being in Oakalla with Cordell Low before he was transferred to the Chilliwack Sentence Management Unit.  In cross-examination, he agreed that it was possible he was confusing his interaction with Cordell Low with another time.  However, he also said:

34     A    That could be possible, but I'm saying it's -- in

35          the way the events happened, he would have had to

36          have been a figment of my imagination.

37     Q    Okay.

38     A    If I'm saying it happened and he wasn't there, then

39          I must have lost my mind.

[57]            The plaintiff was transferred from Oakalla to the Chilliwack Sentence Management Unit twice during the relevant time period; the first time was on October 13, 1978, before he was transferred to New Haven, and the second time was on May 7, 1979, before he was transferred to Ford Mountain.   I find it unlikely that the plaintiff confused the time he spoke to Mr. Low about Mr. MacDougall. 

[58]            The only evidence that conflicts with the plaintiff’s evidence about Cordell Low is the client history record.  I have some concerns about the accuracy of this record, and hence its reliability.  It appears that some information may not have made its way into the record, either because someone did not send it for entry into the provincial case file, or it was not inputted.  No other documentary evidence, such as a court record, was proffered by the Crown.

[59]            Despite some of my concerns about the plaintiff’s general credibility, I believed his evidence about the first assault.  His memory of these events was quite good, and his evidence about them was consistent.  In my view, the documentary evidence about Cordell Low is not sufficiently reliable to prefer over the evidence of the plaintiff.

Conclusion

[60]            Despite the challenges in reconstructing events from so long ago, I find that the plaintiff has proven that this assault occurred on the requisite standard of proof.

(b)       The second assault - August – September 1980

The plaintiff’s evidence

[61]            On February 15, 1980, the plaintiff was admitted to Oakalla after having escaped from Ford Mountain Correctional Centre in October 1979.  He had attended the funeral of his baby in October, and decided not to return.  He wanted to be with his girlfriend, the mother of the baby.  During his time on escape, he and his girlfriend had some problems and another boyfriend came into the picture.

[62]            The plaintiff said that he was first taken to the west wing of Oakalla, and then to Westgate B, where Mr. MacDougall worked.  In the late summer of 1980, the plaintiff wanted to visit his girlfriend at her grandmother’s house.  Mr. MacDougall arranged for a pass and escorted the plaintiff on the visit.  The plaintiff was upstairs with his girlfriend and Mr. MacDougall was downstairs with the grandmother.  At some point, the plaintiff’s brother and friend of his, Norman Pepper, also arrived at the house.

[63]            At some point the plaintiff and his girlfriend went outside.  The plaintiff was upset about his girlfriend’s other boyfriend, and he saw this person drive up the street.  He told his brother (and perhaps Mr. Pepper) that if the boyfriend approached the house, he was going to hurt him, and he hoped that his brother and Mr. Pepper would stop the man from coming on to the property.  The plaintiff went into the kitchen and put a French knife in the back of his pants.  Fortunately, the boyfriend was told to leave, which he did.   Mr. MacDougall and the grandmother came out of the house and saw the knife in the plaintiff’s pants.  Mr. MacDougall said that the visit was over, and he and the plaintiff left the house.

[64]            On the way back to Oakalla, Mr. MacDougall pulled the car over in Central Park.  He was angry about what had happened and was apparently concerned that he would not be able to take inmates out on passes.  He asked the plaintiff if he had any drugs on him and told him to open his pants to check.  The plaintiff did so.  Mr. MacDougall then told him not to do up his pants and that he wanted to give him oral sex. The plaintiff said no, he did not want any part of this.  Mr. MacDougall told him he did not have a choice, began fondling the plaintiff’s penis and then proceeded to give him oral sex.  The plaintiff had an erection, but he was angry and started crying and yelling and banging on the car, asking why Mr. MacDougall was doing this to him.  The plaintiff did not ejaculate and Mr. MacDougall eventually stopped.

[65]            The plaintiff testified that once he was back in his tier at Oakalla, he felt humiliated, embarrassed, angry, scared and confused.  He felt that Mr. MacDougall had guards and inmates on his side.  On September 6, 1980, within about a week of this incident, the plaintiff escaped from Oakalla.  He was captured and returned to Oakalla on September 17, 1980.

[66]            The plaintiff said he was in the west wing.  After a few weeks, he was called down to the gate at the end of his tier.  Mr. MacDougall was there to see him.  He was angry about the plaintiff’s escape.  Mr. MacDougall had given the plaintiff ground privileges and a good job, and he was now in a position to have to explain how the plaintiff escaped while on that job.  The plaintiff told Mr. MacDougall that he had not really done anything for him, that it was his job to do these things, that he was tired of Mr. MacDougall’s threats, promises, intimidation and use of him as a sex toy. He said he was going to tell Mr. MacDougall’s bosses what was going on.  Mr. MacDougall said they would never take the word of a convict over his.  He told the plaintiff he would have him hurt by inmates or guards.

[67]            When he was back in his cell, the plaintiff was distraught.  He thought things could happen the way Mr. MacDougall had described.  He slashed his wrists, forearms and his neck.  When guards entered his cell, he wrestled with them.  He was handcuffed and taken to health care for several days. 

Other evidence

[68]            There is no dispute that Mr. MacDougall escorted the plaintiff on the visit to his girlfriend’s grandmother’s house in 1980.  The Crown submits, however, that the plaintiff’s evidence about the visit contradicts the evidence of a witness, and that this calls into question the plaintiff’s credibility about the second assault.

[69]            Norman Pepper was a friend of the plaintiff’s brother, Wayne Curran, who introduced Mr. Pepper to the plaintiff’s girlfriend and her grandmother.  Mr. Pepper at times stopped for a cup of coffee at the grandmother’s house.  He was visiting there on the day of the plaintiff’s visit.  This was the first time Mr. Pepper met the plaintiff.  Some years later, Mr. Pepper married the plaintiff’s sister.  However, he did not see the plaintiff for a long time after the visit in 1980, perhaps 20 years.

[70]            Mr. Pepper remembered very little about the visit.  He recalled being outside with the plaintiff, his girlfriend, her grandmother and a guard.  He did not say anything about Wayne Curran being there. He thought he had arrived before the plaintiff, and was quite sure that he left before the plaintiff and the guard. He did not recall anyone else arriving or any altercation.  The only thing noteworthy to him was that a guard was there.

[71]            The Crown submitted that Mr. Pepper’s evidence should be preferred to that of the plaintiff, because Mr. Pepper would have remembered an altercation of the kind described by the plaintiff had it occurred.  Mr. Adair pointed out that this event was significant to the plaintiff, but insignificant to Mr. Pepper, whose memory of it was vague.  The knife was in the back of the plaintiff’s pants and was not readily apparent to someone not intimately involved in the event.

[72]            This visit took place about 26 years ago.  Mr. Pepper’s memory of it was understandably vague.  On the other hand, the plaintiff’s memory was quite clear.  The plaintiff said that he spoke to his brother and possibly to Mr. Pepper about the other boyfriend.  The other boyfriend did not join the group.  It is possible that Mr. Pepper would not have been aware of the situation, at least to the extent that he would remember it more clearly after so many years. 

Conclusion

[73]            In my view, the plaintiff’s evidence about this second assault is credible.  It is consistent with the Crown’s admission that Mr. MacDougall escorted the plaintiff on the visit that preceded the assault.   The discrepancy between the plaintiff’s evidence about the visit before the assault and Mr. Pepper’s evidence is not surprising, considering the passage of time.  I find that the plaintiff has proven that this assault took place on the requisite standard of proof.

Events subsequent to the assaults

[74]            The plaintiff was released from Oakalla on December 20, 1980.  Unfortunately, he was returned only a few days later on new charges.  He encountered Mr. MacDougall but there were no assaults.  The plaintiff escaped again, in March 1981.  He went to the United States, where he was arrested.  He was returned to Oakalla in January 1982.  When at court on further charges, he requested a federal sentence so he would not have to return to Oakalla.  Records indicate he was sent to a penitentiary on March 17, 1982.

[75]            Most significantly, in July 1984 when the plaintiff was back at Oakalla, he saw Mr. MacDougall at the gate.  The plaintiff told Mr. MacDougall that he was not the same guy who had left and that if Mr. MacDougall had any thoughts about continuing as before, he would hurt him.  Mr. MacDougall apologized to the plaintiff and said it would not be the way it was.  The plaintiff thought that this apology was genuine.  After this, Mr. MacDougall took the plaintiff out on a pass and there were no further incidents.

[76]            The plaintiff escaped from Oakalla on November 19, 1984 and was captured and readmitted on November 30, 1984.  Records indicate that he stayed in Oakalla until May 17, 1985.  He did not see Mr. MacDougall again.

Causation and damages

[77]            Having found the sexual assaults proven, I must now consider first, the extent to which these acts caused the plaintiff injury (liability) and second, whether that injury has caused the plaintiff a loss (the extent of the liability).  Injury refers to the initial physical or mental impairment of the plaintiff as a result of the sexual assaults and loss refers to the pecuniary or non-pecuniary consequences of that impairment.  The issue of causation applies both to considerations of establishing liability and damages: Blackwater v. Plint (2001), 93 B.C.L.R. (3d) 228 (S.C.), aff’d on these issues (2003), 21 B.C.L.R. (4th) 1 (C.A.), [2005] 3 S.C.R. 3.

[78]            Cases of historic sexual assault present significant challenges to a court in determining issues of causation.  As Chief Justice Brenner noted in Blackwater, supra, at para. 365:

In cases of historical sexual assault, the plaintiff is likely to be claiming for chronic injuries, often psychological in nature. It is not uncommon for the life history of a victim of a historical sexual assault to include numerous stressful, unpleasant experiences unrelated to the sexual assault. Individuals, such as the plaintiffs in these matters, come before the courts with diagnoses of post-traumatic stress disorder, depression, substance abuse and other psychological conditions. Unravelling the question of causation in these cases arising as they do from torts committed so long ago is a daunting task.

[79]            This daunting task was acknowledged by the Supreme Court of Canada in Blackwater, supra:

74        Untangling the different sources of damage and loss may be nigh impossible.  Yet the law requires that it be done, since at law a plaintiff is entitled only to be compensated for loss caused by the actionable wrong.  It is the “essential purpose and most basic principle of tort law” that the plaintiff be placed in the position he or she would have been in had the tort not been committed:  Athey v. Leonati, [1996] 3 S.C.R. 458, at para. 32.

[80]            The Court further noted that it is important to distinguish between causation as the source of the loss and the rules of damage assessment in tort:

78        … The rules of causation consider generally whether “but for” the defendant’s acts, the plaintiff’s damages would have been incurred on a balance of probabilities.  Even though there may be several tortious and non-tortious causes of injury, so long as the defendant’s act is a cause of the plaintiff’s damage, the defendant is fully liable for that damage. The rules of damages then consider what the original position of the plaintiff would have been.  The governing principle is that the defendant need not put the plaintiff in a better position than his original position and should not compensate the plaintiff for any damages he would have suffered anyway: Athey

[81]            I have applied the law of causation in the manner described by Chief Justice Brenner in Blackwater, supra, at para. 370:

(1)        If the psychological injury would have occurred at the same time, without the injuries sustained in the sexual assault, then causation is not proven;

(2)        If it was necessary to have both the sexual assaults and the other life circumstances for the psychological injury to occur, then causation is proven since the psychological injury would not have occurred but for the sexual assaults;

(3)        If the sexual assaults alone could have been a sufficient cause, and the other life circumstances alone could have been a sufficient cause, then it is unclear which was the cause in fact of the psychological injury. The trial judge must determine, on a balance of probabilities, whether the defendant's sexual assault(s) materially contributed to the psychological injury.

(a)        The plaintiff’s injuries

[82]            The plaintiff’s problems are mainly psychological.  He also suffers from AIDS and is drug-dependent.

[83]            Dr. Ronald LaTorre, a clinical and forensic psychologist, gave evidence for the plaintiff.  Dr. LaTorre was qualified as an expert in the field of psychology, with experience dealing with sexual abuse, substance abuse and the interplay between substance abuse and criminality. 

[84]            Dr. Atholl Malcom, also a clinical psychologist, gave evidence for the Crown.   Dr. Malcolm was qualified as an expert in the field of psychology, to assess claims for psychological injuries involving Post-traumatic Stress Disorder (PTSD).  Dr. Malcolm did not provide a psychological assessment of the plaintiff.  He reviewed Dr. LaTorre’s report and provided comments.

[85]            Much of the information on which Dr. LaTorre based his opinions was provided only by the plaintiff.  Dr. LaTorre did not question whether or not the sexual assaults occurred.  He based his opinion on the assumption that they had.

[86]            Dr. LaTorre opined that the plaintiff does not suffer from a major psychiatric disorder.  He gave the following diagnostic impressions:

… Mr. Curran appeared to have an irritable edge and some mood lability; however at the present interviews he did not fit criteria for a Major Mood Disorder.  Some of the neurovegitative indices of depression appear to be attributable to his medical condition and some of his mood lability appears attributable to his personality.

The following are offered as provisional diagnoses in this case:

AXIS I               Alcohol Abuse (Historical Diagnosis)

                        Cannabis Abuse (? Historical Diagnosis)

                        Cocaine Dependence, With Physiological Dependence

Opioid Dependence, With Physiological Dependence (Methadone Treatment)

Posttraumatic Stress Disorder, Chronic

Query Attention-Deficit/Hyperactivity Disorder, In Partial Remission

AXIS II  Antisocial Personality Disorder

AXIS III Auto-Immune Deficiency Syndrome

                        Hepatitis C Seropositivity

[87]            In his report, Dr. LaTorre explained:

Chronic Posttraumatic Stress Disorder means that Mr. Curran experienced a traumatic event to which he responded in a particular fashion (with respect to the sexual assaults it was with fear and helplessness) and subsequent to which he developed a symptom pattern that included reexperience of the event, avoidance and numbing and hyperarousal.  These have caused significant disturbance for Mr. Curran and the problems have persisted for greater than three months (i.e. they have been chronic).

The early history reported by Mr. Curran suggests he might have suffered from Conduct Disorder and, possibly, from Attention-Deficit/Hyperactivity Disorder.  He presents with psychomotor agitation and claimed and demonstrated a limited attention span.  For these reasons I am questioning if he does not have some continued evidence of Attention-Deficit/Hyperactivity Disorder.

Antisocial Personality Disorder means that Mr. Curran displayed evidence of some symptoms of Conduct Disorder prior to age 15 years, demonstrated a pervasive pattern of disregard for and violation of the rights of others.

[88]            Dr. LaTorre recognized that the plaintiff had a number of traumatic experiences before the sexual assaults, the most significant being, in his opinion, parental abandonment.  He also expressed the view that the sexual assault associated with Powell Lake was “significantly disturbing to him,” although he felt that the plaintiff was able to absolve himself of any responsibility for that abuse because he was drugged at the time.  This issue was not canvassed in detail.  In my opinion, however, given the circumstances of that abuse, it is likely that this earlier incident contributed to at least some of the plaintiff’s psychological problems.

Post-traumatic Stress Disorder

[89]            Dr. LaTorre explained that a diagnosis of Post-traumatic Stress Disorder (PTSD) requires both a significant trauma (such as a threat to life, physical integrity, sexual assault) and a response of fear, helplessness or horror.  He conducted a structured interview of the plaintiff in accordance with the Clinician-Administered PTSD Scale for DSM-IV (CAPS).  The plaintiff reported to him that he had been subjected to a number of traumatic events in his life.  He did not identify the sexual assaults as one of the three worst events; he identified these as (1) witnessing the sudden, violent deaths of friends in the penitentiary, (2) witnessing harm to another friend and (3) harm he might have caused others.  The plaintiff declined to discuss the third trauma with Dr. LaTorre.  Dr. LaTorre began questioning the plaintiff about the other two traumas and the sexual assaults, in accordance with CAPS.  He did not conclude the analysis of the other two traumas because the plaintiff did not report the symptom patterns – re-experiencing the event - associated with PTSD.  These symptom patterns were reported only with respect to the sexual assaults.  Dr. LaTorre stated:

Specifically, Mr. Curran reported reexperiencing symptoms of intrusive recollections, psychological distress at exposure to cues and physiological reactivity on exposure to cues.  He also reported avoidance and numbing symptoms including avoidance of thoughts or feelings, avoidance of activities, detachment or estrangement and restricted range of affect.  He also reported hyperarousal symptoms of irritability or outbursts of anger and hyper-vigilance.

[90]            In Dr. LaTorre’s opinion, the plaintiff’s PTSD could be directly attributed to the sexual assaults by Mr. MacDougall.  He explained that it is difficult to sort out the cause of all symptoms, and that while the sexual assaults were not the exclusive source of the plaintiff’s symptoms for PTSD, they were the primary source.

[91]            Dr. Malcolm did not disagree with Dr. LaTorre’s diagnosis of PTSD, but he did disagree with Dr. LaTorre’s conclusion that this disorder was primarily attributable to the sexual assaults.  Dr. Malcolm’s view was that the plaintiff had identified three other serious traumas that likely contributed to the diagnosis, but Dr. LaTorre did not fully assess these in order to rule them out.

[92]            I share Dr. Malcom’s concerns about Dr. LaTorre’s opinion on this point.  Dr. LaTorre did not fully assess the other traumas that the plaintiff identified, partly due to his initial assessment about their applicability and to the plaintiff’s reluctance to discuss one of the traumas.   Moreover, his assessment was based only on the plaintiff’s subjective responses.   Dr. Malcolm pointed out that it is easy to recognize the purpose of the questions in CAPS.  Dr. LaTorre did not administer other written tests that are designed to provide some validity to subjective responses.  He explained that he did not think that the plaintiff’s reading abilities were sufficient to do these tests.  I am not sure of the basis for this.  There was no evidence that the plaintiff had serious reading difficulties.  During the trial, I observed the plaintiff reading documents that were put to him and he responded appropriately to questions about those documents.

[93]            I note, however, that there is uncontradicted expert evidence that the plaintiff suffers from PTSD, which can be attributed at least in part, to the two sexual assaults.  Accordingly, I have given some weight to Dr. LaTorre’s opinion regarding this diagnosis, taking into account my concerns as outlined above.

[94]            I find that the sexual assaults alone and the plaintiff’s other life circumstances alone could each have been a sufficient cause of his PTSD.  It is unclear which was the cause in fact of this psychological injury.  However, based on the expert evidence reviewed above, I have determined that Mr. MacDougall’s sexual assaults materially contributed to the plaintiff’s PTSD.

Anxiety and depression

[95]            Dr. LaTorre was also of the opinion that the sexual assaults “appear to have also contributed to, if not caused” the plaintiff’s symptoms of anxiety and depression:

Depression is often considered a form of learned helplessness and it was a sense of helplessness that Mr. Curran experienced during the assaults by Mr. MacDougall.

[96]            According to Dr. LaTorre, helplessness was an important aspect of the plaintiff’s problems.  This related primarily to the symptoms of depression, but it also had a bearing on his diagnosis of PTSD.    Regarding depression, he testified:

1                                                                                 … I

2          think where Mr. MacDougall's assaults may have

3          really undermined Mr. Curran was in what we call

4          learned helplessness, and this is related to

5          depression.

6          People when they experience certain events can

7          see that these events are outside their control.

8          They develop when we call learned helplessness.

9           And it comes from studies from dogs.  You put a dog

10          in a box and you shock him and there's no escape

11          and he learns.  You then put that dog in a box and

12          there is partition and you remove the partition so

13          the dog only has to go to the other side and he's

14          not shocked anymore.  And you shock the dog and he

15          says there, he stays in the shock room and he just

16          lays down and whimpers.  He's given up.  Put

17          another dog in that box and shock him and he jumps

18          to the other side to get away from the shock.

19          I think what happened with Mr. Curran and is

20          frequent with depression and the post traumatic

21          stress disorder is people learn helplessness.  They

22          take on the quality there's nothing I can do.  And

23          I see this not only with inmates but with people in

24          society who are functioning but really feel that

25          they have no control over their lives, there's

26          nothing they can do to make their situation better.

27          And that's one of the things that really needs to

28          be dealt with in treatment, yes you do have

29          control, yes you can change, yes you can make

30          things better.  And I think with Mr. Curran I think

31          he has kind of given up.

[97]            I have some difficulty accepting Dr. LaTorre’s conclusions regarding the plaintiff’s reactions of helplessness.  Dr. LaTorre was not aware of certain events that took place subsequent to the sexual assaults, which I view as significant.

[98]            The plaintiff was back at Oakalla several times – in December, 1980, March 1981, January 1982 and July 1984.  He encountered Mr. MacDougall on occasion, but there were no further assaults.  The most significant encounter was in July 1984, when the plaintiff stood up to Mr. MacDougall and Mr. MacDougall apologized.  As described above, the plaintiff thought that this apology was genuine.  After this, Mr. MacDougall took the plaintiff out on a pass and there were no further incidents.  Records indicate that the plaintiff was in Oakalla at various times until August 1985 (and a few days in November 1988), after which he did not see Mr. MacDougall again.

[99]            The plaintiff gave this evidence in cross-examination:

33     Q    And at that time you had the conversation with him

34          and you told him at that time not to try anything,

35          that things were not going to be the way they were

36          before, right?

37     A    Yes, I did.

38     Q    You set him straight?

39     A    I did.

40     Q    You stood up to him?

41     A    I did.

42     Q    And that point MacDougall apologized to you?

43     A    He did.

44     Q    And you were saying yesterday that you believe that

45          he meant that, he was sorry?

46     A    He was sorry because he didn't believe that I would

47          take it to the point that I did.

1     Q    Okay.

2     A    That's the way I interpreted it.

3     Q    Okay.

4     A    Was he was sorry that I didn't handle it the way he

5          maybe thought I should have or would have.  He was

6          sorry that I went and did all this to myself.

7     Q    Okay.

8     A    Yeah.

9     Q    All right.  And that made you feel better, to stand

10          up to him?  That gave you some of your power back,

11          didn't it?

12     A    It did.

13     Q    Okay.  You weren't going to let him victimize you

14          anymore?

15     A    Right.

16     Q    And he didn't bother you after that?

17     A    No.  That's why I have these problems now is I

18          should have probably been a little more aggressive

19          when I was 18 instead of cowering and letting him

20          have his way with me.

21     Q    Okay.

22     A    Because when I did stand up to him and learn how to

23          be a little bit better with my hands and my feet, I

24          found in prison you lay a bad beating on somebody

25          everybody else talks about it, it makes it a little

26          easier for you the next time.  And for a lot of

27          years I had a lot of anger because I just didn't

28          take the control or the power.

[100]        On the face of it, this is not the kind of behaviour that demonstrates that a person has given up.  The plaintiff confronted his abuser, received what he considered to be a sincere apology and the abuser’s behaviour changed.  Although the plaintiff initially reacted to the assaults by withdrawing, he eventually addressed the situation on his own.  Dr. LaTorre was asked about this in cross-examination:

Q    Okay.  Well, I'll ask you to assume the following,

9          if you would, and that is that in 1984 Mr.

10          MacDougall called Mr. Curran down to his office

11          again and that Mr. Curran told him in no uncertain

12          terms that he was not going to be victimized by Mr.

13          MacDougall again, and that he was not afraid of Mr.

14          MacDougall, and that Mr. MacDougall then apologized

15          to him and that Mr. Curran believed that apology to

16          be heart-felt.

17               Now, that would be of some significance, would

18          it not, in terms of the psychological and emotional

19          harm that Mr. Curran might suffer or would have

20          suffered as a result of the sexual assaults?

21     A    I'm not aware of literature My Lady that shows a

22          perpetrator's apology to a victim significantly

23          impacts post trauma systems.

24     Q    Okay.  So you're not aware of any literature.  What

25          about your experience as a psychologist?

26     A    My experience is that it's very important for

27          victims to receive an apology but they are still

28          troubled by the behaviour that had occurred anyway.

29     Q    But it could well --

30     A    It might lessen as opposed to exacerbate when the

31          perpetrator denies and continues to deny the

32          offence.

33     Q    Okay.  And that would impact on your opinion about

34          the learned helplessness presumably as well?  What

35          I'm getting at here Dr. LaTorre is that and you

36          correct me if I'm wrong, the learned helplessness

37          is a function of being victimized is that a fair

38          way of putting it?

39     A    To some extent, yes.

40     Q    And the example that I've given to you about the

41          1984 encounter indicates that Mr. Curran took some

42          control and set boundaries between himself and Mr.

43          MacDougall?

44     A    That's what it sounds like.

45     Q    And that would then have impacted upon any

46          suggestion that learned helplessness with respect

47          to the sexual assaults and with respect to

1          MacDougall?

2     A    It may, but it's really not quite that simple

3          because the feeling of learned helplessness that

4          derives from the actual initial event is not

5          necessarily completely resolved, one can sort of

6          set a boundary as it honoured there's that was six

7          years after the fact.  And certain personality

8          characteristics develop certain cognitions

9          that might be resistant to simple change by the

10          fact that you can tell someone, like I'm not going

11          to be victimized again don't do it and the person

12          apologizes.

13     Q    Whatever way that might occur on the facts as I

14          suggested it could only have a positive effect,

15          correct?

16     A    No, I would say that it could have no effect.

17     Q    You think it might have no effect?

18     A    I'm saying that's possible.

19     Q    Okay.  But I'm asking you what you think is likely

20          given your experience as a psychologist, given what

21          you know of the facts of this case?

22     A    I would be hopeful that it would have a positive

23          effect.

24     Q    And if you had known that at the time that would

25          have factored into your opinion presumably?

26     A    It may have, yes.  I can't say for certain that

27          knowing that Mr. MacDougall apologized would have

28          made me -- would have made me follow through with

29          different conclusions than what I did.

30     Q    Well, on the issue of confronting one's abuser, is

31          that not something that you ask a person when doing

32          an assessment like this?

33     A    Ask them if they have confronted their abuser?

34     Q    Yes.

35     A    No it's not something that I generally ask.

36     Q    But you don't disagree that it's significant?

37     A    Yes.  It can be significant.

38     Q    And you agree that it's not something that Mr.

39          Curran told you no the course of the assessment?

40     A    No, he did not tell me that.

       (Emphasis added)

[101]        While he was somewhat equivocal about this, Dr. LaTorre agreed that this issue could be significant.  Although the plaintiff did not volunteer this information to Dr. LaTorre, he wrote about it in his June 2005 summary, and this was one of the documents that Dr. LaTorre reviewed. 

[102]        The plaintiff’s current therapist, Ms. Judy Eberts, gave evidence about his course of treatment.   It is surprising that Ms. Eberts was also unaware of Mr. MacDougall’s apology, since the plaintiff’s written summary is contained in her file.  In any event, Ms. Eberts agreed that a heartfelt apology would probably be very helpful; depending on the victim, it could help to provide closure.

[103]        Because of the potential significance of this evidence, and the fact that Dr. LaTorre did not canvass this with the plaintiff, I consider his conclusions about the plaintiff’s “learned helplessness” to have little weight.  However, I accept that the plaintiff suffered some anxiety and depression following the sexual assaults, particularly given the evidence about his reaction to it and to Mr. MacDougall’s threats.

[104]        I find that the plaintiff’s life before the sexual assaults, as well as his other experiences in prison and out, could have been a sufficient cause of his anxiety and depression even if the sexual assaults had never occurred.  For the reasons outlined above, I do not accept Dr. LaTorre’s opinion that the sexual assaults contributed to or caused the plaintiff’s symptoms of anxiety and depression to the extent he described.  However, I do find that the sexual assaults alone could have been a sufficient cause of some of the plaintiff’s anxiety and depression, and materially contributed to such injury.

Substance dependence

[105]        Within a few years after the assaults, when the plaintiff was in a federal penitentiary, he started to use heroin and cocaine.  He continues to be addicted to those drugs.  He has been treated with methadone from time to time.

[106]        Dr. LaTorre stated that the plaintiff’s substance dependence could, to some extent, be attributed to the sexual abuse.  He noted a temporal continuity, in that the plaintiff began to use heroin and cocaine a few years after the sexual assaults.  However, his opinion was qualified.  He also said that it would be difficult to argue that the plaintiff would or would not have resorted to intravenous drug use if the assaults had not occurred.  At trial, Dr. LaTorre testified that the plaintiff’s early drinking and drug-taking placed him at a greater risk of using heroin and cocaine at a later stage, and that given his history, the plaintiff’s use of these hard drugs would be a natural progression.  He thought, though, that the progression would not have been so sudden had the sexual assaults not occurred.  I note that although Dr. LaTorre has experience dealing with substance abuse, he is not an addiction specialist.

[107]        I find that the plaintiff’s substance dependence would have occurred without the injuries sustained in the sexual assaults.  He was at high risk to progress to hard drugs, given his history.  I do accept that the sexual assaults may have accelerated to some degree the plaintiff’s dependence on hard drugs.  However, the evidence is insufficient to prove, on a balance of probabilities, that the sexual assaults materially contributed to his dependence.

(b)       The plaintiff’s loss

[108]        The plaintiff is entitled to be compensated for the loss caused by the sexual assaults, which includes his PTSD and some of his anxiety and depression.  He is entitled to be restored, as much as possible, to his original position.

[109]        The main issue is the extent of the damages that should be awarded in order to put the plaintiff back into his original position.  Major J., in Athey v. Leonati, [1996] 3 S.C.R. 458 addressed the relevance of pre-existing conditions.  The related principles of “thin skull” and “crumbling skull” differ in terms of assessment of damages.  Major J. simplified this in Athey by moving away from this terminology, at paras. 34-35:

The "crumbling skull" doctrine is an awkward label for a fairly simple idea. It is named after the well-known "thin skull" rule, which makes the tortfeasor liable for the plaintiff's injuries even if the injuries are unexpectedly severe owing to a pre-existing condition. The tortfeasor must take his or her victim as the tortfeasor finds the victim, and is therefore liable even though the plaintiff's losses are more dramatic than they would be for the average person.

The so-called "crumbling skull" rule simply recognizes that the pre-existing condition was inherent in the plaintiff's "original position". The defendant need not put the plaintiff in a position better than his or her original position. The defendant is liable for the injuries caused, even if they are extreme, but need not compensate the plaintiff for any debilitating effects of the pre-existing condition which the plaintiff would have experienced anyway. The defendant is liable for the additional damage but not the pre-existing damage: Cooper-Stephenson, supra, at pp. 779-780 and John Munkman, Damages for Personal Injuries and Death (9th ed. 1993), at pp. 39-40. Likewise, if there is a measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future, regardless of the defendant's negligence, then this can be taken into account in reducing the overall award: Graham v. Rourke, supra; Malec v. J. C. Hutton Proprietary Ltd., supra; Cooper-Stephenson, supra, at pp. 851-852. This is consistent with the general rule that the plaintiff must be returned to the position he would have been in, with all of its attendant risks and shortcomings, and not a better position.

[110]        Unrelated intervening events are to be taken into account in the same way as pre-existing conditions.  In T.W.N.A. v. Clarke, (2003) 22 B.C.L.R. (4th) 1 (C.A.), 2003 BCCA 670, Smith, J.A. held, at para. 36, citing Athey:

If such an event would have affected the plaintiff’s original position adversely in any event, the net loss attributable to the tort will not be as great and damages will be reduced proportionately.

[111]        As described above, the plaintiff experienced a difficult life and a variety of psychological problems before the sexual assaults.  His life experiences included physical abuse, abandonment by his parents, one incident of sexual abuse, substance abuse of alcohol and marijuana, and the death of a baby.  He was involved in criminal activity from an early age.  Dr. LaTorre diagnosed him with Antisocial Personality Disorder, a pre-existing condition stemming from symptoms of Conduct Disorder before the age of 15, and possibly Attention-Deficit/Hyperactivity Disorder.  Subsequent to the assaults, the plaintiff’s substance abuse escalated to hard drugs and he became dependent on heroin and cocaine.  He continued to engage in criminal activity and there is evidence of increased seriousness over time.  I have found that the plaintiff would have engaged in these subsequent behaviours even if the sexual assaults had not occurred.

[112]        Pre-existing conditions are more difficult to assess when dealing with psychological or emotional injuries.  The evidence in this case is clear, however, that the plaintiff’s pre-existing personality and behaviour disorders created a measurable risk that he would have suffered emotional and psychological problems in the future in any event.  By the time of the assaults, these disorders had already manifested into serious anti-social and criminal behaviour.  The plaintiff spent considerable time in juvenile and adult correctional facilities.  These pre-existing traits are inherent in the plaintiff’s original position.

[113]        Although the plaintiff’s PTSD and some of his anxiety and depression are causally related to Mr. MacDougall’s assaults, some reduction in damages is appropriate when considering his original position.

(i)         Non-pecuniary damages

[114]        On behalf of the plaintiff, Mr. Adair submitted that an appropriate award for general and aggravated damages should be in the range of $60,000 to $80,000.  For the Crown, Mr. Johnston submitted that appropriate range is $30,000 to $40,000, less a 25% reduction to account for the plaintiff’s pre-existing and intervening disabilities.

[115]        The sexual assaults committed by Mr. MacDougall against the plaintiff were on the lesser end of the spectrum.  Mr. MacDougall stopped at some point after the plaintiff reacted negatively, there was no ejaculation, no penetration and they did not continue over time.  However, they were still serious assaults because Mr. MacDougall was a person in authority and the plaintiff was a young inmate who was vulnerable.  The assaults were combined with threats against the plaintiff, which he believed were true.  Mr. MacDougall breached his position of trust and authority.

[116]        The assaults were clearly distressing for the plaintiff.  He felt humiliated, embarrassed and used.  He was also angry, scared and confused.  He wanted to retaliate but felt threatened.

[117]        About a week after the second assault, the plaintiff escaped from custody.  When he returned just over ten days later, he had an argument with Mr. MacDougall at the gate at the end of the tier.  Mr. MacDougall had arranged for the plaintiff to have a good job and he was angry about the plaintiff’s escape.  He threatened to have the plaintiff moved back to Westgate B.  The plaintiff tried to stand up to him and threatened to tell his superiors about his actions, but Mr. MacDougall said that no one would take the plaintiff’s word over his.  The plaintiff testified that Mr. MacDougall also threatened to have him “beat up and hurt and raped.”

[118]        The plaintiff believed that Mr. MacDougall had inmates looking out for him and guards on his side.  When he went back to his cell, he slashed his wrists, forearms and neck with a razor.  This was clearly a desperate act.  He said that when the guards came into his cell he fought them.  He was taken to health care for three or four days and then sent to south wing for observation. He denied doing this because he was depressed about other things in his life.  I find that difficult to accept, given the plaintiff’s life circumstances, but I do accept that Mr. MacDougall’s actions materially contributed to this reaction.

[119]        The plaintiff was back in Oakalla several times after this, but it appears he had little to do with Mr. MacDougall.  In 1984, some four years later, the two had a conversation.  As I described above, the plaintiff stood up to Mr. MacDougall, who then apologized.   The plaintiff agreed that he felt better standing up to Mr. MacDougall, that he learned something about how to stand up for himself in prison and that this gave him back some of his power.

[120]        The plaintiff also testified that as a result of the assaults, in an effort to protect himself, he withdrew.   He would not talk to guards, case workers, parole officers.  He became very institutionalized.  He felt guilty that he did not handle the situation properly, and angry because “I should have just killed him then.”  He did a lot of drugs, including cocaine and heroin.  However, he did not have doubts about his sexuality.  He had some problems when he was with women because of visions coming back about Mr. MacDougall, but he was able to have normal sexual relationships with women.

[121]        This evidence of withdrawal is somewhat at odds with the plaintiff’s evidence about learning to stand up for himself in prison.  However, I accept that the plaintiff withdrew initially and in time learned how to survive in prison.  He may have continued to withdraw on an emotional level.  This is confirmed to some extent by the evidence of Ms. Ebert and Dr. LaTorre.

[122]        The plaintiff’s symptoms of PTSD have waxed and waned over the years.  They are present when the plaintiff is confronted with cues or has to discuss the assaults.  It does not appear that these symptoms are front and centre in the plaintiff’s life very often.  Dr. LaTorre was not able to say how serious these symptoms were when compared with the plaintiff’s other problems.

[123]        Mr. Adair submitted that the plaintiff’s damages warrant a higher award, including aggravated damages, because of the context in which the assaults took place, emphasizing the prison setting where the plaintiff was under Mr. MacDougall’s control.  Mr. Johnston agreed that aggravated damages are part of general damages and can be awarded against the Crown under vicarious liability (citing T.W.N.A. v. Clarke, supra), but submitted that such an award should not be made in this case.

[124]        I agree with Mr. Adair that the context is important.  However, the plaintiff was under Mr. MacDougall’s control only in the 1979–1980 time period.  He had little to do with Mr. MacDougall when he was back in Oakalla between 1981 and 1985.  What contact he did have with him during those years was not problematic.

[125]        Mr. Adair relied on several authorities, including Yo v. Carver (1996), 26 B.C.L.R. (3d) 155 (C.A.), S.(T.) v. P. (J.W.) [1999] B.C.J. (QL) 709 (B.C.S.C.), H.L. v. Canada, [2003] 5 W.W.R. 421 (Sask. C.A.), aff’d in part [2005] 1 S.C.R. 401, 2005 SCC 25, E.( J.A.K.) v. British Columbia (2002), 1 B.C.L.R. (4th) 107 (S.C.), 2002 BCSC 418, X. v. R.D.M. 2004 BCSC 1273, reversed in part Zastowny v. MacDougall 2006 BCCA 221. Mr. Johnston referred to C.Y. v. Perreault, 2006 BCSC 545.

[126]        The sexual abuse in a number of these cases was more serious than the case at bar.  In Yo v. Carver, the plaintiff was sexually abused by her stepfather over a seven-year period, from ages 7 to 14, and physically and verbally abused for a further four years.  The sexual abuse occurred one to three times a week in the plaintiff’s bedroom.   There were numerous sexual acts, including digital penetration.  A jury award of $350,000 for general and aggravated damages was reduced on appeal to $250,000.  The Court of Appeal confirmed that aggravated damages are not a separate head of damage, but are part of general damages.  In S. (T.) v. P. (J.W.), a 60-year-old defendant sexually assaulted an 11-year-old plaintiff between 30 and 50 times over a period of about 1 ˝ years. The abuse included fondling, kissing and oral sex.  The court found this claim to be in the upper middle range and awarded the plaintiff $130,000 in general damages, which included aggravated damages.  E. ( J.A.K.) v. British Columbia involved even more serious assaults, which included oral and anal intercourse of a teenaged plaintiff over a 16-month period while in foster care.  The plaintiff was awarded $150,000 for general and aggravated damages.  H.L. v. Canada involved sexual abuse by the Residence Administrator of an Indian residential school who ran a boxing program.  The plaintiff was a boy in his early teens who, though not a resident of the school, attended the boxing program.  The abuse consisted of one advance and two acts of masturbation.  The trial judge awarded the plaintiff $80,000 for non-pecuniary damages.  This amount was upheld on appeal, although the Court of Appeal noted that this was at the upper end of the range, “exceeding it perhaps”, but was not inordinately high so as to justify interfering with the award.  This issue was not the subject of a further appeal to the Supreme Court of Canada.

[127]        In E.( J.A.K.) v. British Columbia, Loo J. reviewed a number of cases regarding the assessment of general damages, including Blackwater, supra and T.W.N.A. v. Clarke, supra, and concluded that the range for general and aggravated damages combined was between $50,000 and $250,000 depending on the circumstances and the differing degrees of harm attributed to the wrongful conduct.

[128]        Mr. Adair relied mostly heavily on X. v. R.D.M., a case involving Mr. MacDougall.   There, the Crown admitted liability for two incidents of sexual assault, which were similar in nature, but somewhat more serious, to the assaults in this case.  Cohen J. awarded the plaintiff $60,000 for general and aggravated damages.  However, he did not consider the case to be a “crumbling skull” and made no reduction to the damages awarded.  Further, he concluded that the sexual assaults caused or materially contributed to the plaintiff’s myriad of psychological injuries, which included a serious antisocial personality disorder, low self-esteem and chronically poor self-concept, chronic sexual anxieties, self defeating behaviour, and exacerbated drug dependence.  These ongoing symptoms were more serious than those suffered by the plaintiff in this case, and Cohen J.’s conclusions are quite different from the conclusions I have made.

[129]        In C.Y. v. Perreault, $30,000 was awarded to a plaintiff who was sexually assaulted at knifepoint by a stranger, heavily intoxicated on liquor and drugs, who broke into her apartment brandishing a knife.  The plaintiff suffered significant long term damage, including anger and depression, and her marriage broke down.  In my view, this case appears to be below the normal range of damages awarded in other cases, particularly considering the serious nature of the assault.

[130]        Mr. MacDougall abused his authority and the plaintiff was, at the time, a young, vulnerable inmate.  The plaintiff was significantly affected by Mr. MacDougall’s assaults at the time, and continues to have some symptoms.  Aggravated damages are appropriate in these circumstances.  Considering the range of damages awarded in the authorities referred to above, it is my view that the plaintiff is entitled to an award of general and aggravated damages in the amount of $50,000, which should be reduced to $40,000 to take into account his original position.

(ii)        Loss of earning capacity

[131]        The plaintiff claims damages for both past and future loss of income.  Mr. Adair submitted that the court should adopt the same approach for both past and future income loss in this case, because the plaintiff did not have a realistic opportunity to develop a pre-abuse pattern of education or employment history to serve as a benchmark.  He relied on Brooks v. British Columbia, 2000 BCSC 735, where Levine J. (as she then was) noted:

298      … in childhood sexual abuse cases there is rarely an educational or employment history unaffected by the injury to serve either as a baseline measure of natural aptitude or intelligence or of pretrial income, or as a predictor of future capacity to earn (see Cherry v. Borsman (1992), 70 B.C.L.R. (2d) 273 at 317 (C.A.). Thus, when the court gazes into the proverbial crystal ball, the lost or impaired capacity that it discovers there is relevant to the quantification of both past and future loss.

299      Not surprisingly, therefore, the legal principles developed for the assessment of future loss of capacity are sometimes referred to by judges to assist in the assessment of damages for past pecuniary losses as well.

[132]        Mr. Johnston submitted that the approach to hypothetical events, articulated in Athey and applied to claims for future loss of earning capacity, is not applicable to past wage loss.  He referred particularly to the requirement of proof of causation for past wage loss on a balance of probabilities.

[133]        I agree with Mr. Adair that the legal principles applicable to future income loss claims may assist in assessing damages for past income loss in these circumstances.  However, it is important, in my view, to consider these claims separately on the issue of causation, due to the different standard of proof that applies to each.  For past loss of income, the plaintiff must prove, on a balance of probabilities, a causal link between the sexual assaults and corresponding injury and what the plaintiff would have earned: Athey, supra; Sales v. Clarke (1998), 57 B.C.L.R. (3d) 36 (C.A.).  For future loss of earning capacity, the standard of proof to be applied is simple probability.  Possibilities and probabilities, chances, opportunities and risks must all be considered, so long as they are a real and substantial possibility and not mere speculation: Rosvold v. Dunlop (2001), 84 B.C.L.R. (3d) 158 (C.A.), 2001 BCCA 1; Athey, supra.

Past loss of income

[134]        The plaintiff claims damages for past loss of income in the range of $30,000.  This amount takes into account pre-existing factors that negatively impacted the plaintiff’s ability to earn income, the most significant being the plaintiff’s years in prison.  It also takes into account all amounts the plaintiff collected while on social assistance.  The claim is based on income the plaintiff could have earned during the time he was not incarcerated, thus acknowledging the Supreme Court of Canada’s decision in H.L. v. Canada, supra, regarding judicial policy that generally precludes income loss claims during periods of incarceration.

[135]        The Crown disputes this claim.  Mr. Johnston submitted that the plaintiff has not proven a causal link between the assaults and his ability to work.

[136]        The plaintiff had not established a work record prior to the sexual assaults, partly because of his age and partly because he had already spent a considerable amount of time in the juvenile and then adult correctional system.  Following the assaults, the plaintiff was not able to maintain employment for any substantial period of time.  In 1988, he worked for Lilydale Hatchery for about two months.  He was then back in prison.  When he was released in 1994, he did some salvage removal for a short time.  He was in prison again until 1997. He then worked on construction for only a few days.  He looked into the cooking field, but since he was diagnosed with HIV, this is no longer an option.

[137]        The plaintiff has an extensive criminal record.  Before the assaults, he had been convicted primarily of property offences and escaping custody.  There were some alcohol and drug related offences as well.  After the assaults, the nature of his offences did not change until 1985, when he was convicted of robbery as well as other property offences and sentenced to five years.  He had another robbery conviction in 1989.  In 1990 he was convicted of assaulting a police officer and sentenced to four months.  His record became more serious after this, but the pattern was the same: robberies (at times with the use of a firearm), failures to appear and trafficking in controlled substances.  His drug dependence is reflected in his criminal activity, which became more serious as he committed more robberies to support his drug habit.  He is still dependent on heroin and cocaine, but has been on a methadone program from time to time.

[138]        While I do not understand that the plaintiff is making any claim based on increased criminality as a result of the sexual assaults, Dr. LaTorre stated that the plaintiff became violent following the assaults.  I agree that the plaintiff’s criminal activity became more serious over time.  However, the nature of his offences did not change remarkably.  They were still property and drug offences, at times with violent overtones.

[139]        The plaintiff’s record shows that during the past 26 years, he was living in the community for sporadic periods of time in between fairly long periods of incarceration.  When he was not incarcerated, he rarely worked.  Between 1990 and 2005 he collected $23,065.91 in social assistance.

[140]        Dr. LaTorre stated that the plaintiff may never have established a reliable work history following the sexual abuse.  He attributed this to the significant periods of time the plaintiff was incarcerated and to his substance abuse.  Although he was of the view that the assaults contributed in some way to the plaintiff’s criminal history (“e.g., possibly more violence in his crimes that would have led to longer sentences”) and substance abuse (“e.g., possibly exacerbating it and leading to substance dependence”), he was unable to conclude that the sexual abuse impacted the plaintiff’s ability to train for and maintain employment in any substantial way.

[141]        I accept Dr. LaTorre’s cautious assessment on this latter point.  Even if the assaults contributed in some way to the plaintiff’s criminal history and substance abuse, I find that they did not contribute materially.   In my view, it is more likely than not that the plaintiff would never have established a reliable work record even if the sexual assaults had not occurred.

[142]        I agree with the Crown that the plaintiff has not established, on a balance of probabilities, a causal link between the sexual assaults and the plaintiff’s past loss of income.

Future loss of earning capacity

[143]        The plaintiff claims a future loss of earning capacity in the amount of $50,000.  The Crown disputes this claim as well, submitting that the plaintiff has not established that he is or will be unable to secure employment commensurate with his skills and abilities because of the sexual abuse.

[144]        Damages for loss of future earning capacity are intended to compensate a plaintiff whose earning capacity has been affected by a defendant’s wrongdoing.  The loss is of a capital asset.  Some of the considerations to take into account were set out in Brown v. Golaiy, [1985] B.C.J. No. 31 (QL) (B.C.S.C.):

1.         The plaintiff has been rendered less capable overall from earning income from all types of employment;

2.         The plaintiff is less marketable or attractive as an employee to potential employers;

3.         The plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and

4.         The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.

[145]        The court must assess the chance that such a loss will occur.  As noted above, future or hypothetical events need not be proven on a balance of probabilities; they are simply given weight according to their relative likelihood: Athey, supra.

[146]        The plaintiff has never been able to secure and maintain regular employment of any kind, primarily as a result of his criminal activity and extensive time in prison and his drug addiction.  He lacks vocational skills.  Given his criminal record, he is likely at a relatively high risk for recidivism.  His current circumstances are, unfortunately, even more bleak than the past.  He is in poor health, with active AIDS, and he remains dependent on heroin and cocaine.  He has been able to refrain from using those drugs when he is incarcerated and on a methadone program.

[147]        Dr. LaTorre stated that the sexual assaults significantly contributed to a sense of learned helplessness that has and will continue to impact the plaintiff in future work-related efforts.  For the reasons outlined above, I do not accept Dr. LaTorre’s opinion regarding the plaintiff’s “learned helplessness”, at least to the extent he identified.  In my view, the sexual assaults did contribute to some of the plaintiff’s anxiety and depression, but not to the extent of impacting his future earning capacity.

[148]        Mr. Adair submitted that the appropriate approach is that applied in X. v. R.D.M. where Cohen J. awarded $50,000 for future income loss.  I note, however, since this case was heard, the Court of Appeal has released its decision on the appeal (reported as Zaztowny v. MacDougall and British Columbia, supra).  A majority of the court reduced the award for future loss of earning capacity by 30% in order to reflect the plaintiff’s high risk of recidivism. 

[149]        More importantly, Cohen J. made findings of fact that are significantly different from this case.  He found that the plaintiff had established that his capacity to earn an income had been affected by the assaults.  He accepted an expert opinion that the plaintiff’s substance dependence and criminality (which was causally connected to the sexual assaults) directly interfered with his employment and vocational prospects.  He also found that absent the assaults, after his release from Oakalla, the plaintiff would have overcome his use of cocaine, settled into an occupation and worked for a living.

[150]        I agree with the Crown that the plaintiff has not established, as a real and substantial possibility, that his capacity to earn income in the future has been impaired as a result of the sexual assaults.

(iii)       Future care

[151]        The plaintiff sought counselling in 2002.  His therapist, Judy Ebert, who works full time counselling male survivors of sexual abuse, testified about her work with the plaintiff.  She said that it took some time to establish a trust relationship with him, but that he had begun to open up and talk about many of his problems, including those stemming from his childhood.  It appears that the plaintiff is making some progress.  She recommended that he continue counselling.  Although she did not have a firm view about how long this should continue, she did say for at least six months or a year, perhaps longer.

[152]        Dr. LaTorre was of the view that the plaintiff is a multi-needs individual who could receive significant benefit from targeted therapy for a minimum of six months.  He calculated the cost of continuing therapy for six months on a weekly basis, a further six months on a bi-weekly basis and a second year on a monthly basis, at $3570, assuming a rate of $70 per hour.  I note, however, that the current cost of therapy with Ms. Ebert is $80 per hour. 

[153]        The Crown submitted that an appropriate award for future care would be $3,500, in line with Dr. LaTorre’s recommendation.  While some of this continued therapy is intended to address a number of issues unrelated to the sexual assaults, I recognize that it is extremely difficult to separate causes of psychological issues.  It is clear that the plaintiff has benefited from this therapy and I am satisfied he will continue to do so.  I award $4,000 for future care.

(iv)       Punitive damages

[154]        The plaintiff also seeks punitive damages against Mr. MacDougall only, in the amount of $10,000. This is the amount set by Joyce J. in a series of decisions involving Mr. MacDougall and other plaintiffs.  His reasons are set out in O’Neill v. MacDougall, 2006 BCSC 180.

[155]        I agree that such an award is appropriate in the circumstances, and the plaintiff is entitled to $10,000 as punitive damages against the defendant Roderick MacDougall.

Third Party Proceedings

[156]        Pursuant to the Crown’s default judgment against Mr. MacDougall, it is entitled to the relief set out in its Third Party Notice.

Conclusion

[157]        Mr. MacDougall is liable to the plaintiff for the sexual assaults committed by him in 1979 and 1980.  The Crown is vicariously liable for the same assaults.

[158]        The plaintiff is awarded general and aggravated damages in the amount of $40,000, future care costs of $4,000 and punitive damages against Roderick MacDougall only of $10,000.

[159]        The plaintiff is also entitled to costs on the usual scale.  Because neither counsel addressed costs, the parties will have liberty to make submissions on costs if they consider this to be necessary.

[160]        The Crown is entitled, as against Mr. MacDougall, to (a) a declaration that it is entitled to be indemnified against the plaintiff’s claim, (b) judgment in the amount of $44,000, and (c) judgment for the amount of costs to be paid to the plaintiff and for its own costs of defending the plaintiff’s claims.

“B. Fisher, J.”
The Honourable Madam Justice B. Fisher

June 21, 2006 – Revised Judgment

On page 5, paragraph 13, second last line of paragraph the citation number quoted should read:

“[13]     …  B.(M.) v. British Columbia  …..   2001 BCCA 227 ….