A Canada goose walks on the front lawn of the Supreme Court of Canada in Ottawa on Thursday, May 10, 2018. THE CANADIAN PRESS/Sean Kilpatrick

Top court set to hear case involving crotch-grabbing nun’s sexual intent

An Indigenous man who was denied compensation takes his case to Canada’s top court this week.

An Indigenous man who was denied compensation on the basis that a nun had no sexual intent when she grabbed his genitals takes his case to Canada’s top court this week amid a tense power struggle between a judge overseeing implementation of the Indian residential school class-action settlement and the head of the process that awards payouts to victims.

The man, identified only as J.W., was a residential school student in Manitoba as a boy. In a claim accepted as factual, he said he was in line for a shower when a nun grabbed and squeezed his genitals, causing him distress. J.W. sought compensation under the independent assessment process set up as part of a class-action settlement over the schools.

An adjudicator turned him down because he had failed to prove the nun had a “sexual purpose.” J.W. argued he shouldn’t have needed to prove her intent but his attempts at redress through the assessment review process failed.

J.W. turned to the judge of the Court of Queen’s Bench supervising the class-action settlement in Manitoba, who decided the original decision was unreasonable and the reviews overseen by the chief adjudicator had failed to fix the problem. The judge ordered a new compensation hearing.

However, the Government of Canada successfully appealed to the Manitoba Court of Appeal by arguing the judges supervising the settlement have almost no authority to review the compensation decisions.

J.W. appealed to the Supreme Court of Canada, which takes up the complex case on Wednesday. The outcome could affect other victims as the residential school compensation process winds down.

In submissions to the top court, J.W. argues the Manitoba Appeal Court ruling would place the chief adjudicator beyond judicial scrutiny — even if his decisions are unreasonable.

“To be bound by rules is not to make an empty gesture of applying them, or to apply them in an irrational or absurd way,” J.W. argues in his factum before the top court.

In response, Chief Adjudicator Dan Shapiro and the federal government argue it would be disruptive to allow the courts to second-guess compensation decisions — except in the narrowest of circumstances.

J.W.’s fight has thrown into sharp relief the battle between the judges overseeing implementation of the settlement and Shapiro, who insists the courts have almost no jurisdiction to review his decisions.

“The function of the courts in supervising the (independent assessment process) is not to review individual decisions for error or unreasonableness,” Shapiro writes in his Supreme Court factum.

Shapiro’s stance has long angered Justice Paul Perell, the Ontario Superior Court judge who shares responsibility for supervising implementation of the multibillion-dollar class-action agreement.

Related: ‘We are sorry:’ Alberta premier formally apologizes to ’60s Scoop survivors

Related: Students asked about the positive effects of residential schools

In a blistering order early last month, Perell accused Shapiro of taking partisan positions, of challenging decisions made by supervising judges, and of putting himself above judicial scrutiny in “open defiance” of the court.

“The chief adjudicator’s actions amount to insubordination of the courts,” Perell wrote. “His conduct runs the risk of compromising his impartiality or of having the risk of an appearance of a compromised impartiality.”

Perell ordered Shapiro to cease involvement in J.W.’s appeal as well as in two other appeals involving claimants in British Columbia.

Shapiro balked at the judicial slap-down. Arguing Perell had been unfair by not first hearing from him, he won a stay of the order from Ontario Appeal Court Justice Robert Sharpe pending a full appeal hearing Nov. 23.

“Of particular concern is the finding in the direction that the chief adjudicator is guilty of ‘insubordination of the courts’,” Sharpe said. “This is a finding of serious misconduct made against a lawyer.”

The stay left intact Shapiro’s role in fighting J.W.’s claim before the Supreme Court, prompting J.W. to file a new motion. He wants the high court to force Shapiro to step aside, saying Perell’s reasoning was persuasive.

Shapiro is strenuously resisting removal from J.W.’s appeal, saying he has behaved appropriately and the Ontario’s top court will deal with the Perell situation in due course.

In the interim, Perell has rescinded his order and issued a new one. This time, he’s directing two other judges involved in the class-action settlement to take up the matter directly with Shapiro at a full hearing. Among the issues: “Has the chief adjudicator taken partisan positions before courts, including appellate courts?” Perell wrote late last month.

Shapiro is appealing that order, too.

Colin Perkel, The Canadian Press

Like us on Facebook and follow us on Twitter.

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Alberta has 3,651 active cases of COVID-19. (File photo)
432 new COVID cases sets another record Friday

Central zone holds steady at 126 active cases

"We are looking seriously at the spread and determining what our next steps should be," says Alberta’s chief medical officer of health, Dr. Deena Hinshaw, as the daily number of COVID-19 cases continues to climb.
427 new COVID cases is highest in Alberta ever

Central zone has 126 active cases of COVID-19

COVID-19. (Image courtesy CDC)
Temporary COVID-19 testing sites coming to Wetaskiwin and Ponoka

The Wetaskiwin location will open Oct. 23, 2020 and the Ponoka location will open Oct. 29.

COVID-19. (Image courtesy CDC)
City and County of Wetaskiwin reporting active cases

Both the City of Wetaskiwin and County of Wetaskiwin have active cases.

Alberta chief medical officer of health Dr. Deena Hinshaw updates media on the Covid-19 situation in Edmonton on Friday March 20, 2020. nbsp;Alberta is reporting it's highest daily number of COVID-19 cases, with 364 new infections. THE CANADIAN PRESS/Jason Franson
Alberta confirmed 323 COVID-19 cases Tuesday

Central zone active cases at 145

B.C. Liberal leader Andrew Wilkinson, B.C. NDP leader John Horgan and B.C. Greens leader Sonia Furstenau. (Black Press Media)
VIDEO: One day until B.C. voters go to the polls in snap election defined by pandemic

NDP Leader John Horgan’s decision to call an election comes more than a year ahead of schedule and during a pandemic

Comedic actor Seth Rogen, right, and business partner Evan Goldberg pose in this undated handout photo. When actor Seth Rogen was growing up and smoking cannabis in Vancouver, he recalls there was a constant cloud of shame around the substance that still lingers. Rogen is determined to change that. (Maarten de Boer ohoto)
Seth Rogen talks about fighting cannabis stigma, why pot should be as accepted as beer

‘I smoke weed all day and every day and have for 20 years’

Leader of the Opposition Erin O’Toole rises during Question Period in the House of Commons Thursday October 22, 2020 in Ottawa. THE CANADIAN PRESS/Adrian Wyld
O’Toole tells Alberta UCP AGM Liberals were ‘late and confused’ on COVID response

He says Alberta Premier Jason Kenney has taken charge and not waited to make things happen

Alberta Premier Jason Kenney arrives for an announcement at a news conference in Calgary, Alta., Tuesday, Sept. 15, 2020. THE CANADIAN PRESS/Todd Korol
Inquiry into oil and gas foes to deliver report next year: Kenney

A lawsuit filed by environmental law firm Ecojustice argues the inquiry is politically motivated

The Canadian border is pictured at the Peace Arch Canada/USA border crossing in Surrey, B.C. Friday, March 20, 2020. More than 4.6 million people have arrived in Canada since the border closed last March and fewer than one-quarter of them were ordered to quarantine while the rest were deemed “essential” and exempted from quarantining. THE CANADIAN PRESS/Jonathan Hayward
Majority of international travellers since March deemed ‘essential’, avoid quarantine

As of Oct. 20, 3.5 million travellers had been deemed essential, and another 1.1 million were considered non-essential

This photo provided by Air Force Reserve shows a sky view of Hurricane Epsilon taken by Air Force Reserve hurricane hunter team over the Atlantic Ocean taken Wednesday, Oct. 21, 2020.   Epsilon’s maximum sustained winds have dropped slightly as it prepares to sideswipe Bermuda on a path over the Atlantic Ocean.  The National Hurricane Center says it should come close enough Thursday, Oct. 22, evening to merit a tropical storm warning for the island.  (Air Force Reserve via AP)
Hurricane Epsilon expected to remain offshore but will push waves at Atlantic Canada

Epsilon is not expected to have any real impact on land

A voter places her absentee ballot in the ballot box, Wednesday, Oct. 7, 2020, at Merrill Auditorium in Portland, Maine. THE CANADIAN PRESS/AP/Robert F. Bukaty
American voters living in Canada increasingly being counted in presidential race

The largest number of Canadian-based American voters cast their ballots in New York and California

A composite image of three photographs shows BC NDP Leader John Horgan, left, in Coquitlam, B.C., on Sept. 25, 2020; BC Green Party Leader Sonia Furstenau, centre, in Victoria on Sept. 24, 2020; and BC Liberal Party Leader Andrew Wilkinson Pitt Meadows, B.C., on Sept. 24, 2020. THE CANADIAN PRESS/Darryl Dyck, Chad Hipolito
British Columbia votes in snap election called during COVID-19 pandemic

NDP Leader John Horgan called the snap election one year before the fixed voting date

Nunavut's provincial flag flies on a flag pole in Ottawa, on Tuesday June 30, 2020. The annual report from Nunavut's representative for children and youth says "complacency and a lack of accountability" in the territory's public service means basic information about young people needing services isn’t tracked. THE CANADIAN PRESS/Adrian Wyld
Nunavut’s young people ‘should be expecting more’ from government services: advocate

‘The majority of information we requested is not tracked or was not provided by departments’

Most Read