For the lawyers, of course, it is about protecting the client, lessening liability, mitigating damages. In that context, perhaps, it makes lawyer sense to niggle over nouns, to parse phrases like “as if we were slaves” for literality, to offer up a bookkeeper’s balance sheet to contradict allegations of underfunding, to use all the lawyers’ tricks try to make a legal action go away.
But the class action lawsuit by more than 150 former residents of the Nova Scotia Home for Coloured Children is more than a legal matter.
It is a cry for justice, for an acknowledgement — and apology — for five decades of systemic and systematic physical, sexual and emotional abuse of vulnerable children under the unwatchful eye of a series of governments, whose blindness seems willful and, too often, racist.
You’d think Darrell Dexter’s NDP government would appreciate that distinction. The abuse did not happen under its watch, and the NDP has a long and honourable tradition of supporting victims like those at the Home for Coloured Children.
But it is now government, and that, it seems, changes everything.
Last week, lawyers for the Dexter government were in court arguing, in a bureaucratic, tone-deaf, legally proper but morally questionable way, to exclude parts of the complainants’ affidavits because they did not meet certain legal criteria.
As former NDP MP Gordon Earle, who quit the party over this issue, put it: while residents seek “justice and accountability… the government is taking every possible step to prevent the matter from achieving justice through the court system or achieving a full, credible and transparent examination through a public inquiry.”
There will almost certainly come a time when a Nova Scotia government, either as part of a legal settlement or to avoid a messy judicial outcome, will do the right thing and apologize to the former residents. Witness Stephen Harper’s 2008 apology for Canada’s brutal Indian residential school system, Brian Mulroney’s “formal and sincere” 1988 apology to Japanese-Canadians interned during World War II and Peter Kelly’s 2010 apology to the former residents of Africville “for what they have endured.”
By then, however, the gesture will seem inadequate and insincere. The lawyers will have won. Justice will have lost. Pity.
STEPHEN KIMBER, a Professor of Journalism at the University of King's College in Halifax and co-founder of its MFA in Creative Nonfiction Program, is an award-winning writer, editor and broadcaster. He is the author of two novels and eight non-fiction books. Buy his books 
Most of us are not lawyers Stephen.
This case so far has been deftly portrayed as some kind of effort to block victims testimony, but it’s not. I don’t think either side really believes that any victim will be denied the chance to be heard. What’s happening now (as I understand it) is a strategic and technical legal matter usually carried out behind closed doors, in order to determine whether a class action suit is warranted and what kind of hearing will follow – an expert panel, an inquiry or another legal structure. Once we are past this stage the actual hearings will follow.
From where I see it, the whole thrust of the Wagner group is to find any and every way they can to switch blame for what was done to these kids away from the community societies that ran the Home to the provincial government. The Home has already offered $5m compensation (likely the limit of their insurance) with no apology (likely required by their insurers). The Province has much deeper pockets and the lawyers attempting to certify a class action suit are likely to be paid a proportion of the final settlement, so that have a direct incentive to inflate it.
This is why we have seen them reciting uncontested emotional allegations of horrific child abuse and implying that the province is uncaring and racist during a technical legal hearing to certify a class action suit. I believe this is a legal strategy – that if they smear the government enough in an election year over such a motherhood issue, Dexter will fold to contain the electoral damage and let them have whatever they want – including astronomical compensation payouts (to which we will all contribute). While Wagner has been very vocal, Dexter has not responded, leaving the impression he has no answer. I suppose in part this may be because this matter is in an ongoing hearing before Mr. Justice LeBlanc, but he and his government are taking a severe pasting in the public eye because of it.
I don’t understand why Percy Paris, former Minister of African Nova Scotian affairs and a man who has made a career out of defending the NS black community is not directly involved. If this isn’t his turf, what is?
Maureen MacDonald may bring the experience of a social worker to the brief and I wish her the very best of luck. I also hope that she stands up to defend the government position when it’s under attack. Either it’s defensible or it’s not.
Stephen Kimber’s candid assessment of past and current governments total lack of any political will to responsibly address the significant concerns of sexual, psychological and physical abuse the survivors of the Colored Children Home endured is simply reprehensible and unconscionable! However, more disturbingly it also underscores the value that Canadians ascribe to this matter – in fact, I have seen Canadians provide much greater support for a wounded animal! And accordingly, it demonstrates that “Racism” Systemic Discrimination and Institutional Racism are here to stay. This is not a pity – it’s a dang shame in a country that purports to accord Human Rights inter alia to other countries while denying those same measures to it own citizens.