Feds seek to dismiss Jack Whalen's case based on an N.L. law the province has promised to change
Brittany Whalen says Newfoundland and Labrador's soon-to-be-changed Limitations Act is being used against her father one last time before it's amended by the provincial government.
The federal government filed a motion in the Supreme Court of Newfoundland and Labrador on April 25, asking the judge to dismiss Jack Whalen's claims, in part because the statute of limitations has expired.
That came two days after the province announced its intentions to amend legislation in response to his protests about the Limitations Act preventing people from getting compensation for historic cases of child abuse.
"The timing is unusual," said Brittany Whalen, who acts as her father's lawyer. "He was very surprised and disappointed as well. He's not feeling very well right now, and after receiving what he thought was a little bit of good news from the Newfoundland and Labrador government, this was a heavy blow for him."
Brittany, Jack and Glennys Whalen were in St. John's last month, attending the House of Assembly in the public gallery. (Ryan Cooke/CBC)
Claim centres on alleged sexual advances by judge
Jack Whalen estimates he spent more than 700 days in solitary confinement while a teenager at the Whitbourne Boys' Home. He escaped several times, once landing in the custody of the Whitbourne RCMP.
In court filings, Whalen said a magistrate from the nearby Holyrood courthouse took an interest in him while he was at the lockup. He said the magistrate brought him cigarettes and soft drinks on two occasions.
One day in June or July 1976, he said, RCMP officers brought him to the magistrate's chambers, where the man showed him a picture of himself naked from the neck down, and offered him an early release in exchange for sexual favours. Whalen says he refused and was taken back to his cell.
Whalen went to the police about the encounter in 2000, but no charges were laid. The magistrate died in 2019.
'This is the No. 1 priority,' says justice minister
Jack Whalen's claim against the federal government is that the RCMP breached its duty of care by putting him in harm's way while he was a youth in custody.
In its application last week, lawyers for the attorney general of Canada said the RCMP did not breach its duty of care, and even so, the statute of limitations for that offence has expired.
Brittany Whalen said the limitations defence could only be used in Newfoundland and Labrador or New Brunswick, since other provinces have eliminated statutes of limitations for all forms of child abuse.
"It's a little problematic that the federal government, the attorney general of Canada, is relying on a limitations defence," she said. "It is disappointing and concerning that they are trying to rely on this anomaly, this technicality as a defence to such a horrible breach of duty."
Justice and Public Safety Minister John Hogan says changes to the Limitations Act are top of mind for his department. (Mark Quinn/CBC)
A hearing for the motion for dismissal is scheduled for June 26. If the Limitations Act isn't changed before then, Brittany Whalen said, she'll have to argue a point that could eventually become moot.
"This does not seem to be the best use of time," she said. "If a decision is made at this time and the law is later reversed, then we might be back in court arguing the same thing."
During Wednesday's session of the provincial legislature, Justice Minister John Hogan was asked if the Limitations Act would be changed in time for Whalen's case.
Hogan said he couldn't comment on how the changes could affect ongoing cases but the issue has been added to the order paper.
"In terms of legislative priorities for the Department of Justice and Public Safety, this is the No. 1 priority."
CBC News has requested comment from the federal attorney general's office. No response was received as of publishing time.
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