The class-action lawsuit against the City of Saint John resumed Monday morning with opening remarks from Michael Brenton, the lawyer representing the city.
He said it was difficult to come up with a witness list for a 50-year-old case.
Brenton said he would have liked to call the top officials of the day to testify about the case, but they're all deceased, including former police chief Eric Ferguson, deputy chief Fenwick Ross and city manager Nicholas Barfoot.
Those were the officials working in 1975 when former police sergeant Kenneth Estabrooks was transferred from the police department to the city's works department, where he finished out his career, retiring in 1983. At the time of the transfer, Estabrooks admitted to a sexual relationship with two teenage boys.
With none of the officials still alive to talk about police procedures that were in place at the time, Brenton proposed to call the current chief of the Saint John Police Force, Robert Bruce. But that was met with objections from the lawyer for the plaintiffs, John McKiggan.
McKiggan pointed out that Bruce's policing career began seven years after Estabrooks was transferred out of the police department. Plus, Bruce worked in another province for nearly all of his policing career, and for a provincial police force, not a municipal one.
"Nothing he can say would be relevant," McKiggan told the court.
Brenton said there was no one still around that he could call as a witness. He said he would not ask Bruce "opinion" evidence but would restrict his questions to how police investigations are conducted.
McKiggan insisted that Bruce has no factual knowledge about how police matters were handled at the time, and his experience "is not relevant."
Justice William Grant said unless Bruce can offer evidence about the period of time at the heart of the case, he doesn't see the relevance.
In the end, Grant agreed to allow Brenton to "stand him down" until after the testimony of the city's second witness. Curt Griffiths, a criminology professor at Simon Fraser University in B.C. is scheduled to take the stand Tuesday morning.
City's opening remarks
In his opening remarks, Brenton said Estabrooks joined the Saint John Police Force in 1953 after city council voted on Feb. 28, 1953, to expand the force by 10 officers.
Brenton said the evidence clearly establishes that the police received no sexual assault allegations about Estabrooks while he was a police officer.
In 1975, a 15-year-old boy repeatedly called the police station looking for Estabrooks. He also showed up in person several times.
Although he didn't make any complaints about Estabrooks, the incident raised enough interest that the force began an investigation.
The boy gave a statement to police detailing a sexual relationship with Estabrooks that had been going on for several weeks — in his police car and his private car.
Nothing in the boy's statement indicated "that consent was lacking," Brenton said.
The boy also mentioned another teenager's name. The police tracked down the 17-year-old. He told them he and Estabrooks arranged to meet up every couple of weeks. He also said it was a consensual sexual relationship. Again, there was no mention of abuse or force.
At that time, Brenton said, there was no evidence that Estabrooks was a sexual predator.
Relationships deemed 'consensual'
He said a Crown prosecutor reviewed the file and determined that the sexual relationships were consensual. At the time, the age of consent was 14, although the law has since changed. That means the relationships were not considered illegal under the Criminal Code at the time.
But, said Brenton, Estabrooks did admit to having a sexual encounter in a police car, which was contrary to rules and regulations of the force, and he agreed to resign. At the time, no reason was stated.
Brenton said the personnel records still exist, and if there had been a coverup, officials could have "gotten rid of them" a long time ago.
He also said that before New Brunswick's Police Act came into effect in 1977, forces weren't vicariously liable for the wrongful acts of police officers. Section 17 of the act now makes them liable.
Brenton said evolving decisions about vicarious liability aren't retroactive and so current laws wouldn't change the responsibility on municipalities before the changes were made.
The class-action lawsuit focuses on the city's fiduciary duty to protect the public between 1975 — when Estabrooks admitted having sexual relations with teenaged boys — and 1983, when he retired.
Brenton said the relations were not contrary to the Criminal Code of the day. He also said the force was not aware — at that time — of allegations involving younger children.
Brenton also pointed out that between 1975 and 1983, Estabrooks worked in a closed shop with no access to the public. He said the only ones inside were employees, and all employees were adults. He said that meant the shop would not have created a risk of sexual assault, since adult men wouldn't have been seen as vulnerable victims.
By the 1990s, allegations surfaced that Estabrooks had been sexually assaulting children beginning when he was a police officer.
In 1999, he was convicted on four charges of indecent assault involving three boys and a girl during the years he worked for the city. He was sentenced to six years in prison.
Estabrooks died in 2005.
The class-action lawsuit, now being heard in Saint John, has been in the working its way through the court system, including to the country's top court.
Five men ranging in age from 58 to 66 have now described to the court how Estabrooks preyed upon them when they were children. The only one that can be named is the representative plaintiff, Bobby Hayes.
Hayes said he was first sexually assaulted by Estabrooks in 1970 as a 10-year-old and many other times over the next three or four years.
Hayes also alleged he was sexually assaulted again by Estabrooks as a young man, when they were both employed by the city works department, and that supervisors simply advised him to "move faster" to avoid being assaulted.