Leaked changes to Limitations Act don't apply to Jack Whalen's abuse case, lawyers say

Jack Whalen thought he'd scored a victory when the Newfoundland and Labrador government promised to amend the Limitations Act — but it turns out the changes put forward in a leaked draft do not apply to his case.

Two lawyers who have lobbied the government to make the changes — including Whalen's daughter, Brittany — reviewed copies of the proposed amendments on Tuesday.

The draft shows the province is proposing to remove the statute of limitations for civil claims arising from cases of assault causing bodily harm. That kicker — the requirement for bodily harm — means Whalen still wouldn't be able to settle with the provincial government over his treatment at a youth detention centre in the 1970s.

"It seems very limited in scope," said Brittany Whalen in a text message to CBC News on Tuesday. "I do not see any mention of torture or neglect. Nothing about emotional and psychological child abuse."

CBC News has asked for comment from the Department of Justice and Public Safety. No response has been received as of publishing time.

Jack Whalen was held in solitary confinement for long stretches as a teenager at the Whitbourne Boys' Home. He estimates he spent 730 days in total locked in a cell by himself.

While nobody has disagreed he suffered psychological harm, the provincial government will not settle with Whalen because the statute of limitations had passed. Newfoundland and Labrador and New Brunswick are the only provinces with limitations periods on forms of child abuse.

Jack Whalen built a replica of the cell he was kept in as a child. His family wrote details of his case on the outside of it. (Christian Patry/CBC)

Lynn Moore is the other lawyer pushing for changes. She has a case in which a client who was under the supervision of the child protection system was severely beaten and tortured by his father. He cannot sue the provincial government because of the Limitations Act.

"A spark of hope was lit in their hearts when we heard that this amendment was coming, and it has been doused with a tsunami," Moore said. "It's very, very disappointing and does not address the problems."

WATCH | This lawyer says the government is not delivering on its promises to abuse victims: 

Moore's client's case is built on three instances of abuse, two of which did not cause bodily harm. In one instance, his father held a shotgun to his head and pulled the trigger, but the gun didn't fire. In another, he was whipped with a wire but it didn't draw blood.

"The government gets a get-out-of-jail-free card," Moore said. "They would not be held responsible for those incidents."

Moore said her client could get compensation for the one incident that did cause bodily harm, though it would be a fraction of the total cost of his claim because the other incidents are not compensable.

Changes a long time coming for Whalen

Jack Whalen has been petitioning the government for changes since last June.

He built a replica of his solitary confinement cell and drove it to the Confederation Building in St. John's. When his protests did not result in action, Whalen took his cell all the way to the national human rights monument in Ottawa.

Whalen collected hundreds of signatures along the way, and received the unanimous support of all PC, NDP and Independent MHAs in the House of Assembly.

Those MHAs spent months reading his petition into the record at the House of Assembly, until the Liberal government eventually promised changes to bring the province's legislation more in line with the rest of Canada. The premier said it was not just a bill for Jack Whalen, but assured him his voice had been heard.

Moore said no other provinces require bodily harm in order for survivors to sue. She believes it shows a lack of understanding of trauma and how it affects people.

"I don't think anyone who is trauma-informed would have written this legislation."

Leaked draft causes drama in the legislature

Justice Minister John Hogan is not impressed that the draft changes were leaked.

He asked the speaker to send the matter to the elections and privileges committee on Tuesday afternoon, so the matter can be investigated.

Speaker Derek Bennett obliged, saying the case appears to be a "prima facie breach of privilege by way of contempt."

Members of the opposition parties were provided with the draft legislation on Tuesday morning, 24 hours before it was expected to be debated in the House of Assembly.

Justice Minister John Hogan says a meeting is set for next week to discuss proposed amendments to the Election's Act. (Danny Arsenault/CBC)

Hogan said he was looking forward to making improvements to the proposed changes, and said he believed they could even get them done before it was tabled in the House.

"I really feel like that opportunity has been lost and I'm extremely disappointed personally," he said.

Progressive Conservative House Leader Barry Petten said he didn't think it was a big deal and that Hogan was "sensationalizing" the issue.

"Is it such a terrible thing that others would have the chance to look and review any legislation coming to the House?" he said. "Isn't it about getting the best piece of legislation for the people that are affected by this?"

Petten and other MHAs lamented the short period of time they have to read legislation before debating it in the legislature.

NDP Leader Jim Dinn said the most frustrating part of his job is getting legislation the day before it's tabled and having to become an expert on it in such a short timeframe, without being able to consult with people outside their small caucus.

"While I understand the point of privilege as the rules exist, I do not always feel we're getting the best debate on legislation."

Hogan was expected to introduce the amendments on Wednesday morning. He said he needs to take time now to assess what will happen next.

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