EDITORIAL: To be truly ‘victim-driven’ the court system needs to proceed with caution

Early next month a Yukon woman is slated to stand in front of a judge and argue that the Yukon government shouldn’t be allowed to force her to take money.

Theresa Blackjack’s daughter, Cynthia, died in 2013. The Little Salmon/Carmacks citizen died while she was being medevaced to Whitehorse. She had tried to seek medical help multiple times before her death and when she was finally offered a medevac she wasn’t airborne for nearly six hours.

She could have been driven to Whitehorse faster.

A court-ordered inquest into exactly what happened is coming. Blackjack also sued the Yukon government and various medical staff alleging negligence.

Documents filed in court last month provide a unique window into the government settlement process.

Government lawyers at first offered Blackjack the laughable amount of $5,000.

Like most other government deals YG was not going to accept any legal fault and if she wanted the cash. Blackjack would have been required to never speak about the deal (or try and hold the government accountable in any other way), or risk the Yukon government taking the money back.

Blackjack’s then-lawyer countered with a $25,000 offer (with the same strings attached) and the government appears to have accepted.

No paperwork was signed and Blackjack says she never agreed to the deal. The Yukon government is now taking Blackjack to court, trying to enforce the deal even if Blackjack says she doesn’t want it.

We are not in a position to argue whether or not the Yukon government has a strong legal case. It may be that the email from her former lawyer was enough to tie Blackjack to the deal whether she wants to be or not.

Morally, the government’s case is weak. Yes, these kind of unsigned agreements need to have legal weight in many cases. But Blackjack is not suing the government over an employment contract or a car she is trying to sell online. She’s grieving the loss of her daughter.

The government is trying to shut her up and keep her from ever attempting to hold them accountable whether she wants it or not.

Even if the Yukon government believes that the emails between Blackjack’s lawyer and the government lawyers are enough to constitute a legal contract, officials need to proceed with caution.

As of right now, all signs point to Blackjack being without a lawyer when the government makes its case to enforce the agreement next month. The lawyer representing her when the deal was first proposed is no longer involved.

Without a lawyer she has missed the legally-prescribed date to formally file an objection to the application. At this point it looks like she will likely be standing in front of a judge, facing experienced government lawyers, by herself.

This does not look like the process that Justice Minister Tracy-Anne McPhee spoke about in 2017 when she was defending the use of confidentiality clauses in settlement agreements.

In October 2017 the Yukon government, after intense media coverage, admitted that since 2000 approximately 40 sexual assault cases were initiated against the Government of Yukon and a variety of other parties including the Government of Canada. Approximately $2.5 million was spent on those cases, including settlements.

Most victims could not talk about what they had agreed to because the cash they were given came with a confidentiality agreement attached. The Blackjack case, where the proposed deal has been forced into the public light, proves that those gag orders are still being used.

When asked by the NDP whether the government would stop requiring confidentiality agreements in settlement agreements, McPhee said “victims must drive this process.”

Blackjack is clearly not driving her process.

In the same exchange with the NDP, McPhee acknowledged the power imbalance that exists between victims and government lawyers.

Though the minister was referencing historic sexual assault cases, her point still applies in this case.

Blackjack, a woman from Carmacks who at one point lawyers believed to be homeless, is not in a position to stand up alone against the Department of Justice machine.

If this application is going to go ahead Blackjack needs to have someone in her corner who is prepared to argue her case and, just as importantly, is prepared to make sure she understands what she is agreeing to and what she is giving up.

That is what true access to justice looks like.

In October 2017 McPhee released a statement regarding the sexual assault cases saying she believes “that if someone has been harmed and wishes to come forward they should be met with compassion and support.”

This is the justice system’s chance to prove it.

(AJ)

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