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Chief Adjudicator calls for destruction of IAP records

June 19, 2014

Chief Adjudicator, Independent Assessment Process
Indian Residential Schools Adjudications Secretariat

To the 2014 Access and Privacy Conference, Edmonton June 19, 2014

Introduction

Thank you, David, for that kind introduction.

I am here today to speak about an issue that is of profound importance to the survivors of Indian Residential Schools. But as I speak to you, someone else is going through one of the most important days of her life.

Right now, southeast of here, a small group is gathered around a table in a hotel meeting room in Lethbridge, Alberta.

It is a very ordinary room. Last week, the Rotary Club held a board meeting there. It’s a little out of the way, and there’s no sign on the door today.

If you were to walk into that room you would meet a woman sitting at one end of the table. She attended a residential school in southern Alberta many decades ago, and today, for the first time, she will be sharing details of the sexual abuse she suffered there.

Next to her is her adult daughter. She has flown home to be by her mother’s side.

Next to them is a Resolution Health Support Worker, one of hundreds of First Nations and Inuit people who provide emotional and spiritual support to residential school survivors.

Rounding out the table is the woman’s legal counsel, a government lawyer, perhaps a representative of the church that operated the school, and one of our 105 adjudicators, who have been specially selected and trained to conduct hearings.

The adjudicator’s first task is to help put the woman at ease. The claimant has travelled about an hour and a half from her home community because she preferred the privacy and anonymity that we could offer her in Lethbridge.

Maintaining a safe and respectful tone at the hearing is one of the most important functions of an adjudicator. I, myself, have conducted hundreds of hearings over the past ten years. Some claimants are confident and proud; many experience severe anxiety when they think about the residential school. Some have spent many years dealing with the impacts, while others are just beginning their healing journey.

As one claimant recently wrote:

In my IAP compensation hearing, I was questioned about my life before, at, and after residential school. I testified in excruciating detail about my most painful, devastating, intrusive and intimate experiences and suffering. I disclosed violations and trauma of which I never speak. The fortitude, support, and trust that was necessary for my compensation hearing is difficult to adequately describe. It took me many years to even consider taking my case through the IAP. The shame, mistrust and fear [that] I felt made me very hesitant to proceed.

This morning’s hearing in Lethbridge is one of 25 such hearings taking place today in the Independent Assessment Process, or IAP. Today’s roster ranges from Parksville, BC, in the west; to High Level, Alberta, in the north; to Kingston, Ontario, in the east. Altogether, 23 claimants will tell their story today, as well as one alleged perpetrator and one witness.

More than four thousand former students of residential schools will attend IAP hearings this year.

The Independent Assessment Process

Let’s take a step back and explore why these hearings are occurring.

Only a decade ago, thousands of former students were seeking compensation for their residential school experiences through individual and class action lawsuits.

The claimants and the defendants—government and churches—negotiated an end to those claims with the signing of the unprecedented Indian Residential Schools Settlement Agreement. That Settlement Agreement, which was approved by Courts across Canada in 2007, established two new compensation processes.

The first, the Common Experience Payment, was a program run by the government. It provided compensation to every survivor who lived at a school, based on how long they were there.

But the parties recognized that some former students suffered more serious abuse. The Independent Assessment Process was set up for these students, to provide compensation for sexual abuse, serious physical abuse, and other wrongful acts that caused serious psychological harm. This is the process that I manage as Chief Adjudicator.

The IAP is an out-of court, private, claimant-centred process that was specifically designed to promote healing and prevent re-victimization. Every effort was made to establish a process that is fair, but focussed on the needs of the claimants. The Parties recognized this would not be possible in a public courtroom, with all the trappings of a court and cross-examination by multiple lawyers. A better process was required to address issues of long-standing distrust and a deeply-felt need for privacy.

The IAP uses an inquisitorial model. This means that the adjudicator asks all of the questions. The parties can suggest lines of questioning, but they cannot themselves question the claimant. Adjudicators receive special training to ensure a culturally sensitive hearing process that creates a safe environment for claimants.

Claimants also do not have to face their alleged abusers. Alleged abusers are contacted if possible, and invited to tell their side of the story at a separate hearing that is run much the same as the claimant’s. But they have no right to confront the claimant, nor are any findings of criminal or civil liability made against them.

The IAP is a confidential process. Unlike court hearings, IAP hearings are held in private. And all participants must sign confidentiality agreements so that information is not shared beyond the hearing room.

The parties to the Settlement Agreement expressly opted out of the open court principle because they knew that a public process would be daunting for former students, and would be an absolute barrier to justice for most.

In his affidavit to the Court, former National Chief Phil Fontaine – himself a survivor – states that, “The IAP hearings were to be held in the strictest [of] confidence.” This provision was specifically built into the Settlement Agreement that all the parties signed.

The need for confidentiality is often most acutely felt when allegations are made against other former students: the claimant and the accused frequently still live in the same community, and may be related to each other by blood or marriage.

At each hearing, our adjudicators have sought to assure claimants that their information will be kept confidential, within the IAP process. Our goal is to ensure that the information claimants entrust to us in confidence is protected for all time.

In these, and in other ways, the IAP is unlike any other process in the Canadian justice system today.

Just as important as what the IAP is, is what it is not.

The IAP is not a government program. It is an independent process, set up by the Courts under the Settlement Agreement.

As Chief Adjudicator, I am not a public servant. I was selected by the Parties, and appointed by the Courts. I don’t report to the Government of Canada. I report to the Courts, and seek advice from an Oversight Committee, which has representatives from all Parties.

All of our adjudicators were selected by the Parties, and are independent of the Government of Canada. This independence from the Government was a necessary condition: without it, the supervising courts would not have approved the Settlement Agreement.

The TRC—an open and public process

The Settlement Agreement is unique in another respect. The same agreement that created our private and confidential compensation process also created an open and public process—Canada’s first Truth and Reconciliation Commission.

While we have quietly held closed hearings in lawyers’ offices, hospital rooms, survivors’ homes and hotel boardrooms, the TRC has travelled the country, gathering statements from survivors and educating Canadians about this dark chapter in our history.

The TRC is not a public inquiry, but it has a broad mandate to “create as complete an historical record as possible” of the residential school system and legacy.

The confidentiality of abuse survivors is at stake

We have been proud to support the TRC in its work. We are both creatures of the same agreement. And we both take a survivor-centred focus to our work.

But now we are at a crossroads.

The Government of Canada has said that because it foots the bill for our work, it controls the records we have received and created in the IAP.

The Truth and Reconciliation Commission says that it has a right of access to these records, and intends to place copies in a National Research Centre at the University of Manitoba.

I categorically reject both of these propositions.

What we are protecting – the records

So what, exactly, is at stake here?

Essentially, we are protecting the testimony of IAP claimants, who are at the core of our process. As well, we are protecting the privacy of others who are identified in these documents, and those whose lives have been touched and sometimes devastated by these events.

Every claimant completes a detailed application form. Each hearing is recorded, and many of these are transcribed.

Every claimant who has a hearing receives a written decision from an adjudicator.

In total, we have received almost 38,000 applications, held over 21,000 hearings, and issued over 19,500 written decisions.

The volume of information these records contain is staggering, and intensely personal.

They identify claimants, witnesses, and perpetrators, even though some allegations are later recanted, or never proven.

They detail horrific physical, sexual, and emotional abuse.

They describe the impact that these events had on the lives of those who were abused, including intimate accounts of addictions, domestic violence, psychological harm, and suicide attempts.

And they speak of the devastating intergenerational impacts that have caused so much suffering in Aboriginal communities in every part of Canada.

But that is not all.

In addition to the application forms, the audio recordings, the transcripts, and the decisions, our process involves hundreds of thousands of other records, which claimants must submit to prove their claims.

These include medical, employment, income tax, education, corrections, and other records.

In total, our secure database contains over 795,000 documents, and this number increases every day.

We have retained Dr. David Flaherty, British Columbia’s former Information and Privacy Commissioner and a noted professional privacy historian, as our expert in this case. He says that, “rarely, if ever, in Canadian history has such a broad range of extremely sensitive records been demanded from so many claimants as part of a class action suit or a comparable compensation or reparations inquiry.”

He says that these documents “would normally be destroyed by the original custodians – and not archived by them – because such routine records are not ‘of enduring value.’”

I will argue in Court that these records, including the medical, educational, and financial records of survivors, should not be given a longer life and broader exposure simply because they relate to someone who was abused at a residential school.

Confidential records are not needed to preserve history

But what about the broader goals of the Settlement Agreement, to promote reconciliation and public awareness? Is this collection of records vital to protecting the historical record of Indian Residential Schools? It is not.

First of all, we need to remember that the historical records of the schools’ operations are already preserved at Library and Archives Canada. Millions of records have been given to the TRC, and will be made available at the National Research Centre at the University of Manitoba.

As well, the Truth and Reconciliation Commission has done an admirable job of documenting the history of residential schools in the words of survivors. Through seven national events and dozens of community hearings, thousands of survivors have reconnected with each other and shared their experiences.

Almost 7,000 survivors have given public and private statements to the TRC, providing their express consent for their use.

We have supported the TRC’s work by attending their National events to meet with claimants and answer questions on our process.

But the TRC says that the historical record will be complete only if the applications, transcripts, recordings and decisions from every one of our 38,000 case files are turned over to the TRC and placed in a National Research Centre.

This is not necessary.

David Flaherty says that

“journalists, historians, political scientists, and other scholars can write about the legacy of residential schools in Canada without access to more than 38,000 claims files.”

Legitimate historians in our society recognize that the collective right to know and remember is balanced against other values, including the value of individual privacy.

Moreover, historians and future generations do not need to know the intimate details of every individual’s suffering in order to document that abuse occurred.

Preventing a privacy disaster

In the words of one claimant, whose story the TRC wants to archive without consent:

“At the time that I had my IAP hearing, no one told me that there was even a remote chance that the information would be held in an archive that could be accessed by the public at some time in the future. I would never have participated in the IAP if I would have known that this was possible. I am deeply upset knowing that there is a chance that others, including my descendants, might have access to it. At my IAP hearing I had to reach deep inside my soul and pull out painful memories, most of which I never spoke of before or since. I choose to leave that pain on that table in the IAP hearing room and do not want any record of my story held in some national archive.”

Another claimant writes, “if this information is ever disclosed outside of my IAP file, it would re-victimize and destroy me.”

David Flaherty agrees. He says:

Transferring all of these records to any archives for retention, use, and disclosure could be a privacy disaster in the making in terms of its ultimate impact on the privacy interests of a disadvantaged, victimized, and stigmatized population of survivors of residential schools, who now risk re-victimization.

We must not allow the legacy of the residential school disaster to become a privacy disaster.

But if we are to prevent disaster, we must now turn our minds to the question of what to do with these records when the IAP is finished.

The courts control and protect the records

The Government suggests that since it controls the funding for the IAP, it also controls the records. If that were the case, Library and Archives Canada would determine which records have enduring historical value, and which can be disposed of—although we know that many departments keep records far longer than they are required to.

We also know that the federal Privacy Act protects personal information for only 20 years after the person’s death. This is not what survivors bargained for when they signed the Settlement Agreement, and gave up the right to sue in exchange for a confidential process.

Further, Government control over these records not only threatens the confidentiality that claimants were promised, it also threatens the independent nature of this process.

The IAP was established to resolve court claims in which the Government of Canada was a primary defendant. It would be perverse to see the resolution of those claims come with strings attached: the wholesale transfer of the plaintiffs’ personal information to the defendant. I am sure this would be an unwelcome and unwarranted surprise to most claimants.

Instead, because of the court supervision of the class action settlement, and my own role as an officer of the court, we say that IAP records are under the control of the Courts.

As such, they are not subject to the Privacy Act or the Library and Archives of Canada Act. Canada has no right to place them at Library and Archives Canada.

And neither does Canada have any obligation—or any right—to produce IAP records to the TRC.

Protecting the records

Of course, saying who controls the records does not answer the question of what should be done with them.

Would it be reasonable—or even possible—to obtain the express consent of claimants and other participants to archive their records?

In fact, the Settlement Agreement says that claimants should have the chance to deposit the transcripts of their hearings in an archive created specifically for that purpose.

We began working on this option five years ago and held extensive discussions with the Truth and Reconciliation Commission. The Commission ultimately backed out of these discussions when they realised that giving claimants the opportunity to say “Yes” also meant giving them the right to say “No.”

What about redaction—removing all information that could identify claimants and other individuals?

The reality is that we could have an army of people wielding black markers until my children retire, and this task would still not be completed. The exercise itself would be an invasion of privacy, exposing sensitive information to a legion of redactors.

And studies have shown that effective redaction is almost impossible. David Flaherty asserts that “there is now a rich literature on how enormously difficult it is to try to anonymize personal information – and that the risks of re-identification are very high.”

Could records be sealed for a specified number of years?

Ultimately, this solution merely passes the buck to future generations—generations where survivors will no longer be with us. And how does this respect legitimate privacy expectations?

As one survivor has said,

“My physical, sexual, psychological, emotional and spiritual well-being was profoundly violated at residential school and I was profoundly harmed. ... The risk or prospect of any other use or disclosure, during my lifetime or even only to my descendants after my death, is deeply distressing for me and compounds my suffering from residential school. I want, and believe I should have the right, to live secure and at peace in the knowledge that IAP records about me will not be used or disclosed for other purposes, and they will be securely and permanently destroyed at the conclusion of the IAP.”

Former National Chief Phil Fontaine echoes this sentiment. He said,

“If any of this information is placed into an archive, even if it is sealed for ten years, fifty years, a hundred years or longer, the identities of these perpetrators and their victims will some day become available to their descendants or researchers who may publish information. Within our communities, such knowledge -- even in future generations -- would continue the legacy of dysfunction and trauma that was created by the residential schools.”

The Chief Adjudicator’s position

So where does this leave us?

In the IAP, promises of confidentiality were properly made to claimants. These promises must be kept. They were a fundamental part of this historic settlement.

We are the guardians of the innermost secrets of thousands of people and we are under a sacred obligation to keep those secrets safe.

The Settlement Agreement that created both the IAP and the TRC articulates overarching objectives of healing and reconciliation. We cannot reconcile those objectives with the forced sharing of the most private and sensitive information given by vulnerable people who expect and deserve confidentiality.

After careful analysis and reflection, I have come to the realisation that the only way the confidentiality of participants can be respected, and their dignity preserved, is through the destruction of all IAP records after the conclusion of the compensation process.

This is the position I will take in the Ontario Superior Court of Justice when our Request for Directions is heard in Toronto on July 14th to 16th.

I will also be seeking a declaration that all copies of the records held by the parties, including the government and the churches, may be used only in the IAP, and may not be published, or distributed, or archived with anyone.

In the coming weeks, you will hear from some who say that anything less than a full archive of all of the records will cover up abuse and whitewash history. I disagree.

The history and legacy of residential schools must never be forgotten. But the price of remembering must not be a betrayal of those who were abused as children in those schools.

Conclusion

Across Canada today, in Sault Ste. Marie, Winnipeg, Prince Albert, Vancouver, and about 20 other locations, claimants are attending our hearings and sharing their stories, relying on the safeguards that were built into the IAP and the hearing process.

I have attended hundreds of hearings. Among the horrors that I have heard described, and the tales of tragedy that I have listened to, I have always been struck by the resilience of survivors.

People who have suffered terrible abuse tell of overcoming addiction, reconciling with their loved ones, and building a better future for their grandchildren.

Psychologists have told us that for many former students, their IAP hearing is a singular turning point in their healing journey. With validation of their experience and financial compensation received through the IAP, many have continued their healing journeys with courage and pride.

These are the survivors we saw at the magnificent national events organised by the Truth and Reconciliation Commission, which has done tremendous work documenting the legacy of Indian Residential Schools.

After their hearings, many IAP claimants have found the strength to make voluntary statements to the TRC.

They have consented to speak their truths. But they have shared only what they wanted to share.

They felt empowered, after so many years of powerlessness. Because now, they had a choice.

That’s what the Settlement Agreement intended. That is what I am fighting for—to preserve the agreement the parties made, to protect the privacy of survivors and witnesses, and to promote the reconciliation and healing that has been so very long in the making.

Thank you.