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Transcript

00:00:27:09

CHARLES:

When we take a look at what happened to us during our experience at the residential school, when trauma comes into our life, we tense up. Pretty soon we get to the point when we start hearing the names of the residential school, or the names of the people who worked at the school. Again we tense up, and we keep pushing it down. One of the things I had to learn about myself and my own life was the fear of getting in touch with hurt feelings. The fear of allowing that pain to come out and the tears to flow. I know it's not an easy thing to do, so congratulations for taking this step. In order to get rid of a problem, we have to meet the problem: say hello to it. Get to know it, get to identify it. Get to know what it's done to us. And from there, then we could talk about it and let it go. We're here this morning to hear from Mike.

00:01:47:23

NARRATOR:

The Independent Assessment Process or IAP is a claimant-centered out-of-court process for the resolution of claims of sexual abuse, serious physical abuse and other wrongful acts suffered at Indian residential schools. The deadline for Independent Assessment Process applications has passed but there is still thousands of Aboriginal people with claims to be settled across Canada. This film was developed to help former residential school students who have registered a claim to prepare for their hearing. I've read your application form and the documents your lawyer has collected but it's only what you tell me here today that I can use as a basis for my decision.

00:02:32:16

NARRATOR:

Every hearing will be slightly different because there will be different locations, adjudicators, representatives of Canada and possibly, representatives of the church. The hearings shown in this film are not real but do feature people with years of experience in conducting hearings that ensure that the claimant has as much control as possible.

00:02:53:14

KATHLEEN:

The claimant gets to decide, for example, where they want to have the hearing. Some claimants want to have it right in their own home. I've done hearings at kitchen tables, a claimant might be in the hospital. We've done hearings at hospital beds. The claimant can have the hearing out of their home community because for confidentiality reasons, some people don't want a bunch of lawyers and adjudicators showing up in their community. Around the table with Mike today, we have his daughter, Jordan; Theresa, who's our health support worker; Charles, our elder; Donald, representing Canada; and David, who is Mike's lawyer. Mike, and especially welcome to you, and thank you for being here. This is an important process in our country's history and it relies on people like you to voluntarily come forward and tell your story, so I really appreciate you being here.

00:03:47:23

DAVID:

Claimants can choose where the hearing is held. The second thing is, within limits, the claimant can choose who's attending at their hearing. Some people choose to have family members attend, some people don't want their family near them at all. A health support worker will always be offered.

00:04:07:00

NARRATOR:

As a party to the settlement agreement, a representation of the church may sometimes attend hearings. If the claimant was okay with it, that we would attend the hearing, to be able to be a caring presence, witness and to extend apology and commitment to live that apology out personally. Creator, I give you thanks for the new breath of air, for the opportunity to be of help to one another. They get to choose do we begin with a smudge, or another ceremony, do we have a prayer by an elder or by the claimant themselves. We really like to see people come with a lawyer because, lawyers who work in this process know, you know, what people can receive an award for and what they can't.

00:05:00:13

DAVID:

Well the lawyer in the first place will try to shape the case and identify what elements of your story are significant for the purpose of compensation. The objective is to set them at ease and to make sure when they come to the hearing, there are no surprises.

00:05:25:23

KATHLEEN:

So Mike, a couple of other things I wanted to talk to you about before we start, you know in these hearings we talk about a lot of things that are difficult to talk about. Sometimes they're things that you'd just really rather not talk about at all, they can be embarrassing but I really want you to see this as your day to tell your story and we're here to listen to it. The adjudicator is an independent person. I don't work for the government. I'm hired by a committee that includes former students and their lawyers, and the government, and the churches, so it's all the parties involved. Adjudicators, deputy-chief-adjudicators, and the chief-adjudicator as well are all independent contractors. We are considered in this process to be neutrals, we act, or, and are hired by neither of the parties therefore insuring that we give a decision that is completely independent and free of anyone influencing us.

00:06:26:00

So then a couple of things, Mike, I want to make sure we understand about this process, and ask that it's both private and confidential. And when I say it's private, I mean it's not like a courtroom where people can wander in and out. You don't have any choice about me, and about Donald, but everybody else here in the room is here by your invitation. So that's what I mean by privacy, and when I say it's confidential, I mean that everybody here promises to keep in confidence everything that we hear from you today.

00:06:55:23

DONALD:

Mike, I'd like to welcome you and your family to today's hearing. As Kathleen said, my name is Donald, and I'm a representative of the Government of Canada. DONALD: The IAP is part of a larger settlement agreement between Canada and the survivors of the residential schools because Canada's a party to the agreement. Canada has a role at each hearing. My role is to listen very carefully to everything that's said and to make recommendations to the adjudicator as to, how the claim should be resolved. But at the same same time, this is your day to tell your story and you're the one who was there, so I really encourage you to answer my questions with as much detail as you can.

00:07:43:12

CHARLES:

I think the main part that's really helpful to have an elder at the hearings is to help settle the spirit of the hearing down. We know the emotional impact that could come up from a hearing. We know the anger that could come alive. And how a person would--gets stuck-like and wouldn't want to proceed with the hearing. Good morning, Mike, my name is Theresa. I am your RHSW support worker. Resolution Health Support Workers, also known as RHSWs, are available for mental health and emotional support. It is the claimant's choice whether or not to have a support worker present in their hearing. Often, support workers will meet with the claimant before the hearing, during breaks, and after, to provide emotional support.

00:08:47:10

WES:

I prefer to try and put the claimant at ease as best as I can, make them feel comfortable, so I'll often start with very general questions about their background and what their life was like growing up and try to establish a comfort-level with them, essentially. And then once that is completed, I'll get them to tell their story, and often use open-ended questions.

00:09:07:08

>> Mike, you know that in your application form, you told about some things that happened to you at residential school.

00:09:14:05

MIKE:

Mhmm.

00:09:15:08

Is it okay if I start now to ask you some questions about that?

00:09:18:11

MIKE:

Yes.

00:09:21:06

KATHLEEN:

We have to establish that they attended a residential school, that they were abused by somebody who worked at the school or was allowed to be at the school. I let them know that I've read their application but technically the application is not evidence, rather, what they tell me at the hearing is evidence so I try to encourage them to tell as much as they can with as much detail as possible.

00:09:47:02

CHARLES:

The main part that I had to learn to accept in my own life was to describe what happened to me, rather than just say, "He touched me." You know, I had to describe what that touching was all about. Those are the kinds of things we're trying to, the kind of information I'm trying to get from the claimant so that at the end when I go to write my decision, there's various items that I have to be able to tick off. You know, we've proved that, and that, and that-- I have to make sure I have all the evidence there. For the claimant, their job basically is to tell their story. It's not their job to argue their case, that's my job. It's their job to say what happened to them and how it affected them and how it impacted their life. If we ever had a chance to talk about what our experience was before the hearing, and the more we talked about it, the more easier it was for us to talk about it and describe it. You know, so that it comes out properly. Sometimes, people are so ashamed of what happened to them, they'll tell you a little bit, but they don't tell you, you know, what happened next. The main thing about withholding everything and not bringing it out until the hearing, is that we won't be aware of everything that we would like to talk about.

00:11:07:16

The problems that we experience if we do that is that after the hearing, when we walk away, we'd be down the street, an hour later, a day later, then we'd say, hey! I remember something. I should have brought this up. If at any point, we get to something where you might feel a little more comfortable if Jordan were to wait outside, I'm sure--we'll take a little break then and we can talk about that. I'm sure Jordan will understand.

00:11:40:03

KATHLEEN:

At some point during the day, often, it becomes clear that it would be so much easier for them to tell their story, to answer my questions, if they didn't have to be conscious of that person hearing this. If people are worried about hurting somebody's feelings or something, what I would hope they would do is just ask to take a break, and I'll just speak to them, to the family member and say, "You know, it would be a lot easier if you would step outside." They always are willing to do that.

00:12:09:04

DAVID:

The claimant can ask for a break at any time they wish and they'll get it, there won't be any questions asked and there's no adverse inference drawn from simply saying, I want a break.

00:12:21:03

NARRATOR:

During the break, and when the claimant is out of the room, the adjudicator, the claimant's lawyer, Canada's representative, and, if present, the church representative, can be part of any caucus. Caucuses are private meetings and allows all present to ask questions and be a part of the dialogue with the adjudicator. When the hearing resumes, the adjudicator is the only one who can ask the claimant questions.

00:12:48:09

DAVID:

And my job is to ensureb at that point, that all of the information that I think comprises my client's story comes out.

00:12:57:20

DONALD:

Canada has to do research, to attempt to confirm that the claimant was in attendance and we also have to research the alleged perpetrators. You know, if Canada isn't quite convinced that the claimant has proved this particular element of the claim then, what are the questions that would clarify that for you. I wonder if we could go into some detail about what was happening in his life at that time.

00:13:25:19

DAVID:

If I was in court, I would ask my own questions and I'd make sure that I got all of the information I wanted out. I don't have that kind of control in a hearing. But I do have the option of asking the adjudicator to ask questions and they're required, within reason, to ask those questions.

00:13:41:19

KATHLEEN:

Well Mike, you'll be glad to know that that's all the questions that I have to ask you today. The claimant's lawyer and Canada's representative will each make their case to me and I\E go away and I decide; I listen to my recording of the evidence, and I consider their submissions, and I make the decision. The Independent Assessment Process model allows for a review of an adjudicator's decision. The review process itself is quite limited and defined. Any claimant can request a review within 30 days of receiving their decision. You can allege that an adjudicator has made a mistake in hearing the evidence or you can allege that the adjudicator has made a mistake in interpreting the IAP.

00:14:29:18

One of the obligations that the courts imposed upon adjudicators was that we would have the obligation to look at cases, once they were finished, and review the fees that lawyers were chargingc laimants. The primary duty of the adjudicator in that regard is to determine whether the fees proposed to be charged to the claimant are fair and reasonable.

>> At the end of the day, the claimant wants to leave the room saying to themselves, I told it all. The government was here, an adjudicator was here to listen to my story and I told them what happened to me.

>> I think this is definitely a step in the right direction, that Canadians need to understand what happened to all those generations of Aboriginal people that were forced to go to residential school.

00:15:23:16

Compensation is one form of justice that I think we have a duty to participate in. People sometimes say to me, you know, none of this is going to change what happened to me, I'm never going to forget what happened to me, and that's true, I mean, this process --nothing will take that away, but I've had so many claimants say to me that after the hearing, I feel so much lighter, you know, because I was carrying all of that. And now, you know, I didn't think I would ever say that in a room full of people and now I've said it and the world didn't end, and I walk out of here feeling a lot lighter. I really hope that that's true for most people.

00:16:12:20

CHARLES:

The letting go process is important. But the living process when we go out there, that's another part of what we have to work on. We were brought here to enjoy life, we were brought here to live, we were a gift to our family, to our relatives, and that's probably the best thing that had ever happened to me. You know, appreciating that, hey, when I woke up today, it was great. I was having that wonderful feeling about living and wondering what's in store for me today.