In the News

Top court hears federal government's appeal on residential school records

OTTAWA — Lawyers for the federal government and the National Centre for Truth and Reconciliation took turns Thursday trying to convince the Supreme Court how to handle the personal records of those who endured life inside Canada's infamous residential schools.

The Liberal government is appealing a lower court decision that allows the records to be destroyed after 15 years unless the individual in question directs otherwise.

The federal government and the Truth and Reconciliation Commission agree that survivor accounts are a critical part of Canadian history that should be preserved.

For its part, the independent claims adjudicator, which was established to manage settlements, has maintained that the claimants were promised confidentiality, which means that only they have the right to waive their privacy.

"Assurances of confidentiality were based on adjudicators' understanding that the information disclosed in the hearing would never be otherwise used," it said in its factum to the court.

"They have never objected to the confidentiality assurances given by adjudicators."

Ottawa seeks to preserve residential-school testimonies

The federal government and the centre created to preserve the memory of Canada’s residential schools are asking the Supreme Court to rule that the intimate and heart-wrenching tales of abuse recounted by survivors in closed-door compensation hearings should be preserved in national archives.

They urged the top court on Thursday to overturn the Ontario Court of Appeal ruling that documents related to the hearings held under the Independent Assessment Process (IAP) should be maintained for 15 years and then destroyed unless the claimants explicitly agree that the National Centre for Truth and Reconciliation (NCTR) in Winnipeg should have them.

Justice Department lawyers argued that federal privacy, access and archive legislation demands the documents be saved.

The centre says redaction of names and other identifying markers from the records would preserve claimants’ privacy.

But lawyers for the Indian Residential Schools Secretariat, which administers the IAP, for the legal counsellors who represented claimants at the hearings, for the Assembly of First Nations and for the Inuit say preserving the documents mean they could be read and survivors’ secrets would be divulged.

“The issue today is whether it’s the claimants who have control over the most intimate, private and painful stories of their lives, or is it Canada, the government that was largely responsible for those stories in the first place?” Joseph Arvay, the lawyer for the IAP, told the court.

The court withheld judgment until a future date.

Residential school survivors should decide fate of documents: FSIN

The Supreme Court should not be deciding the fate of tens of thousands of residential school records, says Federation of Sovereign Indigenous Nations vice-chief Heather Bear.

That decision should be left to the tens of thousands of survivors who told their stories, she said.

The Supreme Court heard submissions Thursday from lawyers on all sides of the debate. Some want the records destroyed to protect the privacy of the survivors. Others want them preserved as a vital piece of Canadian history. Suggestions on redacting names or imposing a decade or more delay were made.

What is at stake are the 35,000 accounts given to adjudicators for the Independent Assessment Process, which was part of the Indian Residential Schools Settlement Agreement. The IAP hearings were set up to determine individual compensation.

The IAP hearings were confidential, but many are pushing for the records to be kept for their historic value.

Assembly of First Nations Chief Perry Bellegarde said in a statement the stories and testimony belong to the individual, and any decision "must ensure that the privacy interests of IAP claimants and former students are protected at all times."

SCC to hear federal governments appeal on residential school records

OTTAWA - The Supreme Court of Canada is set to hold a hearing today on the federal government's appeal of a decision that allows personal records from survivors of residential schools to be destroyed after 15 years unless individuals decide otherwise.

Ottawa argues it controls the documents and that they are subject to legislation pertaining to access to information, archiving and privacy.

Carey Newman, a First Nations artist who formed a group called the Coalition to Preserve Truth, agrees the impact of destroying the documents would be enormous, calling them a very important piece of Canadian history.

For its part, the independent claims adjudicator has maintained that claimants were promised confidentiality, which means that only they have the right to waive their privacy.

A lower court judge ruled the material should be destroyed after 15 years, but individuals could consent to have their stories preserved at the National Centre for Truth and Reconciliation in Winnipeg.

The Assembly of First Nations argues the Ontario Court of Appeal upheld the promises of confidentiality made to former students of residential schools by ordering the destruction of records and ensuring former students maintain control over the accounts of their residential school experiences.

Supreme Court to decide who owns the 38,000 stories of residential school survivors

Who ultimately controls the stories of 38,000 residential school survivors may finally be decided on May 25 when the question goes before the Supreme Court.

The courts have consistently ruled it is up to the survivors to decide what happens to their own accounts of their experiences, stories that led to Ottawa paying out more than $5 billion in compensation, and that it is the survivors’ wishes that must be upheld and respected. The courts say the 38,000 survivors have 15 years to decide individually if their stories should be preserved in an archive at the National Centre for Truth and Reconciliation (NCTR) at the University of Manitoba or be destroyed.

But a coalition representing the children and grandchildren of residential school survivors was recently granted intervention status at the hearing. They want to save the 38,000 stories, which they say are the largest firsthand accounts of the residential school system.

The Indian Residential Schools Settlement Agreement, a comprehensive settlement of class actions, made way for a process for survivors to settle abuse claims with Canada if they went through an Independent Assessment Process (IAP) to tell their stories. It is those horrific stories, contained on application forms and written and audio records, which are now the subject of the Supreme Court case.

The Assembly of First Nations (AFN) believes the former residential schools students must be in complete control of their own stories — accounts that were shared under the belief they would never become public, said National Chief Perry Bellegarde.

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Civil procedure: In the course of the Independent Assessment Process that provided a second level of compensation to some former residential school students, questions arose about what was to become of the highly confidential documents created during the IAP after it came to an end. 

The supervising judge ordered that the IAP documents were not to be transferred to Library and Archives Canada, and that the Chief Adjudicator of the Indian Residential Schools Adjudication Secretariat was to retain the IAP documents for a 15-year retention period. IAP documents not held by the Chief Adjudicator were to be destroyed, with certain caveats. Claimants could archive their own IAP documents with the National Centre for Truth and Reconciliation, and the Truth and Reconciliation Commission or the National Centre for Truth and Reconciliation could carry out a notice program to inform claimants of that right. The majority of the Court of Appeal ordered that the notice program was to be carried out by the Chief Adjudicator. Otherwise, the appeal and cross appeals were dismissed.

Read the Ontario appellate court decision here.

Its really Mickey Mouse - Residential school survivors react to deal made for Kenora lawyer

Some residential school survivors are angry and confused about a deal made April 25 to stop a disciplinary hearing against a Kenora lawyer.

“It’s really Mickey Mouse,” said Garnet Angeconeb, who speaks on survivor issues in Northwestern, Ont. “They are hurt, they are angry, they are confused. They feel they were led along the garden path.”

Angeconeb is a survivor, but was not a complainant in the Law Society of Upper Canada’s case of alleged professional misconduct against Douglas Keshen.

Meanwhile, Angeconeb said the repercussions are still being discussed and Aboriginal leaders in Treaty 3 territory are weighing their legal options.

They don’t necessarily trust the Law Society to review its own, self-admitted, flawed practices.

“Somebody needs to look at what happened. There needs to be analysis. We need to ask what happened, too.”

Student-on-student abuse in residential schools an unspoken truth: Sen. Sinclair

OTTAWA -- The former chairman of the Truth and Reconciliation Commission calls "student-on-student" abuse one untold story of Canada's residential school legacy -- an issue he says is linked to persistent sexual abuse and discrimination against LGBTQ individuals and "two-spirited" indigenous people.

Sen. Murray Sinclair, appointed to the upper chamber in 2016 the year after his commission delivered its final report, described the physical and sexual abuse among residential school students as a means for young people to inflict violence.

Sex was often used as a tool of violence between the school's students, resulting in an intergenerational legacy of trauma that continues to haunt families to this day.