Canadian Lawyer by Karen Busby 07 November 2016

The Supreme Court of Canada has just granted leave to hear an extraordinarily difficult case. It could throw gasoline and a match on one of the largest archives ever created that thoroughly documents a systemic human rights abuse.

Or it can risk causing deep and real pain to some of the people who participated in a fact-gathering process in the belief that the information would be destroyed once that specific process was completed.

The Indian Residential Schools Settlement Agreement, which settled class actions organized on behalf of survivors, established the Independent Assessment Process to compensate those who experienced significant psychological, physical or sexual abuse. Almost 40,000 survivors have made IAP claims. A file was created by the IAP secretariat on every IAP claimant containing documentary evidence such as medical reports, hearing transcripts and reasons for decisions.

In Canada v. Fontaine, the SCC will have to decide whether the IAP files should be destroyed or preserved. If the court orders full or partial preservation, it could also give guidance on where the files can be stored, how long files would be closed, whether files can be redacted and who does the redaction.

Neither the settlement agreement nor privacy, access-to-information or archives legislation provides anything close to a clear answer about what should happen to the IAP files.

The judgment on appeal is from the Ontario Court of Appeal. In a 2-1 decision, that court held that “survivors should control the fate of their own stories. . . . [They have] the right to archive the stories they told in the claims process . . . [but] no one else could keep those stories against their wishes, not even the government.” The majority ordered that the files should be kept for 15 years. After 15 years, all files would be destroyed, except for those that claimants had expressly chosen to preserve. There are problems with the majority’s solution, including the logistical nightmare of creating a notice plan and determining what happens to files if the survivor has already died.

Most of the parties and interveners before the SCC will call for the gasoline and match. The IAP chief adjudicator, having made promises of confidentiality to claimants, has asserted that the files should be destroyed when they are no longer needed in the IAP. The only exception, argues the chief adjudicator, “would be for documents that claimants are entitled to have.
Claimants may ask for a transcript of their own testimony, for example. They may choose to keep it, share it with others or give it to an historical archive if they wish.”

Many indigenous organizations, including the Assembly of First Nations, have taken the position that the IAP records are highly sensitive and their retention would cause serious distress to individual survivors and create tensions within communities. Some high-profile survivors, including Phil Fontaine, former grand chief of the Assembly of First Nations, oppose retention, but other individuals equally as strongly assert that the IAP files are truth-creating documents that should be preserved in their totality.

Some of the churches have taken a very strong position in favour of destruction. One church party argued that the records should be destroyed because they are unreliable. The group asserted that claimants were motivated to make up stories and exaggerate in order to obtain a larger financial payout. Others make the argument that no details that could be used to identify an alleged perpetrator should be retained because while “persons of interest” had some participatory rights in IAP hearings they did not have the right of cross-examination. As the files are riddled with allegations, they must all be destroyed.

The dissenting Ontario Court of Appeal judge held that it was “contrary to the interests of justice to destroy the IAP documents. . . . The decisions [the IAP] produced provide a unique window on Canada’s struggle to come to grips with the horrors of residential schools. Past wrongs may fester even after we think we have dealt with them.”

The dissenting opinion resonates with the principle, recognized by the United Nations, that states have the duty to preserve memory. Individual victims and their families have the right to the truth about what happened to them or their loved ones. Society at large also has the right to the truth about past events and the circumstances that led to the perpetration of massive or systematic human rights violations. These principles require that states take measures to preserve collective memory from destruction.

Both Canada and the Truth and Reconciliation Commission asserted in the lower courts that IAP files should be archived subject to restrictions on who can access them, when and how. Former chief commissioner (now senator) Murray Sinclair has opposed destruction of the IAP records, calling such an act “a step toward denying the damage caused by residential schools.”

As the TRC is no longer in existence, it will not be a party before the SCC. However, the National Centre for Truth and Reconciliation, located at the University of Manitoba, is the repository for the TRC’s archives, including 8,000 survivors’ statements gathered by the TRC. As a party, it will likely oppose destruction of the records, asserting that future generations need to know the full story, while also asserting that privacy rights can be protected.

Karen Busby likes to write about sex, politics and religion. She is a law professor and director of the Centre for Human Rights Research at the University of Manitoba as well as author of Manitoba Queen’s Bench Rules. She can be reached at Karen_Busby@umanitoba.ca.