Focus On

Stalled at crossroads: Ottawa’s commitment to residential school survivors | Jennifer Leitch

Tuesday, July 13, 2021 @ 11:22 AM | By Jennifer Leitch


Lexis Advance® Quicklaw®
Jennifer Leitch %>
Jennifer Leitch
In 2007, Canada was at a legal crossroads in its relationship with Indigenous people in Canada. It entered into the Indian Residential School Settlement Agreement (IRSSA), an agreement that contemplated the resolution of thousands of claims of residential school survivors across the country.

Pursuant to the IRSSA’s terms, Independent Assessment Process (IAP) hearings were to be held across the country; their objective was to resolve claims of abuse suffered by residential school survivors and to do so in a manner that recognized and advanced the need for reconciliation.

Now, 14 years later in 2021, despite the work of the Truth and Reconciliation Commission, approximately $3 billion in IAP payments being made and countless legal proceedings arising out of the IRSSA, Canada’s progress in establishing better relations with its Indigenous people is stalled; there is no obvious direction or even commitment for moving forward.

While great efforts have been made to compensate survivors of the residential school system, the continued litigation as well as the legal positions adopted by the Canadian government in respect of the IAP hearings amount to a duplicitous approach to government-Indigenous relations. This serves to undermine the legitimacy of the government’s commitment to reconciliation and spirit of the IRSSA.

And now, in light of the continued tragedy unfolding at residential schools across the country, the need for serious and sustained reconciliation action is squarely the government’s responsibility.

In one recent iteration of this duplicitous approach, the Canadian government brought forward a Request for Direction (RFD) in respect of the ongoing criticisms levelled at it regarding its disclosure obligations in the IAP at St. Anne’s residential school in Ontario.

Under the IRSSA, RFDs provided a process by which a party to the IRSSA could seek instruction or clarification from supervising courts about the implementation and/or interpretation of the IRSSA.

In its RFD, the Canadian government sought the appointment of an Independent Special Adviser (ISA) who would conduct a review of certain IAP claims made by former St. Anne’s residential school students. St. Anne’s was the site of some of the worst cases of abuse at residential schools. In the 1990s, several former employees were criminally convicted in respect of that abuse.

During the course of the IRSSA and despite its obligations under the IRSSA, the Canadian government did not disclose the details of this abuse, the resulting criminal convictions or much of the evidence used to obtain those convictions despite repeated requests from the claimants (former residents of St. Anne’s) and the TRC. To the extent documentation and information was disclosed, it was done following court direction, and even then, in limited detail and significantly redacted.

The immediate and continuing problem caused by the failure to disclose was whether this information negatively impacted St. Anne’s survivors’ ability to obtain appropriate compensation during their IAP hearing. The Canadian government took the position that the information was of little importance and/or not its responsibility to disclose.

However, the information that the Canadian government withheld spoke directly to the nature of the type of questions that were to be addressed in an IAP hearing, such as did the claimant suffer abuse while at St. Anne’s? What was the nature of the abuse? Who was responsible for committing this abuse?

It is worth noting that, in most instances, the abuse inflicted on children occurred many years before the IAP hearing. In this regard, the significance of information respecting incidents of abuse and identity of abusers cannot be underestimated. There is also the important fact that the perception of unfairness associated with withholding pertinent information about the very issues in play does much to breed continued mistrust and disillusionment.

This issue remains the subject of continued litigation between various claimants and the Canadian government even as the IAP is completed. In a very few individual cases, St. Anne’s claimants obtained new hearings after it was concluded that the government’s incomplete disclosure had unfairly led to their claims being rejected. However, the court subsequently ruled that adjudicators could not reopen claims themselves and claimants would have to go before the court to affect that outcome.

At the same time, Canada resisted requests by other St. Anne’s claimants for the government to produce revised summaries of the evidence it had about their alleged abusers, which would have allowed those claimants to decide whether to ask for a reopening of their claims.

However, the larger and deeper problem is whether the government’s sustained resistance to full and open disclosure undermines the integrity of the IAP and Canada’s commitment to the spirit of the IRSSA. Moreover, such official actions and attitudes cast further aspersions on the government’s commitment to reconciliation more generally.

It is beyond hypocrisy for Canada to profess one thing publicly, namely its commitment to reconciliation, while, at the same time, formulating and pursuing legal positions that undermine and limit the scope of investigation as well as the voice of the claimants in the process.  

One response to these criticisms might be that Canada’s requested appointment of an ISA to review certain of St. Anne’s claims reflects a commitment to transparency and fairness. However, as is often the case, the devil is in the details.

A point that was not lost on Justice Paul M. Perell who, having heard this RFD, expanded the ISA’s role and at the same time, limited Canada’s engagement in the ISA’s investigation (see Fontaine v. Canada (Attorney General) 2021 ONSC 2921.)

In his reasons, Justice Perell sought to address some of the shortcomings of Canada’s proposed form of investigation and, in so doing, bolster the purpose for appointing the ISA in the first place, namely the promotion of public confidence in St. Anne’s IAP. (It is worth noting that in its court documents, the Canadian government maintained that part of the purpose in bringing the RFD forward was to address the criticisms that had been levelled against it in respect of its handling of the disclosure at St. Anne’s and engagement in the IAP process.)  This was a strong and useful approach.

This is part one of a two-part series. Part two: At crossroads: Challenges of Canada’s proposal to residential school survivors.

Jennifer Leitch is a researcher and law teacher, primarily in the area of legal ethics and professionalism, access to justice and dispute processes. Leitch has taught at Osgoode Hall Law School and the University of Toronto Faculty of Law. She is also an instructor in the ethics, society and law program at Trinity College, University of Toronto and a senior research fellow with the Canadian Forum on Civil Justice. Contact her at leitchbrain@gmail.com.

Interested in writing for us? To learn more about how you can add your voice to
The Lawyer’s Daily, contact Analysis Editor Yvette Trancoso-Barrett at Yvette.Trancoso-barrett@lexisnexis.ca or call 905-415-5811.