Ontario Court of Appeals rules that residential school records are not federal records
Survivors of Canada’s residential schools can have their stories of physical, sexual, and mental abuse archived if they wish. However, if they are not archived, the stories can be destroyed in 15 years, according to an Ontario court ruling from last Monday, April 4, 2016.
The Ontario Court of Appeal found that the evidence of abuse was not determined as government records. As such, the 30,000 individual survivors who gave their accounts must decide whether or not they want their accounts archived. The case involved many appeals and cross-appeals from different institutions including: the federal government, the Truth and Reconciliation foundation, as well as dozens of religious entities that maintained the schools. The sheer quantity of these groups demonstrates the complexities of all the parties involved in the history of the residential schools.
[pullquote align=”left” cite=”” link=”” color=”” class=”” size=””]Catholic parties argued for the destruction of the papers.[/pullquote]
Compensation claimants never surrendered their stories, the Court of Appeal said.
“Residential school survivors are free to disclose their own experiences, despite any claims that others may make with respect to confidentiality and privacy,” said the court, on its decision, on April 4, 2016.
The federal government and the Truth and Reconciliation foundation both fought against the destruction of the documents, saying that the documents should be held to preserve the histories of Native peoples in Canada. Catholic parties argued for the destruction of the papers.
“This is a once-and-for-all determination of the rights of all parties relating to these issues,” said the court. “There will be no future cases like this one.”
Survivors who wanted confidentiality should not face a risk that their stories will be held against their will in a government archive and possibly disclosed at some time, even in the future, the Appeal Court said.
The court denied that the evidence constituted “government records,” but added that the documents were still under the court’s jurisdiction.
“It is critical to understand that the (independent assessment process) was not a federal government program,” said the Appeal Court.
“Although Canada’s administrative infrastructure was required to carry out the settlement, it was vital to ensure that the court, not Canada, was in control of the process.”
The Appeal Court also rejected the idea suggested by Superior Court Justice Paul Perell that there be a notice program established to provide claimants with time to decide whether or not personal accounts are to be archived. Justice Perell had given the task to the Truth and Reconciliation Commission and the National Centre for Truth and Reconciliation.
Ontario Chief Justice George R. Strathy thought that this was unreasonable. The court ruled that the notice program should fall to the chief adjudicator of the claims process.
Contrary to the Court of Appeals, Justice Robert Sharpe said that the claims documents are, indeed, under the government’s jurisdiction. He argued that the documents and records are “government records” that should not be destroyed, but instead be turned over to Library and Archives Canada so that the documents can be subjected to standard preservation and safeguard rules.
The process was an “important moment in Canadian history when all Canadians, Aboriginal and non-Aboriginal, confronted the shocking treatment of generations of aboriginal children in the residential school system and searched for ways to repair the damage,” said Sharpe, on April 4, 2016.
“If the IAP documents are destroyed, we obliterate an important part of our effort to deal with a very dark moment in our history.”