The chief adjudicator of the Independent Assessment Process (IAP) had argued the complete destruction of recordings, transcripts and decisions is the only way to protect privacy.
The heart-wrenching evidence of thousands of residential school survivors who sought compensation for sexual and other forms of abuse should be destroyed after 15 years, Ontario’s top court ruled Monday.
In a split decision, the Court of Appeal found that the material is not a government record, and that it should be left up to the individual survivor on whether they wish to have their material archived or not.
The case involved appeals and cross-appeals from many different institutions, including the federal government, Truth and Reconciliation Commission, and dozens of religious entities that ran the schools, underscoring the complexity of the issue.
The material includes application forms, transcripts from private compensation hearings and adjudicator decisions from what is known as the Independent Assessment Process (IAP), that involved nearly 38,000 claimants who sought compensation for their treatment in the schools.
Survivors themselves are divided on the preservation of the IAP records, with some saying all material should be submitted to an archive such as the National Centre for Truth and Reconciliation in Winnipeg.
“With First Nations people, they make us invisible, and again, this is making us invisible,” said Michael Cachagee, 76. “When these residential schools were operating, how many Canadians were aware of what was going on in these hell holes? A lot of the treatment, the real dirt, is in those records.”
The chief adjudicator of the IAP, who argued for destruction, said in a statement he was pleased with the decision, while adding the process was always supportive of those survivors who wished to share their stories with a wider audience.
“This will be comforting to thousands of claimants in the IAP and its predecessor the Alternate Dispute Resolution (ADR) process, many of whom were distressed at the prospect that the most personal details of the abuse they suffered at residential schools could one day be made public,” said Dan Shapiro.
A spokeswoman for Indigenous and Northern Affairs Canada said the government is “committed to honouring Canada’s lawful obligations to indigenous peoples” and is reviewing the court ruling in its consideration of next steps.
Writing on behalf of the majority, Chief Justice George Strathy found that the lower court judge’s ruling on destruction was “harmonious” with the principles laid out in the Indian Residential Schools Settlement Agreement, the settlement to the class action lawsuits brought against the government for the treatment of thousands of indigenous people in residential schools.
The IRSSA created the IAP, as well as the Truth and Reconciliation Commission, which heard from thousands of residential school survivors across the country in public forums. Those records will not be destroyed.
“The IRSSA established a comprehensive framework for the compensation of survivors and preservation of the history of residential schools, guided by the principle that the survivors should control the fate of their own stories,” Strathy wrote in a lengthy ruling released five months after court hearings in the matter.
The two-judge majority also found that the religious entities do not have a say over what a survivor chooses to do with their records.
But in a 30-page dissenting opinion, Justice Robert Sharpe concluded that the material does meet the legal definition of a government record and should be preserved according to federal legislation, meaning the documents could be accessible 20 years after the survivor’s death.
“If the IAP documents are destroyed, we obliterate an important part of our effort to deal with a very dark moment in our history,” Sharpe wrote.
“If the IAP documents are preserved according to the law, they will be kept from view for many years after the death of the IAP claimants but available thereafter should the need arise to revisit a terrible injustice.”
Lawyers for the religious entities did not return requests for comment. Justice Murray Sinclair, who headed the TRC, which had argued for the records’ preservation, could not be reached for comment.
“We are most pleased with the court’s decision to provide survivors the opportunity to choose whether or not their records are retained, and that survivors are empowered to have a voice in that,” said Ry Moran, executive director of the National Centre for Truth and Reconciliation.
He said whether or not material submitted to the NCTR is made public will depend on the survivor’s wishes.