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

The Supreme Court of Canada in Ottawa is shown on Tuesday, April 14, 2015. 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.
Image Credit: THE CANADIAN PRESS/Sean Kilpatrick

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.

Justice Department lawyers say the documents are subject to federal laws governing access to information, privacy and the national archives, and should be preserved to ensure the residential school legacy is never forgotten.

They argue the court's "inherent jurisdiction" to order the records be destroyed "fails to respect the intentions" of the Indian Residential School Settlement Agreement, which settled a class action between survivors and the federal government — the largest such lawsuit in Canadian history.

Carey Newman, a First Nations artist and son of a residential school survivor who formed a group called the Coalition to Preserve Truth, travelled from Victoria, B.C. in order to attend the hearings.

The coalition, an intervener in the case, says traumatic events are only a part of the complex history of residential schools, Newman said. The ensuing personal trauma has been resonating through the lives of families for generations, he added.

"I don't know how long the decision will take ... but it is interesting to sit and listen to both of sides ... and sort of hear the arguments that are against you, " he said.

"I'm really glad I came."

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."

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.

In a split decision in April 2016, the Ontario Court of Appeal agreed, noting the documents were not government records subject to archiving laws.

The court also rejected the idea the documents were "government records" but fell under judicial control.

A dissenting justice maintained, however, that the documents should be turned over to Library and Archives Canada, subject to normal privacy safeguards and rules.

"If the IAP documents are destroyed," wrote Justice Robert Sharpe, "we obliterate an important part of our effort to deal with a very dark moment in our history."

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.

"The future release of IAP records without the consent of claimants will result in the re-victimization of former students and will pose real harms to First Nation communities," the organization said in its factum.

"This is particularly problematic in the case of victims and perpetrators related to student-on-student abuse."

Many survivors are aging and ill, Newman said, and will need to be alerted about the process for record destruction if the high court sides against them.

"If that happens, there will have to be a notice process making sure that is done with gentleness, making sure that it considers the perspectives we were bringing here around the intergenerational importance of this."

—With files from Colin Perkel in Toronto; follow @kkirkup on Twitter

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