WARNING: This story contains details of abuse of children at residential schools
The Department of Justice has asked an Ontario court to condemn allegations that Canada intentionally withheld evidence of serial child abuse at a residential school to deny survivors justice.
The federal government contends there’s no evidence Canada acted in bad faith when it failed to disclose thousands of records detailing physical and sexual abuse at St. Anne’s Indian Residential School in Fort Albany, Ont., for compensation hearings held between 2006 and 2014.
“Some sort of explicit condemnation from the court is necessary regarding these allegations,” Justice Canada lawyer Daniel Engel told Ontario Superior Court in Toronto on Thursday.
Engel was replying to comments from Fay Brunning, an Ottawa-based lawyer representing a group of survivors who have fought for a decade to hold Canada accountable for the non-disclosure.
Led by Edmund Metatawabin, former chief of Fort Albany First Nation, home to St. Anne’s from 1906 to 1976, the survivors returned to court this week before Justice Benjamin Glustein.
Their case concerns the 2006 Indian Residential Schools Settlement Agreement, which offered survivors countrywide a guaranteed common experience payment and access to an independent assessment process (IAP) to hear claims of abuse.
But when those hearings began, Canada reported it had no documents on sexual and physical abuse at St. Anne’s. In fact, the Department of Justice was sitting on 12,300 relevant police investigation records, criminal trial transcripts and civil court papers.
Brunning alleged Wednesday the government intentionally held on to the vast trove of material, violating claimants’ constitutional rights and the Crown’s duty to avoid sharp dealings with Indigenous people.
“Unfortunately, these are not facts that I’m making up,” she told the court.
“There’s been sharp dealings by the Crown for 11 years, and it has been gruelling for St. Anne’s survivors — gruelling.”
Those 47,000 pages of undisclosed documents contained allegations and evidence of assaults, rape, sexual humiliation, punishment by makeshift electric chair or cat o’ nine tails whip, and sick children being forced to eat their own vomit.
Between 1992 and 1997, Ontario Provincial Police conducted a sweeping probe into the abuse. They interviewed more than 700 people, took 900 sworn statements and seized more than 7,000 documents from church entities.
Police eventually charged seven former school officials, securing five convictions. Then between 2000 and 2003, more than 150 survivors filed 61 civil lawsuits against Canada and other parties, naming and listing 180 alleged perpetrators in the process.
Group wants to a process to reopen claims
In 2014, Metatawabin obtained a court order confirming Canada breached its disclosure obligations, but the court did not rule on whether Ottawa acted in bad faith. Metatawabin now alleges Canada breached the 2014 order.
The group seeks a process to reopen compensation claims that never received updated reports and for the court to order an investigation into the government’s conduct. The government, however, wants the request struck on procedural grounds.
Also on Thursday, the Assembly of First Nations, representing chiefs across the country, urged the court not to dismiss the case on a technicality, warning of “a gross miscarriage of justice” that still needs to be rectified.
“These brave survivors continue to show up in the Crown’s courts to peacefully demand truth and justice from Canada’s legal system,” said AFN lawyer Christopher Rapson.
“Their courage and perseverance in shining light of truth into the darkest corners of Canada’s darkest chapter are a testament to the strength and resilience of First Nations people and of residential school survivors.”
Canada argues the survivors missed the deadline to file their request, are abusing the court’s processes by re-litigating settled issues and seeking remedies that aren’t available. Engel argued Thursday that Brunning failed to refute these points.
“I don’t doubt the sincerity of her outrage,” he said.
“To a certain extent, I understand why there is a level of suspicion about Canada’s actions.”
But as it pertains to the specific issues, he added, “she’s just incorrect.”
Canada’s written reply argument also blasts the survivors for making “specious, unfounded, and scandalous allegations” against officers of the court, though it isn’t clear which specific allegations this refers to, as the reply says “Canada will not be responding” to the allegations.
The survivors’ written argument says the situation presents a crucial test of whether the Ontario Superior Court fulfilled its duty to enforce the settlement agreement.
It alleges the court did not challenge the government for non-compliance with the 2014 order over the last 10 years, despite being presented with evidence it was being breached beginning in November 2015.
Glustein reserved his decision.
Support is available for anyone affected by their experience at residential schools or by the latest reports.
A national Indian Residential School Crisis Line has been set up to provide support for survivors and those affected. People can access emotional and crisis referral services by calling the 24-hour national crisis line: 1-866-925-4419.
Mental health counselling and crisis support is also available 24 hours a day, seven days a week through the Hope for Wellness hotline at 1-855-242-3310 or by online chat at www.hopeforwellness.ca.
