Focus: Ruling favours privacy rights of survivors

In a case that tied questions of aboriginal law with privacy law, the Ontario Court of Appeal recently decided indigenous Canadians who suffered abuse in residential schools could decide whether their evidence will be archived or destroyed after a mandatory 15-year retention period.

Part of the question in Fontaine v. Canada was who gets to decide whether claimants’ testimony, submitted as part of the Indian Residential Schools Settlement Agreement, would be achieved or destroyed. Detailed and often traumatic personal stories of abuse are gathered under the IRSSA’s Independent Assessment Program.

The court said the appeals before it raised “the question whether the survivors control the stories of their residential school experiences or whether others do.”

In Fontaine, a number of Catholic institutions argued they, too, should consent before the redacted evidence is achieved at the National Centre for Truth and Reconciliation and potentially available for access by future generations. They argued the decision to archive the documents affects the alleged perpetrators and the churches.

A lower court judge had found the only consent needed to archive the evidence is that of the claimants themselves. In a decision dated April 4, the court of appeal agreed.

“The IAP was a negotiated solution to a difficult problem that benefited all parties, including the Catholic Entities and alleged perpetrators. By signing the IRSSA, the Catholic Entities agreed to surrender certain procedural rights they would have enjoyed had the claims been pursued by way of ordinary litigation, in exchange for significant benefits,” said Court of Appeal Justice George Strathy, who wrote on behalf of the majority.

“Ordinary litigation was avoided, the burden of liability was assumed by Canada and the Catholic Entities gained immunity from a significant potential liability. They enjoyed limited procedural rights in the IAP precisely because they agreed to forgo those rights in exchange for protection from the legal jeopardy they would have otherwise faced,” Strathy wrote.

Signa Daum Shanks, assistant aboriginal law professor at Osgoode Hall Law School, says the court got it right.

“I think the Catholic entities really got taken to task very appropriately in this decision,” Daum Shanks says. “What’s unfortunate about that for the Catholic entities is that, so regularly in the history of residential school litigation, it’s been the Catholic church that’s been . . . the slowest church to step up and acknowledge the history of what it’s done that is in archival records,” she says.

The majority of the court also dismissed the argument from Canada and the Truth and Reconciliation Committee that IAP documents are government records and thus cannot be destroyed. Strathy said the documents are under the control of the courts, not the government.

“They are not government records. While possession may often suffice for control, this is not always the case,” he wrote. “When the government is in possession of records only as a result of litigation, and is constrained in its use of those records by the court process or a specific court order, those records are not ‘under the control of a government institution,’” he added.

While he agreed with dismissing the appeal from the Catholic entities, Justice Robert Sharpe of the court disagreed with the majority regarding the appeal from Canada and the Truth and Reconciliation Committee, which argued that the evidence gathered as part of the IAP in fact constitutes government record.

“In my view, the IAP documents held by Canada, which include the decisions of IAP adjudicators ordering Canada to pay claimants millions of dollars, fall squarely within the legal definition of government records,” Sharpe wrote in his dissent. “The IAP documents are therefore subject to the regime mandated by Parliament in the Privacy Act, the Access to Information Act, and the Library and Archives of Canada Act for the protection of private information, access to government records and the preservation of Canada’s documentary heritage for the benefit of present and future generations.”

Sharpe said he recognizes the traumatic and sensitive nature of the stories revealed in the IAP documents, but he added that the IAP is also an “an integral” part of the Truth and Reconciliation process, which allowed all Canadians to face the “shocking treatment of generations of aboriginal children in the residential school system and searched ways to repair the damage.”

“As the TRC puts it in its factum, reconciliation requires knowledge, not destruction of our past,” Sharpe said.

Douglas Sanderson, law professor at the University of Toronto and a member of the Opaskwayak Cree Nation, says he personally feels it’s important to document survivor testimonies, but views on the topic differ even within his own family.

“Personally, my hope would be that the testimonies would in fact be achieved. I think that it’s important for future generations and future researchers to be able to access some of those primary documents, the residential attendees’ side of the story,” he says.

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