Stories of residential school abuse can be shredded after 15 years, court says

Survivors of Canada's notorious residential school system have the right to see their stories archived if they wish, but their accounts must otherwise be destroyed in 15 years, Ontario's top court ruled in a split decision Monday.

Appeal Court says claimants never surrendered control of their stories

Colin Perkel The Canadian Press Posted: Apr 04, 2016 4:06 PM EDT | Last Updated: April 4, 2016

Residential school survivor Lorna Standingready is comforted by a fellow survivor in the audience during the closing ceremony of the Indian Residential Schools Truth and Reconciliation Commission, at Rideau Hall in Ottawa on Wednesday, June 3, 2015. (The Canadian Press/Sean Kilpatrick)

Survivors of Canada's notorious residential schoolsystem have the right to see their stories archived if they wish,but their accounts must otherwise be destroyed in 15 years,Ontario's top court ruled in a split decision Monday.

At issue are documents related to compensation claims made by asmany as 30,000 survivors of Indian residential schools manyheart-rending accounts of sexual, physical and psychological abuse.

Compensation claimants never surrendered control of theirstories, the Appeal Court said.

"Residential school survivors are free to disclose their ownexperiences, despite any claims that others may make with respect toconfidentiality and privacy," the court said.

The decision came in response to various appeals andcross-appeals of a ruling by Superior Court Justice Paul Perell in2014 related to claims made under the confidential independentassessment process or IAP set up as part of an agreement thatsettled a class action against the government.

The federal government and Truth and Reconciliation Commission fought destruction of the documents, saying they should be kept with appropriate safeguards to preserve the historical record ofresidential schools. Catholic parties argued for their destruction.

Truth and Reconciliation Commission final report: By the numbers

"This is a once-and-for-all determination of the rights of allparties relating to these issues," the court said. "There will beno future cases like this one."

Writing for the Appeal Court majority, Chief Justice GeorgeStrathy decided Perell was reasonable to order the records kept for15 years and then destroyed, unless claimants chose to have theirown accounts archived.

Survivors who opted for confidentiality should not face a riskthat their stories would be stored against their will in agovernment archive and possibly disclosed at some time, even farinto the future, the Appeal Court said.

The court rejected the idea the documents were "governmentrecords" but said the material fell under the court's control.

"It is critical to understand that the (independent assessmentprocess) was not a federal government program," the Appeal Courtsaid.

"Although Canada's administrative infrastructure was required tocarry out the settlement, it was vital to ensure that the court, notCanada, was in control of the process."

Residential school children students in a typical classroom. (Anglican Church Archives, Old Sun/Truth and Reconciliation Commission)

The Appeal Court did part ways with Perell on who should be responsible for a notice program that would allow claimants time to decide whether they wanted their records archived or destroyed. Perell had given the task to the Truth and Reconciliation Commission and National Centre for Truth and Reconciliation.

Strathy called that unreasonable. Instead, the court ruled, thenotice program should fall to the chief adjudicator of the claimsprocess.

In a dissenting opinion, Justice Robert Sharpe said the claims documentsclaimsCanada has in its possession are indeed "governmentrecords" that should not be destroyed but turned over to Libraryand Archives Canada subject to normal privacy safeguards and rules.

The process was an "important moment in Canadian history whenall Canadians, aboriginal and non-aboriginal, confronted theshocking treatment of generations of aboriginal children in theresidential school system and searched for ways to repair thedamage," Sharpe said.

"If the IAP documents are destroyed, we obliterate an importantpart of our effort to deal with a very dark moment in our history."

About 150,000 First Nations, Inuit and Mtis children were forcedto attend the church-run residential schools over much of the lastcentury as part of government efforts to "take the Indian out ofthe child." Many suffered horrific abuse.

Material collected by the truth commission, which also heard fromthousands of survivors, are being housed at the National ResearchCentre at the University of Manitoba.

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Stories of residential school abuse can be shredded after 15 years, court says

Appeal Court says claimants never surrendered control of their stories

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