Residential school survivors sue the federal government for failing to find documents

The nine survivors who launched a lawsuit against the federal government for failing to find information about crimes against children committed at Moose Factory’s Bishop Horden Hall residential school could set a precedent for survivors across the country.

Lawyers for the survivors, supported by lawyers from the Assembly of First Nations, launched a suit against the Ministry of Aboriginal Affairs in late May, arguing that the federal government did not adequately search for documents that would back up survivor claims that staff were removed or arrested for abusing children at the school. Aboriginal Affairs, for their part, is arguing they did all the work they needed to do by looking the records of Library and Archives Canada as well as their own archives, and that they are not required to open police and court records to look for more information.

Charlie Angus, MP for Timmins-James Bay and the NDP ethics critic, is incensed over the federal government’s response.

“In the case of St. Anne’s [residential school in Fort Albany], they sat on thousands of pages of police testimony that they had access to, and provided a completely false evidence narrative saying that there was no evidence, there was no history of abuse committed against children at St. Anne’s, which was false,” he said. A Superior Court judge eventually sided with the St. Anne’s survivors.

“In the case of Bishop Horden, it’s a little different,” Angus continued. “It’s not that the federal government had knowledge of documents – it’s that they didn’t seem to look very hard for documents as part of their end of the legal agreement. I’ve gotten access to a number of the Library and Archives documents, and they’re basically just annual school reports. There’s no letters, complaints, nothing like that. So it’s not a total picture of what happened there.”

Many Bishop Horden survivors recall staff members being removed for misconduct in the 1960s, yet none of the documents that the federal government turned over reflect any record of such events.

“Records should exist,” Angus said. “You don’t remove staff from an institution under the federal government watch without there being some kind of reports: were the police involved? Was the federal government aware of it? Did the Indian agents have reports? If these people were removed for misconduct against children, there’s a paper trail.”

Angus says that the Independent Assessment Process (IAP), the legal hearing set up under the Residential Schools Settlement Agreement, is supposed to be, at its root, “non-adversarial.” It is intended to give survivors the opportunity to tell their stories in a less confrontational setting than a court challenge.

“What’s undermined the IAP from the beginning is that the federal government plays two roles: it’s the defendant, and it’s also legally obligated to provide the documents that serve as the basis to judge the claims by. We’re being told again and again this is supposed to be ‘non-adversarial.’ In the experience of my constituents, it’s been anything but that.”

Angus emphasized that settlements are based on corroborating the stories survivors tell about abuse. If there’s no record to substantiate that such abuse took place, it’s far harder for survivors to win large settlement amounts. The federal government is obliged to do all due diligence required to search for and turn over evidence of guilt on its own part.

“If people come forward and are fairly accurate about the general time period, and there are stories that seem to be backed up by a number of claimants that an incident did take place then it’s incumbent on the government to seek it out,” Angus said. “And they were refusing. And that’s the problem here.”

This case differs from that of St. Anne’s, in which the government had discovered many damning documents but refused to turn them over until they were forced to by the Superior Court.

“In the case of Bishop Horden, they may have gone and searched for documents and not found anything, but when it was brought to their attention in the hearing process [that numerous survivors specifically remembered staff being removed], the reasonable thing would be to say, ‘Okay, we’ll do another document check. We’re either going to find it, or we’re not.’ But they didn’t do the other document check. They refused. So the survivors had to take them to Ontario Superior Court to say that this is not in the spirit of these hearings.”

Angus believes the government’s behaviour in the Bishop Horden case is consistent with its attitude to dealing with any Native people, “which is to fight them tooth and nail even when you tell them it’s going to be a ‘non-adversarial’ process. They’re probably saving the system a lot of money rather than having to face massive class-action lawsuits that they’d be on the hook for. So why not do the right thing?”

Instead, Angus said, the government hasn’t even done what it was ordered to do in the St. Anne’s case. It finally delivered the documents it had been sitting on, but when it did, the names of perpetrators and witnesses to crimes against children that would corroborate survivor testimony had been blacked out. He also noted that they use the tactic of “document dumps” – holding documents until shortly before the hearing, then handing over thousands of pages of material to lawyers unable to read it all.

“The question,” Angus fumed, “is why are they showing such bad faith in a process that they are legally obligated to respect? If this were done in civil court, there would be consequences. Why are there no consequences when it’s done in this process?”