Ottawa refusing to turn over documents 3 St. Anne's residential school survivors need, says lawyer

The federal government is refusing to turn over uncensored documents to three residential school survivors who need the files to determine whether they should seek to reopen their compensation cases, according to their lawyer. 

All three had their compensation cases heard before Canada was ordered in 2014 to disclose thousands of documents detailing abuse at St. Anne's residential school, which was in Fort Albany, along Ontario's James Bay coast.

Before the 2014 ruling, Canada claimed there were no cases of sexual or student-on-student abuse at St. Anne's. Yet, St. Anne's was the subject of an Ontario Provincial Police investigation in the 1990s into allegations of widespread sexual and physical abuse that led to five convictions.

The three survivors, who are identified as S-20774, T-00185 and S-16753 in records, are seeking unredacted persons of interest reports (POIs) — files itemizing allegations of abuse against individuals at the schools. 

The survivors need the documents to decide whether they should go to court and have their compensation cases reopened, according to their Ottawa-based lawyer Fay Brunning.

One survivor had their claim rejected and the two others believe they failed to get compensation for more serious abuse because they didn't have the evidence to back up their claims, said Brunning.

"They want some advice on whether they should reopen their claims... But Canada is refusing to provide the new evidence that was owed to them under the [2014] court order," she said.

Brunning said she raised the three survivors' issue with the Indian Residential School Adjudication Secretariat, which oversees the compensation system known as the Independent Assessment Process (IAP) created by the residential schools settlement agreement. 

The secretariat said in an emailed statement that it is aware of the issue, but the chief adjudicator "does not have the authority to compel Canada to produce documents." 

The statement said the secretariat determines only whether documents are relevant or admissible and that it is up to the courts to determine whether Canada — or any other party — is living up the terms of residential schools settlement agreement.

Crown-Indigenous Relations Minister Carolyn Bennett's office said in an emailed statement that it couldn't comment on specific cases for privacy reasons. 

The statement said the courts have determined that Canada has adequately responded to the 2014 document disclosure order and its requirements.

"We are committed to doing what is right for survivors and have also demonstrated our ongoing commitment to survivors to resolve issues outside of the [residential schools settlement agreement]," said the statement.

Years of legal battles

This is the latest round in a years-long battle between St. Anne's survivors and the federal government over document disclosure for IAP hearings.

In the case of St. Anne's, the federal government failed to disclose key documentation that initially cost survivors their cases or affected payouts because abuse claims were not believed.

Two key pieces of evidence in IAP hearings are the school narrative — a history of the school including evidence of abuse — and POIs, which itemize abuse allegations against individual school officials or other students.

For about the first six years of the IAP process, Ottawa's school narrative for St. Anne's said there were only four documented cases of physical abuse and no cases of sexual or student-on-student abuse at the school.

The school narrative never mentioned that Justice Canada held thousands of documents from the 1990s Ontario Provincial Police investigation. 

Brunning said the courts can decide whether a residential school compensation case should be reopened as a result of new evidence, following an April 2019 Supreme Court decision. 

In the ruling known as J.W. vs Canada, the Supreme Court referred to a B.C. Court of Appeal decision that said the court could reopen a case based on new evidence because the IAP process was silent on the issue — creating a gap the courts needed to fill.

"This is not to say the parties will automatically be entitled to have a claim reopened if they are able to point to a procedural gap in the IAP model or provide new information that was not before the IAP adjudicators," said the decision.

"A case-by-case analysis is required."

Charlie Angus, NDP MP for Timmins-James Bay, wrote to Bennett on Jan. 30 asking the minister to intervene in these St. Anne's cases. 

"I am asking you to immediately turn over the revised POI reports for the three cases," wrote Angus. 

"The decision to proceed to the court is the right of each IAP claimant, not the government."

Angus told CBC News that the continued legal battles over St. Anne's compensation cases had "poisoned all talk of reconciliation" by the federal government. 

"The refusal by the Justice department to turn over these persons of interest reports that name perpetrators is just the latest in a long series of efforts by the Justice department to deny justice," said Angus. 

"This has to stop."

According to the latest statistics available on the Indian Residential Schools Adjudication Secretariat's website, as of Dec. 31, 2019 a total of 99 per cent of the over 38,000 claims filed have been resolved and close to 90 per cent of IAP claimants have received compensation under the IAP.