81 St. Anne's residential school compensation cases require 'significant review,' says court filing

An official appointed by the Ontario Superior Court has found 81 compensation cases involving the notorious St. Anne's residential school require "significant review," as their outcomes could have been impacted by evidence contained in police records that the federal government failed to disclose.

According to an interim report filed with the court on Aug. 17, retired B.C. judge Ian Pitfield found those 81 cases included instances where survivors received either no compensation or a lower award over credibility questions around the severity of the alleged abuse.

"The claims that will require significant review ... number 81 in total," Pitfield wrote in the filing.

Pitfield was appointed last April to review 427 compensation cases that were resolved before an Ontario court ordered the federal Conservative government in 2014 and 2015 to turn over thousands of police records related to St. Anne's residential school.

He said he could not say when the review would be complete.

• The horrors of St. Anne's

The records are from an Ontario Provincial Police investigation launched in 1992 into widespread historical physical and sexual abuse at the institution in Fort Albany First Nation, which sits along the coast of James Bay in northern Ontario.

The investigation lasted six years and produced thousands of pages of documentation, including about 900 statements from 700 victims describing assaults, sexual assaults, suspicious deaths and a multitude of other abuses.

St. Anne's survivors have been battling the current Liberal government over the past six years to have these compensation cases reopened, arguing the suppressed evidence in the police records would have substantiated claims of severe abuse that weren't believed.

Survivor Edmund Metatawabin, who has been one of the lead voices in the ongoing litigation, said he knows of one woman who was repeatedly sexually assaulted by a bishop at the school, but wasn't believed because there were no witnesses.

"Somebody that received a slap one or two times [would be believed], because the compensation amount and the seriousness of the allegations will be quite low and harmless, so they were acceptable," said Metatawabin.

"That is the kind of decisions that were being made."

Police records would back abuse claims

With the OPP records in hand, Metatawabin said the cases involving serious allegations would not have been so easily dismissed by adjudicators deciding compensation amounts.

"And that is why we went to court to show the seriousness of the incidents that happened," he said.

Pitfield's ongoing review still falls short, Metatawabin said, because survivors don't know their cases are getting a second look via a purely a paper review, and survivors have no opportunity to retain legal counsel or provide input.

"You are treating them as numbers. You don't know their personalities, their identity, the nature of their suffering or the effects of their suffering," said Metatawabin. "So they are still invisible people."

The 2006 Indian Residential School Settlement Agreement created a compensation mechanism known as the Independent Assessment Process (IAP). Under the IAP, adjudicators would hear evidence from survivors to determine compensation amounts. The federal government provided the bulk of the documented evidence for claims and was also able to challenge allegations of abuse. 

For the first seven years of the IAP, the federal Department of Justice, under the Harper government, withheld thousands of pages of OPP records, along with criminal and civil records from cases involving St. Anne's.

Mentions of the OPP investigation and subsequent court cases were deleted from the St. Anne's school history — known as the school narrative — provided to survivors and their lawyers for preparing compensation cases. 

The Trudeau government then spent millions of dollars fighting attempts by St. Anne's survivors to reopen compensation cases based on the Justice Department's failure to disclose the police and court records. 

But in late March, as the IAP process wrapped up, the Justice Department, acting under the direction of Crown-Indigeous Relations Minister Carolyn Bennett, requested the Ontario court review St. Anne's compensation cases. 

'Backroom process'

"I thought they would open a different process, take it very seriously and have the highest degree and engagement and respect for these survivors — and not treat them as numbers," said Mary Ellen Turpel-Lafond, a former judge and director of the University of British Columbia's Indian Residential School History and Dialogue Centre.

"It's all a backroom process," she said.

Turpel-Lafond said she expected the federal government to initiate a more trauma-informed process, with trained staff reaching out to St. Anne's survivors, explaining the process, helping them through it and even providing funding for legal representation.

"It doesn't just harm the St. Anne's survivors … but every residential school survivor in Canada is harmed by this," she said.

"Every time another survivor is reduced to a number — is not heard, is not believed, records are kept from them and their families and communities — is another attempt at minimizing and saying, 'We don't believe you. You don't matter.'"

The process, as it was created, benefits only Canada, not the survivors, said Turpel-Lafond.

"That doesn't sound like a shift in the approach to truth and justice on residential schools. That sounds like: We are going to sweep you under the carpet and pretend we are doing something," she said.

'No reconciliation' without justice for St. Anne's

Crown-Indigenous Relations Minister Carolyn Bennett, who is again running as a Liberal candidate in the riding of Toronto-St. Paul's, did not respond to a request for comment.

Her department sent an email stating that the supervising judge on the file, Justice Paul Perell, excluded "claim-by-claim advocacy or submissions from counsel" from the review and the Canadian government would abide by that.

"We recognize that this is difficult for many St. Anne's survivors, their families and communities," said the statement.

"In addition to existing program supports, Canada is committed to providing dedicated health support funding for St. Anne's claimants during this process. Discussions with survivor representatives are ongoing."

Timmins-James Bay NDP candidate Charlie Angus, who has pushed for the St. Anne's review as an MP, said he's seen how the ongoing legal battles with the Liberal government have worn down and retraumatized St. Anne's survivors. 

"We have said all along: there is no reconciliation possible in Canada without justice for the survivors of St. Anne's," he said.