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Independent Assessment Process for Abuse Victims of Indian Residential Schools

March 06, 2014

UPDATE – March 6, 2014:

Former students of St. Anne’s have asked the Department of Justice to remove its lawyers from the St. Anne’s IAP process. They say that “after the Department of Justice fought them in court to avoid releasing documents that would help survivors corroborate their claims, they no longer trust the independent assessment process, under the residential school settlement agreement.”

The former students’ request is detailed in this CBC news story. At the end of the story is a copy of the St. Anne’s Narrative prepared by the Government in 2007 for use in respect to claims involving St. Anne’s. It notes that there were two deaths from scurvy or consumption in 1912 and talks about school committees and laundry and cafeteria services. It specifically states that there were no known incidents of sexual abuse at St. Anne’s, even though we now know that in 2003 the Government had obtained access to a massive OPP file documenting numerous allegations of sexual abuse at St. Anne’s, including transcripts and records of convictions of former St. Anne’s staff. While the Government claimed that this was a result of human error, it did not take steps to correct the narrative for a year.

 

UPDATE – January 14, 2014 – Government ordered to disclose documents:

Mr. Justice Perell of the Ontario Superior Court of Justice has issued a decision in which he holds that the Government “misconstrued” its disclosure obligations and ordered it to disclose any documents in its possession relating to abuse at St. Anne’s Indian Residential School.

The Class Action Settlement of the Residential Schools Class Action established an Independent Assessment Process (IAP) as an out of court, alternative dispute resolution process to resolves claims of abuse suffered at Indian Residential Schools. As part of the settlement rules, the Government of Canada must search for, collect and provide a report to IAP adjudicators setting out certain information concerning each residential school in question, and the person(s) who are alleged to have abused a claimant. In particular, the information concerning alleged abusers is to include “any allegations of physical or sexual abuse committed by such persons” while they were an employee or student of the residential school.

In the narrative prepared and distributed by the Government in claims involving St. Anne’s residential school, the Government stated that it did not have in its possession or control any documents or information in which allegations of sexual abuse have been made against employees while employed at the school. This was not the case.

During the 1990s, there was an extensive OPP investigation into sexual and physical abuse at St. Anne’s. As a result of this investigation, a number of former supervisors and employees of St. Anne’s were charged with the sexual abuse, physical abuse and/or assault of former St. Anne’s students and all but one were convicted. The OPP investigation compiled almost 1000 statements from former St. Anne’s students alleging they were abused and/or witnessed the abuse of other children; charts linking the allegations against each of the accused individuals, the victims and the witnesses; and copies of thousands of documents relating to St. Anne’s obtained from the Catholic Church and other sources. Transcripts of the criminal proceedings against former St. Anne’s supervisors or employees also exist. In addition, expert medical reports, prepared in respect to at least one trial and disclosed by the Crown to defence counsel, detail the physical and psychological harm caused to the children by the particular forms of abuse they were alleged to have suffered.

Although it did not admit it until recently, the Government had in its possession many of the documents from the OPP investigation. However, it objected to disclosing them, arguing, among other things, that its obligation to search for and disclose information regarding allegations and criminal convictions of alleged perpetrators did not apply to allegations made after the perpetrator’s term at the residential school was completed. In other words, the Government argued that it had no obligation to provide information about abuse that occurred while a perpetrator was working at St. Anne’s if the allegation of abuse was made after the perpetrator was no longer working at the school. Yet no persons worked at St. Anne’s after 1976, when it was closed.

Justice Perell rejected this argument, holding:

That narrow interpretation makes little sense and is contrary to the reading of the letter and spirit of the IAP provisions of the IRSSA read all together. In particular, it is inconsistent with the provision in Appendix VIII that states that the Adjudicator will be given “any documents mentioning sexual abuse at the residential school in question.” The awkward phrase “where such allegations were made while the person was an employee or student” should be read as saying “where the alleged abuse occurred while the person was an employee or student,” and Canada should produce documents accordingly.

He concluded that the Government had failed to comply with its disclosure obligations. He ordered the Government to produce the OPP documents in its possession, the transcripts concerning incidents of abuse at St. Anne’s and any other documents required by the “proper reading and interpretation” of its disclosure obligations under the IAP.

Read our factum on the motion for directions.

Read the factum of the Truth and Reconciliation Commission of Canada.

More background:

The Government’s 2003 motion seeking an order giving it access to the OPP’s records on abuse at St. Anne’s is here.  PDF

Some of the media coverage of Justice Perell’s decision is here:

CTV News: Ottawa forced to turn over reports of electric chair use at residential school

CBC News: Residential school documents will be released, Ottawa says

Toronto Star: St. Anne’s Residential School: Ottawa will turn over police records to survivors

Globe & Mail: Judge orders Ottawa to release St. Anne’s residential-school documents

Huffington Post: St. Anne’s Residential School Survivors To Receive Police Records

APTN: Feds ordered to produce St. Anne’s documents to TRC

 

Update: November 2013: A Message to IAP Claimant Counsel

A serious disclosure issue has arisen in the IAP process in respect to claims made by former students of St. Anne’s Indian Residential School in Fort Albany, Ontario. We are posting this update to inform other IAP counsel about the issue so that they may consider whether the same issues apply to their clients, whether they are former residents of St. Anne’s or of other residential schools in Canada.

The IAP process requires disclosure

Schedule D, Appendix VIII of the Judgment Order dated December 15, 2006 provides that the Government of Canada must search for, collect and provide a report setting out certain information concerning individuals who have made claims under the IAP process and concerning the person(s) who are alleged to have abused the claimant, as well as gathering information about the claimant’s residential school. The information concerning the alleged abuser(s) is to include “any allegations of physical or sexual abuse committed by such persons” while they were an employee or student of the residential school. The narrative about each IRS is supposed to provide a summary with links to relevant documents.

Appendix VII obligates the Government to provide to each adjudicator with all documents containing allegations of sexual and physical abuse against the alleged “person of interest” in advance of each hearing. Appendix X allows adjudicators to know information in advance, including the modus operandi of proven perpetrators. The IAP process also provides that relevant findings in previous criminal or civil trials, where not subject to appeal, may be accepted by an IAP adjudicator without further proof.

The disclosure issue

The narrative prepared and distributed by the Government in claims involving St. Anne’s IRS states that it does not have in its possession or control any documents or information in which allegations of sexual abuse have been made against employees while employed at the school. In fact, there was an extensive OPP investigation into sexual and/or physical abuse at St. Anne’s in the 1990s. As a result of this investigation, a number of former supervisors and employees of St. Anne’s were charged with the sexual abuse, physical abuse and/or assault of former St. Anne’s students.

Our efforts to uncover this information has revealed that the OPP investigation compiled: approximately 1000 signed statements from former St. Anne’s students alleging they were abused and/or witnessed the abuse of other children; charts linking the allegations against each of the accused individuals, the victims and the witnesses; and copies of thousands of documents relating to St. Anne’s obtained from the Catholic Church and other sources.

In cases where criminal charges were filed against former St. Anne’s supervisors or employees, transcripts of the criminal proceedings also exist. In addition, expert medical reports, prepared in respect to at least one trial and disclosed by the Crown to defence counsel, detail the physical and psychological harm caused to the children by the particular forms of abuse they were alleged to have suffered.

Many of our IAP clients have filed claims for incidents involving the same supervisors or employees of St. Anne’s who were charged with the sexual and/or physical assault of other students as a result of the OPP investigation. In our view, the documents and transcripts relating to the OPP investigation and the criminal trials of these individuals ought to have been disclosed by the Government in accordance with the IAP process.

We are aware that the Government is in possession of at least some of the transcripts from these criminal proceedings. While the Government has taken the position that IAP adjudicators lack jurisdiction to order disclosure, the Superior Court recently ordered the Government to produce three transcripts relevant to IAP cases to be heard in October. It appears from these transcripts that the Government may have obtained many or all of the transcripts relating to former St. Anne’s employees in 2003 during the class action litigation.

Whether an accused was ultimately convicted or not, the transcripts are clearly documents containing “allegations of physical or sexual abuse committed by persons of interest” while they were employed at St. Anne’s and, in our view, fall within the scope of the material the Government is required to disclose as part of the IAP process, as described above.

It is also our position that the Government knew of and had an obligation to obtain and disclose the documents collected during the OPP investigation and any documents relating to the criminal trials that are relevant to any IAP claim.

 

What the class action is about:

The Class Action Settlement of the Residential Schools Class Action established an Independent Assessment Process (IAP) as an out of court, alternative dispute resolution process to resolves claims of abuse suffered at Indian Residential Schools. First Nations people who suffered abuse at Indian Residential Schools in Canada were required to have made their IAP claims by September 19, 2012.

The IAP claims relate to monetary compensation for those people who suffered physical or sexual abuse or other wrongful acts as children at residential schools. If you believe you have an IAP claim, please seek legal advice. We have sought permission to enter the First Nations along the James Bay coast from each Chief and Council prior to commencing our work. We respect that Cree is the mother tongue of the victims of the residential school along the James Bay coast and we have therefore arranged to have some of our documents available in both English and Cree to ensure that clients understand our role. We can arrange for Cree translation, if necessary, for our meetings. Unfortunately we cannot speak the Cree language ourselves.

The legal claim process will unfortunately bring back memories of terrible past childhood experiences. Our team recognises the importance of each person receiving appropriate aboriginal healing and/or approved counselling to provide proper support and hopefully to help in the healing journey and bring closure to the terrible events of the past. We have been seeking advice from an aboriginal healer and approved counsellors as to how to appropriately assist the aboriginal people who suffered. If you live in a James Bay coastal community, you can contact the Weeneebayko Area Health Authority at 705-658-4544 for assistance with flights and accommodations to see an approved counsellor or aboriginal healer in the closest community that offers such services. Counselling is available to all residential school survivors, regardless of whether you made an IAP claim.

Lawyers

Fiona Campbell

Practice Areas

Aboriginal Law, Civil Litigation, Class Action Litigation