Court to decide whether to destroy records

If the Ontario Court of Appeal decides that records from the Independent Assessment Process are to be held on to, one residential school survivor has given notice he will take legal action.

“This is a legal matter that will boil over and, I guarantee you, I won’t be the only one in the line-up. There will be others following,” said Allan Adam, who attended Holy Angels residential school in Fort Chipewyan. “My IAP records should be destroyed because that was the arrangement I made when I went into it.”

At the end of October, the Ontario Court of Appeal heard arguments from a number of parties on whether to uphold a lower court decision to keep the IAP records for 15 years before destroying them.

In August 2014, Justice Paul M. Perell of the Ontario Superior Court, called for the destruction of documents obtained through the IAP following a 15-year retention period. He ordered that the federal government destroy all the IAP documents it has in its possession after 15 years and that any other parties, which would include the four churches that signed the Indian Residential School Settlement Agreement, or any individuals in possession of the documents, destroy them immediately after the completion of the IAP hearings.

Perell also ordered that a notice program be put in place during the retention period to reach IAP claimants and provide them with the option of archiving their statements, with all personal information and information about alleged perpetrators, blacked-out.

Dan Shapiro, chief adjudicator of the IAP, says the records need to be destroyed in keeping with the promise of confidentiality that was made to the survivors before they spoke. Shapiro would like to see that time frame dropped from 15 years to two years.

Canada’s position is the IAP records are government property and should be held by the government and eventually stored in the national library and archives.

Justice Murray Sinclair, chair of the Truth and Reconciliation Commission, has expressed his concern that destroying all the IAP records would be a step toward future non-Aboriginal generations being able to deny the damage caused by residential schools. Sinclair would like to see the records that are kept stored at the National Centre for Truth and Reconciliation in Winnipeg.

Ry Moran, director for the National Centre for Truth and Reconciliation, says he has heard from survivors, who want the records destroyed and those who don’t.

“In that uncertainty we say it seems risky to destroy this information before survivors have been properly informed about their choice to preserve this information if they so choose,” said Moran.

He believes it is important that the survivor community talk about the “incredibly powerful but extremely sensitive collection of records,” whether they should be kept, and if they should be stored at the National Centre “under Indigenous control.”

Adam feels this is a discussion that should not be taking place. Those survivors who felt their records should not be destroyed should have said so at the beginning of the IAP, he says. And it shouldn’t be in the court.

“Right now, across this country, if it’s truth and reconciliation about working and trying to patch things up, this thing should be taken out of the courts immediately and say it’s because of the survivors; it never should have been brought up,” said Adam.

But Moran says that many survivors he has spoken to about their IAP records, after the initial anger, begin to see value in having them preserved.

“Our job, as with the statement gathering process we ran with the TRC, our job is not to convince survivors one way or another. It is to provide them, I believe, with the full information on what preservation would look like, the full set of facts necessary for them to make an informed decision on this,” said Moran. “They should be in the driver seat.”

Moran says he could see a multi-option consent process, similar to the TRC statement gathering process: survivors, who will allow full public access, and those, who want their records preserved but kept private.

There is no timeline as to when a decision from the court is to be expected.