Ottawa Thwarting Access to Records in Residential-Schools Case, Court Told

By Colin Perkel
The Globe and Mail
December 17, 2013

http://www.theglobeandmail.com/news/politics/ottawa-thwarting-access-to-records-in-residential-schools-case-court-told/article16006224/



Survivors of a notorious residential school in Northern Ontario were in court Tuesday fighting the federal government for access to thousands of documents they say are crucial to their compensation claims.

The survivors accuse Ottawa of hampering their bid for financial redress by hiding documentary evidence related to a provincial police investigation into St. Anne’s Indian Residential School in Fort Albany.

The police probe in the 1990s turned up evidence of horrific abuse, including use of an electric chair and led to criminal convictions.

“The St. Anne’s school is probably one of the most outrageous examples of the abuse of school children in Canadian history,” said commission lawyer Julian Falconer.

“The truth has to be told.”

The federal government has maintained it has no authority to turn over the police materials.

However, a lawyer for the Ontario Provincial Police told Ontario Superior Court he had no issue turning over the records – if authorized by the courts.

“In order for us to release documents, we need judicial authorization,” lawyer Norm Feaver said.

“We certainly don’t want to stand in the way of anything.”

For its part, the government now says it is taking no position regarding the documents in possession of the police.

However, government lawyer Catherine Coughlan said Ottawa could not turn over the materials it has, because it received them from police on an undertaking they would not be passed on to anyone.

Some former St. Anne’s students and supporters filled the courtroom to hear the arguments.

Among them was Edmund Metatawabin, 66, a victim of the electric chair, who accused the government of trying to “hide” evidence.

Hundreds of aboriginal children from remote James Bay communities were sent to St. Anne’s from 1904 to 1976.

Several adults were convicted in the 1990s following an intensive investigation into claims of abuse at the school.

To settle a class-action suit arising out of the residential school system, the federal government apologized and set up the Truth and Reconciliation Commission to document the abuses.

As part of the process, an independent assessment process was set up to deal with compensation.

Lawyer Fay Brunning, who represents some St. Anne’s survivors, said the claims of her clients were being hampered by the lack of access to the police documents.

“The federal government is not abiding by conditions of the settlement,” Brunning said.

She noted the government went to court in 2003, long after the criminal trials were over, and sought a publication ban on the police documents pertaining to sexual and physical abuse at St. Anne’s.

“There’s relevant documentation missing that has not been produced,” Brunning told court.

“That interferes with the flow of justice.”

But Brunning also wants the court to issue a direction on how the documents should be used in the adjudication process, something the judge clearly had issues with.

“The court can’t interfere,” Justice Paul Perell said.

The hearings were interrupted when a reporter objected to a request by government and adjudicator lawyers for a publication ban and sealing order on materials filed in the proceedings – including those already on the public record.

Media lawyer David Tortell later told the court the presumption must be one of openness, and those who want a ban on publication must show the necessity.

“It’s a very high burden,” Tortell said.

Perell issued an interim order sealing most materials to allow time to hear proper arguments on the issue next month.

He also banned publication of identities of those going through the assessment process, unless they agree to be named.

The hearing continues Wednesday. The government said it was looking forward to Perell’s decision.