Residential school survivors deserve respect
Court order shows history may be repeating itself, Lev Marder writes
In early October, the Supreme Court of Canada passed a unanimous decision in Canada v. Fontaine in extraordinarily ordinary fashion. The judgment upholds the decisions of lower courts to destroy what are called Independent Assessment Process (IAP) documents after a 15-year retention period.
The documents contain testimonies and evidence of the more than 37,000 residential school survivors who shared their experiences during the IAP, which collected the evidence to distribute compensation to survivors of the residential school system. Some argued the documents have invaluable historical significance and survivors would want them preserved. Others insisted those who shared their stories did so under the condition of strict confidentiality and never wanted these document to see the light of day.
Citing the letter of the law on confidentiality and breaches of confidence, the judges passed a well-grounded, if not an appropriate judgment. It raises a host of pressing questions going forward that should concern all Canadians.
Should the Supreme Court have made an exception?
The case was treated as an ordinary case in front of the court — as if the Truth and Reconciliation Commission (TRC) did not recommend the Canadian justice system take steps to recognize and integrate Aboriginal peoples’ perspectives in the judicial process. Relying on precedents and existing laws, the judges re-affirmed they will not proactively pursue some of the TRC recommendations. They signalled significance of the documents, the interest of future generations in what happened to their ancestors, intergenerational justice, and the historical import of these documents for researchers are all trumped by Canadian legal precedents.
Over three years ago, when word spread about the push to destroy the records, the National Centre for Truth and Reconciliation was “flooded with calls from residential school survivors” concerned their records would be destroyed. Yet, the court ruled all IAP records detailing the suffering of residential school victims will be destroyed in 15 years unless the victims give explicit consent to make them public.
Can the dead consent to document preservation?
Some of the victims whose consent is necessary to preserve the documents are no longer alive. The testimonies they gave will be destroyed. The judges recognized “while this order may be inconsistent with the wishes of deceased claimants who were never given the option to preserve their records, the destruction of records that some claimants would have preferred to have preserved works a lesser injustice than the disclosure of records that most expected never to be shared.” Justice, whatever it means for those who wanted to preserve confidentiality, outweighs justice for those who did not live to decide today if they wish to make the documents public — perhaps parts of the record, perhaps heavily redacted or anonymized. Not all victims are like Jane Doe, whose affidavit indicated she comes from such a small community she could be identified against her wishes even if her name were redacted. But who is asking? “I think we need to be asked, not told,” Vivian Ketchum, one of the survivors who participated in the IAP, said in a 2015 interview with CBC Radio. “A little bit of courtesy and respect to survivors that we be asked if we want this or not. All my life I’ve been told to do stuff, never asked … and now I am in my 50s, a little respect to be asked.” The court order does not take the step to stipulate each individual be approached and asked, with respect, if they would want to somehow preserve the evidence. In fact, the silence in this regard speaks volumes.
The court ordered the chief adjudicator of the IAP be tasked with notifying survivors about the Supreme Court decision. In theory, this makes perfect sense. Immediately after the court order became public, the CBC reported Dan Shapiro, the chief adjudicator of the IAP, will take the lead in a “massive” campaign to contact the residential school survivors.
Shapiro, for at least three years, has actively advocated for destroying the records. According to the CBC, he told them he could use “paid advertisements, Facebook and other social media notifications and community meetings.” Is this the sort of asking, with respect, courtesy and individual attention, that Ketchum had in mind?
Must the advocate for the destruction of the records lead the campaign to notify survivors? Is he the right person to ask and will survivors be asked to consent to the preservation of at least some of the records? Perhaps for the benefit of future generations? Perhaps just heavily redacted evidence for the purposes of those who write history, so we do not forget and repeat the past? Or will survivors just be told that they have to decide if all their words should become public?