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Unanimous top court decision on Truth and Reconciliation records retention will reduce tension

Publication: The Lawyers Daily - 30 octobre 2017
Lien: http://www.thelawyersdaily.ca/articles/4965

The case of Canada (Attorney General) v. Fontaine 2017 SCC 47, arises in the context of a class action that brought together nine provinces and territories. An Indian Residential Schools Settlement Agreement (the Settlement Agreement) has been negotiated, designed as a comprehensive settlement of the class action. Compensation based on the amount of time spent in the schools took the form of a common experience payment. Those who had been abused and suffered psychological damage were allowed to bring additional claims under an independent assessment process (IAP).

The case reached the Supreme Court of Canada on appeal from the Ontario courts. The principal issue centred on the treatment of the records of the various steps of the process — were they to be preserved, or destroyed? The Ontario courts had held that the Aboriginals who had come forward, in the context of assurances that any information disclosed or produced would be highly confidential and would not be disclosed, were those entitled to decide whether or not the personal information could become part of the historical record of the residential schools phenomenon.

The Canadian government argued that all information relating to the program and those who were affected by it was part of the history of the residential schools program and should be preserved for posterity, that the records were under the control of the Canadian government and that they could not be destroyed without written authorization of the National Archivist.

The Ontario courts rejected the arguments and the government of Canada appealed. It was clear that the court was going to decide in favour of the survivors of the residential schools. The supervising judges in the class action were found to have had authority to make orders regarding the disposition of the documents, regardless of whether or not they were government documents. The litigious conflicts were between the privacy promised to survivors and the mandate of commemoration and memorialization of the program.

31 octobre 2017

Marder: Allowing the destruction of residential school records : how the Supreme Court missed a chance to help in reconciliation

Publication: Ottawa Citizen - 30 octobre 2017
Lien: http://ottawacitizen.com/opinion/columnists/marder-destroying-residential-school-records-how-the-supreme-court-missed-a-chance-to-help-in-reconciliation

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.

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.

30 octobre 2017

Community key to residential school history preservation: expert

Publication: The Star Pheonix - 27 octobre 2017
Lien: http://thestarphoenix.com/news/local-news/community-education-key-to-residential-school-history-destruction-time-bomb-expert

Half of the living survivors of Indian residential schools in Canada experienced physical and sexual abuses so great they have been paid more than $2 billion in compensation through the Independent Assessment Process (IAP).

Now, 95 per cent of the stories of those stunningly common, extreme abuses are slated to be destroyed by the recent decree of the Supreme Court of Canada.

Social sciences researcher Cindy Hanson hopes at least some of that history can be preserved through community education and support for survivors: they alone have the power to halt the automatic, permanent disappearance of their stories.

IAP chief adjudicator Dan Shapiro has said he is pleased that survivors’ most intimate and painful memories will not be shared without their consent.

“Many claimants told me they would not have participated in the IAP unless they knew that what they said would be kept confidential, even from their families, and even after their death,” he said.

The Government of Canada and Ry Moran, director of the National Research Centre, had argued that the records should not be destroyed.

30 octobre 2017

Poursuites des victimes des pensionnats autochtones : un avocat critique l inaction du Barreau de la Saskatchewan

Publication: Radio-Canada - 24 octobre 2017
Lien: http://ici.radio-canada.ca/nouvelle/1063250/justice-rafle-annee-1960-abus-doug-racine

Un avocat saskatchewanais d'origine autochtone, Me Doug Racine, accuse le Barreau de la province d'avoir fermé les yeux sur les pratiques non éthiques et sur l'avarice de certains avocats impliqués dans le processus d'évaluation indépendant des anciens pensionnaires autochtones.

Dans une lettre de neuf pages envoyée au Barreau le 1er septembre dernier, Me Racine soutient que certains avocats ont abusé de la confiance de leurs clients en profitant de leur vulnérabilité et de leur méconnaissance des frais d’avocats pour empocher des centaines de milliers de dollars, sans que leur travail ne justifie de telles sommes.

25 octobre 2017

Labrador residential school apology the right thing to do, government says

Publication: The Beacon - 20 octobre 2017
Lien: http://www.ganderbeacon.ca/news/labrador-residential-school-apology-the-right-thing-to-do-government-says-156698/

When former Prime Minister Stephen Harper apologized for the legacy of Canada’s residential school system in 2008, survivors in Newfoundland and Labrador were left out in the cold.

On November 24, Prime Minister Justin Trudeau will seek to rectify the exclusion of Newfoundland and Labrador with an event at Happy Valley-Goose Bay.

Details of Trudeau’s visit are yet to be released, but Steven Cooper, an Alberta-based lawyer who represented Newfoundland and Labrador survivors in a class action lawsuit settled last year, said he expects approximately 300 survivors to be in attendance.

23 octobre 2017

Lawyers accused of greed in taking fees from residential-school survivors

Publication: The Globe and Mail - 23 octobre 2017
Lien: http://beta.theglobeandmail.com/news/politics/lawyers-accused-of-greed-in-taking-fees-from-residential-school-survivors/article36686764/?ref=http://www.theglobeandmail.com&

A Saskatchewan lawyer says the law society in his province is turning a blind eye to lawyers who were given thousands of dollars in fees from people abused at Indian residential schools without doing the amount of work that he says would warrant that kind of money.

Doug Racine of the Aboriginal Law Group based in Saskatoon has expressed concern since last spring to the Law Society of Saskatchewan about what he says are the "unethical practices or greed" of many lawyers who handled claims under the Canada-wide Independent Assessment Process, a case-by-case, out-of-court resolution process. He outlined his concerns in a nine-page letter to the law society on Sept. 1 but, as of late last week, said he has still not received a formal response.

Mr. Racine worked for a time as an adjudicator for IAP claims, but quit and began representing the claimants as a lawyer because he was concerned that they were being treated disrespectfully by other lawyers.

23 octobre 2017

Survivors wait for next steps in effort to preserve horror stories of residential schools

Publication: CBC - 22 octobre 2017
Lien: http://www.cbc.ca/news/politics/survivors-residential-schools-documents-1.4365207

Residential school survivors say they are waiting for answers about how records of their experiences will be preserved in the wake of a recent Supreme Court ruling.

The court gave survivors 15 years to decide whether they want their accounts preserved in an archive administered by the National Centre for Truth and Reconciliation.

If no consent is provided, the court ruled, the records must be destroyed. The question some survivors are now asking is what comes next.

In a statement emailed to CBC News, the chief adjudicator of the IAP, Dan Shapiro, said work was underway on a process to contact survivors and inform them of their options.

"We have made good progress on developing a comprehensive notice program that targets IAP claimants, their families and communities," Shapiro wrote.

"We have a draft outline of a robust plan that includes community engagements, paid advertising, social media, earned media and other techniques designed to reach Indigenous people across Canada."

The IAP said the plan will be put before a judge for final approval. But even before that, it said survivors can contact the IAP and submit a written request that their records be transferred to the National Centre for Truth and Reconciliation for archiving.

23 octobre 2017

Indigenous lawyer allowed to resign

Publication: National Post - 18 octobre 2017
Lien: http://www.pressreader.com/canada/national-post-latest-edition/20171018/281947428084144

A high-profile Indigenous lawyer was allowed to resign from the Law Society of Upper Canada, despite admitting to dealing dishonestly with Aboriginal clients, one of whom is suing her for botching a personal injury case.

Hare, a member of the M'chigeeng First Nation and a lawyer since 1995, gave up her license to practice law as of Aug. 15, 2017. Her resignation, dated in June following a Law Society investigation, acknowledges that she did not file applications for compensation with the Indian Residential Schools Adjudication Secretariat for certain clients and failed to submit supporting documents for others.

Hare's resignation also admits that she "did not provide information with honesty and candour" to clients regarding the status of their applications.

18 octobre 2017

Residential school survivors can proactively preserve documents: Bennett

Publication: The Canadian Press - 17 octobre 2017
Lien: http://www.nationalnewswatch.com/2017/10/17/residential-school-survivors-can-proactively-preserve-documents-bennett/

OTTAWA — An effort is underway to tell residential school survivors their records can still be preserved if they choose, says Crown-Indigenous Relations Minister Carolyn Bennett — comments that follow a recent Supreme Court of Canada ruling that said documentation on the abuse of former students can eventually be destroyed.

"There is an engagement process that will begin right now of that proactive reaching-out to all of the survivors to be able to explain the facts, explain that it is still their choice," Bennett said in an interview.

"I also think if more and more individuals ... can be made aware if the individual puzzle pieces drop out of the pattern, that you won't be able to really track this terrible chapter in our history."

18 octobre 2017

Ottawa let Catholic Church off the hook for millions in residential school compensation

Publication: APTN - 13 octobre 2017
Lien: http://aptnnews.ca/2017/10/13/ottawa-let-catholic-church-off-the-hook-for-millions-in-residential-school-compensation/

The source of an April 2016 Globe and Mail report outlining a mistake by federal government lawyers which allowed the Catholic Church to escape paying $21 million in obligations to the Residential School Settlement Agreement, now says that number is actually millions of dollars higher.

Ron Kidd, of Vancouver, said that of the $54 million various Catholic Church entities had agreed to pay, $37,875,660 has not been paid.

Kidd is a former provincial tax auditor, self-appointed church watchdog, and gay rights activist. He has a history of successfully leading anti-discrimination cases that trace back to the early 1990s.

16 octobre 2017

Cash settlement for residential school survivors a beginning Hughes says

Publication: The Star Pheonix - 13 octobre 2017
Lien: http://thestarphoenix.com/news/local-news/cash-settlement-for-residential-school-survivors-a-beginning-hughes-says

The only way to get survivors of the worst abuses at Indian residential schools to agree to tell about “the evil that went on in those schools,” was to promise them confidentiality, says Ted Hughes, the first chief commissioner of the process to pay them restitution.

Hughes, 90, who is in Saskatoon this week, said he agrees with the recent Supreme Court of Canada decision that the records must be destroyed unless living survivors say they want their own stories preserved.

“We wouldn’t have got that story as fully as we did if we had not given assurances (of confidentiality). I have no problem with them being encouraged to change their minds, but that’s an individual decision,” he said.

16 octobre 2017

Deceased abuse victims owed confidentiality

Publication: London Free Press - 14 octobre 2017
Lien: http://www.pressreader.com/canada/the-daily-observer/20171014/281565175987583

What is the duty of the dead toward their oppressors? the ethical dilemma arises in the context of the Supreme court's decision that testimony from 38,000 residential school survivors can be destroyed. the records relate to abuse and serious psychological harm suffered by about 38,000 residential school survivors who pursued claims beyond the standard compensation offered to all former students, in lawsuits settled a decade ago.

Survivors can opt to have their records preserved, but the testimony of those who have since died will be erased. the federal government fought to preserve the accounts as part of an important historical record - highlighting systemic failures, and educating generations of canadians - to ensure such atrocities will never be repeated, nor forgotten. the trouble is they were promised, in writing, their stories would be treated confidentially. the government now has a 15-year window to plead its case to survivors, who retain the final word on whether their testimony may be archived by the National centre for truth and Reconciliation. Deceased claimants, however, cannot have their records preserved.

Opinions on the Supreme court ruling are polarized. Many feel destroying the records is tantamount to whitewashing a dark chapter of our history. But the trade-off is a massive breach of privacy.

If written assurances of confidentiality can be upended after the testimony is delivered, how can we argue our justice system has any credibility? there is no perfect solution. Either important historical documents will be lost, or the government risks inflicting more harm on the families of survivors who, after all, qualified for settlements because of the grave harms they had already suffered.

16 octobre 2017

Destruction of residential school records called a blow to the country

Publication: Star Pheonix - 11 octobre 2017
Lien: http://thestarphoenix.com/news/local-news/destruction-of-residential-school-records-called-a-blow-to-the-country

Canada “lost a significant amount of truth” about the worst abuses at Indian residential schools with last week’s Supreme Court of Canada decision that records should be destroyed, says the director of the National Centre for Truth and Reconciliation.

The Supreme Court ruled that survivors who told detailed accounts of horrific physical and sexual abuses at Indian residential schools in an assessment process to decide financial compensation were told their stories would be kept private and signed confidentiality agreements.

Many survivors and the federal government argued that the records should be preserved at the National Centre, which houses the documents gathered by the 2009-15 Truth and Reconciliation Commission and which is tasked with making the complete history available to all so that the cultural genocide committed in the schools will always be part of Canada’s history.

The court agreed that people who now want their stories preserved will have that option. The stories of people who have already died and those who fail to opt in will be destroyed.

12 octobre 2017

Records of Residential School Abuse Can Be Destroyed, Canadian Supreme Court Rules

Publication: The Smithsonian - 11 octobre 2017
Lien: http://www.smithsonianmag.com/smart-news/canadian-supreme-court-rules-records-residential-school-abuse-can-be-destroyed-180965232/

As part of the Canadian government's 2006 Indian Residential Schools Settlement Agreement, thousands of Indigenous Canadians have shared harrowing memories of their time in government-run residential schools in hopes of obtaining compensation for years of neglect and mistreatment. The survivors provided accounts of physical, emotional and sexual abuse during closed hearings, believing that their testimony would remain confidential.

But the government has fought to retain the testimony for historical documentation. Seeking recourse in the legal system, the government argued that because the testimony was government record, it could not be legally destroyed, Colby Cosh explains in the National Post.


Joe Avery, a lawyer representing the independent body that administered the assessment of compensation claims, told Fine of the Globe and Mail that the court’s ruling was appropriate. “[I]t is for the survivors of the residential school tragedy to control the fate of their extraordinarily sensitive and private stories of physical and sexual abuse and not Canada, which caused or contributed to the horrible harms to those survivors in the first place,” he said

12 octobre 2017

First Nations day students move towards settlement in residential school dispute

Publication: National Post - 11 octobre 2017
Lien: http://nationalpost.com/pmn/news-pmn/canada-news-pmn/first-nations-day-students-move-towards-settlement-in-residential-school-dispute

KAMLOOPS, B.C. — Three First Nations say they have reached a memorandum of understanding with the federal government that could keep their bid to include day students in a settlement for residential school survivors out of court.

The Tk’emlups and Sechelt bands in B.C. launched a class-action lawsuit in 2012 after a settlement between the government and about 86,000 residential school survivors excluded day scholars, students who attended the schools but did not live at them. They were later joined in the lawsuit by the Grand Council of the Crees in Northern Quebec.

The First Nations say the memorandum commits both sides to resolve the case without going to court by finding a fair settlement in a timely manner.

12 octobre 2017

Victims privacy overrides federal government’s wish to preserve residential school records, Supreme Court rules

Publication: The Star - 06 octobre 2017
Lien: http://www.thestar.com/news/canada/2017/10/06/records-of-residential-school-abuses-can-be-destroyed-supreme-court-rules.html

OTTAWA— The promise of privacy to encourage abuse victims to tell their story overrides the government’s wish to preserve for future generations individual records of the horrors of the Indian residential school system, the country’s top court ruled Friday.

The decisive 7-0 ruling by the Supreme Court of Canada gives former residential school students a 15-year period to decide if they wish their stories preserved, but it leaves that decision in their hands instead of the government’s archivists.

Assembly of First Nations National Chief Perry Bellegarde called it a “good and fair decision” that respects the rights of former residential school students, but Carolyn Bennett, minister of Crown-Indigenous Relations and Northern Affairs, said she was “very disappointed” because scholarly work aimed at “analysis of the system in the churches and in government has not yet been done.”

“That’s why the centre for truth and reconciliation wanted access to the documents,” said Bennett. “It is the reason the Government of Canada did want those documents preserved.”

But the court said the ability to control their own story was a key part of the deal the Canadian government struck with former students in 2008 to settle a massive class action lawsuit over the devastating legacy of the residential schools.

The ruling upheld a supervising judge and an Ontario Court of Appeal’s conclusion that federal laws on the preservation of records were never expressly part of the deal, and couldn’t be assumed to apply after the fact.

10 octobre 2017

AFN National Chief Perry Bellegarde Welcomes Supreme Court Decision on the Rights of Former Residential Schools Students: Their Testimony Must Be Respected

Publication: AFN - 06 octobre 2017
Lien: http://www.newswire.ca/news-releases/afn-national-chief-perry-bellegarde-welcomes-supreme-court-decision-on-the-rights-of-former-residential-schools-students-their-testimony-must-be-respected-649804343.html

OTTAWA, Oct. 6, 2017 /CNW/ - The Assembly of First Nations (AFN) National Chief Perry Bellegarde said today's Supreme Court of Canada's decision ensures the rights of former residential school students are respected as part of the continuing work towards justice, healing and reconciliation.

On October 6, 2017, the Supreme Court of Canada dismissed an appeal by Canada to take full control of sensitive documents and transcripts created by individuals who participated in the Independent Assessment Process (IAP), part of the Indian Residential Schools Settlement Agreement. These documents outline abuses individuals suffered, as well as how the Indian Residential School experience affected their lives into adulthood.

"Individual testimony belongs to each individual. This is a good and fair decision by the Supreme Court today," said AFN National Chief Bellegarde. "Each individual has the right to decide if their personal stories and experiences told during the Independent Assessment Process (IAP) are made public or kept private. This is especially true in these situations, where the testimony deals with very personal experiences of trauma and abuse. Many former students shared their stories on the understanding that the IAP hearing was private and confidential. This must be respected."

Northwest Territories Regional Chief Bill Erasmus who holds the portfolio for Indian Residential Schools for the AFN also expressed his endorsement of the Supreme Court's decision. "The AFN has always advanced the proposition that only students of Indian Residential Schools have full and complete control over their experiences and testimonies. The Supreme Court of Canada has now endorsed AFN's position. Any attempt to access IAP records will now require the express written consent of the individual concerned."

10 octobre 2017

Trudeau to apologize Nov. 24 for residential schools in Newfoundland and Labrador

Publication: Global News - 06 octobre 2017
Lien: http://globalnews.ca/news/3790467/trudeau-to-apologize-nov-24-for-residential-schools-in-newfoundland-and-labrador/

It was described as a “double dagger to the heart” when former residential school students from Newfoundland and Labrador were shut out of a national apology in 2008.

They’re to be included at last when the prime minister visits Labrador on Nov. 24, his office confirmed Friday.

Justin Trudeau will be in Goose Bay to offer an apology that will be crafted with input from those abused in the now defunct schools.

About 1,000 class-action members accepted a $50-million package last year from the Trudeau government to settle claims of sexual and physical abuse along with language and cultural losses.

Harper left out Newfoundland and Labrador’s former residential schools from his apology and a related compensation package. His Conservative government argued they weren’t “akin” to institutions established under the federal Indian Act and therefore didn’t qualify.

10 octobre 2017

Supreme Court of Canada Bulletin - October 6, 2017

Publication: lexology - 06 octobre 2017
Lien: http://www.lexology.com/library/detail.aspx?g=5ede7847-20b3-41bb-89ee-ec1b78ed01e1

Canada (Attorney General) v. Fontaine, 2017 SCC 47 – Civil procedure – Class proceedings – Settlement

On appeal from a judgment of the Ontario Court of Appeal (2016 ONCA 241) substantially affirming a decision of Perell J. (2014 ONSC 4585).

The supervising judge found that the IAP records must be destroyed following a 15-year retention period, during which individual IAP claimants could elect to have the records in their own file preserved. This order was substantially upheld by the majority of the Ontario Court of Appeal. The Attorney General of Canada appeals to this Court, arguing that the IAP Documents are “under the control of a government institution” within the meaning of the Access to Information Act, the Privacy Act and the Library and Archives of Canada Act, and that the supervising judge had no jurisdiction to order their destruction.

Held (7-0): The appeal should be dismissed.

10 octobre 2017

Indigenous peoples can decide fate of residential-school settlement records, Supreme Court rules

Publication: The Globe and Mail - 06 octobre 2017
Lien: http://beta.theglobeandmail.com/news/national/records-of-residential-school-abuse-can-be-destroyed-supreme-court/article36511037/?ref=http://www.theglobeandmail.com&

Survivors of Canada's residential schools for Indigenous people can destroy records of their "monstrous" abuse if they wish, because that is what the federal government promised them, the Supreme Court of Canada ruled unanimously on Friday.

Senator Murray Sinclair, who headed the Truth and Reconciliation Commission, which examined the schools' legacy, had said the country's historical memory was at stake in the case. However, the survivors said they testified only because they had been assured of confidentiality. Two lower courts had sided with the survivors.

The Supreme Court said educating future generations through the preservation of documents should not be done at the expense of the people who testified. Those individuals, it said, had been expressly promised confidentiality in writing.

The court also said that, in 32 per cent of the cases, survivors applied for compensation on the basis of student-on-student abuse. If disclosed, such individual records could have destructive effects on communities, it said.

Ottawa had argued that it controlled the records and wished to preserve them. Crown-Indigenous Relations Minister Carolyn Bennett said on Friday she was "very disappointed" by the ruling because it will harm research on the residential schools.

10 octobre 2017

Records of residential school abuses can one day be destroyed: top court

Publication: The Record - 06 octobre 2017
Lien: http://www.therecord.com/news-story/7601321-records-of-residential-school-abuses-can-one-day-be-destroyed-top-court/

OTTAWA — The Supreme Court of Canada says records detailing the abuse of former residential school students can eventually be destroyed.

The 7-0 high court ruling Friday brings clarity to an issue that pitted the privacy of victims against the importance of documenting a dark chapter in Canada's relations with Indigenous Peoples.

The Supreme Court upheld a lower court ruling that said the sensitive material collected for the independent assessments should be destroyed after 15 years.

In its reasons for the decision, the Supreme Court said the negotiators of the settlement agreement intended the assessment process to be a confidential and private one, and that claimants and alleged perpetrators relied on these confidentiality assurances.

10 octobre 2017

Colby Cosh: The Supreme Court ordering official records destroyed?! Actually, good call

Publication: National Post - 06 octobre 2017
Lien: http://nationalpost.com/opinion/colby-cosh-the-supreme-court-ordering-official-records-destroyed-actually-good-call

It is worth saying this about the Supreme Court’s Thursday decision in the case of Canada v. Fontaine: it hurts. In a unanimous (7-0) ruling, the court agreed that records and transcripts of residential-school survivor testimony collected under the “truth and reconciliation” process can be destroyed.

The federal government had pushed the case to the Supreme Court level, arguing that the records are government documents now, and that the law of Canada literally does not permit them to be annihilated. But witnesses who gave testimony about suffering abuse, humiliation, and cultural torment in the schools said they had spoken out under a super-strong promise of confidentiality. (They had plenty of evidence for that, too.) To many of them, technical arguments for preserving painful, intimate secrets have looked like a horrible bait-and-switch.

That judge decided that the records should be destroyed after they had been retained for a while to give individual witnesses the choice to order them preserved. The Ontario Court of Appeal basically upheld this scheme, and the Supreme Court has now ordered that the files will be archived for 15 years before being wiped out or, if witnesses prefer, forwarded to the National Research Centre for Truth and Reconciliation (NCTR) at the University of Manitoba.

In other words, it is not a wholesale conflagration of personal stories. The court merely recognized that the people who told these stories in a confidential setting are the proper, rightful owners of those stories, as captured in that particular form. The federal government had advanced the theory that the transcripts and other recordings are “government records” and that it must follow statutory rules for documents that are in government hands. The court accepted the counterargument, which ought to have been pretty obvious: these are litigation records generated in a dispute resolution process. The government’s position is that of a custodian, not a proprietor.

10 octobre 2017


Publication: Sherbrook Times - 06 octobre 2017
Lien: http://sherbrooktimes.com/the-documents-on-the-aboriginal-residential-schools-may-be-destroyed/13365

Ottawa — The supreme Court of Canada affirms that the documents detailing the assaults suffered by former students of aboriginal residential schools may be destroyed.

The unanimous decision of the highest court in the land clarifies this issue, one that pitted the right to privacy of the victims to the importance of documenting this dark chapter in relations between Canada and aboriginal peoples.

The supreme Court has confirmed the judgment of a lower court indicating that the material should be destroyed after 15 years. Individuals may, however, agree to preserve their history at the national Centre for truth and reconciliation in Winnipeg.

10 octobre 2017

SCC rules residential school survivors testimony should be kept private

Publication: Canadian Lawyer - 06 octobre 2017
Lien: http://www.canadianlawyermag.com/legalfeeds/author/alex-robinson/scc-rules-residential-school-survivors-testimony-should-be-kept-private-14760/

The Supreme Court of Canada has found that records of the sensitive testimony of residential school survivors from settlement hearings will be kept confidential.

Last year, the federal government asked the Supreme Court of Canada to consider the issue after the Ontario Court of Appeal found the records should be destroyed after 15 years unless survivors chose to have them preserved. The testimony was submitted in the Independent Assessment Process, and included information on the claimants’ medical, psychiatric, financial and incarceration history.

The Supreme Court’s decision will mean records in more than 37,000 claims will not be made public without the claimants’ consent.

10 octobre 2017

SCC: Residential Schools Settlement Agreement records may be destroyed

Publication: National Magazine - 06 octobre 2017
Lien: http://nationalmagazine.ca/Articles/October-2017/Residential-Schools-Settlement-Agreement-records-m.aspx

In Canada v. Fontaine, the Supreme Court of Canada has ruled that files on individual residential school survivors may be destroyed.

What the dispute was about: The Indian Residential Schools Settlement Agreement, implemented over a decade ago, settled several class actions brought by survivors of residential schools. It established what’s known as the Independent Assessment Process to compensate victims of psychological, physical or sexual abuse. Making a claim under the IAP involved disclosing highly sensitive information for an adjudicator to examine to determine compensation. The claimants were promised confidentiality.

How a unanimous court saw it: “The destruction order is subject to a 15-year retention period, during which claimants may choose to have their IAP Documents preserved and archived. That choice will be brought to the attention of claimants through a notice program administered by the Chief Adjudicator.

10 octobre 2017

Putting cap on $800M Sixties Scoop agreement shows feds getting smarter in negotiations: lawyer

Publication: National Post - 06 octobre 2017
Lien: http://http://nationalpost.com/news/politics/putting-cap-on-800-million-sixties-scoop-agreement-shows-feds-are-getting-smarter-in-negotiations-lawyer

An $800-million settlement with Sixties Scoop survivors announced Friday shows the federal government is getting “smarter” in negotiating such agreements, according to a lawyer involved in one of the class-action lawsuits.

The settlement, which will see survivors receive between $25,000 and $50,000 each, seems designed to avoid the unchecked cost of the residential school settlement agreement, as well as unethical practices on the part of lawyers representing survivors.

“The federal government is getting smarter, in some ways, as they move forward,” said Steven Cooper, counsel for a Sixties Scoop class-action lawsuit in Alberta, one of 18 across the country. “I really think that this settlement represents the paradigm for settlements in the future.”

But unlike the historic settlement reached with the survivors of residential schools in 2005, this agreement is capped. Survivors will not receive more than $50,000 each, and may receive as little as $25,000, depending on how many claimants come forward.

In contrast, the residential school settlement had no cap, and the $2.8 billion originally estimated in payments to former students has swollen to $4.7 billion and counting, due to a larger-than-expected number of claimants.

In another departure from the residential school settlement, the Sixties Scoop agreement will set aside $75 million for claimants’ lawyers, who will not be permitted to charge their clients any part of their award.

In the wake of the residential school settlement, some lawyers charged survivors so much relative to the amount of time they spent on their claims that they were eventually ordered to pay back fees, including one who had to pay back more than $2 million.

10 octobre 2017

Pensionnats autochtones : la décision de la Cour suprême accueillie favorablement

Publication: Radio Canada - 09 octobre 2017
Lien: http://beta.radio-canada.ca/nouvelle/1060500/pensionnats-autochtones-decision-cour-supreme-accueillie-favorablement

De nombreux membres de Premières Nations accueillent favorablement la décision de la Cour suprême du Canada vendredi d'autoriser la destruction des témoignages entourant les pensionnats autochtones.

Dans une décision unanime, le plus haut tribunal du pays a statué que les documents détaillant les agressions subies par les enfants pourront être détruits après 15 ans, sauf si les victimes décident de préserver leurs dossiers.

10 octobre 2017

Opinion | Destroying personal accounts of residential schools would just compound the tragedy

Publication: CBC News - 10 octobre 2017
Lien: http://www.cbc.ca/news/opinion/residential-schools-record-1.4344096

History books relay facts. Personal accounts tell stories.

So it was with a mix of sadness and disappointment that I read the Supreme Court of Canada's ruling that thousands of records of horrific abuse at residential schools are to be destroyed.

The documents were collected from the testimony of over 38,000 survivors who testified in private hearings for compensation for the abuse they suffered. Many more, I'm sure, never had that chance.

Canada's government sought to preserve those records, but in a unanimous decision Friday, the court shot it down, noting that "the independent assessment process was intended to be a confidential process, and both claimants and alleged perpetrators had relied on that assurance of confidentiality in deciding to participate."

A child of survivors

I am the child of residential school survivors. Also, at 42 years old, I'm one of few among my siblings who didn't attend residential school or "day schools." Though my mother spoke more and more about her experience as a student in Saskatchewan as she aged, my father never uttered a word — at least not to me. I have heard from many more like myself, who were spared from the schools, who share that same experience of silence.

So simply put, those records— as horrific as I am sure they are — are proof of what happened in the schools. Contained in them are specific details of one of the darkest chapters in this country's history: the loss of language, culture and family. The physical, emotional abuse and sometimes repeated sexual assaults of tens of thousands of children.

10 octobre 2017

Truth-telling helped us, and its helping Canada. says residential school survivors daughter

Publication: CBC News - 10 octobre 2017
Lien: http://www.cbc.ca/news/canada/saskatoon/truth-telling-helped-us-helped-canada-residential-school-survivor-1.4346873

Amanda Adrian knew there was something wrong with her dad, Ted Quewezance.

Then, more than two decades ago, Quewezance became one of the first survivors in in the country to share his story publicly.

Quewezance, who went on to serve as executive director of the National Residential School Survivors' Society, is one of more than 37,000 survivors who testified in private, Independent Assessment Process (IAP) hearings to determine compensation. Many of the survivors shared graphic accounts of abuse. Debate has raged over the fate of the transcripts.

Some argued the survivors were promised confidentiality, and the records should be destroyed immediately. Chief adjudicator and Saskatoon lawyer Dan Shapiro said many would have been too afraid to testify if there wasn't a promise of confidentiality.

Last week, the Supreme Court said those survivors will be able to choose whether their testimony is kept. If the survivor does not consent to the records being archived, they will be destroyed after 15 years.

These 37,000 records are separate from the public testimony given by more than 7,000 people to the Truth and Reconciliation Commission. The TRC commissioners travelled the country gathering stories from survivors at public events in Saskatoon, La Ronge and many other communities. Those records are not in question and will remain public.

Adrian and Quewezance agree survivors should have complete control over the fate of their own testimony. But they hope most of the 37,000 survivors will have the courage to preserve and discuss these invaluable records. It will help Canadians, but also the survivor and their own family.

10 octobre 2017

Un survivant des pensionnats autochtones conserve son témoignage

Publication: Radio Canada - 10 octobre 2017
Lien: http://beta.radio-canada.ca/nouvelle/1060551/survivant-pensionnats-autochtones-temoignage-ted-quewezance

Ted Quewezance, survivant et directeur général de la Société nationale des survivants des pensionnats autochtones, a décidé de préserver son dossier. Il espère que les autres survivants conservent leurs témoignages qui, selon lui, aideront les victimes et leurs familles à guérir au fil du temps.

Ted Quewezance et sa fille, Amanda Adrian, se réjouissent de la décision du plus haut tribunal au pays. La Cour suprême du Canada a annoncé, le 6 octobre, que les documents sur les pensionnats autochtones détaillant les agressions pourront être détruits après 15 ans, sauf si les victimes décident de préserver leur dossier.

Ted Quewezance et sa fille sont d’avis que les survivants devraient avoir le contrôle sur l’avenir de leurs témoignages. Tout de même, l’ancien chef de la Première Nation Keeseekoose espère que la majorité des 37 000 survivants préservent et discutent de leurs témoignages.

10 octobre 2017

Supreme Court set to rule on Indigenous residential school records

Publication: CBC NEWS - 05 octobre 2017
Lien: http://www.cbc.ca/news/politics/residential-schools-records-supreme-court-1.4342475

The Supreme Court of Canada is set to decide whether some of the most sensitive and personal stories of abuse at Canada's residential schools should be preserved or destroyed.

The decision, to be handed down Friday, will determine what should become of more than 38,000 detailed accounts from former students about the mistreatment they suffered while at the schools.

Highly detailed and often painful, the recollections were gathered as part of the federal government's 2006 Indian Residential Schools Settlement Agreement.

What to do with them is a question that has divided Indigenous groups.

06 octobre 2017