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

The federal government wanted to retain the documents, but survivors said they were promised confidentiality

A residential school in Fort Resolution, Northwest Territories. Bibliothèque et Archives Canada/Wikimedia Commons

As part of the Canadian government's 2006 Indian Residential Schools Settlement Agreementthousands 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.

The case went all the way to the Canadian Supreme Court, and on October 6, the justicies affirmed the survivors’ right to keep those details private, Sean Fine reports for the Globe and Mail. In a unanimous decision, the court ruled that the 38,000 records provided during the closed hearings can be destroyed, should the survivors wish to do so.

The Indian Residential Schools Settlement Agreement, which went into effect in 2007, includes accounts given by both survivors and alleged perpetrators. The project was intended to promote healing, commemoration and reconciliation, in part by awarding financial compensation to former students of residential schools.

According to Kathleen Harris of CBC News, there were two types of compensation: the first granted funds based on the number of years a person spent at residential schools ($10,000 for the first year and $3,000 for every year after that), and the second provided compensation for abuse that resulted in severe psychological harm, as determined through an independent assessment process. The 38,000 records at stake during the Supreme Court case were collected during this independent assessment process.

The government wanted to keep the documents because they provide first-hand accounts of a dark and often-overlooked chapter of Canadian history. The Truth and Reconciliation Commission, which was tasked with investigating the sordid past of residential schools, hoped to send the records to the National Centre for Truth and Reconciliation, which archives statements and other documents pertaining to Canada’s residential schools. Once at the center, the documents would have been available to the public.

But some residential school survivors argued that they had only agreed to testify because they had been promised confidentiality. And the Supreme Court sided with them.

“As a matter of contractual interpretation, destruction is what the parties had bargained for," the judgment states, according to Harris. "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."

Moreover, the court added, disclosure of the documents could be “devastating to claimants, witnesses, and families. Further, disclosure could result in deep discord within the communities whose histories are intertwined with that of the residential schools system.”

Carolyn Bennett, minister of Crown-Indigenous relations and northern affairs, said she was "very disappointed" by the decision, Harris reports. “We have a whole chapter of our history where the scholarly work that was to be done at the Centre for Truth and Reconciliation,” Bennett said. “That analysis of the system, and the churches and the government has not yet been done."

But 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.

Between the 1860s and 1990s, some 150,000 Indigenous children were required to attend residential schools, which were run by churches and funded by the Canadian government. The schools’ mission was to strip Indigenous children of their culture; students were kept away from their parents for much of the year, and punished severely if they spoke their native language or practiced their ancestral customs.

Conditions at these institutions were dire. As a Truth and Reconciliation Commission report reveals, residential school buildings were poorly built and maintained, staff was limited, and food supply was inadequate. “Child neglect was institutionalized,” the report states, “and the lack of supervision created situations where students were prey to sexual and physical abusers."

The records at the center of the Supreme Court case describe a range of atrocities that took place in residential schools—from "the monstrous to the humiliating," as the Court’s judgment put it, according Harris. These highly personal documents will be kept for the next 15 years. If survivors do not opt to preserve their accounts during that time, the records will be destroyed.

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