People relax beside the Edwina Sandys sculpture "Pillars of Justice" outside the court house at 361 University Avenue in Toronto in this October, 2012 photo.Randall Moore/The Globe and Mail
Testimony from Indian Residential School victims should be destroyed after 15 years unless individuals permit their accounts to be archived, an Ontario court has ruled, raising questions about the extent to which detailed records of one of Canada's darkest chapters will be preserved for generations to come.
Superior Court Justice Paul Perell said in a decision released Thursday that destroying the documentation is "more likely to foster reconciliation," which is one of the goals of the federal Indian Residential Schools Settlement Agreement. But he added a caveat: Survivors should have a 15-year window to decide whether they want to transfer their testimony to a national archive at the University of Manitoba.
"It is the survivor's story to tell or not tell and it is the survivor's individual decision that must be respected," Justice Perell wrote in his 68-page ruling, which says the records in question, submitted by individuals seeking compensation, will have to be wiped of personal information related to "alleged perpetrators or affected parties."
The ruling highlights the delicate balance between respecting the privacy of those who suffered abuse and preserving all Canadians' access to a significant part of history, during which aboriginal children were forcibly removed from their homes to attend church-run residential schools. It also raises questions about how the 15-year notification process will roll out at a time when Ottawa is facing fierce criticism over how it engages with aboriginals on critical issues such as resource development and on-reserve education.
"There's strong historical value in the records, but we didn't think the preservation of history should happen at all costs without consultation with survivors," said Ry Moran, the director of the national archive, which could play a role in crafting and perhaps leading the notification process.
The future of the hundreds of thousands of documents has been the subject of legal debate ever since the head of the compensation assessment process, Dan Shapiro, asked the Ontario court to order the materials destroyed in the interest of confidentiality – a move opposed by the federal Truth and Reconciliation Commission, which was established to tell the full story of what went on behind residential school walls.
"What we now have is at least the prospect of educating survivors on their choices, but so many questions remain unaddressed, such as the content of the notice program, how it would be funded and who would administer it," said the commission's lawyer, Julian Falconer, adding that the notification program will be discussed at a later hearing.
Mr. Falconer said it's too soon to speculate on which parties might appeal the decision, while Mr. Moran said the research centre doesn't currently anticipate launching an appeal. Aboriginal Affairs Minister Bernard Valcourt's office said the government is still reviewing the ruling "to determine next steps."
Justice Perell's decision drew praise from the Assembly of First Nations, which said the court rightly put the choice in the claimant's hands, and from Mr. Shapiro, who said in a statement he was pleased with the ruling. He said it will be "a huge relief" to the thousands of claimants who appeared at hearings "fully expecting" their accounts wouldn't be made public without their consent.
Some 150,000 aboriginal children were forced to attend residential schools from 1857 to 1996 as part of the government's efforts to assimilate them into the dominant culture. Of the 80,000 or so living former students, roughly 20,000 have already submitted testimony and another 20,000 are expected to do so soon, Mr. Moran said.
Anthony Johnston, a Cree man whose siblings and parents attended residential schools, said at least one of his older brothers submitted testimony to the independent assessment process. He expects his brother will want his documents archived, and said he's personally supportive of preserving the unvarnished truth.
"I don't want history to be lost," Mr. Johnston said. "We need to remember that bad things happened in the past. Let's not repeat them."