Indigenous leaders want independent criminal probes into residential schools

Ottawa is soliciting names from Indigenous leaders to fill a new federal position that will help guide the identification and protection of unmarked graves at former residential school sites across the country.

But some of these leaders say Ottawa should also appoint someone to pursue criminal charges against the people and entities responsible for decades of abuse and wrongful deaths at the institutions.

First Nations groups say if Canada truly wants to account for the horrors of the residential schools, the federal government must go above and beyond its current proposal for an appointee, known as an interlocutor, who Ottawa says will speak with Indigenous communities and form recommendations about how federal laws and legal tools can be changed to protect unmarked burial sites.

RoseAnne Archibald, the National Chief of the Assembly of First Nations, said her organization’s executive is mulling over interlocutor candidates before providing a shortlist to the Department of Justice, which announced the new position right before the federal election was called in August.

But she said the future appointee’s mandate will be “extremely limited,” and appears to be mainly to act as the government’s liaison with First Nations. A three-page draft document obtained by The Globe and Mail in August indicates the interlocutor will not be allowed to interview potential witnesses and victims, collect original documents and seize physical evidence, powers that could help inform future criminal cases.

“There are some roadblocks that would stop someone from really being able to do what First Nations are looking for in terms of independent investigations, of [powers like] getting autopsies – there’s a big road ahead,” Ms. Archibald told The Globe and Mail last week, three days after she appeared with Prime Minister Justin Trudeau on Tk’emlúps te Secwépemc territory.

“Somebody has to start interviewing those survivors who told those stories to Murray Sinclair in the TRC [Truth and Reconciliation Commission] process and start to drill down into: ‘Where did that happen? What school was that?’

“That’s why we need this kind of thorough and independent investigation.”

Ms. Archibald said she hopes the re-elected federal Liberal government will bring in an independent official with the support of the United Nations to investigate how thousands of Indigenous children died and why they were buried in unmarked graves at these former school sites.

This summer, the AFN voted at its annual general assembly to seek justice at the International Criminal Court for crimes against humanity perpetrated by the government of Canada and the Catholic Church.

Starting in the late 19th century, more than 150,000 First Nations, Métis and Inuit children were taken from their families and forced to attend residential schools across Canada, where thousands died – many from disease, neglect, malnutrition and abuse. The last institution closed in 1996.

Many Indigenous leaders have called for an independent inquiry into what happened at the residential schools, and criminal investigations headed by experts other than the Royal Canadian Mounted Police.

Mary Ellen Turpel-Lafond, a law professor who leads the University of British Columbia’s Indian Residential School History and Dialogue Centre, said she has stopped responding to requests from the Department of Justice for input on the interlocutor position because Ottawa doesn’t appear interested in holding anyone or any institution to account with criminal probes.

Dr. Turpel-Lafond, a former Saskatchewan Provincial Court judge and a member of the Muskeg Lake Cree Nation, said she told them to call back when they are serious. “By taking these issues out of play before we even decide what’s needed for accountability speaks volumes about the fact that they have not heard what we have been saying.”

Dr. Turpel-Lafond said an independent investigative team is needed to go through the available evidence and examine disturbing patterns described by survivors since testimony was first recorded and confirmed in civil lawsuits and the Truth and Reconciliation Commission. More recently, she said, she has again heard of potential crimes through her work at UBC’s centre as well as helping First Nations working on community narratives of residential schools that operated on or near their territory.

For example, Dr. Turpel-Lafond said, some death certificates have been found showing children suffocated – which is concerning, because minors can asphyxiate as a result of sexual abuse by an adult and their deaths are often described as self-harm or suicide, she said. She added that other necessary lines of investigation include accounts of children dying while doing dangerous manual labour, and families reporting suspicious deaths of their children at these sites and seeing their local police do nothing.

“We have to remember that more parents and kids were prosecuted [over attempts] to leave the schools than anyone who ran the schools,” she said.

In June, after 751 unmarked graves were discovered at the Marieval school in Saskatchewan, the Native Women’s Association of Canada demanded the Attorney-General of Canada declare all former residential school sites crime scenes. The association is also demanding investigations to determine the cause of death for every Indigenous child buried at these sites.

“In addition, we are demanding that charges be laid against people still living who are found to be the perpetrators of these crimes, including the members of the religious orders that ran the schools, as well as the governments and the churches that we know to be complicit,” the association said in a June 24 news release.

Ian McLeod, a spokesperson for the Department of Justice, said part of the interlocutor’s mandate will be to “work towards accountability and justice during this extremely difficult time.” But he said in a statement e-mailed to The Globe on Thursday that the person will not be empowered to initiate criminal investigations, because that is the responsibility of police.

In August, RCMP and other policing agencies told the Canadian Press four residential school investigations were open in Ontario, Saskatchewan and Yukon as well as a probe that began in 2011 into the Fort Alexander Residential School in Manitoba.

David Milward, a law professor at the University of Victoria and member of the Beardy’s and Okemasis’ First Nation in Saskatchewan, said some municipal police forces that, unlike the RCMP, did not participate in the residential school system, could provide experienced investigators. Ideally, though, an international investigative team would be invited to conduct these probes, he said.

Daniel Brown, a Toronto lawyer and vice-president of the Criminal Lawyers Association, said even if investigators uncover crimes, the passage of time could weaken evidence, such as people’s memories. And that, he said, makes it more difficult for prosecutors to meet the standard for charges, which in most provinces requires a reasonable likelihood of conviction.

Regardless of the challenges, Dr. Turpel-Lafond said, criminal charges need to be explored.

“Yes, we can remain silent and say we will leave it in the past – unknown - but is it really unknown when the survivors have told us pretty clearly they believe the children’s lives ended either at the hands of someone or because of someone? And they would like to know what happened to their classmates and family members.”

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