Balance between privacy and public record for residential school evidence struck by court
Judge balances privacy and public record in residential schools: Editorial
Court order to hold records for 15 years before destruction to give claimants time to make their testimony public is a good one.
EDMUND METATAWABIN COLLECTION / ALGOMA UNIVERSITY
Boys at an Ontario residential school.
Published on Mon Aug 11 2014
Justice Paul Perell has struck the right balance between keeping an historical record of 38,000 residential school survivors' stories and respecting their privacy.
Survivors gave testimony under conditions of strict confidentiality at the Independent Assessment Process for financial claims for acts of abuse and continuing trauma at the schools. But claimants were free to discuss the outcome of their hearings and could choose to deposit their transcripts in a specially created archive.
Unfortunately, few did. So Justice Perell faced a troubling question: How to protect the records for future generations as an indictment of our country's shameful treatment of aboriginal people, while respecting the promise of confidentiality.
Before the judge's ruling, the Star suggested he consider canvassing those who had testified to see if they would consider putting their evidence on record. It also suggested there should be a mechanism for those who wished to safeguard their privacy to have the testimony preserved anonymously in a public archive.
That is exactly what Justice Perell has done. He ordered the records be destroyed after a 15-year holding period. But only after a notice process goes out to survivors to give them the option of maintaining their records in an archive.
He also placed limits on the destruction order, saying it "needs to focus on the personal information of the claimants and not be overbroad."
His decision strikes the right chord, respecting individuals while recognizing the importance of a public record on this shameful period in Canada's history.
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Court orders residential school documents destroyed - after 15 years
Justice Paul Perell says records on the experiences of 38,000 residential school survivors should be destroyed for privacy reasons, but gives them the option to have their stories archived.
KENNETH ARMSTRONG / THE CANADIAN PRESS
Michael Cachagee, a 75-year-old residential school survivor, seen in front of the former Shingwauk Indian Residential School (now Algoma University) in Sault Ste. Marie, Ont., is one of those who protested a move to destroy all the documents from the claims hearings. "Who are they protecting? They're destroying what happened to me - they're destroying the victim's evidence," he said. A judge agreed Thursday that victims should have a choice in the matter.
By: Tim Alamenciak News reporter, Published on Thu Aug 07 2014
A court has directed that the transcripts of testimony and evidence given by 38,000 survivors of Indian residential schools should be destroyed at the end of the settlement process.
Justice Paul Perell issued a direction in writing this week ordering the records be destroyed after a 15-year holding period and notice process that would give survivors the choice to maintain their records in an archive.
"Can and should this court order that documents that contain information about what happened at the Indian Residential Schools be destroyed?" Perell wrote in his decision. "My answer to this question is: yes, destruction, but only after a 15-year retention period during which the survivors of the Indian Residential Schools may choose to spare some of their documents from destruction."
The ruling is the outcome of a three-day hearing in July over the fate of the recordings, transcripts and evidence of individual claims which provide explicit details of the horrific abuses suffered at Canada's residential schools. The destruction is "necessary" to protect confidentiality, Perell wrote, but claimants should have a chance to consent to having their testimony preserved.
Michael Cachagee, a 75-year-old survivor of a residential school in Ontario, says it will be logistically tough to get the consent of survivors, many of whom have passed away or moved since giving their testimony.
"I respect the individual's concerns, but if we're going to get the true story, if the true story about residential schools is to come out and be maintained for its proper position in history, we need those testimonies, we need those incident reports," said Cachagee.
Julian Falconer, a lawyer for the commission charged with producing a report on the residential school system, said Perell's decision is just the beginning of a process that will involve notifying 38,000 claimants of their right to preserve their testimony. The means and method of notification is still to be determined.
"The Truth and Reconciliation Commission has always maintained that of fundamental importance in this piece was the notion of informed consent on behalf of the claimant survivors - that it was essential that they be given a true choice between archiving their records or having another fate for their documents," said Falconer. "This decision is simply the first step in what is a process that is yet to be completed."
The head of the claims process, chief adjudicator Dan Shapiro, issued a statement saying he was pleased with Perell's decision.
"The Court has issued a clear statement confirming the privacy of claimants and others identified in compensation claim records. This will be a huge relief to the thousands of claimants who have appeared at our hearings fully expecting that their accounts of the abuse they suffered at Indian Residential Schools would not be made public without their consent," said the statement by Shapiro.
About 7,000 survivors have independently shared their experiences with the commission at public sessions held across the country. The commission has also collected documents from the churches that ran the schools, government archives and individuals.
Justice Perell's decision is a direction to the parties, but a formal order must still be drafted that would specify the scope and nature of the destruction as well as the notice program. Perell placed some limits on what a destruction order would look like.
"The (claims process) itself is now a part of the history of Canada, and the court's Destruction Order needs to focus on the personal information of the claimants and not be overbroad," he wrote.
The 15-year retention period would not begin until the remaining 10,000 hearings are conducted and concluded. The process is expected to conclude in early 2016.