Indigenous residential school records can be destroyed, Supreme Court rules

The Supreme Court of Canada has ruled that thousands of sensitive records pertaining to abuses at Indigenous residential schools are confidential and should be destroyed.

In a unanimous decision released Friday, the top court said the collection of accounts for independent compensation assessment was meant to be a "confidential and private process" and that "claimants and alleged perpetrators relied on the confidentiality assurance."

The 38,000 accounts will be retained for a 15-year period, during which time survivors can choose to have their records preserved.

Failing that, the documents will be destroyed.

"While this order may be inconsistent with the wishes of deceased claimants who were never given the option to preserve their records, the destruction of records that some claimants would have preferred to have preserved works a lesser injustice than the disclosure of records that most expected never to be shared," the ruling reads.

The recollections were gathered as part of the federal government's 2006 Indian Residential Schools Settlement Agreement that was to promote healing, education, truth and reconciliation, and commemoration by, in part, financially compensating former students.

Compensation for abuse

There were two types of compensation; one based on the amount of time spent at the schools ($10,000 for the first year and $3,000 for each year after) and a second based on abuse that resulted in serious psychological consequences, claimed through the independent assessment process.

Applications required survivors to provide "the most private and most intimate personal information" and each person attending the hearing was required to sign a confidentiality agreement.

"As a matter of contractual interpretation, destruction is what the parties had bargained for," the judgment reads. "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."

The federal government had fought to retain the records for historical purposes under the Library and Archives Canada.

Minister of Crown-Indigenous Relations and Northern Affairs Carolyn Bennett said she was "very disappointed" by the decision.

Important for 'scholarly work'

"We have a whole chapter of our history where the scholarly work that was to be done at the Centre for Truth and Reconciliation … to look at the systemic problems that really are about outlining that chapter, who knew, who did what, that so far in the TRC process we've only still got the transactional piece with individuals. That analysis of the system, and the churches and the government has not yet been done."

Bennett suggested the documents could have been "anonymized" to protect individual privacy.

But Dan Shapiro, chief adjudicator of the Indian Residential Schools Adjudication Secretariat, said that removing identifying information would not be enough to protect the privacy of those who shared their painful stories. Making public the information even without names would be an "appropriation of their experiences," he said.

"This is not something the parties ever negotiated for or bargained for, so it is a question of who controls the experiences that the claimant went through, who controls their story," Shapiro said.

For those who choose to preserve their records, identifying information about others in the documents, including names of perpetrators, will be removed. Materials could be made public immediately.

Ry Moran, director of the National Centre for Truth and Reconciliation at the University of Manitoba, said the decision leaves a "significant gap" in the nation's understanding of the magnitude of abuse.

"We've lost the entire integrity of the record of the worst atrocities inflicted on Indigenous peoples in this country's history," he said.

Thousands of students abused

The case has divided Indigenous groups. Some believe the records should be preserved as a record of a dark chapter in Canada's history, while others believe the sensitive recollections should be destroyed to avoid further harm to descendents of victims.

From the 1860s to the 1990s, more than 150,000 First Nations, Inuit, and Métis children were required to attend residential schools run by religious organizations and funded by the federal government. Thousands of them were physically, emotionally and sexually abused.

Accounts of abuse ranged from "the monstrous to the humiliating, and of harms ranging from the devastating to the debilitating," the ruling reads.

Compensation was based on a spectrum of harm, ranging from fondling and kissing to repeated anal or vaginal penetration with an object, and the resulting impact ranging from anxiety and nightmares to personality disorders, pregnancy and suicidal tendencies.

"At the risk of understatement, the reluctance of claimants to undergo questioning by an adjudicator on these topics without assurances of absolute confidentiality is fully understandable," the ruling reads.