Another legal battle is unfolding over the fate of residential school-related records with Ottawa winning an initial round to prevent the creation of detailed statistical reports that would reveal which institutions faced the highest number of abuse claims, court records show.
The National Centre for Truth and Reconciliation is appealing a January Ontario Superior Court ruling that sided with Ottawa to prevent the creation of detailed reports drawn from a database held by the body that oversaw residential school compensation claims.
The court also blocked the transfer of a number of other compensation claim-related records held by the Indian Residential Schools Adjudication Secretariat directly to the centre.
Ontario Justice Paul Perell sided with Canada in his Jan. 20 judgment saying that, despite safeguards outlined by the secretariat, it would still be possible to identify an individual claimant through the type of static reports the secretariat proposed.
“Depending on school size and temporal information, and variables based on age, sex and acts of abuse by province, it might be possible to deduce confidential personal information from some of the proposed static reports,” wrote Perell, in his decision.
“I am especially concerned that this may be possible in the case of some small and remote communities, leading to very unfortunate consequences.”
Perell said in his ruling that the information would do nothing to help Canadians understand the history of residential schools or help advance reconciliation.
“And just as the history of the Holocaust will not be different for not knowing which was worse, Auschwitz or Treblinka, I do not see how truth and reconciliation will be advanced by reports identifying which school was the worst of the worst or ranking schools in the order of which school had more student-on-student sexual assaults than staff sexual assaults,” wrote Perell.
The federal government was the only party in the court case that opposed the creation of the detailed reports and the transfer of records to the National Centre for Truth and Reconciliation — which was created as a residential schools archive and as the repository for the testimony gathered by the Truth and Reconciliation Commission.
“Quite honestly we saw quite a bit of consensus among the parties,” said Ry Moran, executive director of the centre.
“Canada was an outlier in terms of the approach of certain categories of records.”
The Assembly of First Nations was also involved in the court case, along with the centre, the secretariat and the National Administration Committee that was created to oversee the implementation of the Indian Residential Schools Settlement Agreement.
Secretariat says statistics would not identify individuals
The secretariat — which is expected to wind down by March 2021 — proposed creating reports for the centre based on information extracted from its database.
These detailed reports — known as static reports — would break down compensation claim statistics including how many and what types of claims each residential school was linked to and broad profiles of survivors who filed claims, along with other categories, according to court records.
The Single Access to Dispute Resolution Enterprise database has nearly two decades of information from every claim filed since the compensation process began in 2007 under the Indian Residential Schools Settlement Agreement — including the Independent Assessment Process (IAP) that handled claims regarding abuse — and from its predecessor, the Alternative Dispute Resolution process, which began in 2003.
“The rationale was that statistical data from the IAP can contribute to understanding the scale and scope of abuse at residential schools by future historians, as well as contributing to understanding the IAP claims process itself,” stated Nicole Hansen, manager of the business process management and reporting unit at the secretariat, in an affidavit filed with the Superior Court.
The reports were part of a number of records the secretariat proposed to transfer to the centre, in consultation with an outside archivist hired to analyze the historical value of the files, that also included general statistics produced by the agency at various points throughout its operations.
The static reports differ from the other records because they would be produced at the end of the secretariat’s life to create a deeper statistical view of the over 38,000 claims it processed.
Hansen stated the static reports would be fashioned to ensure no information would ever identify an individual by aggregating and generalizing the data.
Hansen’s affidavit stated, for example, that only institutions subject to 20 or more compensation decisions would be listed and communities would not be identified, but replaced by regional or provincial/territorial breakdowns.
Institutions with less than 20 would be grouped under the category of “other” and the age of survivors who filed claims would be aggregated in 10-year bands with “outliers … aggregated to avoid the risk of identification,” the affidavit stated.
Perell also ruled that all minutes of in camera meetings with the oversight committee, along with records from complaints over the IAP process, the personnel records of IAP adjudicators, and anything covered by solicitor-client or litigation privilege should be excluded from the records transfer to the centre.
Ottawa says it owns records
Ottawa successfully argued the records were the property of the federal government and should be transferred to the Crown-Indigenous Relations department which would then hand them over to Library and Archives Canada.
The court ordered Ottawa to file a plan on how it would handle the records and transmit copies of some files to the centre by June 30, but Canada has asked for an extension as a result of restrictions created by the COVID-19 pandemic.
Ottawa also opposed the creation of the detailed statistical reports arguing they would violate the privacy of residential school claimants, protected by a 2017 Supreme Court ruling that forbade the archiving of individual claim information held by the secretariat.
IAP claim information will be destroyed in 2027 unless a claimant indicates they would like their files retained.
“Canada recognizes the importance of preserving the history of Indian residential schools, including the non-claim records related to the operations, management and oversight of the Independent Assessment Process,” said an emailed statement from Crown-Indigenous Relations.
“Canada is committed to protecting the privacy of survivors and is concerned that release of static documents could result in a breach.”
The AFN did not provide comment on the case.
The secretariat said its position was outlined in court documents and that it would not comment on the case.