Dear Minister Valcourt,
Thank you for your letter of July 17 in which you respond to the failure of the Federal Government to fulfill its legal obligations to the survivors of St. Anne's Residential School. Of particular concern was government's breach of the Independent Assessment Process by failing to inform the claimants and adjudicators of the large body of police evidence and court transcripts that confirmed widespread criminal abuse at St. Anne's. I note that, in response to my concerns, you have referred the issue of the government's failure to disclose evidence to the Ontario Superior Court for review. Given the seriousness of this breach I support your decision to refer the matter to the Ontario Superior Court. That is the proper forum.
I acknowledge that your decision to turn this matter over to the Ontario Superior Court is recognition that the Federal Government has compromised the IAP. However, survivors must be present and allowed to file evidence at this legal proceeding and it must be open to the public. There is a fundamental obligation on the part of the Federal government to fund the legal proceedings of the survivors.
FAILURE TO REVEAL OPP INVESTIGATION AND CONVICTIONS IN NARRATIVE
In your July 17th letter you admit that: "Canada is, of course, aware of the Ontario Provincial Police investigations regarding St. Anne's Residential School and the resulting trials." If this is the case, then why did your officials fail to convey this knowledge to the adjudicators, the survivors and/or claimant lawyers in the IAP? The disclosure of this knowledge was part of the legal obligation undertaken by the Federal Government to provide each survivor with a written narrative on the facts known about sexual and physical abuse at each institution.
It is unfortunate that you attempt to defend the failure to disclose by claiming that the Federal Government was under no obligation to "seek out" police files containing up to a thousand signed witness statements regarding crimes against children at St. Anne's. The reasonable step would have been to obtain a court order to look at the police witness statements and to ensure that appropriate information from the statements and court hearings were added to the Federal narrative.
Even the most meagre reading of the legal duties set out in the in Terms of Agreement under the IAP (Schedule D, Appendix VIII and Appendix X) obligated the Federal Government to inform the claimants and the adjudicators of the existence of this large body of police evidence and resulting court trials/convictions of abusers at St. Anne's residential school.
And yet, in the written narrative given to survivors, federal officials stated there was no documentation regarding sexual abuse at St. Anne's. This, despite the fact, that your department had the court transcripts in their possession.
Mr. Minister, your staff provided the survivors with a false narrative and in doing so, undermined their rights and compromised the process. How is that remedial? The fact that some St. Anne's survivors have already gone through the IAP, having been misinformed about the existence of documented evidence, should be reviewed by outside judicial authorities.
As for the cases that have yet to be heard, the comments in your July 17th letter raises disturbing questions about the willingness of your officials to live up to the commitments made under the IAP.
FEDERAL OBLIGATIONS RELATING TO EVIDENCE OF CRIME COMMITTED AGAINST CHILDREN AT ST. ANNE'S
You make a number of false claims regarding the terms of the IAP Terms of Agreement. Perhaps most serious is this misrepresentation: "Statements made to the Ontario Provincial Police in the course of their investigations cannot in Canada's view, be used as evidence at the Independent Assessment Hearing...Only the oral testimony of a witness is considered evidence." To validate this assertion you refer to Page 10, paragraph X of the Terms of Agreement. And yet, the paragraph you refer to makes no such assertion. It simply refers to the right of the claimant to bring a corroborating witness to the hearing. Nowhere does it say that the oral testimony of the survivor is the only testimony that is allowable.
Contrary to what you claimed in the letter, adjudicators have the right to accept any evidence they find "credible and trustworthy in the circumstances" (See Pg. 12, Section H. ii). It is the decision of adjudicators, not the defendant (the government of Canada) that determines whether to accept as evidence the signed statements given to the police about the very issues intended to be addressed in the IAP.
It is simply false to claim that police and court evidence is not admissible under the IAP. The Terms of Agreement specifically refer to the admissibility of evidence from previous criminal trials:
Relevant findings in previous criminal or criminal trials may be accepted without further proof. [Section H. vi. Pg. 12]
The impression you present in your letter is that the claimant did not need to be aware of the police and court documents, as it was sufficient for them to come to the hearing and tell their story. But this claim that "corroborative evidence [does] not need to be submitted to corroborate the oral testimony of the claimant" is contradicted by the Terms of Agreement that state that there is a clear threshold of proof that must be met:
The standard of proof is the standard used by civil courts by matters of like seriousness. Although this means that as the alleged acts become more serious, adjudicators may require more cogent evidence before being satisfied that the Claimant has met their burden of proof... (Section h. i. page 12)
Needless to say, I am disturbed that you would misrepresent the legal rights/obligations of both the Defendants and the Claimants in this process.
For what possible reason?
As the defendant in this case, your legal teams are challenging the validity of the oral testimony of survivors. If, as the Terms of Agreement state, evidence from previous trials will be accepted "without further proof" it would certainly limit the latitude for Justice Department lawyers to question the credibility of claimants. I am told that in individual hearings that have taken place, your lawyers have argued against claimants having met the onus of proof in some cases.
For example, I understand that the Department of Justice lawyers have argued against compensation for torture inflicted on children at St. Anne's in the electric chair made by supervisors. The use of torture at St. Anne's through the electric chair had been reported in newspaper articles as far back as the 1990s and was documented in the police investigation. And yet, this was not included in the narrative provided by the Federal Government. I am sure that you will agree that the ability of federal Justice Lawyers to argue against compensability would certainly be more difficult if the survivors and the adjudicators had knowledge of the body of police evidence that could corroborate their memories of electric torture.
In failing to disclose the evidence to the Adjudicators and the claimants, your officials have compromised the ability of the survivors to receive a fair hearing. Your failure to adhere to the terms of the Court order, embodying the terms of settlement also means that the credibility of the IAP has been and will be breached, unless remedied immediately.
The question is what will you do to remediate this situation? The same people who suffered from the abuse as children are suffering again in the IAP from your government's cover up of known abuse. Something has to change.
Agreeing to refer the matter to Ontario Superior Court is only the first step. The survivors and their legal representatives have to be present in Ontario Superior Court. This cannot be a one-sided hearing. It must be open to the public. If the Federal Government attempts to justify its actions to breach its obligations to disclose what it knew of the abuse at St. Anne's then the survivors have a right to make their case to the Ontario Court.
The Federal Government must immediately agree to provide the financial resources so the rights of the survivors can be appropriately represented. The Judge should be given the opportunity to hear from survivors like Edmund Metatawabin who have chronicled the decades long fight to have justice done for the survivors. Unfortunately, the failure to disclose evidence to the hearing process is just the latest in a long line of obstructions and betrayals by the Federal government to the survivors of St. Anne's.
The time has come for this government to take responsibility for what happened on its watch. It is time this Conservative government stopped obstructing justice and stood on the side of the victims who were abused, beaten and raped as children at St. Anne's Residential School. The Ontario Superior Court hearing is a chance to remediate a wrong. Therefore, I am asking what steps are you will take to ensure that the survivors and their legal team have the appropriate resources to be present when this matter is brought before the Ontario Court? What commitments will you make to the survivors of St. Anne's that this government will not continue in its pattern of obstruction and interference with justice?