Imagine what would happen if the Crown suppressed thousands of pages of police evidence from an important trial? It wouldn't take a legal expert to tell you there would be an immediate mistrial -- especially if the Crown also prepared a false evidence sheet that mislead the judges. And yet, this was done to the survivors of St. Anne's Residential School. Despite a damning ruling against this abuse of process in Ontario Superior Court, nothing has been done to remediate this situation.
Justice Minister Peter Mackay claims to be the champion for victim's rights has been silent. But then it was his department and officials who created the false evidence trail that resulted in covering up the abuse at St. Anne's Residential School.
Suppressing Crimes
The litany of abuse at St. Anne's Residential School in Fort Albany reads like a horror tale: children beaten, raped, sexually assaulted and even tortured in a home made electric chair for the entertainment of the staff. These crimes were documented in the 1990s by a massive investigation undertaken by the Ontario Provincial Police. Police gathered thousands of pages of witness testimony that resulted in numerous criminal convictions.
When the Federal government signed the Residential School Settlement Agreement in 2007, crimes like the ones committed at St. Anne's were to be dealt with in supposedly "non-adversarial" hearings known as the Independent Assessment Process (IAP). Survivors were invited to tell their story with a lawyer present. The Justice Department lawyers would also be there to represent the defendant - the government of Canada.
But the Justice Department wore two hats. In addition to protecting the Defendant, it was obligated (under Schedule D Appendix VIII and X) of the Settlement Agreement to provide the evidence "narratives."
"The government will gather documents about the residential school the Claimant attended ...the documents will be available for the Claimant or their lawyer to review. [These include] ...any document mentioning sexual abuse at the residential school in question."
The problem facing survivors of St. Anne's is that the narrative prepared by the Justice Department was a lie: "No known documents of sexual abuse at Fort Albany IRS. No known incident documents of sexual abuse at Fort Albany IRS."
The Adjudicators weren't told about the 900-plus witness statements that identified 180 perpetrators of crimes. The Justice Department gained access to this huge trove of evidence through a court ruling in 2003 in order to protect the interests of the defendant, Canada. At the time, the Justice Department claimed it was necessary to gain access to the OPP evidence because it would be "unfair to require the Crown Defendant to proceed to trial without production of these documents."
The Provincial Court at the time agreed and stipulated that this evidence should be made available to future plaintiffs. But that didn't happen which raises the question -- if access to these documents was a matter of legal fairness for the defendant, then surely it was a matter of fairness to produce this evidence for the victims.
Not only did the Justice Department fail to let the IAP know about this evidence, but they went the extra step of creating a substitute list of documents, which created a distinctly false impression of life at the school. What possible relevance was there to providing the notes about laundry and cafeteria services other than creating a false impression of a government undertaking due diligence in investigating a relatively benign institution?
In the Hearings, the survivors' legal team had to rely on oral testimony that was at odds with the impression created by the false narrative. Edmund Metatawabin, a spokesman for the survivors says the process was anything but non-adversarial: "'Many times we are made to feel that we are committing the crime, rather than participating in a justice system correcting past abuse.'
In early 2012, Fay Brunning, a lawyer for some of the survivors challenged the federal lawyers on their failure to disclose evidence. But nothing changed.
In July 2013, I contacted Indian Affairs Minister Bernard Valcourt on their decision to suppress evidence. He responded, "Canada is, of course, aware of the OPP investigations regarding St. Anne's Residential School and the subsequent trials."
He said Canada had no legal duty to "seek out" this evidence, despite the clear legal obligations laid out in the Settlement agreement. Nonetheless, having been caught in the glare of having breached legal obligations he turned the matter over to the Ontario Superior Court for a ruling on whether Canada was obligated to share the evidence.
Justice Perrell's January 14, 2014 ruling was damning: "Canada's failure to produce the OPP documents about St. Anne's has compromised the lAP and denied the Claimants access to justice."
The Ontario Court ruled that the Conservative government had clear legal duties to "search for, collect and provide a report about the persons named in the Application Form as having abused the Claimant... as well as any allegations of physical or sexual abuse committed by such persons, where such allegations were made while the person was an employee or student." (Ruling paragraph 134).
Justice Department lawyers shrugged when it came to explaining why they had presented a false evidence narrative stating "It must have been human error." This seems like a pretty weak explanation for such a major breach in legal duty. I wrote twice to Minister Justice Mackay on this subversion of legal duty. He waited over six months to respond with a letter full of vague platitudes. However, he did admit they were legally obligated to prepare an accurate narrative.
And yet, his officials only appear to have begun work on this accurate evidence list after I had publicly called him out. According to an internal Justice Department memo, the evidence list was corrected on July 26, 2013 "In response to Charlie Angus."
There are legal, moral and professional obligations at stake here. It is astounding to think that these obligations may have been undertaken as an effort of political damage control. The seriousness of the crimes committed at St. Anne's required full due diligence from the government of Canada. This didn't happen. If such failings happened in a regular court case there would be serious consequences.
Last month, the survivors of St. Anne's wrote to the Minister asking that Justice Department lawyers be removed from the Hearings because of their role in compromising the rights of survivors. Spokesman Edmund Metatawabin wrote a heartfelt letter to the Minister: "My God, we were just children undergoing torture, abuse and neglect from abusers and pedophiles without the protection of our parents or the government...Now in 2014 it appears that nothing has changed."
I have also written to Mr. MacKay asking what steps he will take to remediate the situation. So far he has done nothing. Peter MacKay claims to be a Minister committed to fighting for the rights of victims. This claim will appear very hollow if he refuses to explain why his department acted in such an unprofessional and mean manner towards the survivors of St. Anne's.
Even more, the failure to remediate these breaches will raise serious questions about the credibility of the IAP and leave the Prime Minister's historic apology to residential school survivors in tatters.
I understand that recently Minister MacKay stated his concern that the public has lost confidence in the Justice system. Perhaps he should look in the mirror.
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