Law Times

Page 8 May 2, 2016 • Law TiMes www.lawtimesnews.com Evidence can be destroyed after 15 years Ruling favours privacy rights of survivors BY YAMRI TADDESE Law Times I n a case that tied questions of aboriginal law with pri- vacy law, the Ontario Court of Appeal recently decided indigenous Canadians who suffered abuse in residential schools could decide whether their evidence will be archived or destroyed after a mandatory 15-year retention period. Part of the question in Fon- taine v. Canada was who gets to decide whether claimants' tes- timony, submitted as part of the Indian Residential Schools Set- tlement Agreement, would be achieved or destroyed. Detailed and often traumatic personal stories of abuse are gathered under the IRSSA's Independent Assessment Program. The court said the appeals before it raised "the question whether the survivors control the stories of their residential school experiences or whether others do." In Fontaine, a number of Catholic institutions argued they, too, should consent before the redacted evidence is achieved at the National Centre for Truth and Reconciliation and poten- tially available for access by fu- ture generations. They argued the decision to archive the docu- ments affects the alleged perpe- trators and the churches. A lower court judge had found the only consent needed to archive the evidence is that of the claimants themselves. In a decision dated April 4, the court of appeal agreed. "The IAP was a negotiated solution to a difficult problem that benefited all parties, includ- ing the Catholic Entities and al- leged perpetrators. By signing the IRSSA, the Catholic Entities agreed to surrender certain pro- cedural rights they would have enjoyed had the claims been pursued by way of ordinary liti- gation, in exchange for signifi- cant benefits," said Court of Ap- peal Justice George Strathy, who wrote on behalf of the majority. "Ordinary litigation was avoided, the burden of liability was assumed by Canada and the Catholic Entities gained immu- nity from a significant potential liability. They enjoyed limited procedural rights in the IAP precisely because they agreed to forgo those rights in exchange for protection from the legal jeopardy they would have other- wise faced," Strathy wrote. Signa Daum Shanks, assis- tant aboriginal law professor at Osgoode Hall Law School, says the court got it right. "I think the Catholic enti- ties really got taken to task very appropriately in this decision," Daum Shanks says. "What's unfortunate about that for the Catholic entities is that, so regu- larly in the history of residen- tial school litigation, it's been the Catholic church that's been . . . the slowest church to step up and acknowledge the history of what it's done that is in archival records," she says. The majority of the court also dismissed the argument from Canada and the Truth and Reconciliation Committee that IAP documents are government records and thus cannot be de- stroyed. Strathy said the docu- ments are under the control of the courts, not the government. "They are not government records. While possession may often suffice for control, this is not always the case," he wrote. "When the government is in possession of records only as a result of litigation, and is con- strained in its use of those re- cords by the court process or a specific court order, those rec- ords are not 'under the control of a government institution,'" he added. While he agreed with dis- missing the appeal from the Catholic entities, Justice Robert Sharpe of the court disagreed with the majority regarding the appeal from Canada and the Truth and Reconciliation Com- mittee, which argued that the evidence gathered as part of the IAP in fact constitutes govern- ment record. "In my view, the IAP docu- ments held by Canada, which include the decisions of IAP adjudicators ordering Canada to pay claimants millions of dollars, fall squarely within the legal definition of government records," Sharpe wrote in his dissent. "The IAP documents are therefore subject to the re- gime mandated by Parliament in the Privacy Act, the Access to Information Act, and the Li- brary and Archives of Canada Act for the protection of private information, access to govern- ment records and the preser- vation of Canada's documen- tary heritage for the benefit of present and future generations." Sharpe said he recognizes the traumatic and sensitive nature of the stories revealed in the IAP documents, but he added that the IAP is also an "an integral" part of the Truth and Reconcili- ation process, which allowed all Canadians to face the "shocking treatment of generations of ab- original children in the residen- tial school system and searched ways to repair the damage." "As the TRC puts it in its factum, reconciliation requires knowledge, not destruction of our past," Sharpe said. Douglas Sanderson, law pro- fessor at the University of Toron- to and a member of the Opask- wayak Cree Nation, says he personally feels it's important to document survivor testimonies, but views on the topic differ even within his own family. "Personally, my hope would be that the testimonies would in fact be achieved. I think that it's important for future gen- erations and future research- ers to be able to access some of those primary documents, the residential attendees' side of the story," he says. LT FOCUS ON ABORIGINAL LAW Focus Signa Daum Shanks says Catholic entities 'really got taken to task' in a recent ruling. REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! AVAILABLE ONLINE AND IN PRINT With more than 300,500 page views and 100,000 unique visitors monthly canadianlawlist.com captures your market. FOR MORE INFORMATION CONTACT Colleen Austin T: 416.649.9327 | E: colleen.austin@thomsonreuters.com www.canadianlawlist.com Get noticed by the lawyers, judges, corporate counsel, fi nance professionals and other blue chip cilents and prospects who fi nd the contacts they need for Canadian legal expertise at canadianlawlist.com with an annual Gold or Silver Enhanced listing package. ENCHANCE YOUR LISTING TODAY! Untitled-2 1 2016-04-27 3:30 PM

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