Top court to hear federal government's appeal on residential school records

The Supreme Court of Canada is set to hold a hearing today on the federal government's appeal of a decision that allows personal records from survivors of residential schools to be destroyed after 15 years unless individuals decide otherwise.

Ottawa argues it controls the documents and that they are subject to legislation pertaining to access to information, archiving and privacy.

"To ensure that the history of what happened at the residential schools is not forgotten or lost on future generations, the documentary record must be preserved," the attorney general argued in her factum to the court.

The government also argues that the use of the court's "inherent jurisdiction" to order the wholesale destruction of the records "fails to respect the intentions"of the Indian Residential School Settlement Agreement, which settled the largest class action in Canadian history.

"Many of the records at issue in this appeal often contain deeply personal accounts of physical, sexual, and emotional abuse of former students," the factum says.

"The information was provided in the context of an independent assessment process to provide compensation for this abuse."

Carey Newman, a First Nations artist who formed a group called the Coalition to Preserve Truth, agrees the impact of destroying the documents would be enormous, calling them a very important piece of Canadian history.

Newman said he plans to attend the court's hearing on Thursday.

The coalition believes traumatic events are only part of the complex history of residential schools, Newman said; the ensuing personal trauma has been resonating through the lives of families for generations.

Newman, the son of a residential school survivor, decided to push for the preservation of the records after a friend asked him how he would feel about their destruction.

"It just kind of sat on my heart," he said in an interview.

"That was the question for me that sort of convinced me that I had to do something ... I think it is important for people to know this is the very final decision and that the largest number of stories about the worst things that happened in residential school are at stake."

Many survivors are either gravely ill or have already died and do not have the capacity to make a request to preserve the records, Newman added.

The federal government and the Truth and Reconciliation Commission both agree the survivor accounts are a critical part of Canadian history that should be preserved.

For its part, the independent claims adjudicator has maintained that claimants were promised confidentiality, which means that only they have the right to waive their privacy.

A lower court judge ruled the material should be destroyed after 15 years, but individuals could consent to have their stories preserved at the National Centre for Truth and Reconciliation in Winnipeg.

In a split decision in April 2016, the Ontario Court of Appeal agreed, noting the documents were not government records subject to archiving laws.

The court also rejected the idea the documents were "government records" but fell under judicial control.

A dissenting justice maintained, however, that documents should be turned over to Library and Archives Canada, subject to normal privacy safeguards and rules.

"If the IAP documents are destroyed," wrote Justice Robert Sharpe, "we obliterate an important part of our effort to deal with a very dark moment in our history."

The Assembly of First Nations argues the Ontario Court of Appeal upheld the promises of confidentiality made to former students of residential schools by ordering the destruction of records and ensuring former students maintain control over the accounts of their residential school experiences.

"The future release of IAP records without the consent of claimants will result in the re-victimization of former students and will pose real harms to First Nation communities," the organization said in its factum to the court.

"This is particularly problematic in the case of victims and perpetrators related to student-on-student abuse."

—With files from Colin Perkel in Toronto