Court battle involving the St Anne’s Residential School Survivors in Fort Albany

Another Court battle involving the St Anne’s Residential School Survivors in Fort Albany, Ontario and the Federal Government on May 11, 2016, in Toronto

I have been working closely with my colleague Fay Brunning, an Ottawa lawyer in advancing the IAP claims for many of the St Anne Residential School survivors since 2012. St Anne residential School was a residential school that controlled by both the Federal Government and the Catholic Church up to about 1976. There was a class action that was brought forward on behalf of all the residential school survivors that attended all the residential school across Canada that suffered some severe type of abuse while attending residential school. The class action law suit was settled out of Court by way of a class action settlement which sets out the compensation to be paid to the survivors depending on the level of harm they suffered. The IAP process is only available to the residential school survivors that have either been sexually assaulted or were severely assaulted to the point they would have lost consciousness because of the actions of either the Employee’s or Supervisors at the school. Also student on student abuse is also compensable.

In order to assert their claims, these brave residential school survivors have had to come forward to tell these horrible stories and they had a deadline to file their claim until September 2013. If they failed to file their claim by the deadline, their claims would be forever lost.

You must remember that many of these survivors for the most part have never shared their abuse that ranged from minor levels of sexual abuse to rape, to different levels of physical abuse including being forced to eat their own vomit and being electrocuted in an electric chair if they did not obey. Many were traumatized by this abuse that often went on from the time they started residential school at 4 or 5 years old until they were 14 or 15 years old. Many never shared this abuse with their parents, their brothers or sisters, their spouse or their children. Even while attending residential school, if they had any brothers and sisters attending the same school, they were not allowed to speak to each other. They were not allowed to speak in the Cree language while at residential school. For many, their parents would drop them off at the school, or they would be flown in from their respective communities in September until June the following year. They would have no contact with their parents during this period because the parents were gone hunting on the traditional land and there was no means of reaching them. Overtime many residential school survivors could not even communicate with their parents and they did not know sufficiently the Cree language to be able to communicate with their parents. They were brainwashed when attending residential school that no one would ever believe there stories as after all priest and nuns would not mistreat the children in such fashion.

The abuse at St Anne was simply too horrid. It was one of the worst residential schools I am told. When these students did file their IAP claim, many sought the help of lawyers and for many telling their story of the abuse they lived as children to their lawyer was the first time they ever disclosed what in fact happened to them as children. To complete the claim, one had to go into details what they in fact lived as children. For many it was very difficult as they told their stories to the lawyers that went into the communities, and were told that if it was not sexual abuse may lawyers would refuse to represent them making it such that they had opened an old wound and the lawyer did not want their case. For many, filing the claim was the equivalent of reliving the horror of what happened to them as children.

For most it was simply too painful to discuss as it would cause them serious mental distress. The problem is even though the government imposed a deadline, the First Nation communities servicing these residential school survivors were not equipped to provide the mental health support that these survivors required after opening up old wounds they had lived as children. For some, mostly the older generations, it was particularly difficult to discuss it with their lawyers who were, on the one hand, strangers to them and secondly who didn’t understand the language. Even if interpreters were called into these meetings with the lawyers, the translation does not always express what the person is trying to express and for many they did not want the interpreters in the community to know their stories for fear they may repeat it in the community. After the residential school survivvors completed the information portion of the claim, in order to be compensated the residential school survivors had to verbally tell their story in front of an adjudicator, in the presence of a lawyer for the federal government and if the survivor had legal representation, in front of the survivors lawyer. This hearing is highly confidential and typically the survivors don’t talk about it afterwards. During these IAP hearings the lawyer for the Federal Government is continually trying to attack the credibility of the survivor indicating that the person they are alleging to have either sexually or physical assaulted them were either not working at the school at the relevant time in an attempt to defeat their claim.

It is not until sometime in 2013 that it was discovered that the Federal Government had failed to disclose to the survivors of the St Ann Residential School in that there was over 12,000 documents (one document can represent 1200 pages) in the possession of the OPP that had not been disclosed as per the disclosure process of the IAP hearings even though the Federal Government was very well aware of it, and had already been reviewed by the Federal Government’s lawyers. Initially it was thought that the Federal Government had only inadvertently failed to disclose this documentation but that was not the case. They intentionally withheld these documents.

My colleague Fay Brunning brought the Federal Government to task in 2013 and asked the Court by way of a Request for Direction to determine if the Federal Government failed in its obligation to the residential survivors of St Anne when it failed to include some12,000 documents that were in the possession of the OPP and which the Federal Government had full knowledge of since they had an opportunity to review these documents in prior lawsuits going back to 2003. The Federal Government fought tooth and nail not to have these documents disclosed in December 2013 but at the end of the day, Justice Perrell ordered the OPP to deliver these 12,000 documents to the Federal Government who in turn they were to provide this disclosure to the St Ann survivors or their legal counsel. The Court even ordered cost against the Federal Government of over $200,000.00 for its failure to provide such disclosure when they were legally obliged to do so. The Court had imposed a deadline for the Federal Government to provide this disclosure. The Federal Government pursuant to the Court Order produced the 12,000 documents but chose to be defiant and redacted (blacked out) most of the information contained in the 12,000 documents so that they were unreadable. As a result a further request for direction was brought again before Justice Perrrel in the early summer of 2015 and Justice Perrell ordered the Federal Government to produce the documents such that they would be legible and could be used to support the claims of the residential school survivors of St Anne’s. The Federal Government were again ordered to pay costs because of their non-compliance with a Court Order. The Federal Government finally produced the disclosure they were supposed to have disclosed going back to 2006.

Now that the proper disclosure has been produced by the Federal Government as of November 2015, (even if they were ordered to do so in January 2014) now some survivors can move forward with their cases showing the prejudice caused by the Federal Government with their lack of disclosure with respect to St Anne’s residential School. One of these cases is proceeding to the Superior Court of Justice on May 11, 2016, in Toronto to address the prejudice that the lack of disclosure has caused to some of these survivors.

One of these survivors has even attempted to commit suicide. He has suffered serious sexual abuse at St Anne’s and he was not believed when he went to his hearing because of the improper disclosure. The initial disclosure indicated that the priest in question was not at the school at the relevant time. He appealed the decision, and the appeal proceeded even though the Federal Government had been ordered by the Court to provide the accurate disclosure and they had yet to produce it. The Claimant’s claim was denied a second time because it was based again on the inaccurate disclosure provided by the Federal Government indicating that the priest had not been at the school at the relevant time of the abuse. As a result this residential school survivor did not receive any compensation whatsoever for the serious abuse he suffered while attending St Anne’s Residential School.

He sought the help of my colleague Fay Brunning, the lawyer that had the courage to fight the Federal Government on this issue and who has in fact succeeded. Now that the proper disclosure has been delivered by the Federal Government in November 2015 as a result of the two previous Court Orders it is now established that the priest in question was in fact at the residential school during the period the survivor indicated that he had been abused. This will have a direct impact on his credibility because there are now written documents that support what he is saying. At the May 11, 2016, court date, Fay Brunning will be asking the Court for this survivor to have a re-hearing. The Mushkegowuk Tribal Council has also made a request for Direction from the same Court on the same day asking for other relief.

Suzanne Desrosiers April 19th , 2016

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