Canada seeks to dismiss St. Anne's residential school survivors' fight for accountability

Federal lawyers are asking a court to dismiss a group of survivors' fight to hold Canada accountable for withholding evidence of widespread abuse at St. Anne's Indian Residential School during class-action compensation hearings.

The decade-old legal saga continues this week in Ontario Superior Court in Toronto, where former pupils of the notorious Catholic-run school in Fort Albany are responding to the government.

Faced with mainly technical arguments, Edmund Metatawabin, a former Fort Albany First Nation chief who is leading the fight, said his group is used to such tactics but continues to press for truth.

"All they're interested in is that truth," said Metatawabin.

"We don't really want anybody to suffer, but we don't want things to be whitewashed, too."

The case concerns implementation of the Indian Residential School Settlement Agreement from 2006. The class-action settlement offered former pupils a guaranteed common experience payment and an independent assessment process, or IAP, to hear and judge claims of abuse.

But when those IAP claims began, "they were heard under false reports," said Fay Brunning, lawyer for the group, in court on Tuesday.

From 2006 to 2014, Canada reported it had no documents on sexual abuse at St. Anne's, which operated from 1906 to 1978 on the James Bay coast. In reality, the Department of Justice was sitting on some 12,000 relevant police investigation records and documents from criminal trials and civil lawsuits.

Numbering 47,000 pages, those undisclosed papers contained allegations and evidence of assaults, rape, sexual humiliation, punishment by makeshift electric chair or cat o' nine tails whip, and sick children being forced to eat their own vomit.

"They were prey to the pedophiles and demented physical abusers who ran St. Anne's," reads the written argument from Brunning and lawyer Michael Swinwood.

The Assembly of First Nations, an advocacy organization for chiefs countrywide and a party to the settlement agreement, is participating and backing the survivors.

"We are deeply concerned by Canada's attempts to block this critical case on technical grounds," said National Chief Cindy Woodhouse Nepinak in a statement.

"We urge Canada to reconsider its approach and allow the case to proceed on its merits, rather than relying on technical arguments to limit or dismiss these claims."

Between 1992 and 1997, Ontario Provincial Police launched a sweeping criminal probe into the alleged abuse. They interviewed more than 700 witnesses, took 900 sworn statements and seized more than 7,000 documents from church entities.

Police eventually charged seven former school officials, securing five convictions. In the early 2000s, the fight moved to civil court, where 152 survivors filed 61 lawsuits that named 180 alleged perpetrators and abusers.

In 2014, Metatawabin and the group obtained a court order confirming Canada breached its disclosure obligations by failing to produce this vast trove of material, but the court did not rule on whether Ottawa acted in bad faith.

'We're used to not being listened to'

Since then, the group has fought to hold Canada accountable for the breach, alleging the claims may have been impacted by the suppression of supporting evidence.

At least 166 and perhaps up to 250 Indigenous people didn't receive the benefits they were promised nor the fair process they were owed, Brunning told Justice Benjamin Glustein.

The survivors are seeking to reopen those claims and for the court to order a review of the government's conduct.

Canada wants the request struck on technicalities and procedural grounds. The government, which opened the hearing on Monday, argues the request was filed after the deadline for such applications and seeks to reopen already decided issues.

"It is out of time and is an abuse of process by re-litigation," reads Canada's written argument.

Metatawabin isn't surprised by Canada's approach, which he considers a delay tactic.

"We're used to it. We're used to not being listened to," he said.

Canada has long fought St. Anne's survivors, spending at least $3.2 million on the legal battle from 2013 to 2020. As the IAP was set to end in 2021, the Liberal government acknowledged the broken trust and requested a review of 427 St. Anne's compensation claims.

Retired judge Ian Pitfield eventually concluded the non-disclosure may have impacted 11 claims, all related to alleged student-on-student abuse.

Canada's written argument says 96 per cent of St. Anne's claimants alleging abuse were awarded compensation, with $31.9 million paid to them since 2017.

Canada's argument says the operation of residential schools was "a dark and painful chapter in our country's history" and acknowledges some of the most serious incidents of abuse in that system occurred at St. Anne's.

However, the government also argues Metatawabin's request raises issues that could've been brought seven years ago, and that striking it now "would not result in an injustice."

The hearing continues this week with Canada to reply.