Court says Ottawa can reject police, court transcripts as evidence in St. Anne's residential school cases

Ottawa can continue to reject the use of police and court transcripts as evidence in student-on-student compensation claims from survivors who attended St. Anne's Indian Residential School, according to a recent ruling.

The ruling, issued by Ontario Superior Court Justice Paul Perell on Jan. 4, concluded the courts could not force Ottawa to admit to abuse under the terms of the Indian Residential School Settlement Agreement. The agreement created a system for setting compensation levels known as the Independent Assessment Process (IAP).

The IAP was created as an adversarial process where Canada could challenge evidence and survivors had to provide proof to support their claims for compensation, said Perell, one of the judges tasked with supervising the settlement agreement. He said the courts could not rewrite the settlement agreement.

"Canada is under no general obligation to surrender … to make an admission of defeat," wrote Perell, in his ruling.

"The compensation part of the [settlement agreement] is not subsumed by the truth and reconciliation part.... Canada is contractually entitled to oppose IAP claims."

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The ruling gave Ottawa a legal victory in its ongoing, multi-faceted legal battle with residential school survivors from St. Anne's Indian Residential School, which operated near the mouth of the Albany River along Ontario's James Bay Coast.

St. Anne's has emerged as one of the most notorious institutions from the more than a century long residential school era. The Catholic-run school used a homemade electric chair for punishment, while physical and sexual abuse was rampant throughout its dark corridors, according to the testimony of survivors.

Police, court transcripts 'hearsay' 

St. Anne's was the subject of a 1990s Ontario Provincial Police investigation which led to several charges and convictions. It was also the subject of a 2003 civil case in Cochrane, Ont., that ended in a settlement before the 2006 Indian Residential Schools Settlement Agreement.

The OPP investigation and the Cochrane civil action were at the heart of this case, known technically as a request for direction. At issue was Ottawa's refusal to accept witness transcripts from the OPP investigation and examination transcripts from the Cochrane case as evidence to substantiate student-on-student abuse compensation claims. Ottawa's lawyers determined the evidence to be "hearsay."

The standard is higher for residential school survivors seeking compensation for student-on-student abuse. Under the IAP, the survivor must prove that the abuse happened on school property and that either a government or church official knew or should have known of the abuse and did nothing to prevent it.

The case was triggered by two St. Anne's survivors, one identified as C-14114, and Angela Shisheesh, 72, a Cree language interpreter.

St. Anne's survivor C-14114 was seeking to have the court force Canada to admit the student-on-student abuse she suffered and accept OPP and Cochrane case transcripts as evidence.

Shisheesh was seeking to have her transcript from the Cochrane case admitted as evidence to support St. Anne's IAP claims.

'I wish this pain would go away'

Shisheesh said she was "stunned" by the decision and couldn't understand why Ottawa's lawyers continued to refuse to believe survivors. She said Crown-Indigenous Relations Minister Carolyn Bennett, whose department provides direction to Justice Canada on the file, was undercutting her government's claims on reconciliation.

"I don't understand that Minister Carolyn Bennett; I don't understand her at all," said Shisheesh.

"What does she understand about reconciliation if she is doing that?"

Bennett's office said in a statement that the courts have "fully upheld" Ottawa's position on rejecting the OPP and Cochrane transcripts as evidence.

"It is the normal legal practice, not the choice of an individual minister," Bennett's office said in an emailed statement.

NDP MP Charlie Angus said the ruling makes clear that "if Canada doesn't want to do justice, there is no way they will do justice."

Shisheesh said it took her 40 years to deal with the aftermath of the sexual abuse she suffered at the school.

"I want the minister to try to understand how everybody felt," said Shisheesh, as she wept.

"It was so painful, I was so ashamed.... I wish this pain would go away; it would just erase from my body. That is why I am not afraid to talk about it, to fight, to make the minister understand."

Edmund Metatawabin, a St. Anne's survivor who wrote about St. Anne's homemade electric chair in the book Up Ghost River, said it doesn't matter which party runs the government, the machinery that spawned and ran residential schools remains the same.

"The government has been playing this game for so long. They delay, delay, ignore, keep hiding it," said Metatawabin.

"The bureaucracy is what we are looking at."

A silver lining

There was one silver lining for Shisheesh in the case. She was seeking to have her Cochrane transcripts turned over to National Centre for Truth and Reconciliation, which is a repository for historical residential school files.

Bennett has said Ottawa would waive its privilege so Shisheesh could share her documents with the centre.

Perell ruled he wanted an additional filing on how documents from residential school-related civil actions should be handled under the settlement agreement. There were 18,000 civil actions before the courts prior to the 2006 settlement.