Letter to Federal Attorney General: St Anne's

The Honourable Peter MacKay
Minister of Justice and Attorney General of Canada
284 Wellington Street
Ottawa, ON   K1A 0H8 

July 21, 2013 

Re:         Failure to seek and disclose evidence in St. Anne’s residential abuse scandal 

Dear Minister McKay, 

At the outset, let me congratulate you on your new role as Minister of Justice. One of the first tasks you will need to address is ensuring justice for the survivors of the Indian Residential School system. No doubt you share my horror to learn this past week that Aboriginal children were subjected to experiments in food deprivation and starvation by federal officials at a number of residential schools in the 1940s. The residential school experience will surely stand as one of the blackest marks in the history of our nation. And yet, despite the historic apology made by the Prime Minister to the victims of the residential school system in 2008, your government continues to fail in its basic obligation to ensure justice for the survivors.

 

Specifically, I am writing to you regarding St. Anne’s IRS, and the failure of Justice Department lawyers to ensure that the court order embodying the terms of settlement is followed. Under the IAP (Independent Assessment Process) the claimants must come forward individually in private hearings and prove their claims of physical and/or sexual abuse. Some survivors have been reluctant to participate in the process for fear they won’t be believed. The ones who do come forward are forced to prove their case through oral memory or access to any contemporary medical/psychological records.

 

In order to ensure a fair adjudication process, the IAP was set up to ensure that claimants have prior access to all relevant evidence that already exists about sexual or physical abuse at each school.  AANDC employees had an obligation to compile a narrative about known abuse at the school, and provide access to documents.   This has not happened in the case of the survivors of St. Anne’s. AANDC have failed to seek and disclose to claimants and adjudicators, a large body of evidence in the possession of the police, as well as court testimony proving sexual and physical abuse at St. Anne’s.

 

St. Anne’s Residential school operated in the James Bay region for a large part of the 20th century. The impacts of abuse at this institution damaged many individuals and communities in my riding. The abuse that took place in this institution has caused inter-generational trauma for the students and their descendants.  The Federal Government failed to properly monitor the people operating the residential school and it failed to stop the pervasive abuse.  Now, the Federal Government and its lawyers are failing these same people by failing to abide by the terms of the settlement. 

 

In the early 1990s the Ontario Provincial Police launched a major investigation into allegations of abuse and torture at this institution. The OPP gathered thousands of pages of evidence. Police obtained subpoenas for documents from both the Catholic Church and individual suspects.

 

The five-year investigation resulted in a number of charges and convictions. However, many of the more horrific crimes were not brought to court because of the difficulty in tracking down the perpetrators or the fact that some of the sexual predators had died.

 

Nonetheless, the OPP documents contain evidence that will go a long way to verifying the trauma suffered by generations of children on the James Bay coast. According to a recent police witness statement the evidence documents:

 

n       The rape of male and female children

n       The sustained physical and sexual abuse of male and female children

n       The psychological abuse of children

n       Forcing children to eat their own vomit

n       The torture of children with whips

n       Electric shock torture of children through use of a homemade electric chair.

 

Federal Department of Justice lawyers are well aware of this body of evidence. Following the convictions of former supervisors in 1998 and 1999, federal officials and lawyers met with Chief Edmund Metatawabin of Fort Albany to discuss possible compensation. As well, it is my understanding that the transcripts of the court testimony has been in the hands of federal officials since at least 2003.

 

And yet, no information has been inserted in the narrative to notify the individual claimants or the adjudicators about the existence of this evidence. Federal officials have not made efforts to work with their provincial counterparts to obtain access to the evidence in the hands of the police.

 

In fact, Department of Justice lawyers, instead of enforcing the terms of the settlement are arguing that this whole body of police and court evidence (which AANDC has not sought) is not relevant.  The police took almost 1000 signed statements about abuse at the school, including what people saw happen to other children, and there are transcripts of the testimony at the trials.  And yet, the federal narrative about St. Anne’s states nothing about the OPP investigation or the criminal trials/convictions. I am told that the narrative also states there are no documents about sexual abuse at St. Anne’s, which is false. The failure to seek/disclose this information to the adjudicators and claimants has undermined the credibility of this legal process for the same people who were already abused as children.

 

The failure to obtain this evidence has put the Federal government in breach of the Schedule D, Appendix VIII and X of the Independent Assessment Process:

 

“The government will gather documents about the residential school the Claimant attended…the documents will be available for the Claimant or their lawyer to review. [These include]…any document mentioning sexual abuse at the residential school in question.”

 

The question is, why has the Justice Department failed such a basic test of enforcing the terms of settlement on the Federal officials. 

 

I find it disturbing to learn that during the IAP hearings, Federal lawyers question the compensability of claims regarding the use of the homemade electric chair. The Federal government’s Refugee Board guidelines on torture (May 2002) specifically accept the use of electric shock as a form of torture. Why would the federal government accept electric shock as a form of torture on refugees and yet challenge the claims of First Nation victims who were subject to such similar abuse when they were as young as six-years-old in government run schools?  Supervisors at the school made the electric chair and reportedly entertained themselves by watching the children being electrocuted.  Is there any doubt that electric shock administered for the amusement of adult staff is a form of physical and psychological abuse and that the children should have been seen by a doctor or hospitalized after being electrocuted?

 

Need I remind you that the Federal government is the defendant in this process? In any civil court hearing in Canada, it would be unacceptable to let the defendant decide what evidence is pertinent for the court to hear and/or allow the defendant to withhold relevant evidence.

 

The obligation to provide disclosure of evidence prior to a hearing is a fundamental principle of fair legal process. The survivors of St. Anne’s have been denied this basic right. A number of claimants have already had their hearings adjudicated without the benefit of this disclosure. I believe their cases will need to be re-examined.  What if claims have been denied because adjudicators and claimants did not know there was other evidence to support the story or to support how particular perpetrators/pedophiles operated?

 

As for the cases that are still waiting to be heard, the government should not delay in seeking a production order for all police documents relating to St. Anne’s to be brought over to the IAP process. Otherwise, upcoming cases will be compromised from the inability of the claimants and the adjudicators to have relevant access and time to assess the implications of this evidence on individual cases.

 

Mr. Minister, almost 1000 Canadians went to the provincial police in the 1990s with stories of sexual and physical abuse at St. Anne’s.  They deserve to see justice done. The survivors of St. Anne’s Residential School filed their claims in this IAP system in good faith and yet your department has failed to ensure AANDC has complied with the law.  In fact, your department is facilitating an ongoing violation of the IAP.

 

As the new Minister for Justice, you have a duty to address this failure. I am asking you to take the steps necessary to restore credibility in the IAP by working with the Provincial Attorney General’s office and the Ontario Provincial Police to seek all documents relating to sexual and physical abuse at St. Anne’s. You must inform the individual claimants and their legal representatives that the federal narrative on St. Anne’s has been falsely prepared and provide them with the true historic record.  They have a right to assess the police evidence and court testimony otherwise their appearances before the IAP will be unfairly compromised.

 

As Minister of Justice you have an obligation to the victims. I look forward to hearing from you.

 

Sincerely,

 

Charlie Angus, MP

Timmins-James Bay