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Access to Justice and Residential Schools in Canada  – (Part 1)

  • Image: “Rep of Missionary Oblates of Mary Immaculate in Canada apologizes for their role in residential schools” by The United Church of Canada is licensed under CC BY-NC-ND 2.0

Recently, the remains of 215 children were discovered in unmarked mass graves on the site of Kamloops Residential School.

There is a sense that there may be more. That sites like this may exist elsewhere in Canada.

The school was operated by the Catholic Church between 1890 and 1969, when the federal government took over.

The Truth and Reconciliation Commission of Canada has records of at least 51 children dying at the Kamloops Residential School between 1914 and 1963.  

Many questions remain. We know little about these children including who they were and the circumstances of their deaths.

Amid this news, it is interesting to think of the positions taken by the federal government and its lawyers in at least some residential schools proceedings.  

Initially, government lawyers fought claims for compensation arising from an electric chair and other wrongs at St. Anne’s Indian Residential School in Fort Albany, Ontario. 

To understand the approach taken to the litigation, let’s first look at the residential schools claims resolution process.

The Residential Schools Settlement Agreement (IRSSA)

In May, 2006, the Indian Residential School Settlement Agreement (IRSSA) was finalized. The IRSSA was negotiated between churches, the federal government, the Assembly of First Nations and other Indigenous organizations and former students. 

In Fontaine v Canada (AG), the B.C. Supreme Court described the IRSS as a “Canada-wide settlement encompassing residential school operations spanning more than a century and includes an estimated 79,000 class members in total.”

Article 6 of the IRSSA established the Independent Assessment Process (IAP) as the way for claimants to seek compensation.  

Justice Brown in Fontaine v. Canada described the IAP as:

… a modified adjudicative proceeding for the resolution of claims of serious physical or sexual abuse suffered while at a residential school.  The hearings are to be inquisitorial in nature and the process is designed to minimize further harm to claimants.  The adjudicator presiding over the hearing is charged with asking questions to elicit the testimony of claimants.  Counsel for the parties may suggest questions or areas to explore to the adjudicator but they do not question claimants directly.

The IAP was a form of litigation, although a modified form that was supposed to reflect the sensitive nature of the claimants and claims.

A claimant commenced the IAP process with an application not unlike a civil claim.  It detailed the harm or abuse, with dates, times and those who did wrong, and requested compensation.

At a hearing before an adjudicator, the adjudicator assessed the credibility of the claimant’s claim and the harm to the claimant and determined the appropriate compensation.

Hearings were private and confidential. There was no right of cross-examination by any alleged perpetrator. Parties could call witnesses, but the adjudicator asked the questions.

IRSSA Disclosure Obligations

The IRSSA required the government of Canada to provide information about the IAP claimants, the residential school in question and information about alleged perpetrators (persons of interest (POI) reports) and allegations of abuse at a particular school.

The Canadian government was also required to prepare a narrative on each of the residential schools. The narrative was essentially a history of that  residential school.  It was intended to include reference to any abuse that occurred at that particular school.

The obligation to disclose information and prepare the narrative was ongoing. As new information became available, the government was required to include it and update the narrative.

An Ontario judge noted in Fontaine v Canada (Attorney General), that “Canada is not doing a favour in providing school narratives or POI reports; it is performing a hard-bargained for contractual promise.”  

The narratives were important to the IAPs, because they could be used by adjudicators as a basis upon which to make findings of fact and assess credibility of a particular claimant’s claim of abuse.  The IRSSA contemplated IAP adjudicators taking previous criminal or civil trial into account.

In “A Less Private Practice: Government Lawyers and Legal Ethics”, a 2020 paper published in the Dalhousie Law Journal, Jennifer Leitch, an adjunct professor of law at Osgood Hall Law School and an instructor at Trinity College, University of Toronto, describes problems that arose in the IAPs for St. Anne’s Residential School.

The government and its lawyers viewed their role as one that prioritized taking a traditional adversarial position. Little priority was given to serving the public interest in the sense of fostering truth seeking.

Next week, we will look at some issues encountered in the St. Anne’s Residential School IAPs. 

This is a modified version of an article appearing in online publications including the Kelowna Capital News. This article is for educational purposes only, and provides very general thoughts and general information, not legal advice. By viewing it, you agree that there is no lawyer-client relationship between you and the website publisher. Nothing here can be used as a substitute for competent legal advice from a practicing lawyer in your province with experience in dealing with the specific circumstances of your situation.  We may be reached through our website at