Fate of heart-wrenching residential school abuse stories hangs in balance

The question of what to do with records of deeplypersonal, often heart-wrenching testimony from thousands ofsurvivors of Indian residential schools who sought compensation forsexual and other abuse landedon the doorstep of Ontario's top courtTuesday.

On one side of the two-day hearingare those who argue a lowercourt judge was right to order the material destroyed in due course.On the other are those who believe it should be kept in perpetuityunder appropriate lock and key.

Justice Murray Sinclair, who headed the Truth and ReconciliationCommission, said his concern is that the stories of what went on inthe schools will be lost forever if the "rich trove" of documentsis destroyed as ordered.

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"In a few generations, that will allow people to be able to denythe validity of the stories we have heard," Sinclair told TheCanadian Press from Vancouver on Monday.

"Right now there are deniers ofthose facts."

The records in question come from compensation hearings thatarose out of the settlement of a class-action suit against thegovernment and others related to the notorious church-runresidential schools.

That the survivors testified in front of adjudicators and theadjudicators believed them and awarded compensation is an importantpart of Canada's national memory.- Justice Murray Sinclair

Their accounts under the independent assessment processseparate from thousands of others who spoke publicly to Sinclair'sjudicial commission were intended to be confidential but thesignatories to the class-action settlement never specified whatwould happen to records of the accounts. Claimants were supposed tohave been given a choice at the start of their hearings but weren't.

The claims process turned up the "most significant" stories ofthe abuse that occurred and they may not have been heard elsewhere,Sinclair said.

"That the survivors testified in front of adjudicators and theadjudicators believed them and awarded compensation is an importantpart of Canada's national memory."

The head of the claims-adjudication process, Dan Shapiro, withbacking from a privacy expert, argued the only way to ensureconfidentiality and avoid revictimizing survivors was to destroy thedocuments once their claims had been finalized.

"All parties agree that the recordscontain the most highlysensitive personal information of claimants, alleged perpetrators,witnesses and others," Shapiro's lawyers say in their appealfactum.

"The uncontradicted evidence of claimants and churchparticipants is that they agreed to participate in the [adjudicationprocess]based on the understanding that, with limited exceptions,records produced andpreparedwere to be used and disclosed forthat purpose alone."

The competing claims and counter-claims left Ontario SuperiorCourt Justice Paul Perell with an almost impossible task.

In August last year, Perell ruled the testimony should be keptfor 15 years then destroyed. The intervening years should be used tosee whether those involved might agree to have their recordstransferred to a new national archive, he said. If they did, thematerial would have to be redacted to protect the abusers or others.

The commission calls the ruling "unworkable" on the groundsthat there would be no way to ask the more than 30,000 claimantsurvivors what they would want to see happen to their informationespecially given a lack of resources to do so.

For its part, Ottawa argues Perell was wrong to conclude therecords were not "government records." The federal governmentargues it should keep any material deemed to be of historicalsignificance under regular archiving laws, which include properprivacy safeguards.

In all, the Court of Appeal will have to sort out three appealsand four cross-appeals stemming from Perell's ruling.