The sensitive testimony of survivors of Canada's notorious residential school system should be sealed for decades rather than destroyed, because destruction would damage the historical record, an Ontario court heard Tuesday.
In making a pitch to keep the records, a lawyer for the Truth and Reconciliation Commission said their preservation does not have to equal their publication.
"Destruction of those documents will have a deep, irreversible impact on the state of the record," lawyer Julian Falconer said.
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"The minute you destroy the information, you alter the ability for generations to come to remind people of what was done to these victims."
At issue are records of the often heart-rending and emotional accounts of thousands of survivors of the residential school system who sought compensation for sexual, physical and psychological abuse.
Their evidence under the independent assessment process — separate from thousands of others who spoke publicly to the judicial commission about their experiences -- was intended to be confidential.
The head of the adjudication process, Dan Shapiro, with backing from a privacy expert, argues the only practical way to ensure the promised confidentiality and avoid revictimizing survivors is to destroy the documents once their claims are finalized.
In urging destruction of the materials, Shapiro's lawyer, Will McDowell, argued the compensation process for those who suffered serious harm was designed to address the needs of the individual, not of the collective.
'Claimants shouldn't have to be forever vigilant about the prospects that these documents will be released.' - Will McDowell
Further harm could still occur decades down the road if, for example, the names of abusers became public, he said.
"It would be a betrayal of trust again," McDowell told Ontario Superior Court Justice Paul Perell.
"Claimants shouldn't have to be forever vigilant about the prospects that these documents will be released."
McDowell proposed a retention period of several years, after which the documents would be shredded.
Court also heard that part of the mandate of the Truth and Reconciliation Commission is to create as complete a record as possible of the residential school system and its legacy.
There are ways to protect privacy without threatening history, Falconer told court. He proposed sealing the documents for at least 30 years.
During that time, an "outreach" would occur to try to get survivors to agree to making their accounts part of the trove of
material that will be housed at the National Research Centre at the University of Manitoba.
If that consent cannot be obtained, the materials would be transferred from Aboriginal Affairs after the 30-year waiting period to Library and Archives Canada, which would deal with them under its normal document protocols.
"You're not deciding how to protect history today," Falconer told the judge.
Perell, who fretted he could be doing harm no matter how he ruled, made it clear he was struggling with balancing claimants' privacy interests with the need for a comprehensive historical record.
He indicated a willingness to order some length of retention period — perhaps 15 years — followed by destruction where claimants have not agreed to archiving of their documents.
To "take the Indian out of the child," about 150,000 First Nations, Inuit and Metis children were forced to attend residential schools over much of the last century. The last school closed outside Regina in 1996.
Ry Moran, head of the to-be-built residential school archive, has said the voices of thousands of survivors would forever be silenced if their testimony was destroyed.
The hearing is slated to wrap up Wednesday.