St. Anne's Residential School survivors were in Ontario Superior Court today in a bid to get the federal government to release documents the former students say would help corroborate their claims of abuse.
The documents they want are from a five-year Ontario Provincial Police investigation in the 1990s, as well as files from the subsequent trials that resulted in several convictions against school staff and supervisors.
A judge hearing the case issued an interim sealing order and partial publication ban on the names of victims in the case.
St. Anne's operated in Fort Albany, Ont., near James Bay, and was the site of some of the worst cases of abuse in the country, including physical and sexual abuse. Survivors tell stories of children being forced to eat their own vomit and of the nuns and brothers shocking children as young as six in a homemade electric chair.
"We're just so tired of trying to convince people that this happened," said Edmund Metatawabin in an earlier interview with CBC News. He attended St. Anne's for eight years starting in 1956.
Under the residential school settlement, former students can make a claim for compensation through the independent assessment process (IAP). In a private hearing, they tell their stories to an adjudicator.
The adjudicator is meant to have information on the school, known perpetrators and convictions in advance. However, until recently, the information provided on St. Anne's said there were no known incidents of sexual abuse at the school, despite the police investigation and trials.
'They're hiding evidence,' survivor says
Fay Brunning, a lawyer representing some of the former students, said she pointed this out to the government. At first, the federal government said it had no obligation to get the files from provincial authorities. But Ottawa had obtained many of the files 10 years ago and still has them.
"What's happening is individual people are going in and they're basically having to start from scratch with every adjudicator every time, because this entire body of evidence has not come forward," Brunning said in an interview with CBC News.
The government has amended the St. Anne's "narrative" for adjudicators to include all the known convictions, but only did so after the battle over the documents began.
In its submission to the court, the government cites privacy concerns when arguing against disclosing the files. But it also argues that evidence from investigations and trials pertaining to certain victims should not be used for claimants not involved in those cases.
"It is Canada's position that such evidence is both inadmissible and irrelevant in the context of an IAP claim," the submission said, adding that the extra evidence is also not necessary for a former student to make a successful claim when St. Anne's former students have so far had a very high claim success rate.
"There is no practical requirement for corroborative evidence in respect of alleged acts of compensable abuse."
"The federal government has a duty to disclose all documents in its possession that contain allegations of physical and sexual abuse at the school. There's no exceptions," she said.
A lawyer for the police said he had no issue turning over the records if authorized by the courts.
"We certainly don't want to stand in the way of anything," lawyer Norm Feaver said.
The Canadian Press reported the hearings were twice interrupted when a reporter objected to a request by lawyers for the government and the adjudicator to impose a publication ban and sealing order on materials filed in the proceedings — including those already on the public record.
Later in the day, David Tortell, a lawyer for the CBC, told the court the presumption must be one of openness, and it is up to those who want a publication ban to show the necessity.
Justice Paul Perell issued an interim order sealing most materials to allow time to hear proper arguments on the issue.
He also banned publication of identities of those going through the assessment process, unless they agree to be named or had already chosen to speak with the media.
Survivors 'heartstoppingly credible'
Diana Fuller was the Crown prosecutor for the St. Anne's trials in the late 1990s, and is now retired.
"These witnesses were just heartstoppingly credible in their accounts," she said in an interview with CBC News. "It was almost as if it was crystallized in their mind what happened."
Fuller said if there is documentation available that is helpful to the survivors in making their claims, it should be provided.
The independent assessment process was supposed to be non-adversarial. But survivor Metatawabin says this dispute shows him the government sees itself as a defendant.
"And when you begin to defend yourself, you begin to hide things. That's exactly what the government is doing. They're hiding evidence," he said.
There are many interveners in the case. The Truth and Reconciliation Commission is also arguing for access to the documents. The Assembly of First Nations supports the commission's bid as well as that of the survivors'. Also intervening are the OPP, the Office of the Chief Adjudicator, and the Sisters of Ottawa.