'Solicitor-client privilege' keeping 98-year-old document on sick First Nations children under wraps

The federal information watchdog is investigating why Library and Archives Canada invoked "solicitor-client privilege" to refuse the release of a nearly 100-year-old document on the federal government's treatment of sick First Nations children.

Federal information watchdog probing Library and Archive Canada's decision to withhold document

The cover page of a document that had its contents withheld by the Library and Archives Canada citing 'solicitor-client privilege.' (Submitted by Edward Sadowski)

The federal information watchdog is investigating Library and Archives Canada's decision to invoke "solicitor-client privilege" in its refusal to release a nearly 100-year-old document on the federal government's treatment of sick First Nations children.

Library and Archives Canada, responding to a request filed under the Access to Information Act, released only the document's cover page which is on Department of Justice letterhead and includes an entry noting the file came from "Indian Aff."

The document's subject line reads: "Compulsory removal to hospitals of sick children."

The rest of the March 1920 document remains a mystery.

'What are they hiding?'

Researcher Edward Sadowski filed a complaint with the Office of the Information Commissioner last October challenging the national archive's decision to withhold the document under section 23 of the Access to Information Act, which covers solicitor-client privilege.

"It's an ancient document," said Sadowski.

"It is totally bizarre to have that restriction on it. There could be nothing there. What are they hiding?"

Library and Archives Canada did not return a request for comment.

A spokesperson for Justice Canada said he couldn't provide a response to a request for comment by end-of-day Wednesday.

The Office of the Information Commissioner said it could not comment on open investigations.

Sadowski forwarded emails to CBC News that confirm an investigator with the information watchdog's office is handling the complaint.

Former residential school students who were sent to the Fort William Indian Hospital Sanatorium, seen here around 1960, want to be compensated for their time there through the Indian Residential Schools Settlement Agreement. (Thunder Bay Museum)

NDP MP Charlie Angus said the move to withhold the nearly century-old document seems to reveal a pattern. 

The information watchdog is investigating a separate complaint from Angus over Justice Canada's near-total redaction of documents related to Ottawa's decision to suppress thousands of police files from St. Anne's Indian Residential School compensation hearings.

"I think what is really disturbing is that this government uses the words reconciliation, but they are not ready to practise it when it comes to opening the books and opening the records," said Angus.

"Why would they hide this?"

Looking to 'shed some light'

Sadowski was seeking the document as part of historical research to bolster a court case to include the Fort William Indian Hospital Sanatorium School, where First Nation students who contacted tuberculosis were sent for treatment, as part of the Indian Residential School Settlement Agreement.

An Ontario judge ruled against the inclusion last month

Sadowski said he was trying to get the document in hopes it would "shed some light" on the federal government's policy to deal with sick First Nations children who were suffering primarily from tuberculosis at the time.

Duncan Campbell Scott was a major architect of Canada's residential school system. (Library and Archives Canada)

Duncan Campbell Scott was the deputy superintendent of Indian Affairs during that era. In 1920, he was the architect behind amendments to the Indian Act that made it mandatory for First Nations children to attend residential schools.

"Perhaps he was instrumental in establishing that policy [on First Nations children with tuberculosis]," said Sadowski.

"We don't know what back and forth discussions went between Indian Affairs and the Department of Justice."

Tuberculosis swept through residential schools

The issue of tuberculosis hit the House of Commons floor on June 8, 1920. Arthur Meighen, who was superintendent for Indian Affairs at the time, faced questions on whether the federal health department should deal with ongoing outbreaks of tuberculosis sweeping through First Nations communities.

Meighen said no.

"I did not think, and I do not think yet, that it would be practicable for the health department to do that work because they would require to duplicate the organization away in the remote regions where Indian reserves are," said Meighen, according to a transcript of the debate.

"There would be established a sort of divided control and authority over the Indians which would produce confusion and insubordination and other ill effects among the Indians themselves."

A little over a month later Meighen became prime minister after Robert Borden resigned.

A report by Indian Affairs chief medical officer Dr. Peter Bryce issued in 1907 found that tuberculosis was having a catastrophic impact on students at residential schools. His report noted that 69 per cent of students in one school had died from the disease.

At least 6,000 Indigenous children died in the residential schools over their 150 year history — the majority as a result of diseases like tuberculosis.

The true number of deaths at the schools may never be known as a result of incomplete and destroyed records. Many of the children who died at the schools are buried in graves lost to time.


Jorge Barrera is a Caracas-born, award-winning journalist who has worked across the country and internationally. He works for CBC's investigative unit based out of Ottawa. Follow him on Twitter @JorgeBarrera or email him