Confidentiality and Self-Determination

Accessing Justice: Interdisciplinary Perspectives on Access, Justice, Law and Order, The University of Winnipeg

2018-05-11

In 2006, the Indian Residential School Settlement Agreement created the well publicised Truth and Reconciliation Commission, as well as the lesser known Independent Assessment Process (IAP). The IAP is an ad-hoc adjudication system built to compensate individuals for sexual abuse, serious physical abuse, and other wrongful acts suffered was they were students in residential schools.

As a part of that process, claimants were required to submit information about their residential school experience, including details of the abuse and its impact on their life. Each claim was then assessed by a trained adjudicator. Claimants, witnesses, and alleged perpetrators all were able to testify at a confidential hearing. After the hearing, the adjudicator could award compensation if appropriate.

In 2014, the Chief Adjudicator of the IAP applied to the court for directions: what should be done with all the evidence amassed during the IAP? In Canada (Attorney General) v. Fontaine (2017 SCC 47) the Supreme Court confirmed that all records should be destroyed after a 15 year period.

This decision is problematic on multiple levels. While intended, on its face, to protect the privacy of residential school victims, it also erases evidence of large scale abuse in a state sanctioned system. It does so by using contract law, conflating preservation and access to the archives, in a decision which in effect not only erases individual stories, but also prevents the aggregation of data, at a time where Indigenous data sovereignty is more needed than ever.

Ce contenu a été mis à jour le 13 avril 2018 à 18 h 39 min.