The survivors of abuse at Canada's residential schools would never have signed a settlement agreement aimed at reconciliation and healing if they had known only a fraction of the documents related to their experience inside the institutions would be released by the federal government, a court has been told.
The Truth and Reconciliation Commission (TRC), which was created as part of the agreement signed in 2006 between survivors, the government, the churches that ran the schools and others, is asking an Ontario Superior Court justice to interpret Ottawa's obligations under that deal. The aim is to force the government to release millions of the documents that are buried in federal archives.
Commission lawyer Julian Falconer told Mr. Justice Stephen Goudge at a hearing on Thursday that, at the time the agreement was negotiated, groups representing Canada's indigenous peoples wanted a full-fledged public inquiry that could compel witnesses and the production of documents to uncover what went on behind the walls of the institutions over the 130 years they were in operation.
That demand was abandoned in favour of the commission, a body that operates on an honour system, Mr. Falconer said, only because there was an understanding that the government would hand over all of the relevant documents that are in its possession to form a permanent and public record of what took place.
Had the survivors known that the documents would be withheld, he said, "it is inconceivable that this agreement would have been made."
Hugo Prud'homme, a lawyer representing three Inuit groups, said the retrieval of millions of documents is a heavy burden, but it is not unreasonable.
The government did not want to hold a public inquiry and, "at the and of the day, there was a bargain that was made," Mr. Prud'homme said. "What was the compromise? It was that Canada agrees to provide all relevant documents."
Although the department of Aboriginal Affairs has turned over a million documents and promises hundreds of thousands more, 23 other departments have refused to undertake the time-consuming and costly task of search the Library and Archives Canada for the records they created. Among other things, those documents are expected to include boxes of photographs, RCMP records on the parents who tried to resist having their children taken away to become part of the government's assimilation program, letters, court records, school records and newspaper articles.
Federal bureaucrats estimate as many as four million documents may be still outstanding, and the government has said the commission can go look for them – something the commission says it has neither the time nor the resources to do.
"Three [million] to four million records of the dark tragedy that is 130 years of abuse will not be given to the commission that is responsible for protecting history," Mr. Falconer told the court. "Pure and simple, that cannot be right."
But a federal government lawyer said the commission has no right to use a court to force Ottawa to produce the documents.
Catherine Couglan, a lawyer for the federal Justice Department, asked Mr. Justice Goudge to strike the commission's court action, saying the commission is in fact a government department and, as such, it "has neither the legal capacity nor standing to make this application." Ms. Coughlan said only the Attorney-General would have that power.
Mr. Falconer and others replied that the commission was created as a department for administrative purposes only and has the right to turn to the courts for redress.
Mr. Justice Goudge has yet to rule on the government's motion.
The cost of finding and turning over all of the outstanding documents has been estimated at $100-million.
Mr. Falconer said it is obvious that there has to be a limit on what the government is required to provide. But "if Canada wanted to create a cost limit on the commission," he said, "then it should have done it and it should have told the survivors."
About 150,000 aboriginal children attended the schools, where physical and sexual abuse was rampant, and mortality rates were as high as 50 per cent at some of them.
Prime Minister Stephen Harper apologized in 2008 on behalf of the federal government for the residential-schools experience. But Alvin Fiddler, the Deputy Grand Chief of the Nishnawbe Aski Nation in Northern Ontario, which includes many of the former students, said that, when the apology was made, tangible results were expected.
"I think this is an example," Mr. Fiddler said, "of just how empty that apology was."