Preserving the Truth
Invited guest contributor Carey Newman, is a Kwakwaka’wakw and Salish artist. His father first attended the Sechelt Indian Residential School and then the St. Mary’s Indian Residential School in British Columbia. Carey’s work as an artist is well known through his work on the Witness Blanket. In the spring of 2017 he founded the group Coalition to Preserve the Truth. The purpose of the Coalition was to save the testimonies given to adjudicators as part of the Independent Assessment Process (IAP) from being destroyed 15 years after their creation. The IAP compensated Survivors for the suffering they endured as part of being forced into residential schools. The Coalition was granted Intervener status in the Supreme Court case that was to determine the fate of 35,000 records of residential school Survivors’ testimony. These records are separate from the over 7,000 statements gathered as part of the Truth and Reconciliation Commission’ s archives. A principle point of argument in the Supreme Court case was about the protection of the privacy of individuals. The Coalition argued that the decision on whether to preserve a record or not lay with individual Survivors. Below Carey recalls the day he had in court and his thoughts about the preservation of truth, and what is at stake for Canada now as it assembles archives of the residential school era for the future.
On the morning of May 25th, 2017, I approached the Supreme Court of Canada Courthouse. I was struck with the magnitude of the moment. By early afternoon, all sides would have presented their arguments and the fate of the Independent Assessment Process (IAP) records would be in the hands of the Justices. The conviction that initially led me to decide to stand up and speak for truth, regardless of the outcome, had been joined by nervousness. I was feeling just enough optimism to feel some hope seep through my thoughts. I had felt from the beginning of this appeal that the most important thing was to give voice to Survivors and intergenerational Survivors who wanted this history saved. The second most important part of this appeal was to let Canadians know what this case was about, and what was at stake if the records were destroyed. But there in the moment, faced with the gravity of the impending question, I really, really, wanted the Supreme Court to side with us…
Next came the proceeding itself. In the morning, those on the side of preservation were up first, and I was impressed by how each of the lawyers was mindful of the privacy expectation of all Survivors while maintaining a strong advocacy for keeping the records. Chris Devlin spoke on behalf of the Coalition, and did an excellent job with limited time, (5 minutes) reinforcing our points around the value of redaction and pointing out the important difference between survivor statements and the rest of the documents generated by the IAP adjudication process. It was a good morning.
After the break, Joe Arvay, counsel for the IAP was up, and that is when the reality and adversarial nature of the court process really struck home for me. It was difficult to hear him say that the National Centre for Truth and Reconciliation and the Coalition to Preserve Truth didn’t care about Survivors, and that it was “perverse” to want to keep the “granular” details of the worst things that happened at residential schools. On several occasions, he said that he didn’t see who could benefit from this information, and that keeping it would only serve to re-traumatize everyone. To answer his question about who could benefit, one has only to look at the cycle of trauma that continues to impact our communities.
Next was Peter Grant, independent counsel, who made the argument that redaction wouldn’t protect privacy, because situational details could be used to piece together the identity of an individual. (Never mind that if kept, access to these records would be restricted to legitimate research purpose, and even then, one would first need to know the details of a person’s life, and find that particular file within 38000 others). Then to make his point, he used a redacted anecdote about a woman who was raped in school before going home to birth and raise her child. When you look beyond the hypocrisy of using a redacted story to argue against redaction, it is a compelling narrative that illustrates the importance of privacy. Nobody should ever find out that kind of information by accident. Though he was an effective speaker, what bothered me about him was his assertion that he, being the only lawyer in the room who had represented individual Survivors during their IAP claims, was uniquely qualified to know what was best for all Survivors. What I saw were Survivors sitting beside me, in tears, re-traumatized by the arguments of these lawyers who stated that they represented the interests of Survivors — Survivors are the only ones who know what is best for Survivors.
I was left feeling pretty shell shocked by the theatrical aggression of the two lawyers. I agreed with some of their points, but I disagreed with the way they were delivered. Winning at all costs, when that cost comes at the expense of other Survivors, is too high a price to pay. I was bothered by the lawyer for the Catholic Church, and disappointed that the Assembly of First Nations and Inuit Tapiriit Kanatmai (ITK) maintained their support for destruction. I was unconvinced that we should destroy the records. The longer I sat in the grand chamber, listening to the words of the lawyers, the clearer it became to me that the judicial system was not the place to resolve an issue this sensitive. I began to see how the answer we sought was based on a false premise. Indeed we were arguing over the wrong question. Instead of asking if records should be preserved or destroyed, we should have been asking: “who owns these records?” And the answer should have been: “Survivors own the records.” Such a question and answer would mean that Survivors could choose, individually, to keep or destroy their records, and we could have collectively looked at traditional laws and ways of thinking for answers.
As restrictive as the legal system is, and as difficult as it was to watch stories of abuse being reduced to fodder for cold legal opinions, pitting privacy against collective interest, I am darn proud of the factum we presented. We kept our humanity through the entire process and made some compelling legal arguments along the way. Instead of making it about right and wrong, we looked for common ground. We recognized complexity and nuance, working to find a solution for all survivors and for generations past and future, and that matters.
I’m not a lawyer, but if the general feeling was correct, the likely outcome is that the lower court ruling will be upheld. We may have made some ground around distinguishing Survivor statements from all of the other IAP documents, thereby potentially saving school narratives and the redacted adjudication and appeals records. We also raised the options of redaction, a judicial seal, or further restrictions on access, but those are less likely. Regardless of the outcome of this case, after everything, I came away with a renewed sense of purpose and recognition that our work is not done.
I end my message by asking all who have supported us to keep talking about this case, to continue to stand for truth. When future generations look back on this part of our history, let them see our resilience and our compassion. This history is too important to leave it in the hands of 7 judges, so when the decision comes down, in three months or in six, if we are successful, we will continue to stand up for the privacy of individual survivors, ensuring that nobodies wishes are abandoned. If it goes the other way, and the ruling to destroy these records in 15 years is upheld, we will continue this campaign, we will use our collective voices to inform survivors of their rights and help those who want their stories preserved, navigate the consent process. Every piece of history matters.