The Canadian public needs to know what happened

Survivors of residential schools push back against document destruction

Michael Cachagee does not want his story erased from history.

The 75-year-old survived 12-and-a-half years at Indian residential schools around Ontario where he says he suffered physical, sexual and emotional abuse. It took him decades to be able to be able to face what happened to him and tell his story to an adjudicator.

Now Dan Shapiro, the head of the claims process wants Cachagee’s evidence and record of his hearing destroyed, along with the materials of 38,000 other survivors, in an effort to protect their privacy, he says.

“Who are they protecting by destroying these? They’re destroying what happened to me. They’re destroying the evidence of the victims,” said Cachagee from his home in Sault Ste. Marie. “They’re protecting, in essence, the perpetrators. They don’t want the public to see the devastation and ugliness of what happened, under the guise of protecting my innocence.”

To date, 800,000 documents have been generated as part of the hearings and 19,500 written decisions have been issued, forming what one researcher called the most comprehensive oral history of the residential school system.

“You can’t go back and take history and, because it’s not palatable, sever it and say, yes it occurred but we have no hard evidence that it occurred because we destroyed it all,” said Cachagee. “It’s like going back and saying everything that happened in the Holocaust, we don’t want to know about. We just know that it occurred. But the actual incidents and the practices and the ugliness of it, we don’t want to see that. We’re going to destroy all that.”

Shapiro argued Thursday that the public testimony from 7,000 people who have spoken to the Truth and Reconciliation Commission is enough for the historical record. He said in his speech to the 2014 Access and Privacy Conference in Edmonton that censoring the documents — a standard method of protecting privacy that involves blacking out names or identifying characteristics — would be too cumbersome.

“The reality is that we could have an army of people wielding black markers until my children retire, and this task would still not be completed,” he said. “The exercise itself would be an invasion of privacy, exposing sensitive information to a legion of redactors.”

However, some of the hearing transcripts are already redacted, according to Fay Brunning, a lawyer who has represented claimants at Independent Assessment Process (IAP) hearings. When the transcripts are released to the claimant, any alleged perpetrators and the victim have their names removed, she said.

Michael Tansey, spokesman for the claims adjudicator, acknowledged that information about perpetrators is redacted when the transcripts are requested by claimants, but said that few have requested a copy from their hearing.

Kris Klein, a prominent privacy lawyer, says censoring is a tried-and-true method of protecting privacy.

“All government institutions have to process records that sometimes contain sensitive personal information. The ‘redactors’ have to do this as part of their job. (Shapiro’s) claim seems to ignore the fact that the professionals entrusted at doing this redaction are well trained. He is also forgetting that this type of redaction is done all time. His situation is not that unique,” wrote Klein in an email to the Star.

Klein, who has been working in federal regulatory privacy issues for more than a decade, says Shapiro’s request to destroy the documents is the first of its kind he’s heard of.

“I’ve never heard of a public body trying to do this. Quite frankly it’s a little scary,” said Klein.

The fate of the documents will be decided in a court hearing to be held July 14 to 16, where a judge will be asked to provide direction on whether they should be destroyed or maintained. The Truth and Reconciliation Commission, mandated to produce a full report on the residential school system, is expected to push back against Shapiro’s move to destroy the documents.

Edmund Metatawabin, another survivor of the Indian residential school system, says the process itself has been rife with problems. He and others who survived St. Anne’s residential school, one of the most notorious institutions, have been battling with the federal government over access to court documents from convictions in the nineties and that the hearings have been trying.

“We have been insulted by the . . . process. We’ve been called liars. We’ve been left sitting there when the lawyer stood up and said ‘I have to catch a plane’ — that is not very respectful of survivors,” he said.

The records that are at risk of being destroyed include claims decisions and transcripts that would shine a light on the fairness of the process and a comprehensive record of the residential schools system.

“We lose a section of history. We lose the ability to understand why people are the way they are. We lose the ability to learn from our own mistakes and try to treat each other equally. Our children must be able to see these documents, understand us and understand how policy can affect generations of people,” said Metatawabin.

Who is Dan Shapiro?

Saskatoon lawyer Dan Shapiro first became involved in adjudicating residential school settlements in 2003, when he was hired on a two-year contract to act as a senior adjudicator. Prior to that, Shapiro ran Brayford Shapiro Law & ADR Offices, a private practice in Saskatoon, Sk., with criminal lawyer Mark Brayford.

When the Independent Assessment Process was established in 2007, Shapiro took a post as a deputy chief adjudicator working under Dan Ish, who was then the chief adjudicator.

Shapiro, who completed his law degree at the University of Saskatchewan in 1978, concentrated his litigation practice in health law, particularly cases of medical negligence and personal injury, according to the biography on his firm’s website.

He took over as chief adjudicator of the IAP in 2013 when Ish left the post.

“Mr. Shapiro is a senior adjudicator who knows the IAP extremely well. He has extensive experience in the areas of aboriginal law, civil litigation, medical negligence, insurance, injury claims and labour relations,” said Mayo Moran, chair of the oversight committee and former dean of University of Toronto Faculty of Law, in a 2013 press release from the claims process authorities.