Judge decides for privacy on IAP documents

Although presenting the Ontario Superior Court with opposing viewpoints as to what should become of statements obtained through the Independent Assessment Process, both the IAP chief adjudicator and the Truth and Reconciliation Commission agree that Justice Paul M. Perell’s decision is a victory for privacy.

“I am pleased with Justice Perell’s decision, which affirms that promises of confidentiality were properly made to claimants in the Independent Assessment Process. The court has issued a clear statement confirming the privacy of claimants and others identified in compensation claim records,” said Chief Adjudicator Dan Shapiro in a statement.

On Aug. 7, Perell released his decision which called for the destruction of documents obtained through the IAP following a 15-year retention period. He also ordered that the federal government destroy all IAP documents it has in its possession after 15 years and that any other parties, which would include the four churches that signed the Indian Residential School Settlement Agreement, or individuals destroy the IAP documents in their possession immediately after the completion of the IAP hearings.

The federal government had opposed the destruction of all IAP documents, stating that Aboriginal Affairs and Northern Development Canada retain the documents for a set period of a time, after which documents determined to have “historical or archival value” be transferred to Library and Archives Canada.

“…Involuntary disclosure of the IAP documents would be a grievous betrayal of trust, a breach of the IRSSA, and it would foster enmity and new harms, not reconciliation,” wrote Perell.
“Destroying the IAP documents is more likely to foster reconciliation, one of the goals of the IRSSAÖ. It is the survivor’s story to tell or not to tell and it is the survivor’s individual decision that must be respected.”

Perell ordered that a notice program be put in place during the retention period to reach IAP claimants and provide them with the option of archiving their statements, with all personal information and information about alleged perpetrators blacked-out.

Julian Falconer, counsel for the TRC, says Perell’s decision is a “robust one” for privacy, however, the TRC is concerned with the notice program, details of which have yet to be worked out.

“So much depends on the content and who administers and the funding of the notice program that frankly the jury’s out on this decision until we know what that looks like,” he said.

Falconer adds that the TRC is adamant that the notice program not be the responsibility of the federal government, which “does not have a good record of community engagement.”

The TRC and the National Research Centre have been directed to provide application to the court in the next few months as to what the notice program should consist of.

Falconer points out that neither the TRC nor the Indian Residential School Adjudication Secretariat, which conducts the IAP hearings, will be in operation 15 years down the road.

“The NRC’s function is an archival one. With the proper leadership, with the proper funding, clearly in our view the NRC is the logical player in this. Who else should be involved is another question,” he said.

There will not be “blanket access” to the IAP documents once archived, says Falconer, but a tiered access, which will protect privacy interests.

“On the other hand, the way privacy legislation works … more and more information is accessible as we as a society see privacy interests reducing as time marches on, or generations, or as needs arise in the face of some unforeseeable circumstances, such as the massive denial of the residential school experience or anything like that,” said Falconer.