Dirty tricks alleged in residential school lawsuits

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Tony Merchant sees a pattern in the actions of Department of Justice lawyers as they deal with residential school damage claims and, if the Regina lawyer's charges are accurate, school survivors should know they're under attack.

Published reports in mid-February revealed that the RCMP has been forced to go to court to regain or keep control of records of criminal investigations conducted in response to complaints filed by residential school victims.

Under attack

On Jan. 7, 1998, then Indian Affairs minister Jane Stewart apologized on behalf of the federal government to victims of sexual and physical abuse in the schools. But bureaucrats within the Indian Affairs and Justice departments have gained access to RCMP files and appear to be using the information in the files to help defend the government against civil law suits filed by victims.

Observers say the government is attempting to negate the independence of the national police force for its own purposes, something most law enforcement officials say is a dangerous step.

Delay tactics

Merchant, the senior partner in Regina's Merchant Law Group, told Sage that the conflict between the RCMP and the federal government departments is just another example of an approach that lawyers in his firm have noticed in recent months.

Intimidation

"It appears to be a stiffening by Justice. It seems to be out of the hands of the political and policy side and Justice seems to be functioning separate from the views of the minister of Indian Affairs and the prime minister and the cabinet as a whole, so you have this inconsistency," he said.

The apology has not been forgotten by Robert Nault, Stewart's replacement at Indian Affairs, Merchant said, but lawyers and bureaucrats have hijacked the process from the elected officials.

A former Liberal member of the provincial legislature, Merchant doesn't believe the prime minister and Cabinet are aware that the legal landscape has taken this shape. He believes there will be a political price for the party to pay if this trend continues. He hopes to get the chance to relay that message to the prime minister in the near future.

"I've talked with a number of chiefs who, at my urging, have raised this issue with Minister Nault. The Indian leadership and the Elders are convinced that his mind is in the right place and he'd like to bring these cases to a conclusion. That's certainly the direction of the prime minister and the direction of the cabinet as a whole. So you have the government, the elected officials from the government - particularly from the Prairies - believing that we're moving towards a reasonable, fair and rational conclusion of these cases, and then you have the lawyers working for Justice, where in all the provinces they're hiring all sorts of new lawyers, and the lawyers have taken over," he said.

Process hijacked

"While they get direction from Ottawa, the direction seems to be very hard-nosed and the direction is no different from some big American insurance company."

Different tactics may be employed in different regions, but Merchant, whose firm is handling thousands of residential school cases in every part of the country, thinks those differing tactics are driven by one basic strategy.

Small firms can be bullied into settling for too little or even into not accepting residential compensation cases by government delays, he said, because they have to lay out too much money in advance of a settlement decision in order to survive the delays.

"I believe that's really part of the motive. The motive is more or less three-fold: First, to just create jobs for themselves. These are the government lawyers. Many of them are temporary employees hired for a year or two. They were hired for one or two years and they've turned these jobs into five years or nine. Second, there may be some overall plan that says, 'We can pay less if we intimidate some of the law firms that don't have very many of these things and maybe aren't as experenced in how to handle them.' Some people will die, I guess and that'll save them some money. Some people will be softened up and will be apt to settle for less two years from now or four years from now. Third, why pay now when I can pay a year from now or four years from now. Just like any big insurance company or corporation," he said.

Courts fooled

In Alberta, where Merchant Law Group lawyers have filed 1,078 (about half) of the cases, the lawyer said the courts have been fooled into imposing a biased, unfair collective case management system. Worried that the high number of claims would swamp the court system, Alberta judges have forced all residential school cases to go through one small avenue of access to the courts.

Merchant calculates that each such case in Alberta is allowed just 21 seconds per month under this system.

21 seconds each

"If the Royal Bank were suing TransAlta, they'd be furious. They'd say, 'What do you mean 21 seconds.' We are entitled to as much court time, or as much attention by judges, as we need to get this case moving forward, but the judicial system has been taken in by the government to say that these 2,000 cases are going to be treated in Alberta like they're sort of one case," he said. "Well, we do these cases all across Canada and we think Alberta's just going to take forever. This ought to be treated by the court as the most important series of cases they have before them. What other time do you have more than 2,000 individuals who have the right to go to court? And they're being treated like they're unimportant."

Court bias

The decision to implement the Alberta system is under appeal but that hasn't stopped Native observers from concluding that there is a bias against their claims within the court system.

"I have had many of our clients, including some chiefs and Elders, say the only logical explanation is there's sort of a bias. It's not a front-of-the-mind, understood bias. What's happening is the government has convinced soe lawyers and the judiciary that you can't tie up the judicial system with these cases. If we allow these 2,000 cases to go forward on a first-come, first-serve basis, that important lawsuit against TransAlta won't get to court for four years.

"I can fully understand why many of our clients feel as though there's a bias there. It's a bias of misunderstanding but the effect is still the same.

The result so far has been that the average time required to deal with a case in Saskatchewan is 15 months; whereas, in Alberta, statements of claim filed in January of 1999 have still to be answered with a statement of defence.

Merchant is convinced the Number 1 priority for Justice lawyers is to delay as long as possible, using whatever means are available.

Lack of trust

"I now have a total lack of trust of the methods of the government lawyers," he said. "Let me give you an example from a trial in Saskatchewan. The government delayed and delayed, saying they had to search out all these important documents and they needed time. They told us there were 8,000 documents that they brought forward, that they tracked down at big expense but of importance to our individual client who was going to trial. We kept saying why is this case not going to trial?"

Of those 8,000 documents, Merchant said a total of five were introduced at trial. Only two were ruled admissible by the judge.

Other lawyers involved in claims against the federal government have talked of the government's "witness destruction program." Merchant was not willing to say that there is a deliberate strategy of waiting for claimants to die, but he noted that the government benefits when that happens.

"When people die, their claim dies with them. We are now up to 16 of our clients who have died and that means they get nothing. I'm not saying the plan is to wait for everybody to die," he said. "Every lawyer working for the government seems to have a schedule of delay, intimidation, the subtle threat - I can wear you down take a long time."

Subtle threat

In British Columbia, federal lawyers tell the courts they need six weeks of court time for each case. Merchant said his firm has found that it is taking, on average, a week and a half, but small-firm lawyers see the government's six-week estimate, do the math and conclude that residential school cases aren't worth their while. The Regina lawyer said that amounts to a very effective indirect way of denying legal representation and access to justice to Native clients.

If the average settlement is $90,000 and the average payment for the lawyer is 35 per cent, when a lawyer mistakenly figures his or her earnings from six weeks of trial and another six weeks of preparation, the final tally (after expenses) comes out to about $15,000 for 12 weeks of work

"That's $55,000 a year. They'll say, I earn a lot more money than that. Why am I doing these files? Or they'll say, it's worth $90,000, Maybe the government will give me $50,000. I'll convince my client to take 50 because I can't take all these cases to trial for six weeks," he said.

Justice denied

The trouble the RCMP is having in keeping details of its investigations out of the hands of government lawyers is an important sign that the lawyers have crossed the line, Merchant said.

"I think it's an important thread in terms of perception. The RCMP have come a long way in the way First Nations people think about them. So there you have a federal institution that's supposed to be independent of government but it isn't and you have a judiciary that is independent of government but it's looking like it isn't," he said. "Again, it's just what the government wants - intimidation. And then they take the RCMP information, they don't give it back. It's not available to the plaintiff. It's only available to the government. They'll use it if it helps them, they won't if it doesn't.

Merchant believes the fight between the government and the churches involved in the operation of the schools is just a