Who's really to blame?

Page 7

Most survivors of Indian residential schools believe that both the church and the federal government were responsible for their torment, but one victim and his colleague believe the federal government is including the churches as defendants in litigation just to muddy the waters.

Alvin Tolley, an Algonquin school survivor, is working with Walter Rudnicki to set up a national residential school survivors organization. Rudnicki is an Ottawa consultant with experience as an Indian Affairs and Privy Council Office policy analyst who now advises First Nation leaders.

In a report entitled Tolley's Paper, the two men advise the churches to take a reference case to the Supreme Court of Canada in search of a definitive ruling that the legal responsibility for the school system rests solely with the federal government.

"For the last number of years, federal lawyers have been naming churches as co-defendants in lawsuits even though survivors have not done so. The effect is to force churches to incur large legal costs and bring several to the brink of bankruptcy. The evident intent of federal authorities is to promote a public image that the churches carry much of the blame for institutional abuse," Tolley wrote. "Residential institutions and their staffs operated under two very different mandates. It's been shown that their primary mandate was assimilation which, in effect, made them extensions of the Department of Indian Affairs and brought them under federal law as agents. Their legal duty was to employ whatever measures they invented to purge Aboriginal children of their language, cultures, identity and ties to their parents and their communities."

Tolley said he's not in favor of letting the churches off the hook in cases of physical and sexual abuse, but the best legal tactic would be to concentrate on the federal government.

"In passing a law that legitimised forced assimilation for Aboriginal peoples, Canada's Constitution reserved this task exclusively to its Department of Indian Affairs. This is because the wording of Section 91 (24) of the British North American Act of 1867 (now the Constitution Act 1867) is explicit in this regard. Section 91 assigns 'exclusive' responsibility for 'Indians and lands reserved for Indians' to the federal Crown," he wrote. "The term 'exclusive' has been described by Canada's Supreme Court (Nova Scotia Interdelegation case, Aug. 7, 1950) as a 'water-tight compartment.' The judges declared that no power of delegation is expressed in Section 91, nor 'indeed is there to be found any power of accepting delegation from one body to the other . . . .'

His research has convinced him that churches didn't have the power to make policy at the schools and weren't included in the reporting structure and therefore weren't ultimately liable for the harm done in the institutions.

Tolley argues that churches were merely agencies of the Crown and that such agencies in other circumstances are not held jointly responsible with the Crown because they report to the Crown.

"A general rule of agency is that any indictable or criminal acts that occurred in the institutions binds the federal government in the same way as if the government had done them itself," he wrote.

Many people will have a problem with Tolley and Rudnicki's argument. Even if they accept that the federal government has the sole responsibility for the residential school system, they feel the churches must bear responsibility for the things that happened in the schools.

Nora Bernard, a school survivor and victim's rights activist, has read Tolley's Paper, but she isn't persuaded the churches have no responsibility. She, like many former victims, still carries a lot of anger and resentment for the priests and nuns she dealt with at the Shubenacadie school in Nova Scotia.

"I'm dead set against Alvin Tolley not including the churches," she said. "I know how they work. They knew what they were doing. They knew what was going on."

Yvonne Mas, a former nun with the Holy Names of Jesus and Mary order, alleges the Catholic church covered up allegations of sexual assault against Innu children in Sheshatshiu, Labrador. While working as a counsellor in Labrador in the early 1990s, Maes said she discovered that several Innu had been sexually abused as children as early as 1960. She claims she approached the bishop with the news and pressured him for action. Instead, her contract to work in the region was not renewed. In early March, 46 charges of abuse were filed against church and public officials in the region.

"I've been helping the lawyers," the former nun said. "I've given some of my evidence because I have letters from this bishop and also a few other people that are quite damning of the church. I handed those over to lawyers four years ago and now the cases are actually being filed."

She gave the bishop time to look into the allegations, but soon became convinced a cover-up was in progress, she said.

"Eight months later, nothing had happened. So I wrote him and he wrote back and said he had sent (the priest) for assessment and the assessment advised he be taken out of ministry. But they couldn't do it right away," she said.

Asked if it was her impression that the church was more interested in protecting its own than in weeding out sexual predators, her answered was short and direct.

"Absolutely!" she replied.

Maes said she eventually left the church after experiencing abuse at the hands of a priest. After reporting the abuse, church officials sent her to a psychiatric facility in Ontario for counselling.

"They sent me to Southdown as a victim. My own sisters from Winnipeg-I was a nun at the time . . . they made the arrangements and told the therapists and psychologists at Southdown they wanted me to re-think my position, which really meant, 'Shut her up.' Well, I didn't shut up.

She has now written a book about her experiences in the church. Threats she made to write the book brought action fro the church she alleges was part of an on-going cover-up.

"They tried to gag me. They did. They put gag orders. Not only the priest but also my own nuns said they would censor my book. They weren't doing anything. Nothing was going to happen," she said. "My own offender was back in business even after he'd got a church conviction of a kind, he was back in business. So I said I was writing my book. They said, 'Well, you'll have to submit it to two of our censors.' Then I said, 'I'm out of here.' So I wrote the Pope and asked for a dispensation. Of course, they dispensed me in no time at all. But they did not dispense the offender. He's still in business. He's still protected by the church."

Recent media reports by a former United Church minister who is now a paid government expert witness suggest the victims are exaggerating their school experiences. Maes said that's nonsense.

"I think it's worse than anything we've heard yet," she said.

The former nun also disagrees with Tolley.

"I think the church needs to be charged. I'm sorry that some people, parishioners in various parts of the world, will find this difficult because it will in the end come from their pockets. That part I'm sad about," she said. "But on the other hand I don't know how else the church will learn a lesson. Why would they change? And I don't think the victims want all that much compensation. For instance, in Labrador, if the church would really spend time, if the bishop would really go and spend time with the Elders of the various Innu communities and explain this really did happen and it's not your fault, I think things would really change drastically."

Dr. William L. Marshall is one of the world's foremost authorities on the treatment of sexual criminals.

Marshall has spent time in Cree territories near James Bay and dealt with victims of sexual abuse there.

"I've listened to the stories. I've been with the people who've been abused. Just amazingly dreadful things, amazingly dreadful things It was just a golden opportunity to take advantage of these kids with absolutely no possibility of repercussions," he said.

When asked his opinion on the church or government debate, his experience led him to be tough on the churches.

"Possibly both, really, but certainly the church. It was their people that was doing it and, when they found out about it, just shifted the guy somewhere else," he said.

Asked if it was reasonable to accept the fact that pedophilia was not well understood 50 years ago as an excuse, Marshall replied harshly.

"I think it's a large extent that, but I think it's also that that's the sort of cop out the churches use nowadays. I don't think it's a fair cop out. They knew bloody well that these people were doing harmful things to innocent people. And instead of protecting the innocent people who were supposed to be in their care, they protected the offender and that's disgraceful. And they knew very well it was disgraceful at the time. They may not have understood the problem as well as we do nowadays, but they knew damned well it was wrong."

Lawyers prosecuting civil claims on behalf of school victims have said the school system became a "theme park for pedophiles." They have suggested a sinister network where child molesters passed the word around that the schools were fertile areas for their activities. Windspeaker asked Marshall if that was a common activity among the people he treats and studies.

"The media have always been attracted by this idea of a pedophile network. I'm sure there are such things, but you don't have to have a network to catch on that, if you're in charge of a school and have total authority, and you're stuck out in the middle of nowhere where only the victims can report what you're doing, and they're of a status in our society where they're not believed, you don't have to be too bloody swift to figure out that this is a golden opportunity if you happen to have these inclinations," he said. "These guys are not dumb.