The Report of the Law Commission of Canada and its Aftermath

Nathalie Des Rosiers
President, Law Commission of Canada

Remarks for a speech delivered at the Moving Forward conference
August 15, 2001
Sydney, Australia

Thank you for inviting me to participate in this very important conference on a subject that society and the legal system are often ill prepared to confront, namely, the response to past harmful conduct toward children. It is often difficult to "move forward" from such a difficult past.

In 2000, the Law Commission of Canada published its report, Restoring Dignity: Responding to Child Abuse in Canadian Institutions[1]. The report had been commissioned by the federal Minister of Justice to help governments respond to the claims and now lawsuits arising from the abuse suffered in institutions where children had been placed. The question was not limited to responding to the plight of the now Aboriginal adults who had been sent to residential schools in the late 1800s-1980s[2]. The report also had to deal with the response to institutional abuse suffered by children with disabilities who were abused, physically and sexually, in schools where they lived; orphans falsely labelled as mentally ill and housed in psychiatric institutions; children assaulted in educational facilities operated by religious groups; young offenders or troubled youths imprisoned in facilities where they were also sexually molested. Our report attempted to provide a range of options for different levels of government and different institutions to respond adequately to the variety of needs of survivors who were identified. Today, I will discuss some of the recommendations that the Law Commission of Canada put forward and to summarize our findings with respect to the needs of survivors. I also want to speak about the response to the report and the necessity for the Commission to continue its work in this area. I will describe some of the tensions that a report on "restoring dignity", on repairing mistakes of the past, create and propose some strategies to deal with reactions from both the public and the decision-makers.

Before I proceed with the substance of my remarks, I would like to say a few words about the Law Commission of Canada and its work and perspective in order to put my remarks in context.

The Law Commission of Canada

The Law Commission of Canada is an independent federal agency whose mandate is to provide advice on, improvements to, and modernization and reform of the law of Canada. It has defined its mission as a commitment to engaging Canadians in the renewal of the law to ensure that it is relevant, responsive, effective, and equally accessible to all, and just. In approaching its mandate, the Commission is guided by a number of important principles:

• That it view the law and the legal system in a broad social and economic context;
• That it be responsive and accountable by working in partnership with a wide range of interested individuals and groups;
• That it be innovative in its research methods; and that it take into account the impact of the law on different individuals and groups in making its recommendations.

The Commission approaches all of its work with a view to ensuring that it is multidisciplinary, consultative and, where possible, includes partnership. The Commission seeks to ensure a multidisciplinary perspective in a number of ways. It directs research contract opportunities to a variety of academic disciplines, such as sociology, economics, and psychology, as well as to lawyers, notaries and legal scholars. It seeks partnerships with different policy research agencies, with community-based organizations and other groups whose expertise complements the work of the Commission.

The Reference on Institutional Child Abuse

In 1997, the Minister of Justice asked the Commission to study the ways in which the government should respond to institutional child abuse. What should be done for survivors of sexual and physical abuse? The Commission approached its work on this reference with the same philosophy that it applies to all its other research. It attempted to understand the problem in its social context, and to measure the consequences and the impact of the different legal mechanisms on victims, their families and communities. In the case of survivors of residential schools, it also examined the impact of institutional abuse on Aboriginal nations.

My exposé would not be complete without a reference to the story of the Aboriginal People's residential schools. My colleague at the Aboriginal Healing Foundation may also speak to this issue, but it is impossible to understand the response to the report or the scope of its recommendations without first looking at the history of Aboriginal children in Canada.

The Residential Schools

What distinguishes residential schools for Aboriginal children is that they were part of a policy of assimilation that was sustained for many decades: the residential school experience influenced the lives of several generations of people.

A complete explanation of the forces that created and shaped the residential school system would require an exhaustive study comprising substantial empirical and archival research. Like the Royal Commission on Aboriginal Peoples, the Law Commission believes that such a sociological and historical study should be undertaken. But even in the absence of comprehensive research, enough is known about the effects of the residential school system to understand its social and historical significance.

The Commission's review of the increasing amount of information on residential schools for Aboriginal children has led it to three conclusions. First, racial attitudes about the backwardness and inferiority of Aboriginal peoples fuelled the maltreatment and abuse experienced by children at residential schools. Second, the affronts to the collective dignity, self-respect and identity of Aboriginal peoples that occurred in residential schools are closely linked to the nature and scope of the redress individuals and communities now seek. Third, there remains today a significant need for public education. All Canadians must be offered the opportunity to understand the destructive influence of the residential school system in order to appreciate why the federal government is obliged to take significant steps to help survivors and their communities.

Chronology of the residential school system

The history of residential schools in Canada begins shortly after European colonization. From the outset, the educational and missionary vocations of residential schools were closely intertwined. In 1620, the Récollets, an order of Franciscans, established the first known boarding school for Aboriginal children in New France. The school closed in 1629 when the friars left the colony. Following the cession of New France to England 150 years later, various Protestant denominations began to establish residential schools. In 1787, for example, the New England Company, a non-sectarian Protestant missionary organization, established boarding schools or "Indian colleges" for "Native children" in British North America. The schools were set up in New Brunswick, and included a farm apprenticeship system.

In the early 19th century, officials in Upper Canada began to establish a residential school system. In 1820, the Governor of Upper Canada submitted a proposal to the Colonial Office "for ameliorating the condition of the Indians in the neighbourhood of our settlements". By 1844, the Bagot Commission of the United Province of Canada, which was set up to examine Aboriginal education, recommended training students in

"as many manual labour or industrial schools" as possible.... In such schools ... isolated "from the influence of their parents" pupils would "imperceptibly acquire the manners, habits and customs of civilized life."

The Commission also recommended the continuation of common schools on reserves, such as the Mohawk Institute that had been established in 1829 by The New England Company. The Superintendent of Education for Upper Canada, the Reverend Egerton Ryerson, reported that the objectives of the manual labour schools for Aboriginal children were

"to give a plain English education adapted to the working farmer and mechanic," and ... that the "animating and controlling spirit of each industrial school establishment should ... be a religious one."

At the time of Confederation in 1867, the British North America Act made "Indians, and Lands reserved for the Indians" a federal responsibility in the new Dominion of Canada. In 1876, the Indian Act made all Aboriginal people wards of the federal government. Shortly thereafter, following a report from Nicholas Davin, a Member of Parliament from Regina, Saskatchewan, the government embarked upon a program of creating church-run, off-reserve, industrial boarding schools.

Although a handful of residential schools already existed in Ontario at the time, Davin's report may be credited with fuelling the rapid growth of industrial and boarding schools.

By the turn of the century, some 18 industrial schools and 36 boarding schools for Aboriginal children were in operation. While Métis and non-status Indians had been admitted to these schools until the mid-1890s, thereafter the official policy was to admit only status Indians.

In the early part of the 20th century, the Department of Indian Affairs, which had previously avoided making school attendance compulsory for Aboriginal children, concluded that the system of voluntary recruitment was not effective. The Indian Act was amended to make attendance compulsory for every child between the ages of seven and fifteen. Sixteen industrial and 55 boarding schools were operating across Canada, except in the Maritimes and Quebec; 5,347 Aboriginal children resided in these schools.

The number of residential schools reached its peak in 1931. At that time, there were 80 schools: one in Nova Scotia, 13 in Ontario, 10 in Manitoba, 14 in Saskatchewan, 20 in Alberta, 16 in British Columbia, four in the Northwest Territories, and two in the Yukon. In addition, two schools were being planned in Quebec. During the 1940s, various reports recommended that the system of segregated, residential education for Aboriginal children should be replaced by integrating Aboriginal children into provincial day schools. In 1951, the federal government began what became a four-decade long process of shutting down residential schools for Aboriginal children. The Indian Act was again amended to enable Aboriginal children to attend provincial schools.

In 1969, the federal government formally ended its partnership with the churches in Aboriginal education, allowing it to accelerate the rate of residential school closures. Sixty per cent of Aboriginal students were then enrolled in provincial day schools, but fifty-two residential schools remained in operation. The following year, control of the Blue Quills residential school, near Saint Paul, Alberta, was turned over to the Blue Quills Native Education Council, the first school in Canada to be officially administered by Aboriginal people. In 1973, the federal government agreed to transfer the responsibility of the administration of Aboriginal education programs to band councils or their delegated education authorities. The last government-funded residential school for Aboriginal children was closed in 1986.

Aboriginal children were the only children in Canadian history who, over an extended period of time, were statutorily designated to live in institutions primarily because of their race. Large numbers of school-aged Aboriginal children, at times up to one-third of them, were sent to residential schools. In some communities, this institutionalization continued for decades, and affected many generations.

For these reasons - the racial attitudes underpinning residential schools, their mission to re-socialize children, the large number of schools and the lengthy period they were in operation - the Law Commission believes that the impact of the abuse suffered by individual Aboriginal children can only be totally understood when it is placed within its larger social context: families and communities have been profoundly harmed. Nor is it enough to look at possible redresses as if it were only necessary to redress physical and sexual abuse, although that is a priority. Developing an understanding of the link between the degradation and disconnection caused by physical and sexual abuse, and the context in which it took place, requires approaches that also address emotional, psychological and spiritual harm. In other words, the adequacy of any redress mechanism must be evaluated according to how well it addresses the full range of harms experienced by individuals, families and communities.

What Aboriginal children experienced in residential schools, and what Aboriginal families and communities experienced because their children went to these schools, are known. These experiences have, however, not yet been comprehensively and systematically documented. A number of features distinguish the experience of Aboriginal children in residential schools from the experience of other institutionalized children. The residential school system was intended to undermine a culture. It was one component in a loosely integrated set of statutes and programs aimed at controlling and reorienting Aboriginal behaviour.

Upon entering a residential school, children were stripped of their personal belongings and artefacts of their culture. Their hair was cut, their clothes were taken away and replaced with those of the institution, and they were separated from other family members. To facilitate cultural assimilation, Aboriginal students were generally forbidden to speak their languages or practice their cultural traditions. While there is some debate regarding the extent to which individual schools permitted the use of native languages, there is little doubt that the overall effect of this policy was to engender a sense of cultural and spiritual alienation among the children.

Chronic under-funding and official indifference, common themes identified through the investigations into residential schools in the 1940s and 1950s, meant that Aboriginal children were usually placed in institutions with substandard living conditions.

Under funding also had an impact on the staff at residential schools. The schools were frequently short-staffed and the working conditions were less than adequate. This situation contributed to a climate of indifference and neglect.

The institutional form of the residential school, its avowed aims, and some of the staff it attracted together generated a climate in which many children did not flourish. However dedicated many of those who managed individual schools may have been, a flawed governmental policy, poorly funded and administered, led to an educational experience that did not well serve many Aboriginal children, and that exposed some to terrible acts of physical and sexual abuse.

To propose a response to these experiences as well as the experiences of other children abused in institutions, the Commission hired several teams of researchers who looked at both the international models and the range of options tried in Canada. The research involved reviewing the literature on institutional abuse and its effects, interviewing survivors, and consulting with a wide range of individuals and groups, religious organizations, Aboriginal communities, lawyers, therapists and community groups. Two research teams explored the needs of survivors, which we summarize as follows:

a. Establishing an historical record; remembrance

b. Acknowledgement

c. Apology

d. Accountability

e. Access to therapy or counselling

f. Access to education or training

g. Financial compensation

h. Prevention and public awareness

Our recommendations emphasized that the variety of needs must be considered in the response and measure the different legal mechanisms in light of their responsiveness to the varying needs. My colleague will speak to the experience of the Aboriginal Healing Foundation in supporting healing within communities throughout Canada. I will focus on how governments can meet the various needs identified.

At the end of the day, we invited governments to take a proactive stand and move toward responding to the harm in innovative ways - ways which included more than financial compensation and sought not to re-victimize survivors in the process of "responding" to their past suffering. This encouragement to move toward non-adversarial methods of resolution was at the core of our approach. We suggested that any process ought to be articulated around the principles of respect and engagement of the victim, and provide him or her with information and support.

The key message of our report was addressed to Canadians. Governments rarely move unless and until there is public pressure to do so, or at least until there is little political risk in doing the right thing. An understanding by the public of the issue is important if we are to move forward. Our report began therefore with an appeal to the sense of generosity, to the sense of morality of Canadians in reflecting on this issue. The report is entitled "Restoring Dignity" not only with a view to restoring the dignity of survivors but also of restoring dignity to Canada as it confronts its past.

Our enabling legislation obliges the Justice Minister to respond to the Commission's report. In her response entitled "Safeguarding the Future and Healing the Past" tabled last spring, the Minister endorses the approach suggested by the Commission. The response seizes on the link to prevention and highlights the various federal programs for children that exist in Canada. It also agrees with the Commission's recommendation that victims of crime should have greater involvement in the criminal process. Finally, it describes the federal government's attempts to develop redress mechanisms to resolve the lawsuits arising from the legacy of the residential schools. To that effect, the government has created a special office with a specific mandate to settle the claims brought forward by Aboriginal survivors and negotiate with the churches that ran the schools. To date, this process has been very slow.

What I would like to discuss with you today is a reflection on the tensions created by a response to past institutionalized harm. Why is it that governments and the Canadian public do not embrace a report such as Restoring Dignity? Why is it so difficult to convince decision-makers and the public of the urgency to deal proactively with this situation. I will deal with the types of arguments which continue to structure the public debate on this issue and comment on the predictable reactions of decision-makers in light of this ambivalent public reaction.

I - Tensions within the public

There are two main arguments in the public that I want to address:

a) The first is that a report such as Restoring Dignity is condemning well intentioned past acts by judging them against modern standards.

b) The second is that a report such as Restoring Dignity will cost too much money to implement - jeopardizes the future to compensate the past.

"We thought we were doing "good"" - the argument about the benevolent nature of the intervention

It is difficult to accept that good intentions are not enough and that, as the saying goes, hell is paved with good intentions. To uncover the assumptions underlying the belief in the good intentions of the time requires a nuanced approach.

First, it is important to acknowledge the arrogance and the racism of such assumptions toward the Aboriginal people. Human Rights Commissions around the world share the burden of inviting citizens and organizations to take a good look at their own prejudices and they know that it is a thankless task. No one likes to be told that his or her belief system is prejudiced, and the racist labelling creates defensiveness and fears.

Nevertheless, it is necessary to do so.

It is also important to reflect upon the complexity of the situation while not losing sight of the reason why abuse did occur and to present the nuanced picture which acknowledges as well the lack of choices for the workers in residential schools. The experience of Truth and Reconciliation Commissions is that it is necessary to uncover the deeper range of conflicts, the impossibility of some choices, the complexity of how abuse occurs in order for peace to emerge. Nevertheless, one cannot lose sight of the reason why Aboriginal children were sent to residential schools. No matter how benevolent the intention was, no matter how some Aboriginal children may have "benefited" from the experience, how many have ambivalent feelings toward the experience, the policy was rooted in discriminatory attitudes. Children were removed because it was thought that schooling outside their families would be the way to assimilate them into non-Aboriginal society.

It is not an easy message to hear - but it must be told in movies, in stories, on TV, in novels, in songs and in poems.

It is a part of Canadian history that has to be known. No society can be built on a lie.

"It costs too much money" - the argument that responding adequately jeopardizes the future to compensate the past

First, let me say that the Commission's report speaks to more than financial compensation, and this is an aspect which I want to emphasize. It is not only about money - neither for the primary victim nor for the family or the community. In addition to financial compensation, the list of survivor needs that emerged from the Commission's research includes, as mentioned, acknowledgement, accountability, apology, access to therapy and education, memorializing and prevention.

The report, therefore, is about detailing how different legal mechanisms can respond to the various needs of victims and of their families and communities. It proposes changes to several mechanisms, the civil justice system among others, and encourages governments to move toward alternative dispute mechanisms that offer more flexibility than civil actions in attempting to respond to victims' needs.

Nevertheless, money will have to be spent. Again, the public sentiment that "it costs too much money" has undertones of racism:

- racism of not wanting to give money to marginalized groups; fear that the money will be used badly: for illegal activities.

- Therefore, there is a great temptation of paternalism: to give money, but only for programs not for cash, to presume fraud.

The Law Commission has attempted to look at the problem differently: to ask the question: what are the costs of doing nothing. What are the costs of not responding to abuse? We have an ongoing project attempting to respond to this issue.

II - Tensions with governments

Essentially, responding to past institutionalized harm creates dilemmas for decision-makers. This dilemma may be expressed as the very real conflict that exists between the Crown as defendant and the Crown as acting in the public interest for all Canadians, including its most vulnerable members. When the Crown is sued in court, or even when demands are made on behalf of a specific group of people, the government's reaction is almost always a defensive one - why privilege this group as opposed to other Canadians? The problem is one that is defined by the outside group and impressed upon the government. It is not a program that it has thought about or for which it has a solution and the response is immediately to "limit the damage". Governments as defendants play the game of defendants - denial, reproach, minimization. However, programs designed by governments, even if they target a specific group, do not attract the same type of attitude. Certainly, a program for Canadian children, for Native students, or for older adults, will have to be managed efficiently, but the idea is to reach all the beneficiaries. Governments acting in the public interest tend to act with leadership, with efficiency and with productivity in mind. They define success by the large number of people who were reached and helped by a program.

The current debate about residential schools in Canada has been cast in terms of governments as defendants. It is marked by the structures of all legal battles:

a) If we settle, it must be for all times.

b) Can we minimize our liability?

The Crown as defendant may want resolution, but a resolution that does not have a trail of liability attached to it. The lawyering techniques are all about boxing liability, curtailing it, managing it in time and money. However, healing is more complex; a broken relationship between the Crown and the aboriginal survivors may not be "fixed" in a one shot deal. Particularly when the relationship is broken around issues of trust. Institutional abuse is about losing trust in institutions - survivors do not trust the government that put them in institutions for their alleged "greater" good.

Lawyers are not well trained to accept uncertainty of outcomes - they define success by striking a deal, by the signatures at the bottom of the page, and the tightness of the wording.

It is therefore a real dilemma for the government. The Crown as defendant defines its success by its response to survivors to receive a lump sum or whatever package is offered on one occasion. However, it is hard to predict how a healing process will unfold and the pressure to resolve once and for all a claim against a defendant may be unattractive. Governments as defendants want finality, but governments as protector of the public interest should want progress. If the program was defined through public interest schemes, one could argue for more flexibility, for stages in compensation, for possibilities of opting out and opting in features. Defining such programs only demand imagination and flexibility. Success could be defined differently by the greater number of people accessing the program because they need it.

c) Is anybody else on the hook? - the argument about the necessity to find other defendants

In Canada, the issue is whether or not religious organizations that ran the establishments with the government are liable for some of the abuse that occurred. For the survivor however, this fight between the Church and the government is bewildering: the two big institutions blaming each other instead of owning up to their share of responsibility.

In many other fields, like when environmental disasters occur, we don't wait until all the defendants have been named and have reached an agreement about their liability to start the clean-up. A similar attitude should prevail here. Delay in compensation and response only worsen the injury.

The Law Commission's report attempted to define the problem not as government as defendant but as government acting in the public interest. Governments can help and they should measure their success in helping not by how little it costs them but how many survivors were able to move forward with their lives and heal from a harmful past.

Strategies to respond to these tensions

As I mentioned earlier, it is important to involve the general public in the issue - through works of art, TV programs, movies, novels, etc. This is a part of Canadian history that must be known.

It is also important to reflect on the "costs of doing nothing", on the costs to the Aboriginal society, to the Canadian society of not responding, or of not acknowledging the past history. It is the cost of a wounded society.

It is also important to outline the success in the healing programs that have been undertaken - we tend to go into denial when there is no apparent solution to a problem, when something is too complex to resolve. When we despair of solving a problem, we ignore it, we put it aside. Demonstrating success allows glimpses of hope in this debate which may sustain greater support of innovative programs.

Conclusion

Responding to past mistakes is not easy. But it is only by recognizing the past that the future can be built. Failing to acknowledge what occurred, the mistakes that were made simply reproduce a climate for the mistakes to be made again.

Let us not forget. Acknowledging the past is the only way to allow us to move forward with dignity.