Moving Forward with Dignity - The Report of the Law Commission of Canada and its aftermath

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Moving Forward with Dignity
- The Report of the Law Commission of Canada and its aftermath

Speech delivered by Nathalie
Des Rosiers,

President, Law Commission of Canada

The French version
of this speech is available from the offices of the Law Commission of
Canada, 473 Albert Street, 11th floor, Ottawa, K1A 0H8, and will be
available on the web site www.cdc.gc.ca.ù

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 . The report had been commissioned
by the federal Minister of Justice to help governments respond to the
claims and now lawsuits arising out of 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 . 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
or children assaulted in religious educational facilities, young offenders
or troubled youths imprisoned in facilities where they were also sexually
molested. Our report attempted to provide a range of options for governments
to respond adequately to the variety of needs of survivors that were
identified. Today I will discuss some of the recommendations that the
Commission put forward as well as summarize our findings with respect
to the needs of survivors. I also want to deal with 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 , engender
and propose some strategies to deal with reactions from the public and
from decision-makers.

Before I move to
the substance of my remarks, I will 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, 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 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 from 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 growing body 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 and to appreciate why the
federal government is morally 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 colonisation.
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 organisation, 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 embarked upon the
establishment of 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 XXth 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 then 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 still 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 shift control 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 institutionalisation continued for decades,
and affected many generations.

For these reasons
-- the racial attitudes underpinning residential schools, their mission
to re-socialise 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 within 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 institutionalised children. Many officials well understood
that 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 from 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 underfunding
and official indifference, common themes that ran through the investigations
into residential schools in the 1940s and 1950s, meant that Aboriginal
children were usually placed in institutions with substandard living
conditions .

Underfunding 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 most 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 abuse
in its 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 surveying the literature on institutional
abuse and its effects and interviewing survivors, and consulting with
a wide range of individuals and groups, religious organizations, Aboriginal
communities, lawyers, therapists and community groups. Two research
teams explore 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 provided 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. It 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 statute obliges
the Justice Minister to respond to the Commission reports. 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 a
greater place in the criminal law process. Finally, it describes the
federal government's attempts to develop redress mechanisms to resolve
the lawsuits arising out of 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 who ran the schools. This process to
date has been very slow.

What I want 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 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.

1. Tensions
within the public

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

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 - 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 Commission
around the workd share the burden to inviting citizens and organizations
to take a good look at their own prejudices and they know that it is
a thankless task. Noone 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.

Second, it may also be important to reflect the complexity of the situation
while not losing sight of the reason why abuse did occur and to also
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
the 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
better how some Aboriginal children may have "benefitted"
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 of 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 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

Let me first say
that the Commission's report speaks to more than financial compensation
however 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.

2. 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 which it has a solution and the response is immediately
to "limit the damage". Governments as defendants play the
game of defendants - denial, reproach, minimizing. 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, for older adults will have to be run
efficiently but the idea is to reach all the beneficiaries. Governments
acting in the public interest tend to act with leadership and with efficiency
and productivity in mind. They defined 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 as in terms of governments
as defendants. It is marked by the structures of all legal battles:




a)l 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 in time and
money. However, healing is more complex - a broken relationship 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 government who put them
in institutions for their alleged "better" good.



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

It is therefore a real dilemma to define the success of the government's
response as an offer for survivors to obtain a lump sum or whatever
package is offer in one occasion. 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 want progress.

If the program was defines through public interest schemes, one could
argue for more flexibility, for stages in compensation, in programs
with opting out, opting in features are possible. They only demand imagination
and flexibility. Success could be defined differently by the greater
number of people accessing the program since they need it.

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

This is a real
issue in Canada where the Churches who ran the establishments with the
government are liable for some of the abuse that went on. For the survivor
however, this fight between the Church and the government is bewildering
: the two big institutions blaming the other instead of owning up to
their share of responsibility.

In many other fields, environmental disasters, 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 will only worsened 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 do something to help and it should measure itself not by how little
it cots them to curtail the liability but how many survivors were able
to move forward with their lives.

Strategies to
respond to theses tensions

As I have said earlier, it is important to involve the general public
in the issue - through work of art, T.v. 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", of the costs to
the Aboriginal society, to the Canadian society of not responding, 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 in 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.

Conclusion

Responding to past
mistakes is not easy. But it is only by recognising the past that the
future can be built. Failing to acknowledge what went on, what mistakes
were made simply reproduces the climate for the mistake to be made again.

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