St. Anne's Indian Residential School cases in Ottawa's legal crosshairs, says lawyer

Angela Shisheesh begins to weep as she talks about her deceased brother who never received compensation for the abuse he suffered while in St. Anne's Indian residential school.

The Fort Albany-based school gained notoriety over its use of a homemade electric chair for punishment.

Shisheesh said her brother Michel Shisheesh, who died about three years ago, lost his case because his story wasn't believed during hearings created to pay out compensation for abuse as part of the multi-billion dollar Indian residential school settlement agreement. The hearings are known as the Independent Assessment Process (IAP).

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Now the 72-year-old St. Anne's survivor wants to use documents from her own civil case against Ottawa and the Catholic Church — which predated the settlement agreement — to help other survivors from the school who weren't believed.

"I am doing it for my brothers and sisters who have gone," said Shisheesh, in a telephone interview from Timmins, Ont.

"The truth should come out about what happened in there."

Standing in her way are the federal government's lawyers.​

Lesser legal rights

Justice Canada is set to argue before the British Columbia Supreme Court on Friday that residential school survivors don't have a right to "procedural fairness" in IAP hearings, meaning they have lesser legal rights than those in other judicial or quasi-judicial processes.

Because the Indian residential school settlement agreement makes no mention of procedural fairness, it doesn't exist in IAP hearings, federal lawyers argue.

Under the settlement agreement, survivors seeking compensation for abuse suffered at the schools need to make their case in IAP hearings which are overseen by adjudicators. If a survivor loses a hearing, they can appeal to a review hearing and then a re-review hearing.

Survivors often need proof to back up their abuse claims. That proof comes primarily from documents provided by Ottawa.

"Canada can really screw up a case if they don't disclose properly," said David Schulze, a Montreal-based lawyer who will be arguing against Canada at the B.C. court hearing.

St. Anne's cases targeted

Justice Canada has highlighted seven cases that were successful on review or re-reviews as examples of the problem. Two of the cases are from St. Anne's and both were successful because additional information surfaced following the initial hearing.

In court filings, Justice Canada argues the IAP's chief adjudicator and "his designates exceed the bounds of their roles and responsibilities" by importing the concept of procedural fairness into the IAP. The department also argues that the chief adjudicator has been inconsistent in its application.

Schulze said the IAP's chief adjudicator has been using procedural fairness to deal with problems around Ottawa's document disclosure, a problem most glaringly obvious in the St. Anne's case.

An Ontario court ordered Ottawa in 2014 to hand over thousands of Ontario Provincial Police files into abuse allegations at St. Anne's that had been withheld from survivors in IAP hearings.

The OPP documents include several references to the use of a homemade electric chair.

"It is no coincidence there are two cases that really bothered them, and those two cases are at St. Anne's," said Schulze, who is representing independent counsel at Friday's hearing. 

Schulze said Ottawa was taking an "extraordinary" position because procedural fairness — the right to know the charges, the right to an unbiased hearing — is a presumption in Common Law based on "hundreds of years" of court cases.

Schulze said he believes Justice Canada wants to stop additional IAP cases from getting overturned over document disclosure issues.

"This is so mind-boggling because of who the minister of justice is," said Schultz.

Justice Minister Jody Wilson-Raybould was a former regional chief for the Assembly of First Nations.

Wilson-Raybould's office said Justice Canada is acting on instruction from Indigenous-Crown Relations Minister Carolyn Bennett's office. 

Bennett's office issued a statement saying Ottawa is simply seeking "guidance from the court" on how procedural fairness has been applied.

"The chief adjudicator has made inconsistent, and at times contradictory, decisions when applying the legal concept of 'procedural fairness,'" said the statement. "Previous court decisions have indicated the power to reopen cases lies with the courts — and not the ‎Chief Adjudicator. We are asking for clarity on the issue and it is important to receive this clarity now before the IAP is completed."

Apology questioned

Former AFN national chief Phil Fontaine, who negotiated and signed the settlement agreement, filed an affidavit challenging Ottawa's legal gambit.

Fontaine said he always expected the IAP would "respect First Nation and Inuit individuals' right to equality with a process at least as fair as any other hearing before a court or similar tribunal," according to the affidavit.

Fontaine stated he never envisioned in 2006, when the settlement agreement was signed, that Ottawa would still be struggling to disclose historical Indian residential school documents for the hearings.

"I would have been astounded," said Fontaine, in the affidavit, filed by AFN which is a party to the case.​

Shisheesh is involved in an additional legal battle with Ottawa to have transcripts from her 2003 civil case allowed in IAP hearings to bolster the evidence of one of the St. Anne's survivors whose case is part of Friday's hearing.

She believes Canada is not living up to its 2008 apology for residential schools.

"If they were sincere about the thing, they wouldn't be hiding some of the documents," she said.