In Defence of Canada (Attorney General) v. Fontaine

I. INTRODUCTION

Few individuals would seriously attempt to suggest the Supreme Court of Canada (“SCC”) is infallible. That said, there is at least one case where the SCC has arrived at the correct decision and, though it may carry negative consequences for a full appreciation of our country’s history, the Court has been undeservedly criticized by proponents of a different outcome. The case in question is Canada (Attorney General) v. Fontaine.¹ While a more fulsome analysis of Fontaine may be beneficial to ensure that any deserving criticisms of the decision are sustained and acknowledged, the limited scope of a comment permits me only to dispel what I believe are some of the most egregious misrepresentations about the nature of the decision.

II. BACKGROUND

Fontaine is a decision concerning the disposition of documents related to the settlement of claims arising from, to put it mildly,² abuse and mistreatment of Indigenous children removed from their homes and forced to attend residential schools. At issue was whether documents created through the Independent Assessment Process (“IAP”) should be provided to Library and Archives Canada for archiving and later released to the National Centre for Truth and Reconciliation (“NCTR”), or destroyed now that the IAP is complete.³

The SCC ultimately dismissed the Attorney General of Canada’s appeal.⁴ In doing so, the Court upheld the order issued by the Ontario Superior Court of Justice, as modified by the Ontario Court of Appeal, providing that the documents were to be destroyed following a fifteen-year retention period.⁵ The retention period mandated by the court order, coupled with the option to consent to the disclosure of the information contained in the documents,⁶ provides an opportunity for survivors to ensure their stories are provided to the NCTR before the documents are destroyed.⁷ The Chief Adjudicator of the IAP was also ordered⁸ to provide notice “inform[ing] claimants of the possibility of voluntarily archiving some of their IAP Documents at the NCTR.”⁹

III. UNPOPULAR RECEPTION

In the days following the October 6, 2017 release of Fontaine, news outlets began publishing commentary that was critical of the decision. This is fair as a matter of course. Nothing that our public institutions do is automatically above reproach. However, at least one critic of Fontaine, perhaps unintentionally, has engaged in a somewhat misleading analysis. It seems only just that this critique should be addressed. For this purpose, I have decided to examine and respond to the assertions of its author that I contend are an unduly harsh and biased criticism of Fontaine.

The author is Dr. Lev Marder, a sessional lecturer at the University of Guelph. In an op-ed piece published by the Ottawa Citizen, Dr. Marder states the SCC in Fontaine “signalled that significance of the documents, the interest of future generations in what happened to their ancestors, intergenerational justice, the historical import of these documents for researchers, are all trumped by Canadian legal precedents.”¹⁰ While the thrust of what Dr. Marder asserts is admittedly true, such a critique cannot stand unchallenged. To suggest the decision in Fontaine rests solely on precedent is to offer a trite and truncated analysis. Fontaine is justifiable as more than the mere application of precedent. It is justifiable as protecting the legitimate expectations of parties involved in the settlement process. It is justifiable as respecting the personal autonomy of individuals who previously had their autonomy denied or rejected in a horrendous manner. The fact that the order, as upheld, permits ample time for survivors, who have provided the accounts and information contained in the documents, to provide consent to disclosure of these documents to the NCTR for preservation shows a transparent respect for individual autonomy. The simple fact that such respect for individual autonomy, in the form of ascertaining the objective intentions of the parties, has been adopted in cases with precedential value does not render its value trivial. It is telling of that respect for individual autonomy that the SCC chose to include the following statements:

[T]he destruction of records that some claimants would have preferred to have preserved works a lesser injustice than the disclosure of records that most expected never to be shared.¹¹

…

[T]he Chief Adjudicator [should] conduct the notice program without delay and with full cooperation from the parties, in order to give effect to the express wishes of the greatest number of IAP claimants possible.¹²

Clearly, the decision in Fontaine was not simply the triumph of precedent over public interest. Instead, Fontaine represents the use of precedent to protect the privacy interests and individual autonomy of IAP participants.

Dr. Marder also refers to an interview given by a residential school survivor and IAP participant, wherein the individual says she believes survivors should be asked what they want, not simply told.¹³ Dr. Marder uses this quotation to suggest the SCC has committed some sort of transgression by not ordering that the Chief Adjudicator approach each and every IAP participant individually to ask for permission to preserve their stories.¹⁴ Two points will suffice to upend this criticism. First, it is impractical to expect the Court to order that 37,716 IAP claimants¹⁵ should be approached individually to seek permission to preserve their accounts, particularly in light of the fact that those same claimants already participated with the expectation that their accounts would be kept confidential. Second, the alternative position Dr. Marder lobbied for throughout the article, that the information should automatically be preserved, would amount to telling survivors their expectations of privacy are trumped by the public interest. Dr. Marder’s desired outcome would require IAP participants to share their stories with the general public against their wishes.

IV. CONCLUSION

National Chief Perry Bellegarde of the Assembly of First Nations summarized the merit of the Fontaine decision well by stating the following:

Each individual has the right to decide if their personal stories and experiences told during the [IAP] are made public or kept private…This is especially true in these situations, where the testimony deals with very personal experiences of trauma and abuse. Many former students shared their stories on the understanding that the IAP hearing was private and confidential. This must be respected.¹⁶

Fontaine does precisely that. Despite its ramifications for the preservation of important Indigenous and Canadian history, it is wrong to mark the decision as ill-advised or unjust. While there is no doubt a great national interest in preserving the accounts of residential school survivors, it would be manifestly unjust to force survivors to share those stories with the general public against their will. As such, the SCC should be applauded for protecting the autonomy of IAP participants while attempting to strike the best balance possible in the circumstances.

^* BA Hons (University of Saskatchewan), JD Candidate (University of Saskatchewan).

¹ 2017 SCC 47, 414 DLR (4th) 577 [Fontaine].

² I acknowledge that my words are a gross understatement. Respectfully, I do not feel it is my place to attempt to characterize the experiences of residential school survivors, as I would not be able to do those experiences justice.

³ Fontaine, supra note 1 at para 3.

⁴ Ibid at para 4.

⁵ Ibid at paras 18-19, 21.

⁶ Ibid at para 57.

⁷ Ibid at para 3.

⁸ Ibid at para 21.

⁹ Ibid at para 12.

¹⁰ Lev Marder, “Marder: Allowing the Destruction of Residential School Records—How the Supreme Court Missed a Chance to Help in Reconciliation”, The Ottawa Citizen (30 October 2017), online: <http://ottawacitizen.com/opinion/columnists/marder-destroying-residential-school-records-how-the-supreme-court-missed-a-chance-to-help-in-reconciliation>, archived: <https://perma.cc/BT5T-6G4V>.

¹¹ Fontaine, supra note 1 at para 62.

¹² Ibid at para 64.

¹³ Marder, supra note 10.

¹⁴ Ibid.

¹⁵ Fontaine, supra note 1 at para 6.

¹⁶ Brandi Morin, “Court Order to Destroy Residential School Accounts ‘a Win for Abusers’: NCTR Director”, CBC News (6 October 2017), online: <http://www.cbc.ca/news/indigenous/court-order-destroy-residential-school-accounts-1.4344918>, archived: <https://perma.cc/D4CC-KNJJ>.