Vice [Brooklyn NY]
June 15, 2021
By Anya Zoledziowski
Too few people in charge of residential schools have faced legal consequences for “crimes against humanity” committed against Indigenous children, experts say.
Following the discovery of the remains of 215 undocumented children, some as young as 3, under a former residential school in British Columbia, calls are mounting for leaders and staff of residential schools to be punished.
Starting in the 1800s, residential schools were funded by the Canadian government and operated by churches to forcibly assimilate an estimated 150,000 First Nations, Inuit, and Métis children. More than half of all schools were Catholic-run. Sweeping physical and sexual abuses, disease, and malnutrition were rampant, and up to 15,000 children, many undocumented, were killed nationwide. The last school only closed its doors in the mid-1990s.
“To this day, I’ve, I’ve always wanted to go back and burn the place, and I never did,” a survivor who had been subjected to sexual abuse told the Truth and Reconciliation Commission, which investigated residential schools in Canada and their ongoing legacy.
Between 2007 and 2015, the TRC identified fewer than 50 convictions for abuse committed at residential schools—compared to more than 38,000 reports of sexual or severe physical abuse.
Survivors expressed how they felt both criminal and civil justice systems historically favoured residential school leadership and staff. For example, when it emerged that one school disciplined students in 1934 by thrashing their bare backs with straps and feeding others only bread and water for two days, the government conducted an inquiry. The judge “commended and congratulated” the school for its ability to dole out discipline. “These Indians, in terms of civilization, are children, having minds just emerging from barbarism,” he said.
Among its findings, the TRC firmly concluded Canada’s legal system “failed to provide justice to survivors who were abused.”
“When, in the late 1980s, that system eventually did begin to respond to the abuse, it did so inadequately and in a way that often re-victimized the survivors,” says the TRC report, published in 2015.
It wasn’t until 2006 that a federal settlement agreement gave survivors the right to compensation, but there were no legal cases against those who ran them. According to the TRC, survivors wouldn’t have had an opportunity to publicly share their experiences if it hadn’t done its investigation.
So far, the government has paid out $3 billion worth of reparations to 28,000 residential school survivors. There were about 80,000 estimated residential school survivors all over Canada when the TRC published its findings in 2015. Prime Minister Justin Trudeau is currently engaging in a court battle, so he can work out new compensation terms for survivors of Canada’s child welfare system, an extension of the residential school system. Experts say reparations need to be pursued, upheld, and paid—possibly in the form of a tax on the Church, too—on top of an apology.
Call for justice growing
While the Canadian government has formally apologized for its role in residential schools, the Catholic Church has not. Pope Francis expressed “sorrow” earlier this month, but stopped short of saying sorry.
Neither institution has faced criminal charges, and both have failed to hand over many residential school records that would help communities find and identify lost family members, as well as the names of former residential school staff who may have committed abuses. The Catholic order of nuns that ran the Kamloops Indian Residential School is currently refusing to release many records.
“What happened to Indigenous children is genocide, and the legacy of that continues through denial and inaction,” said Beverly Jacobs, a University of Windsor law professor from Six Nations of the Grand River Territory. “All entities involved in residential schools…must be charged with genocide and tried at the International Criminal Court.”
Crimes against humanity
A group of 15 Canadian lawyers has since asked the ICC to investigate Canada and the Vatican for crimes against humanity. ICC can step in and investigate suspected genocide, war crimes, crimes against humanity, or aggression when countries refuse or are unable to do so themselves, and it can compel all those involved to submit relevant documents and information.
The letter notes that the Rome Statute that gives the international court its power came into effect on July 1, 2002, so only crimes committed after fall under its jurisdiction. But the Church and Canada have continuously covered up their crimes, even after July 1, 2002, thereby perpetuating them, the lawyers allege.
Canada doesn’t have a statute of limitations on serious criminal offences, meaning there is no time limit for when alleged perpetrators have to be charged. But a trial must happen within a reasonable time after charges are filed.
An international investigation into Canada and the Church would hardly be the first one of its kind, and many say it’s long overdue. The notorious Nuremberg trials pursued punitive justice and prosecuted prominent Nazis who participated in the Holocaust and other war crimes. Sentences of convicted Nazis ranged from long jail sentences to death.
An international criminal tribunal was established to try perpetrators of the Rwandan genocide, resulting in 85 convictions, and either long or lifelong jail sentences for many found guilty. The Truth and Reconciliation Commission in South Africa pursued restorative justice following apartheid. It created a forum for survivors to speak openly and had the goal of cementing the country’s traumatic history as public record, while also creating healing dialogue, so that society could ultimately move on.
More than 40 countries have established their own truth commissions.
“The hope has been that restorative justice would provide greater healing than the retributive justice modelled most memorably by the Nuremberg trials after the Second World War,” said Bonny Ibhawoh, McMaster University professor of history and global human rights.
But pursuing justice is complicated and each example above has faced steep criticism for either going too far or not going far enough.
Andrew Phypers, a member of Ktunaxa Nation, is one of the lawyers who signed the ICC letter. “Records would change everything,” he said, in part because names of many perpetrators could be released. Then, they could be held to account.
Part of the problem, though, is that many Indigenous people don’t trust the police to carry out impartial investigations. Last year, nearly half of all people shot by police were Indigenous—despite the fact that Indigenous peoples make up 5 percent of the population in Canada. That’s where ICC oversight comes in, Phypers said.
“There is that potential for harm,” Phypers said. “The oversight of ICC’s prosecutor’s office would be of some value because essentially there would be oversight and it wouldn’t be a one-sided investigation.”
Trials could factor in Indigenous experiences
Canadian courts already follow the Gladue Principles, which factor in intergenerational trauma, residential school or child welfare experiences, racism, and other forms of colonialism when sentencing an Indigenous person convicted of crime. Named after a 1999 Supreme Court case that decided an Indigenous woman’s history wasn’t taken into account adequately when lower courts convicted her of manslaughter, the principles address the overrepresentation of Indigenous people in the prison system.
While the Gladue Principles largely apply to alleged perpetrators of a crime, it’s possible that courts could also factor them in when measuring the harm inflicted.
“It could be a measure of the gravity of the offence,” said Phypers. “What is the impact on the people that were victimized? It would be notably grave given the concept of intergenerational trauma and how it is persisting right till today.”
Answers to those questions could then inform the sentences handed out to people who ran residential schools, he said. Survivors and their families could ultimately guide the discussion, too.
In criminal cases, there is generally room for victims to submit impact statements in which they state what justice looks like to them. “It can have some influence on the outcome, or at least convey to the court how the crime impacted them,” Phypers said.
Phypers said Indigenous legal practices could be used throughout, including with courts accepting Indigenous oral history.
‘Something just must occur’
It’s still early—as of Tuesday, the ICC has confirmed it had received the letter and indicated it is considering the complaint. There is no word yet on whether it will open an investigation.
What is clear is some form of accountability, informed and led by Indigenous voices, should happen, Phypers and others said.
“Canada has an immense amount of work in the area of reconciliation, and addressing the horrific history that resulted in thousands of children not making it home. We will not allow them to cover this horrendous history from the world,” said the Federation of Sovereign Indigenous Nations, which represents 74 First Nations in Saskatchewan.
So while it’s too soon to say what an adequate outcome would look like following an investigation, and possibly, trials, Phypers said there are many ways an investigation could ultimately mete out justice.
“Whether that is jail time or something else I can’t really say. But something just must occur.”