What can Canada do to prosecute residential school crimes? Here’s what we know

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When a staff member called Richard Morrison into a change room at the residential school he was attending in the 1960s, he dutifully walked in. But when he entered the room, a bag was placed on his head and his clothes were removed.

He then became one of more than 38,000 victims of sexual and serious physical abuse that took place at federal residential schools, according to the Truth and Reconciliation Commission (TRC) report.

“All I remember was just a pain. A pain was just strong,” he told the commission. “It was really hurtful and I remember that day after that I was a very, very angry kid.”

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Manitoba RCMP acknowledge decade-long investigation into sexual abuse at former residential school

Despite thousands of other stories like Morrison’s that have emerged over the years, fewer than 50 convictions have ever been brought down against the perpetrators of abuse at these institutions.

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But that might soon change. Advocates have been putting renewed pressure on the government and law enforcement to investigate and prosecute the crimes alleged to have taken place at residential schools. Still, experts are warning that any pathway to prosecution is a long and winding one — though that doesn’t mean it’s not worth doing.

“I think it’s really important that there be a full investigation of any criminal activity, and that persons or institutions that were responsible for wrongdoing are held accountable,” said Cindy Blackstock, who is the executive director of the First Nations Child and Family Caring Society of Canada.

“It’s a good start to start in that one residential school. And now the work needs to be done to look at all of them.”

Charging the perpetrators

On Tuesday, the Manitoba RCMP revealed they’ve been investigating allegations of sexual abuse at the former Fort Alexander Residential School on Sagkeeng First Nation for the past decade. Information-gathering about historical allegations began in February 2010, police said, and involved investigators reviewing archival records both in Manitoba and Ottawa.

This kind of pursuit of criminal charges is one avenue residential school survivors can explore, a lawyer told Global News — but it isn’t up to the survivors to initiate it.

“The police will decide whether or not to proceed with charges,” said Steven Pink, legal counsel for the Native Women’s Association of Canada.

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On top of that, cases involving allegations of sexual assault and abuse can be difficult to win.

“All sexual assault cases, they’re challenging because it really comes down to, unfortunately … the credibility of the victim,” Pink said.

And as time goes on, victims “remember less, and it’s more difficult.”


Click to play video: 'Trudeau says he’d support criminal investigation into residential schools, though not up to PM to call for one'







Trudeau says he’d support criminal investigation into residential schools, though not up to PM to call for one


Trudeau says he’d support criminal investigation into residential schools, though not up to PM to call for one – Jul 19, 2021

Another issue, according to Pink, is that because many of these abuses took place decades ago, the perpetrators themselves might have already died.

Still, Pink said the RCMP’s investigation into the allegations of sexual abuse at the former Fort Alexander Residential School could be a catalyst for law enforcement to take similar action at other residential schools.

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“I think it’s the start. I really do,” Pink said.

“I think we’re going to see a lot more of these investigations come forward and criminal charges laid.”

What are the feds doing?

In the years since the Indian Residential Schools Settlement Agreement was first implemented in 2007, the TRC has unearthed troubling and disturbing details of the depths of abuse, racism and long-lasting consequences of the residential school systems.


Click to play video: 'The search for truth at former Fort Alexander Residential School'







The search for truth at former Fort Alexander Residential School


The search for truth at former Fort Alexander Residential School

Now Canada “has to step up” to address these harms, Indigenous Services Minister Marc Miller said Wednesday.

“We have said that we will in many ways: financial, mental health supports, supporting investigations and seeking the truth, which as we know is so important and a precursor to reconciliation,” Miller said.

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“We do need to, in my sense, exhaust our remedies as the federal government.”

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First Nations group says all residential schools need to be investigated

Still, Miller noted that in many ways, this quest for justice isn’t one for the federal government to lead.

The government also can’t tell the RCMP whom the police force should criminally charge — meaning the government’s hands are tied when it comes to pushing for the prosecutions of any predators from the residential school system.


Click to play video: 'Miller says feds looking at options after Manitoba RCMP confirm investigation into abuse at residential school'







Miller says feds looking at options after Manitoba RCMP confirm investigation into abuse at residential school


Miller says feds looking at options after Manitoba RCMP confirm investigation into abuse at residential school

Even though the government can’t push for individual criminal prosecutions, it does have some responsibilities when it comes to tracking down alleged perpetrators.

“Under the Indian and Residential Schools Settlement Agreement, Canada is required to research, locate and contact individuals named as perpetrators of abuse in the Independent Assessment Process (IAP),” said Leslie Michelson, a spokesperson for Crown-Indigenous Relations and Northern Affairs Canada.

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These individuals aren’t tracked down with the aim of charging them for their alleged crimes, though. Rather, the goal was to get them to testify at hearings to decide compensation for survivors.

And despite there being fewer than 50 convictions for this abuse, Canada has received 5,450 requests to find abusers — meaning thousands of alleged perpetrators are still walking free.

Criminal charges for government?

It isn’t only the individual perpetrators who can be charged for their role in the abuses that took place at residential schools in Canada: the government of Canada and the Catholic Church can both be criminally charged, too.

“I want to ensure that people understand not only individuals should be held accountable, but the institutions should also be looked at for any criminal culpability, including the government of Canada and the churches,” Blackstock said.

But if survivors decide they’re interested in exploring this avenue, they’re treading into some murky legal territory.

“Most offences start with ‘every one’ or ‘every person’ who does something, a criminal offence, and the definition of ‘every one’ and ‘every person’ in the Criminal Code includes Her Majesty and ‘an organization’ and of course, a church would fit as an organization,” Pink explained.

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While the language exists in the Criminal Code to take the unusual step of charging the crown and the churches, there’s also the issue of crown immunity — which, in many cases, protects the government from such legal action.

If this hurdle is overcome and these institutions make it before the courts, the government and the Church could be charged with not providing the necessities of life for children, criminal negligence, or even causing harm to children, according to Pink.

“So there’s there’s a host of provisions in the Criminal Code to deal with this,” Pink said.

“But there’s a lot of hurdles as well to get there.”


Click to play video: 'Manitoba RCMP acknowledge decade-long investigation into sexual abuse at former residential school'







Manitoba RCMP acknowledge decade-long investigation into sexual abuse at former residential school


Manitoba RCMP acknowledge decade-long investigation into sexual abuse at former residential school

One such hurdle is punishment, which may have to come in the form of restitution, according to Pink. But “the Criminal Code is really not set up for restitution,” he added.

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Still, despite the difficulty involved with prosecuting potential perpetrators, Blackstock says tackling the complicated processes at play with this quest for justice is Canada’s responsibility.

“It could be quite onerous, but it’s the duty we owe to each of those children that died in those graves and to their families. It is only onerous because this injustice continued for over 100 years in Canada,” she said.

“The government does a lot of onerous and complicated things.”

Crimes against humanity?

Another tool in Canada’s toolkit is the Crimes Against Humanity and War Crimes Act — and this is one legal option where the federal government’s hands aren’t entirely tied.

If the police want to lay charges under that act, they require the consent of the attorney general. And the attorney general will make that decision, whether or not to proceed with a charge under that act,” Pink said.

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If Justice Minister David Lametti gives the police the go-ahead, they could pursue charges against those responsible for the acts survivors say took place at residential schools.

Still, Lametti told Global News in a statement that law enforcement remains responsible for choosing what police investigate — despite the fact that he’d have to rubber-stamp the charges.

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“To reiterate, the police are responsible for investigating allegations and interviewing witnesses. The War Crimes Unit of the Department of Justice assists them by analyzing investigation results and providing legal advice,” he said.

“The consent of the Deputy Attorney General of Canada is required to commence proceedings for offences under the Crimes Against Humanity and War Crimes Act. These matters are prosecuted by the Public Prosecution Service of Canada.”


Click to play video: 'Understanding the scope of  the investigation at the Kamloops Residential School site'







Understanding the scope of the investigation at the Kamloops Residential School site


Understanding the scope of the investigation at the Kamloops Residential School site – Jul 16, 2021

Should the police decide to explore this route, they’d be diving headfirst into uncharted waters.

“There’s no precedent in Canada, really, to follow with respect to Indigenous people and crimes against humanity,” Pink said.

On top of that, the act didn’t come into force until 2002 — which raises questions about whether it can be applied retroactively, according to Pink.

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Still, it’s an option worth exploring, according to Blackstock.

“I would call for an investigation under crimes against humanity,” she said.

“I want to ensure that people understand not only individuals should be held accountable, but the institutions should also be looked at for any criminal culpability, including the government of Canada and the churches.”

Many roads to justice

Survivors, law enforcement and government have many potential avenues for achieving justice at their disposal. But at the end of the day, experts said it’s up to communities to determine what road they’d like to take.

“There’s different things different survivors may want. Some may want, obviously, reparation. Some may want criminal convictions against those who committed the crimes. So there’s different things like that that are in play,” Pink said.

“I guess the survivor would have to tell you what they would want in this process.”

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But regardless of what path to justice survivors would like to see, Blackstock said it’s essential one be taken.

“Canadian people deserve the truth so that they’re able to really prevent it from happening again. And the survivors and their families and the children who didn’t make it absolutely deserve this justice,” she said.

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“These are human beings, they’re little children, and that they died, likely in very compromising situations, perhaps due to criminal behaviour. And the minimum they deserve is a criminal investigation and a stopping of the wrongdoing for this generation of kids.”

— with files from Global News’ Mike Le Couteur




© 2021 Global News, a division of Corus Entertainment Inc.

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