How the legal system failed residential school survivors, according to a major new report

LAC SEUL FIRST NATION — The process that Canada followed to compensate Indian Residential School survivors was so flawed that it should be reopened, according to a Law Society of Ontario report, which also calls upon legal professionals to radically improve their competence in dealing with Indigenous clients.

The governing body for Ontario lawyers and paralegals commissioned a panel last year to advise the profession on how to better serve Indigenous people, with a particular focus on residential-school survivors. Ovide Mercredi, a lawyer and former Assembly of First Nations national chief, served as an independent adviser to the review panel, which released its 77-page report on May 24. The law society assembled the panel after it concluded a disciplinary process against  Douglas Keshen, a Kenora lawyer who had handled numerous residential-school compensation claims.

Mercredi officially delivered the report to outgoing law society treasurer Paul Schabas at a ceremony in Lac Seul First Nation on June 18, near the former site of Pelican Falls Residential School.

“While the hope remains that the Law Society of Ontario will radically alter its understanding of First Nations histories, cultures, societies, customs, traditions, world views and internal sovereignty, the time for reform is present and imminent,” Mercredi wrote. “The days of the status quo or business as usual will not lead to reconciliation.”

The law society’s oversight body has endorsed the contents of the report unequivocally.

The review panel found evidence of systemic dysfunction in the way Ontario’s legal profession has interacted with Indigenous people — particularly those who underwent the residential-schools compensation process. “[The process] did little to satisfy the individual hopes for closure and settlement,” Mercredi wrote. “The majority of the [individuals] interviewed believe, and for good reasons, that the awards they received were very low and did not compensate them based on their stories.”

Under the Indian Residential Schools Settlement Agreement (IRSSA) survivors submitted compensation claims in two streams. A “Common Experience Payment” was based on the number of years a former student spent at residential school. A second stream, known as the “Individual Assessment Process,” provided compensation on a sliding scale, based on the severity of a survivor’s emotional, physical, and sexual abuse.

In the majority of cases, survivors hired lawyers, who interviewed them, prepared claims on their behalf, and then represented them at hearings. Survivors found the legal process culturally inappropriate and difficult to understand. Many felt the lawyers didn’t take the time to hear their stories fully, which could have adversely affected their compensation claims.

Regarding the IRSSA, Schabas said, “There have been winners and losers in this process, and I think the government owes it to Indigenous people and all Canadians to now take a look at it and see how well it did or didn’t do.”

Mercredi explained that the Western legal tradition fails to accommodate Indigenous storytelling and cultural paths to achieve justice.

“One of the reasons our people felt they couldn’t tell their stories is because of what they call the ‘adversarial process,’ where lawyers cross-examined witnesses,” he told dozens of survivors who were gathered at Lac Seul’s hockey arena last month. “The idea of finding truth in the white man’s system is to question someone’s word and to test that word through cross examination.

“Many of our people don’t understand that and don’t accept that as a way of telling their stories. They felt they were the criminals in this process, when in fact, all they were trying to do was find some closure to what happened to them in residential schools.”

In an interview with TVO.org, Tommy Keesick, a residential-school survivor, said he found the process stressful and said it had had a negative impact on his health.

“The way the hearings were set up, the adjudicator told you what you can say and what you can’t say,” Keesick said. “The questions [that lawyers for the federal government] were asking you brought back memories that you were [trying] to forget about. I had to walk out of the hearing because my chest — I had heart failure.”

If the federal government were to reopen the agreement, Keesick said, survivors should lead the process so they can tell their stories on their own terms.

The law society report also concludes that some lawyers took advantage of their clients by overcharging them and arranging for high-interest third-party loans that were leveraged against anticipated settlements.

In the case of Keshen, the Kenora lawyer, 57 clients filed formal complaints against him in 2013 and 2014. The Ontario Law Society prosecution closed its case against Keshen in spring 2017 without substantiating any of the claims against him. However, the law society obligated Keshen to attend two hearings in Toronto to “receive corrective advice and guidance, so that past lapses and mistakes are not repeated.” 

Keshen filed a lawsuit against the society for $7 million in November for what he calls a “malicious, egregious and highhanded” investigation.

Schabas, who concluded his term as the Law Society of Ontario’s treasurer — the body’s top elected official — as of last Thursday, said the case revealed “systemic issues” in the disciplinary process. The review panel report states the cross-examination was “extremely difficult” for the complainants. “In many instances, the process aggravated the trauma they had previously experienced as residential school survivors,” it reads. “The gulf between their hope for assistance and the reality of the true nature of the proceedings left some of the complainants re-traumatized and with a deep resentment of the process and the Law Society.”

The review panel report outlines nine recommendations for the legal profession in Ontario, including taking time to build relationships with Indigenous people and communities, and adjusting the law society’s processes to take Indigenous law, culture, and circumstances into account.

In Lac Seul last week, Mercredi expressed optimism that a stronger relationship between legal professionals and Indigenous people would not only help to heal residential-school survivors and their descendants, but also lead to broader legal reform. He addressed the disproportionate representation of Indigenous people in Canada’s prisons, for example.

“Those of our brothers and sisters who are in penitentiaries and prisons across the country, they can tell their stories of how the legal system disappointed them or how the legal system betrayed them,” Mercredi told survivors. “It’s called reconciliation. It’s a big word today. In our time, we just call it justice.”

This is one in a series of stories about issues affecting northwestern Ontario. It's brought to you in partnership with Confederation College of Applied Arts and Technology. Views and opinions expressed in this article are not necessarily those of the college.

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