Legal cases cited in the TRCC’s Final Report

“The signing of the Indian Residential Schools Settlement Agreement (IRSSA) in 2006 was a major turning point in the relationship between Aboriginal and non-Aboriginal Canadians. …

The disclosure of pervasive abuse and cruelty in the residential school system resulted in some police investigations and convictions of a number of the individuals who had abused students. Building on these criminal court decisions, Survivors launched civil claims seeking compensation for the abuse they experienced in residential schools. Thousands of civil lawsuits were filed. …

Changes in Canadian law in the 1990s allowed Survivors to launch class-action lawsuits in relation to their residential school experiences. At the same time, the dispute-resolution program that the federal government had established as an alternative to the courts came under criticism from Aboriginal organizations, the Canadian legal establishment, and, eventually, a parliamentary committee. As a result of these growing pressures, in 2005, the federal government chose to enter into a process intended to negotiate a settlement to the growing number of court cases. This led to the negotiation of the IRSSA in 2006, and its approval by the courts in the following year.”¹Truth and Reconciliation Commission of Canada (2015), Final Report: The History 1939-2000, Volume 1, Part 2, pp. 551-552.

The Indian Residential Schools Settlement Agreement (IRSSA) was the result of a complex process that involved countless acts of courage and determination on the part of Indigenous persons and organizations. Some of these acts involved recourse to Canadian law.

Two chapters of the Truth and Reconciliation Commission of Canada (TRCC)’s Final Report are concerned with the history of Indian Residential Schools and how the courts afforded some Survivors access to justice:

• “Abuse: 1940-2000,” Chaper 41, Volume 1, Part 2, pp. 399-451.
• “Getting to the Settlement Agreement,” Chapter 45, Volume 1, Part 2, pp. 551-579.

A third chapter considered this history through a “denial of justice” lens and discusses how the Canadian justice system continues to discriminate against Aboriginal persons:

• “A denial of justice,” Chapter 5, Volume 5, pp. 185-276.

Of the TRCC’s 94 Calls to Action to redress the legacy of residential schools and advance the process of Canadian reconciliation, 18 Calls relate to matters of justice.²“Calls to Action,” Volume 5, pp. 284-295.

The TRCC’s Final Report cites dozens of primary legal sources (statutes and regulations, legal cases, and legal documents) to support its findings and recommendations. The discussion of legal cases emphasizes three themes:

• The failures of the criminal justice system in protecting residential school students and punishing those who abused them physically, sexually, and emotionally (vol. 5, pp. 188-198).
• The failures of the civil litigation process to provide justice to the Survivors of the residential schools and their families (vol. 5, pp. 199-218).
• The criminal legacies of the schools, the myriad harms and inter-generational damage inflicted by the government policy of removing children from their homes and forcibly separating them from their families and communities, language, and cultures, all of which have contributed to the disturbingly high over-representation of Aboriginal people in prison (vol. 5, pp. 218-234), as illustrated by cases that followed the implementation of the IRSSA in 2006:
  • Fetal Alcohol Spectrum Disorder (R. v. C. L. K., 2009 MBQB 227 (CanLII); R. v. George, 2010 ONSC 6017; R. v. Charlie, 2012 YKTC 5).
  • Parental neglect (R. v. Ominayak, 2007 ABQB 442; R. v. Jimmie, 2009 BCCA 215; R. v. Rossi, [2011] O.J. No. 4736; R. v. Snake, [2010] OJ No 5445).
  • Family violence (R. v. Rossi, [2011] O.J. No. 4736; R. v. Snake, [2010] OJ No 5445).
  • Racism (R. v. Paulin, 2011 ONSC 5027; R. v. Tymiak, 2012 BCCA 40; R. v. Pauchay, 2009 SKPC 35; R. v. W. R. B., 2010 MBQB 102; R. v. Shawn Curtis Keepness, 2011 SKQB 293; R. v. R.L., 2012 MBPC 22; R. v. Corbiere, 2012 ONSC 2405; R. v. Sharkey, 2011 BCSC 1541; R. v. Loring, 2009 BCCA 166).
  • Sexual abuse (R. v. J. O., 2007 QCCQ 716; R. v. W.R.G., 2011 BCPC 330).
  • Substance abuse (R. v. Craft, 2010 YKTC 127).
  • Poverty (R. v. C. G., 2011 NWTSC 47).
  • Child welfare involvement (R. v. J.E.R., 2012 BCPC 103).

To help the truth of Canada’s Indian Residential Schools to be told, we are publishing a dataset (ODS file) that identifies 144 legal cases referenced in the TRCC’s Final Report with records in two online legal databases:

1. Canadian Legal Information Institute (CanLII)
2. Lexis Advance Quicklaw (Lexis)

Our dataset includes the following fields:

We were unable to locate two cases in the online legal databases:

• Her Majesty the Queen, and Harold Daniel McIntee. Reasons for Judgment, Judge C.C. Marnett, Provincial Court of British Columbia, 1 June 1989.
• R. v. Constant [2005] Man. QB (Dauphin) (CR03-05-00069).