Truth and Reconciliation – justice denied

A SHEPHERD SPEAKS

Bishop Fred Henry

September 30, 2013

The purpose of the Truth and Reconciliation Commission (TRC) is to tell Canadians the story of the policy of the Government of Canada regarding "Indian Residential Schools" and the impact it had on aboriginal children and their families.

The following story is an addendum concerning government policy and will not be told at any TRC hearing.

Chapter I: Historical Background and Legal Action Taken:

In 1999, former students of residential schools in southern Alberta commenced 183 legal actions against the Government of Canada. The Diocese of Calgary was named co-defendant in 56 of those actions. The Government of Canada, however, chose to third party the diocese in all 183 actions regardless of whether the diocese was sued by former students.

By 2003, all students had discontinued against the diocese. Nevertheless, the Government of Canada continued prosecuting the claims.

Finally, in March 2007 all claims were dismissed against the diocese by order of Justice McMahon. The diocese applied for costs which normally follow a successful defence.

APPLICATION DENIED

In January 2009 Justice McMahon denied the diocese's application for costs and made a number of serious factual errors on the record. Instructions were given to our lawyers to file an appeal. Strange as it may seem, the practice unique to Alberta, is to seek leave to appeal from the same judge who heard the application for costs. Justice McMahon denied leave to appeal.

Nevertheless, the diocese appealed to the Alberta Court of Appeal. In January 2010 the Government of Canada made an application to have our appeal summarily dismissed on the basis that the decision of Justice McMahon was final.

A panel of the Court of Appeal (Justices Conrad, Rowbotham and Martin) dismissed the Government of Canada's application and ruled that there were serious matters to be tried.

A different panel heard the appeal on June 3, 2010. It ruled it did not have jurisdiction unless the diocese could meet the high threshold of proving bias on the part of Justice McMahon. It also ruled that there was nothing inherently prejudicial in Justice McMahon denying leave from his own decision.

The diocese then filed a leave application to the Supreme Court of Canada. The Supreme Court dismissed the leave to appeal on Dec. 23, 2010. Their dismissal in effect closed any legal course of action.

Chapter II: Natural Justice and Political Action:

The Government of Canada was respectfully asked to do two things. First, it was requested to address its unwarranted third-partying of the diocese, at considerable cost to the diocese, when there was no factual basis for doing so after 2003 and reimburse the diocese for the unjust costs incurred.

Secondly, the Government of Canada and the attorney general of the Province of Alberta were asked to address the strange anomaly re the Alberta Court of Appeal, that is, the requirement of applicants to bring applications for leave before the same justice who made the original order as this constituted a breach of the charter and is a denial of fundamental justice.

NO REPLY

The prime minister referred the matter to the minister of aboriginal and northern development, and the minister of justice and deputy attorney general of Canada, both of whom simply stated that the government considered Justice McMahon's judgment final. No response has been received to the second request.

A subsequent letter was sent to the prime minister, citing pre-election campaign promises of a new administrations marked by transparency, ethics and accountability, asking to have someone, somewhere in his government, answer the following three simple questions re residential schools litigation.

  1. Why was the diocese third-partied in the first place?
  2. Why was the diocese third-partied in the extra 127 cases? (By 2003 all students had discontinued against the diocese. Nevertheless, the Government of Canada continued prosecuting the claims.)
  3. Why were the third party actions against the diocese not also dropped by the government in 2003? (Finally in March 2007 all claims were dismissed against the diocese by order of Justice McMahon.)

Neither Prime Minister Harper, nor the minister of aboriginal and northern development, nor the minister of justice and deputy attorney general of Canada have seriously attempted to answer any of these three questions in a straightforward honest manner. Instead, obfuscation and avoidance seem to be the order of the day. The three questions remain unanswered.

Chapter III: Action of the Information Commissioner of Canada:

An application was made through the Access to Information and Privacy Directorate for the actual records pertaining to the government's third partying of the Diocese of Calgary from 1999 to the present.

A release package CD, containing 463 pages, was received but 90 per cent of the documents were blocked out due to section 23: "The head of a government institution may refuse to disclose any record request under this act that contains information that is subject to solicitor-client privilege."

GRAVE INJUSTICE

A subsequent letter was sent to the information commissioner, alleging that this was not only a misuse of solicitor-client privilege, but constituted a grave injustice, reflected a totalitarian approach to governing, dismissed a legitimate attempt to know the facts and/or reasons behind government's decisions and policies that affect thousands of people.

On Aug. 23, 2013, the diocese was informed that the complaint has not been assigned to an investigator. So much for accountability to the people!