Can There Be Reconciliation in an Adversarial Process? Access to Justice, Reconciliation and the Role of the Government Lawyer
The dispute resolution processes created pursuant to the Indian Residential School Settlement Agreement (IRSSA) have been described as both significant and historical. While together, these processes represent an important shift in how we think about resolving systemic and historic mass harms, these processes also challenge us to once again ask important questions — What constitutes access to justice in certain contexts? What is the role and responsibility of lawyers in furthering access to justice in those contexts? And is that role and responsibility different for government lawyers?
The example of the independent assessment process (”IAP”) at St. Anne’s Residential School in Fort Albany, Ontario obliges us to confront those very difficult questions. In particular, it brings into play the capacity and duties of lawyers and, even more specifically, government lawyers within traditional models of ethical lawyering to operate within new dispute processes.
In Fontaine v Canada (Attorney General), Justice Perell outlined the nature of the IAP process within the context of the broader IRSSA scheme. He described the IAP process as allowing claimants to “apply for defined categories of compensable serious physical and sexual abuse, or other wrongful acts, through an inquisitorial process designed to adjudicate claims and to award compensation.” The IAP procedure is less adversarial and more inquisitorial in nature and scope.
It involves an adjudicator who presides over the hearing and is responsible for asking questions that elicit testimony from the claimants. In accordance with this evidence-seeking role, the adjudicator is able to review the School Narratives, which are prepared by the federal government and detail the history of the school including any and all incidents of abuse.
Overall, the hearings are meant to be ‘considerate of the claimants’ comfort and well-being’ and minimize further harm to claimants.  However, they are also intended to serve an adjudicative purpose where evidence and credibility are tested to ensure that legitimate claims are compensated and false claims are weeded out. In essence, this process has replaced the myriad of class proceedings that existed prior to the IRSSA.
In the context of residential school claims, St. Anne’s represents one of the worst examples of abuse and mistreatment of indigenous children. As a consequence of events at St. Anne’s, there were over 166 IAP claims initiated by former students against the individuals who ran St. Anne’s during its years of operation. Moreover, in the 1990’s, there were approximately 74 officials and religious personnel of St. Anne’s who were investigated by the police. Following an extensive six-year investigation, five people were convicted of criminal acts in respect of their treatment of indigenous children at the school.
In the recent IAP proceedings, notwithstanding having substantial information about both the police investigations and the subsequent criminal convictions, the federal government did not include any reference to this information in the School Narrative, a key source of evidence for the claimants and the adjudicator in the IAP process. Indeed, without the benefit of the information held by the federal government lawyers, claimants and survivors were unable to substantiate their allegations. Some claimants were denied compensation. Subsequently, a motion was brought for the disclosure of the relevant and undisclosed information. The information subsequently ordered released was then heavily redacted by the federal government’s lawyers.
The denial of some of these claims has resulted in appeals from the IAP as well as calls for mediation and/or the re-opening of various cases heard prior to the disclosure. In fact, there have been multiple procedural decisions involving the compensation process at St. Anne’s: what should have been part of a larger reconciliation process became a very traditional litigious and adversarial process.
More broadly, the IAP process at St. Anne’s shines an all too familiar spotlight on the role and duties of government lawyers. While the IAP process seeks to offer an alternative to the traditional litigation process as a means of resolving the serious abuse claims of residential school survivors, the lawyers proceeded in an adversarial and obstructive manner – they withheld significant evidence, initiated procedural interventions and obstructions, and made aggressive challenges to claimants’ stories (e.g., whether electrical shocks from a home-made electric chair constitute abuse for the purpose of compensation). This way of proceeding highlights serious issues about the ethical responsibilities of lawyers, let alone government lawyers and the ability of lawyers to adapt to new processes.
Given the overall reconciliation process, it cannot be that the formation of the IAP process contemplated that the ‘testing’ of the veracity of the survivors’ claims would necessarily place the government’s lawyers in a traditional adversarial relationship with the claimants that required the federal government litigate the survivors’ claims in a traditionally aggressive fashion. And yet, in some instances, this appeared to have happened.
Additionally, the withholding of pertinent documentation by the government presents a very worrisome picture of the misdirected loyalties of the lawyers acting on behalf of the federal government. Also, this practice exacerbated the disparity in power between parties when one literally holds all of the information (the Federal Government) and the other has no power at all. Even in traditional litigation, the disclosure obligations owed by all parties to each other provide some protection against the type of stone-walling and withholding that occurred at St. Anne’s.
The actions of these government lawyers re-confirm the need for the delineation of particular ethical duties and responsibilities of government lawyers. In this instance, at a minimum, a commitment to zealous advocacy (outside a traditional adversarial process) as well as what appears to be a misidentification of the lawyer’s ethical loyalties resulted in serious injustices. This is in a context where there have already been too many injustices. Also, if the government lawyers were being hard-pressed by their political superiors to act in the way that they did, they should have taken an ethical stand: there are definite limits to a zealous defence of a client’s interests and instructions.
When these concerns are added to the context in which the government lawyers were operating, namely the IRSSA compensation process, the need to reshape the ethics of government lawyers becomes more urgent. Arguably, if there was ever an argument for the need for a different ethical role for government lawyers, it would be most securely grounded in the context of a process like the IRSSA. To the extent that government lawyers appear to be acting against vulnerable residential school survivors, there must be an expectation that they are held to a higher standard of conduct.
However, the existence of vulnerability should not become the exception to what is otherwise an acceptance of one standard of conduct for all lawyers – government or private. Rather, it should be the starting point from which to map out a more responsive and meaningful ethical landscape for government lawyers. What is readily apparent from the case of St Anne’s is that such an adversarial approach runs contrary to the Truth and Reconciliation process. Even more fundamentally, it undermines a concept of ‘access to justice’ that contemplates the promotion of justice in people’s lives.
— Jennifer Leitch, PhD
Senior Research Fellow, Canadian Forum on Civil Justice
 Fontaine v Canada (Attorney General), 2014 ONSC 283 at 64
 Fontaine v Canada (Attorney General), 2012 BCSC 839 at 29-30