Does the sanctity of the historical record take precedence over the equally sacred right to privacy? And should anyone be guaranteed privacy for all time?
Those are just two of the issues a court will be asked to consider in an application next month to destroy the testimony and other records of residential school survivors who filed compensation claims for physical, emotional and sexual abuse under the Residential Schools Adjudication Secretariat.
Some 38,000 aboriginals provided gut-wrenching testimony during the independent assessment process with the promise their stories would be kept confidential.
The problem is the meaning of confidentiality was never defined, and there was no provision to destroy the records, copies of which are owned by the Government of Canada.
The National Research Centre for Truth and Reconciliation at the University of Manitoba, which is the reservoir for documents collected by the national commission, is asking for custody of the records. It says they are an important part of the story that should be preserved for possible future use. The archive says it will guarantee the privacy and confidentiality that was promised to survivors.
The intent, however, is that the information, even in redacted form, would be available to researchers and historians in the future.
The chief adjudicator of the independent assessment process says many witnesses would never have testified if they knew there was a risk someone could read their private stories, even after their deaths.
In fact, some survivors have already said they feel re-victimized by the possibility their stories and identities could be accidentally or unintentionally disclosed.
Some experts claim the documents — almost 800,000 of them so far — have no long-term value. In fact, if they were not related to abuse at residential schools, they probably would be destroyed after a period of time. It’s also questionable if privacy could be maintained by redacting names, which critics say would require an army of censors. That itself could be a violation of privacy because so many people would need access to the information.
The challenge, of course, is the documents do relate very directly to the operation of residential schools, which have woven their way into the country’s history and national fabric. The abuse of Canada’s aboriginal peoples, not just in residential schools, has become an important area of professional research.
It may well be historians and other researchers in the future have no need for these documents. Their real value, however, won’t be known for some time.
The Winnipeg-based archive already has the records of some 7,000 survivors who testified at hearings across Canada, including some who also participated in the independent assessment process.
That raises the question of how many documents on personal abuse are needed for the historical record — surely there are enough already.
But is that like saying a few hundred thousand personal accounts about the Holocaust are enough to understand what happened?
The court will have to decide if it has the authority to destroy the records and, if it does, whether they should be eliminated.
Many residential school survivors have said they feel their privacy rights will be violated if the records aren’t destroyed, while some experts claim preserving the records could lead to a "privacy disaster."
These concerns cannot be ignored. Such personal information should not be held for all time unless a strong case can be made for retaining it. The National Research Centre also has to demonstrate how it would maintain the confidentiality of victims and uphold the highest standards in making the records available to researchers.
If it can’t make a compelling case for retention, then the judge’s decision should be easy.