Federal government's conduct 'far from irreproachable' says Canadian Human Rights Tribunal

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The federal government has been accused of knowingly withholding key pieces of information from parties involved in an ongoing Canadian Human Rights Tribunal looking into whether Canada discriminates against First Nations children.

In a ruling released Wednesday from the tribunal panel, Canada has until the end of August to provide tens of thousands of documents relevant to the case that they’ve been withholding.

The documents were discovered after Cindy Blackstock, executive director of the First Nations Child and Family Caring Society, one of the complainants in the case, submitted an access to information request to the department of Aboriginal Affairs.

The tribunal is hearing a case brought on by the FNCFCS and the Assembly of First Nations. Both accuse Canada of spending less on First Nations child welfare than what provincial governments spend for non-First Nations children.

What seemed to trouble the tribunal panel was that the government concealed the relevant documents from the parties involved and for how long.

“The respondent (Canada), knew of the existence of a number of these documents, prejudicial to its case and highly relevant in the summer of 2012 and yet failed to disclose them,” the ruling states.

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According to the ruling, the parties involved, including the Canadian Human Rights Commission, the AFN and the Chiefs of Ontario, had three opportunities, Oct. 31, 2012, Dec. 28, 2012 and Feb. 25, 2013, to disclose information that could be used to examine witnesses who were called to testify.

Canada submitted its first two sets of records by October and its third at the end of December. In a conference call with all parties in early February, Canada confirmed that, for its part, it would be able to abide by the Feb. 25, 2013 deadline.

But all that came crashing down in May 2013 as the tribunal was underway. The hearings start again July 15.

The discovery of the large amount of documents came after Blackstock became curious about the lack of information being disclosed by Justice Canada at the hearing. In the fall of 2012, Blackstock filed an access to information request to Aboriginal Affairs.

In April 2013, she received a compact disc containing thousands of records dealing with First Nations child welfare agencies across the country and information regarding some of the witnesses who had already testified at the tribunal. When Blackstock cross-referenced the information to what the government had disclosed, she found that the information was no where to be found. The information included an audit of the Mi’kmaq Family Services in Nova Scotia and the Gixen Family services in British Columbia.

When the hearings started again in May, Blackstock and her lawyer brought up the issue.

“This is a surprise to us that there is a large volume of documents yet to be disclosed,” FNCFCS lawyer Paul Champ told the tribunal. “We always believed there would be ongoing disclosure because the case is ongoing and new audits come up then fine, but it appears from the letter from counsel (Justice Canada) that basically there’s a large number of documents dating back to 2010 that have not yet been disclosed.”

It was then Canada acknowledged that there were approximately 50,000 documents that may be relevant to the tribunals work and that it would take considerable effort to get those documents ready for the parties involved.

The feds said at the hearing that it was going beyond what its understanding of disclosure was for this case.

“The Attorney General takes disclosure very seriously,” said Justice Canada lawyer Jonathan Tarlton at the hearing. “I understand that before this hearing was reconvened, it was anticipated that disclosure would go back to 2009 and as Mr. Champs’ letter states, we’ve gone to 2010.”

None of the parties could recollect such an agreement.

The federal government knew it had a mountain of paperwork to go through. Every regional office was being tapped for documents from coast to coast to coast.

In 2008, it hired Public History Inc. to sift through the records and prepare a package for Aboriginal Affairs and Justice Canada to approve. But it was while one of PHI’s staff was testifying at the tribunal that the parties learned of the scope of the search and that Canada was not even close to meeting its deadline.

According to Pia Newell Santiago, co-president of PHI, Canada was told in October of 2012 that because of the high number of records, it was at risk of missing its March 2013 deadline.

The company suggested that Canada hire a second company to assist. Canadian Development Consultants Inc. was hired in March 2013, three days after Canada lost its last federal court ruling trying to kill the tribunal hearings. CDCI informed Canada that its projected completion date was the end of September 2013. According to the tribunal, Canada also hired a third company, but has yet to provide details, including the name or the nature of its work for the government.

This testimony wasn’t lost on the tribunal panel. In its ruling it chastises Canada for failing to reveal this information.

“The respondent attended the hearing dates in in April 2013 knowing full well that its disclosure requirement was incomplete. Furthermore, it had just entered into a contract with CDCI to assist in completing its disclosure requirement and had been informed by the company that it would take until the end of September 2013, at the earliest, to complete. The respondent withheld this information from the parties and the tribunal,” the tribunal said.

No one from Aboriginal Affairs was available to comment.

The tribunal sent the parties off together to try and work out an agreement of when the records would be disclosed. Canada stated that it could roll out the release between September and December 2013, or after the tribunal had wrapped up its work. A number of meetings followed and the parties could not agree so they asked the tribunal to rule.

The tribunal panel was asked by the Caring Society to set a final date of mid-June where all the documents held by the government of Canada would be disclosed. Canada on the other hand, said that given the vast amount of records to be sorted and approved, asked for an adjournment until the fall.

In Wednesday’s ruling, the panel met each party halfway.

The panel ordered Canada to fully disclose the records by August 31, 2013.

And added:

“We note that the respondent’s conduct here is far from irreproachable…had the respondent communicated the challenges it faced in obtaining these large amount of disclosure, the tribunal, with the parties, could have worked together to find a solution. The respondent has denied this opportunity to everyone and forced the tribunal, to put it bluntly, into a mode of damage control.”

The hearing will now go into 2014.

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Online Producer / Ottawa

Before moving to become the APTN News social media producer, Mark was the executive producer for the news in eastern Canada. Before starting with APTN in 2009, Mark worked at CBC Radio and Television in Newfoundland and Labrador and Ottawa.

2 thoughts on “Federal government's conduct 'far from irreproachable' says Canadian Human Rights Tribunal

    1. Very illegal. s.139 Every one who wilfully attempts in any manner to obstruct, pervert or defeat the course of justice is guilty of an indictable offence

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