Will Canada face criminal charges for residential school abuses?

Warning: The story below contains details of residential schools that may be upsetting. Canada’s Indian Residential School Survivors and Family Crisis Line is available 24 hours a day at 1-866-925-4419.

Toronto, Canada – Like many Indigenous people across Canada, Andrew Phypers, a criminal defence lawyer from the Lower Kootenay Band in the Canadian province of British Columbia, has a personal connection to “residential schools”.

His mother attended St Eugene’s Mission Residential School, where late last month ground-penetrating radar found 182 Indigenous children’s unmarked graves.

“I have lots of people in my community that attended the residential schools and can personally attest to the atrocities that did occur there,” Phypers told Al Jazeera in a recent phone interview. The unmarked graves at St Eugene’s were among several recent discoveries of hundreds of Indigenous children’s graves at the government-founded and church-run assimilation institutions.

From the late 1800s until 1996, Canada removed 150,000 Indigenous children from their homes and forced them into institutions run by church staff where they had to cut their long hair and were forbidden from speaking their language and practising their culture. Many were physically and sexually abused. Thousands of children are believed to have died.

Canada’s goal was to kill Indigenous culture to make land and resources available to settlers. The Truth and Reconciliation Commission (TRC), a years-long process documenting survivors’ stories, concluded the practice was cultural genocide.

In 2016, the Canadian government identified more than 5,000 abusers, but to date, no individuals or institutions have faced charges under the Crimes Against Humanity and War Crimes Act, a federal law passed in 2000. A small number of priests were charged with sexual assault, but none have faced charges for homicide, according to lawyers familiar with the matter.

The recent discoveries of unmarked graves have spurred Indigenous groups and lawyers to demand that police lay criminal charges against the Canadian government, churches and individual perpetrators of crimes committed in the institutions.

The Native Women’s Association of Canada (NWAC) is behind a push for criminal charges, while Phypers is working with a group of lawyers to encourage the International Criminal Court (ICC) to open an investigation into the institutions. But experts say their efforts could be stalled or thwarted by the Canadian government.

“Part of our ambition is to see accountability,” Phypers said.

How would it work?

The ICC, the world’s first permanent international criminal court, investigates and, when warranted, tries individuals for the most serious crimes, including genocide, war crimes and crimes against humanity.

Phypers is working with Brendan Miller, a lawyer with a background in international law who said individual abusers, the Canadian government and the Catholic Church could all face charges related to residential schools under the Crimes Against Humanity and War Crimes Act.

Under the Act, Canada is one of the only countries in the world to give the ICC prosecutor domestic powers. That means if the ICC opens an investigation into residential schools, it can demand documents and undertake an investigation, and it would be an offence for the Canadian government to interfere with that process. The ICC can also request that police in Canada help it investigate war crimes.

“If the ICC prosecutor opens up a file, you’ve got a pure, independent investigation,” Miller said.

On June 3, Miller asked the ICC to open a preliminary examination into Canada’s residential schools. If the court decides to prosecute, there would be a trial. The ICC prosecutor did not respond to Al Jazeera’s request for comment on whether it would open an investigation.

But the ICC is a court of last resort – it does not replace national courts unless a country neglects to initiate an impartial investigation, Miller explained. Canada has yet to do this.

“They’ve known about all these things for decades, and they haven’t done anything,” he said, about the crimes committed at the residential schools, which have been widely documented. “Canada is supposed to be this bastion of human rights, and it’s an absolute embarrassment that we can’t even do an impartial investigation of this, which is quite clearly a crime against humanity.”

Barriers to justice

Other than an ICC prosecution, there are other paths to criminal charges.

Any peace officer in Canada can initiate charges, such as murder or sexual assault, under the Criminal Code, the law that lays out criminal offences in Canada. But if an officer wanted to charge an individual or institution with a crime under the Crimes Against Humanity and War Crimes Act – genocide, for example – they would need the consent of Canada’s attorney general.

This is where it gets complicated, as this requirement, in practice, means the government itself would be in a position to block the charge. In Canada’s government, the attorney general litigates on behalf of the Crown and is the top legal adviser to the Canadian government.

“As far as I know, the police have laid no charges, so there’s no consent required yet,” explained NWAC general counsel Steven Pink, who questioned why police have taken so long to pursue justice. “It’s our position there’s overwhelming evidence of a genocide in Canada,” he said, pointing to the 7,000 residential school survivors who testified before the TRC.

Phypers, Miller and the NWAC all have called on Attorney General David Lametti, who is also Canada’s minister of justice, to consent to charges, if and when they are brought. Lametti has not yet committed to this.

“The minister of justice is examining all options that fall within the justice portfolio to advance truth and justice in relation to this national tragedy,” Chantalle Aubertin, press secretary for Lametti, told Al Jazeera. “It’s important to note that the investigation of crimes is within the exclusive jurisdiction of the police. The minister of justice and attorney general of Canada does not initiate criminal investigations.”

However, Miller said that if the minister “was really serious about exploring all options – and I can tell you we have asked for this in writing – they would pass a piece of legislation creating an independent body of police to investigate this and allow them to do it”.

“So for him to say that he’s looking at all options and he can’t compel an investigation and all of that, that’s garbage,” said Miller, who added Lametti can request municipal police to create an independent investigation. “They just don’t want to,” he said.

Al Jazeera asked Lametti’s office whether he will take these steps, but did not receive a response in time for publication.

‘People are very angry’

The NWAC has called on Canada’s federal police force, the Royal Canadian Mounted Police (RCMP) to declare residential school sites crime scenes and investigate the people responsible for crimes committed there.

But Phypers questioned whether the RCMP could run an impartial investigation since it was the authority that enforced laws related to residential schools and took Indigenous children from their parents. Al Jazeera asked the RCMP if they would investigate, but they did not answer the question.

Across Canada, police forces are investigating recent vandalism and burnings of churches as hate crimes, but it is not clear yet if police are investigating crimes in residential schools.

“It’s clear to me that people are very angry about these discoveries and clearly hold the church to blame, and that’s why these churches are being symbolically and actually burned,” Phypers said.

If the graves were found on private property instead of residential school sites, he said police likely would have opened an investigation already. “They would have said, where did these bodies come from, and who is responsible for putting them there? When it’s now tied to a church and the government, you don’t have that same reaction.”

But Phypers said he hopes public pressure will push police to open impartial investigations that will result in prosecutions and criminal trials across the country. “I would hope on the heels of all these discoveries of mass graves, that would motivate them to move quickly, especially as that number keeps rising.”