Paper Analyzing Two Different Articles that both Focus on the Legacy of Residential Schools

Beginning in the 1800s, the federal government created a system of residential schools with the sole purpose of assimilating Aboriginal children to solve what they perceived to be the ‘Indian Problem’ (Llewellyn 3). Created as total institutions, the purpose of residential schools was to “re-socialise people by instilling them with new roles, skills or values” (Llewellyn 4). As a result, every facet of a child’s life was controlled with the primary goal of completely assimilating them into the mainstream Canadian culture. In the schools, children also faced physical, sexual, and psychological abuse. When examining the intergenerational effects of these ‘total institutions’, it is evident that residential schools remain one of the biggest sources of shame for the Canadian government.

This paper will analyze two different articles that both focus on the legacy of residential schools. While the first article examines restorative justice as a just alternative to the current tort law system in the context of residential school abuses, the second article provides a personal account of the experiences of former students.

Llewellyn, Jennifer J. “Dealing with the Legacy of Native Residential School Abuse in Canada: Litigation, ADR, and Restorative Justice.” University of Toronto Law Journal 52 (2002): 253-300.

This article by Jennifer Llewellyn focuses primarily on the ways in which the legacies of residential school abuse can be addressed. Specifically, her thesis centers on the notion that restorative justice offers a good alternative to litigation as a means of dealing with the harm that was caused by Native residential schools. She argues that restorative justice processes are effective in this particular context as they “focus on the complex relationships between and among the parties involved and on the true nature of the harms at issue” (Llewellyn 22). In the first part of her article, Llewellyn provides a brief historical background of residential schools in Canada. This allows the readers to fully grasp the extent to which Aboriginals suffered a great loss of their way of life, traditions, culture and language through assimilation. Because of the abuse that occurred within the residential schools, former students have filed lawsuits against both the federal government and the churches. The large amount of pending cases threatens to create a logjam within the court system (Llewellyn 6). Consequently, alternatives to litigation were considered as a means of resolving the residential school crisis.

To prove her thesis, Llewellyn argues that litigation as a means of solving the current residential school crisis fails to adequately provide a remedy for the harms caused (Llewellyn 11). While litigation can offer victims a sense of vindication and raise the public’s awareness of the experiences of residential school students, this legal process, according to Llewellyn, possesses various weaknesses. Not only is litigation expensive, but it also proves to be a painful process for the victims of residential school abuses as they must prove what has happened to them and seldom have the opportunity to fully express their feelings and experiences. In addition, the adversarial nature of the current system fails to acknowledge the common interests of the parties involved, and can also further damage the relationship between the individuals involved (Llewellyn 11).

Alternative dispute resolution, then, is introduced as a means of replacing the current tort litigation system. While Llewellyn does not completely oppose ADR, she suggests that its focus on settlement can be problematic as this may overshadow the underlying issues present between the parties, as “deeper conflict is generally set aside unless it is material to settlement of the legal claim” (Llewellyn 17). In the particular context of residential school abuse, the relationship between residential school students, the government and the churches cannot be fully restored with a focus on settlement as it misunderstands the nature of the harm. Essentially, while she believes that ADR is an improvement from the traditional use of litigation, she believes that it “does not question the basic understanding of disputes as isolated incidents limited to the individualistic level. Rather, it works to find other ways to do justice as conceived by the existing tort law system” (Llewellyn 20).

Due to the shortcomings of both the litigation process and the ADR mechanisms, Llewellyn argues that restorative justice is the best alternative to litigation as it is a process that comprehends and addresses “the true nature of the harms resulting from residential schools – one that comprehends that these harms are, at their root, harms to the relationships between and among individuals, communities, and institutions” (Llewellyn 20). In the case of residential school students, their relationship with the Canadian government cannot be entirely restored with the current legal process and in some instances, can even be further damaged (Llewellyn 16). As a result, restorative justice offers a just alternative to ADR mechanisms as it focuses primarily on what she calls the ‘restoration of social relationships of equality’. In other words, social equality in relationships is re-established through attention paid to the relationship between and among individuals, groups, and communities involved (Llewellyn 21).

In the particular context of residential school abuses, the restorative justice process would address individual cases of abuse while also paying attention to the causes of abuse and the circumstances under which it occurred (Llewellyn 21). In terms of the parties involved, restorative justice would include the families of the victims and their Native community, as well as the wrongdoers and their communities. As such, a focus is placed on the broader relationships at hand. To adequately address the harms resulting from residential schools, the restorative process must be voluntary and must involve truth-telling from all parties in order to foster positive relationships. Lastly, Llewellyn argues that the outcome of this process must develop a plan for the future that aims to ease the wrongdoer’s re-integration into society (Llewellyn 23).

While Llewellyn effectively provides context-specific solutions to the current residential school crisis, her thesis which centers on restorative justice as the best alternative to litigation and mainstream ADR possesses its own shortcomings and neglects certain issues. Although she portrays restorative justice as being a flawless model of justice that is able to restore relationships through acknowledgment of harm and reconciliation between the victim, the wrongdoer and their respective communities, what she fails to mention is the fact that restorative justice can also have negative effects on the parties involved. When examining the process of litigation, she argues that it is adversarial in nature and therefore intensifies the dispute and conflict between the parties. However, restorative justice also possesses an adversarial characteristic as it can lead to double victimization and can also involve uncooperative parties. The situation may not always involve a wrongdoer that is entirely willing to acknowledge the harm that they have done and may deny their wrongdoings in certain instances. Consequently, this can cause extensive damage to the victim. Furthermore, Llewellyn argues that litigation can be a difficult process for the victims as they must participate in cross-examination, which brings back painful memories (Llewellyn 9). However, restorative justice processes may be equally painful, as victims must also re-experience memories while facing their abusers. Additionally, the process can be detrimental for the victims if the wrongdoers deny accountability for their actions.

On the other hand, the restorative process may also negatively impact the wrongdoer. The process can cause further harm by shaming the offender and jeopardizing their reintegration into society. Contrary to common belief, restorative justice may be tougher on the wrongdoers as they are encouraged to be held accountable for their actions while having to face their victims. This accountability on the part of the offenders can promote over-shaming and public humiliation (Roach 263). Additionally, offenders may also find it more difficult to reintegrate into society due to the negative stigma that is now associated with them. It can therefore be seen that “accepting responsibility and making amends are key features of restorative justice, but there are dangers in stressing the toughness of restorative justice as a response to crime. It may unleash forces that are more intent on shaming than reintegration” (Roach 263).

Llewellyn describes one of the goals of restorative justice as simply being the restoration to how things were before the wrongful act (Llewellyn 22). In the context of residential school abuses, it is evident that such an oppressive act on the part of the Canadian government cannot be easily forgiven or resolved. Given the harsh and inhumane treatment that Aboriginal children suffered in the schools as well as the emotional consequences of the abuse through intergenerational effects, restorative justice is not an appropriate model for this particular situation. It would be unrealistic and assume that a relationship that has long been unequal and oppressive can be healed and restored to its initial form through this model. As such, it can be seen that Llewellyn’s argument that restorative justice is the just alternative to litigation and ADR is highly ambitious and perhaps unrealistic considering the circumstances.

At the end of her article, Llewellyn discusses the South African Truth and Reconciliation Commission as one of the more successful models of restorative justice that has been designed specifically as a process to address historical wrongs that have affected an entire nation (Llewellyn 24). She then discusses how a TRC model may be applied to the residential school situation. This restorative justice model would promote national awareness to in turn “address general issues related to the existence of the residential school system as a whole and the purposes behind its existence, issues that might be lost or obscured by individual unconnected processes” (Llewellyn 25). However, this can be problematic for several reasons. The Native residential schools undoubtedly represent one of the most shameful parts of Canadian history. As a result, the Canadian government has been hesitant to recognize its wrongdoings as seen through their hesitancy to settle cases and offer significant compensation. This sense of denial on the government’s part can be made evident in the fact that in most instances, little is known about the legacy of residential schools, and the extent to which Aboriginal people as a whole have been affected. This lack of acknowledgment and denial on the part of the government also reflects one of the primary concerns that restorative justice can further damage relationships due to uncooperative parties.

When examining Llewellyn’s article, it appears that there is an inconsistency in her argument. Her thesis focuses primarily on her notion that the restorative justice model is the best alternative to litigation and mainstream ADR for the problem of residential schools. In particular, she emphasizes the need for non-material compensation. However, at the end of the article, she suggests legislated compensation as a means of ensuring that victims are given redress for the abuses that they suffered (Llewellyn 28). This is largely contradictory to her perspective throughout the article. While Llewellyn’s article is context-specific and well-organized, her arguments can sometimes be inconsistent and unrealistic.

Napier, David. “Sins of the Fathers”. Anglican Journal. 126(5), 2000: 1-19.

This article by David Napier also focuses on the legacy of the Native residential schools. Like the previous article, it examines the history of residential schools, the abuse that occurred within the schools, the lawsuits against the government and the churches, as well as ADR as a meaningful alternative. However, Napier’s article differs from Llewellyn’s in the sense that it provides a first-hand account of the experiences of former residential school students.