Why criminal charges for deaths at residential schools would be unprecedented — and enormously complex

Cowessess Chief Cadmus Delorme said he is treating the site of 751 unmarked graves at the former Marieval Indian Residential School "like a crime scene."

Federation of Sovereign Indigenous Nations (FSIN) Chief Bobby Cameron said the deaths of children at the school was "a crime against humanity."

And yet, after the second discovery in less than a month of hundreds of previously unknown burials at former residential schools, there is no indication that criminal charges of any kind will be laid in connection to those deaths.

The Native Women's Association of Canada (NWAC) says those charges are not only warranted, but necessary if Canada wants to fulfil its pledge of reconciliation with Indigenous peoples.

"If they have committed a crime, then they need to be held criminally responsible for those actions," said Lynne Groulx, NWAC's CEO.

The prominent Indigenous advocacy group demanded this week that Canada lay criminal charges against those responsible for operating residential schools where children died.

"No one is above the law. Everyone is equal under the law," Groulx said. "Even our governments."

A criminal prosecution of that nature would be layered with unprecedented complexities.

Here are some of the key questions that have yet to be fully answered.

Who would be charged?

NWAC is demanding that charges be laid against the federal government and the churches that operated the schools. The group is not proposing that any individuals associated with the schools be charged.

However, as with any criminal case, the charges would be laid by the Crown — which would essentially amount to the government putting itself on trial.

Steven Pink, legal counsel for NWAC, said the lack of legal precedent does not make the case unworthy of consideration.

"To think in this country that no institution can be held criminally liable does not sit well with us," Pink said. "We have to try."

Ottawa has formally apologized and paid more than $3 billion to approximately 28,000 victims of abuse at residential schools, but no person or entity has been criminally charged for operating the schools.

What would the charges and subsequent trial look like?

David Milward, a law professor at the University of Victoria, said criminal charges related to deaths at residential schools likely would have to be made under Canada's Crimes Against Humanity and War Crimes Act.

But Milward, a member of the Beardy's & Okemasis First Nation in Saskatchewan, said building a viable case would pose "significant challenges."

"I am personally convinced that a crime against humanity occurred," he told CBC. "But it's a separate question of whether you could actually prosecute a crime against humanity and see it through to conviction."

Among the hurdles, he said, is the length of time that has passed since many of the schools were in operation. That could make it difficult to prove responsibility for the deaths of children beyond a reasonable doubt.

The Vatican also has refused to release some records associated with the schools it oversaw, though some individual churches are now releasing other records.

"That doesn't mean it's any less of an injustice what happened at those schools," Milward said. "It just means there are practical realities to try and get a conviction for anyone responsible."

Pink suggested that the "overwhelming" evidence gathered in witness accounts for both the Truth and Reconciliation Commission report and the National Inquiry into Missing and Murdered Indigenous Women and Girls could be used to support the charges in a court.

What has the government said?

Further complicating the proposal is NWAC's demand that Attorney General David Lametti lay charges in relation to the schools.

Lametti's office says he doesn't have that authority.

According to the Crimes Against Humanity and War Crimes Act, the attorney general must give consent if the act is used in a criminal case. Lametti's office says he does not have the jurisdiction to order the investigation in the first place.

"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," wrote Lametti's press secretary Chantalle Aubertin in an email.

The RCMP has said it will work closely with the Cowessess First Nation to determine if criminal charges are warranted — though it appears for now that future charges would be related to the bulldozing of the grave markers and not to the deaths of the children buried there.

If no criminal charges are laid in Canada, Groulx said, she will take the case to the United Nations and the International Criminal Court, which hears cases about genocide and crimes against humanity.

"We are willing to do that and we must do that," Groulx said. "That is our responsibility to the community."

However, only individuals have been tried at the international court — not entities such as nations or churches.