Epilogue I
We are still enjoying what our predecessors took from these people. Justice demands that we repair the harm that they did to them.
— The author
As I was writing this book, I was feeling quite optimistic about the future of Indigenous/non-Indigenous relations in Canada, and then I became totally discouraged by the SNC Lavalin matter.
I want to be proud of my Canada. I cannot be proud of a country that has been established through the atrocities that have been committed against the Indigenous people, unless we are truly working toward reconciliation.
The government of Canada under Prime Minister Stephen Harper seemed to have no interest in repairing the harm done to the Indigenous people of Canada by colonialism.
In September of 2007 Canada, under the Harper government, cast one of just four votes against the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The document is a statement of the collective and individual rights that are necessary for the survival and well-being of Indigenous peoples around the world. It was passed with 144 votes in favour. Joining Canada in dissent were Australia, New Zealand and the United States.
On June 11, 2008, Harper made an official apology for the residential schools, but he was forced to do this as part of the Indian Residential Schools Settlement Agreement.
Then, in September 2009, he said in a speech to the G20 in Pittsburgh: “We also have no history of colonialism. So we have all of the things that many people admire about great powers, but none of the things that threaten or bother them about great powers.” The statement demonstrated either his ignorance or his callous disregard for the damage done to Canada’s Indigenous people by Canadian colonialism.
In November 2010, his government gave a very limited endorsement of UNDRIP, saying it was aspirational only and not legally binding.
In June 2015 Harper announced that Canada would not adopt and implement UNDRIP as called for by the Truth and Reconciliation Commission.
Four months later the Liberal party under Justin Trudeau won the election and formed the government. This must have been like night turning to day for the Indigenous people of Canada.
Among his first cabinet, Trudeau named Jody Wilson-Raybould as justice minister and Attorney General, probably the highest political honour ever bestowed on an Indigenous woman in Canada.
In commenting on the cabinet appointments, the Chief of the Assembly of First Nations, Perry Bellegarde, said it was a “new era of reconciliation.”
In August 2016, Indigenous Affairs Minister Carolyn Bennett announced at the UN that Canada was now a full supporter of UNDRIP.
On September 21, 2017, Prime Minister Trudeau made an address to the General Assembly of the United Nations in which he outlined the problems of Canadian First Nations and stated his resolve to improve their situation.
In April 2017 NDP MP Romeo Saganash tabled Bill C-262, “An Act to Ensure that the Laws of Canada are in Harmony with the United Nations Declaration on the Rights of Indigenous Peoples.” The government supported this bill and it was passed by the House of Commons on May 30, 2018. It is now before the Senate, where it is being delayed by Conservative senators. If it is not passed before the next election, it will not become law.
I set out the above because I see the years of Liberal government as a Golden Age of Indigenous advancement in Canada. I see Justin Trudeau as the greatest champion of Indigenous rights since Elijah Harper prevented the Meech Lake Accord.
This Golden Age may have started coming to an end when Wilson-Raybould was removed as justice minister and Attorney General on January 14, 2019. She resigned from the cabinet on February 12, 2019, and was removed from the Liberal caucus on April 2, 2019.
Wilson-Raybould says the problem was caused by undue pressure being put on her to cause the federal Director of Public Prosecutions to enter into a “deferred prosecution agreement” with SNC Lavalin instead of proceeding with corruption charges.
I have listened to the recording of the December 19 conversation between Wilson-Raybould and Privy Council Clerk Michael Wernick a couple of times and I would summarize Wernick’s effort as nothing more than a request to talk about the situation. He says the prime minister wanted to be able to say he has done everything he can in relation to possible job losses. Wilson-Raybould says it is a veiled threat. I hear Wernick as doing nothing more than asking her to talk, and Wilson-Raybould as refusing to listen.
This whole scenario demonstrates my thesis that the Canadian justice system is too punishment-oriented. Wilson-Raybould’s background includes serving as a prosecutor, and the Director of Public Prosecutions is a prosecutor. Both of them have a predisposition to prosecute. In this regard they are biased decision makers.
In my experience as a judge I would see prosecutors who would take a conciliatory position on prosecutions. They could resolve huge numbers of cases with plea bargains. In my view these were usually very appropriate and they allowed the court dockets to be manageable. There are those who criticize on principle the entire concept of plea bargains, but the fact is that without them the whole system would become gridlocked.
Conversely, there were other Crowns whom I would describe as having a rabid need to prosecute, convict and punish.
A case in point was a matter in which I was assigned to hear a pretrial conference on an environmental matter. A utility company had released noxious chemicals into a mountain stream. The purpose of the conference was to determine whether any admissions could be made, and how many witnesses would be called, so that an estimate of trial time could be made for scheduling purposes. In the course of the conference the defence lawyer volunteered that the company was prepared to spend something like a million dollars on stream rehabilitation and establish a protocol that would prevent similar problems in the future. I suggested to the prosecutor that it was a very reasonable suggestion and she should consider it. She refused and explained that she felt the prosecution was necessary to deter other companies from allowing such things to happen. The prosecution proceeded and the Crown lost at trial. The court found that the spill was an unavoidable accident. So, not only did the prosecutor put the Crown to the expense of running the trial, she potentially lost the advantage of the offer of resolution. I say “potentially” because the company actually went ahead with the rehabilitation and protocol.
Wilson-Raybould talks about prosecutorial independence and her comments have some merit in the present system. I disagree with the concept. Prosecutors are there to prosecute. To allow a prosecutor absolute independence in making the decision to proceed with charges is just as likely to lead to injustice as not.
My entire thesis in this book is that we could improve the justice system by following the example of traditional Indigenous justice. That would mean seeking resolution of conflict through consensus.
I say that the real misfortune in the SNC Lavalin case is that the Indigenous Attorney General and justice minister was not inclined to take an Indigenous approach to the problem.
The fact that this National Inquiry is happening now doesn’t mean that Indigenous Peoples waited this long to speak up; it means it took this long for Canada to listen.
— National Inquiry into Missing and Murdered Indigenous Women and Girls: Reclaiming Power and Place, vol. 1a, Introduction
Just when I thought this book was ready to go to the printer, the report of the National Inquiry into Missing and Murdered Indigenous Women and Girls was released (June 3, 2019). The report raises a number of issues on which I want to comment. I see some of it as positive and some of it as unfortunately negative.
I started my quest to understand Indigenous people in the mid-1990s. My proactive efforts to apply my new-found knowledge in my work as a judge and apply the law in a culturally sensitive manner brought me into conflict with the “white establishment.” It also earned me a reputation as an advocate for Indigenous people and for the use of their restorative justice concepts.
In my continuing efforts to increase my understanding of their plight I will occasionally read something, or hear a speaker say something, or have a conversation with an Elder that gives a little more insight. This report did that. It speaks of difficulties Indigenous people have with the inadequately funded and culturally insensitive personnel in healthcare, child welfare, education, law enforcement and other aspects of their lives, and how all of this contributes to the vulnerability of the Indigenous women and girls who are murdered or who go missing.
I was critical of the idea of the report when it was announced. It was my view that it would be much better to spend the millions of dollars allocated for the inquiry to hire detectives and retired police officers to solve some of those cases.
I also expected that the inquiry would just deal with stories by the relatives and friends of the murdered and missing women, and that the conclusion would be that the response by law enforcement was inadequate and culturally insensitive. This was part of it, but there was more. The comprehensive description of all of the factors that make women vulnerable was an eye-opener for me. My position prior to reading the summary of the report would have been that it’s just poverty that makes them vulnerable. The report has shown me that the poverty is much more than just a lack of cash in their wallets; it is the whole social system that so grinds them down that they don’t care about the danger they put themselves in when, say, they accept a ride from a truck driver who could be a predator or stay with a man who could be violent toward them.
Another huge benefit of this report is that there were hundreds of people who were able to tell their story and have it heard. Under the heading of Successes and Challenges of the National Inquiry it says:
In reflecting on where we are today, the National Inquiry acknowledges that one of its most important successes is how many people came forward to share their truths. Having so many people break the silence has already created a momentum that is building person by person, community by community.
I think this is very true. Since my retirement as a judge I do some speaking at conferences and other public gatherings, and I always like to take questions from the audience. Occasionally someone will get up and talk and talk and talk. There was a time when I would interrupt and ask them: “What is the question?” or “Can you get to the point?” I was well into the second half of my life (assuming I’m not going to live to be much more than a hundred) when I finally realized the power of listening. Such speakers did not want an answer to a question; they just wanted to be heard. Now, if there is sufficient time in the circumstances, I just tell myself that I should shut up and listen. If the speaker goes home with the feeling that I have listened to them, and the whole meeting has listened to them, that may be what makes the whole event worthwhile.
While I see these very positive aspects of the MMIWG inquiry, there are elements which I see as damaging to the advancement of Indigenous women.
One negative aspect of the report is the insistence on the term genocide. There is no question that the inquiry is dealing with an extremely horrendous problem, but the use of genocide is in my view inappropriate. It is controversial and confrontational. It has become the focus of argument and disagreement and is detracting from what should be the focus of the report, i.e., to describe the problem that exists today and suggest solutions thereto.
The United Nations Convention on the Prevention and Punishment of the Crime of Genocide defines genocide as
… acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
The history of Canada’s actions qualify under paragraphs (b) (c) and (e). If you consider the deliberate starving of Big Bear’s people to force them to sign the treaty, and the number of children who died in residential schools as a result of malnutrition, unacceptable living conditions and maltreatment by staff, Canada also qualifies under paragraph (a). There is no question that the policies and programs of the government of Canada, from before Confederation until the mid-20th century, came well within the UN definition of genocide. However, the genocidal nature of Canada’s treatment of Indigenous people ended with the end of compulsory attendance at residential schools in 1948 and with the 1951 amendments to the Indian Act which removed its most draconian provisions.
Even though the removal of Indigenous children was still occurring in the 1960s and later, I do not agree that this was genocidal. It was done not with the intention of destroying the Indigenous people, but with the intention of saving children from what culturally insensitive childcare workers saw as unacceptable living conditions for children.
When I began trying to understand the plight of Indigenous people in the mid-’90s I spoke of their treatment by Canada as “genocide.” I was told by my chief judge that doing so could result in a review of my conduct by the Judicial Council and the loss of my judicial appointment. This is typical of the opposition the dominant society in Canada has toward accusations of genocide, even though it is undeniable that it was indeed happening in the 19th and 20th centuries.
I watched an interview with Roméo Dallaire in which he was asked about the inquiry’s use of the word genocide. Dallaire, as a lieutenant general in the Canadian Forces, had been commander of the United Nations peacekeeping force in Rwanda in 1993–94 and attempted to stop the genocide waged by Hutu extremists against the Tutsi people. He subsequently served in the Canadian Senate and is a senior fellow at the Montreal Institute for Genocide and Human Rights Studies. In the interview he said that the term genocide does not fit the MMIWG situation and it would be better described as “systemic racism.”
I agree that systemic racism is a much better term, but even that formulation will be difficult for many in the dominant society to understand.
A good example of systemic racism is the treatment of two-spirit people. In Indigenous cultures these were individuals seen to have a spiritual advantage, and they were held in high esteem. In non-Indigenous cultures there was a time when they were prosecuted and imprisoned for sodomy, and they are still the victims of the negative attitude of many heterosexual people. When non-Indigenous people prosecuted or criticized these two-spirit people, it may have had nothing to do with being anti-Indigenous. In the Indigenous system it was good; in the non-Indigenous system it was bad. When the non-Indigenous was applied to the Indigenous it was systemic racism.
The ’60s scoop is another example of systemic racism. The child welfare agencies were staffed by non-Indigenous people. They were accustomed to homes with indoor plumbing, central heating, refrigerated food storage and a certain level of cleanliness and nutrition. When they had occasion to visit Indigenous homes which were suffering from significant poverty, they saw the lack of all those things as not being up to their standards. They saw children living in what to them were unacceptable physical circumstances. What they may not have seen was the love and the spirituality and the supportive culture of the families. So they would take those children and place them in homes of more well-to-do non-Indigenous families where the physical circumstances of the children may have been greatly improved, but their overall quality of life may have been greatly reduced. That reduction in quality of life would also apply to the families from whom they were taken. It will be very difficult to have non-Indigenous people accept this as genocide, but some may be able to see it as systemic racism.
I suggest it is better to describe the current situation of the MMIWG as the aftermath of the genocide of the past two centuries. There is no question that the policies and programs of the past have left Indigenous people in the poverty in which they find themselves today. That poverty, both economic and spiritual, has made them vulnerable to predators and has resulted in what may be as many as 4,000 or more unsolved cases of missing and murdered women.
To qualify as genocide there would have to be an intention, on the part of the people doing it, to destroy the group that are the victims. If the people responsible are random predators with no connection to each other, there can be no common intention that would make the result a genocide.
I suggest, with deference to the Indigenous people who have lost their loved ones, that if every one of the missing women could be found and every one of the murders could be solved, we would probably learn that the majority of the victimizers were other Indigenous people.
Statistics from the federal Department of Justice, for example, state that, in 2015, 90 per cent of accused implicated in homicides of Indigenous victims were themselves Indigenous. Two-thirds of those accused of homicides of Indigenous female victims were Indigenous males. It would seem a reasonable corollary that if 90 per cent of the victims of Indigenous people are Indigenous people, then 90 per cent of the murderers of Indigenous people are probably Indigenous people. If the majority of MMIWG are being killed by other Indigenous people, it is just wrong to say this is a Canadian genocide.
But this doesn’t mean the Canadian government has no responsibility in the matter. The tremendous dysfunction that characterizes Indigenous communities is the result of the genocidal policies of the past, the ongoing failure of the government to take sufficient measures to change it, and members of agencies such as the police, educators, social workers and childcare workers who are culturally insensitive.
One of the report’s comments I found to be most upsetting was: “For some people, fears that contacting the police may lead to involvement with child welfare means that living with violence is a better choice than losing their children.” (Executive Summary, p38)
The report ends with 231 recommendations, or “Calls for Justice.” There is no question that the plight of Indigenous people presents a very complex set of problems, but I think the effectiveness of the inquiry is lost in its length and repetitiveness.
The first call is for a national action plan to address violence against Indigenous women, and it goes on for over 4,000 words setting out the details of the suggested plan.
The concept of a national action plan is good, but I say it should address the problems of all Indigenous people. I would suggest it should just say: We call for a National Action Plan to improve living conditions of the Indigenous people of Canada so that they enjoy a standard of living commensurate with all other Canadians.
At least 40 of the calls talk about funding. I suggest there should be one call for funding for implementation of the national action plan, and the amount should be in the multi-billions of dollars.
It embarrasses me that I live in a country that has one of the highest standards of living in the world and yet the majority of the people whose ancestors were here first live in poverty. The real test of the will of the dominant society to change the plight of the First Peoples will be the willingness to devote large sums of money to fund necessary programs for housing, education, social programs, policing and economic development.
The recommendations with which I most strongly disagree are number 1.5, which calls for punishment for violence against Indigenous women, and number 5.19, which calls for homicides which involve a pattern of intimate partner violence to be defined as first degree murder.
It makes me very sad when I hear Indigenous people calling for increased penalties. As a non-Indigenous individual who spent his life in criminal justice, 33 years of it as a judge, I became convinced of the futility of the punitive system and embraced the Indigenous principles of teaching and healing. When I hear these calls from Indigenous people, I lament that their true Indigenous nature, which would be seeking healing, teaching and restorative measures, has been corrupted by the domination of the much more cruel non-Indigenous society.
If my presumption that the majority of the victimizers of the MMIWG are Indigenous is valid, then they too are people who have been damaged and wounded by the history of colonialism, and they too require treatment and healing.
There are some justice recommendations in the report which I wholeheartedly support. For example:
5.11 calls for accessibility to meaningful and culturally appropriate justice practices by expanding restorative justice programs and Indigenous People’s courts.
5.13 calls for adequately resourcing legal aid programs.
5.14 calls for evaluating the impact of mandatory minimum sentences and over-incarceration of Indigenous women. (Though I say this should apply to Indigenous men as well.)
5.16 calls for community-based and Indigenous specific options for sentencing.
These are my positive and negative reactions to the report. I summarize by saying that there is some good information in the document, and the inquiry’s greatest success was in just enabling people to be heard. I lament the controversial use of the word genocide, and overall I think the $92-million would have been better spent building healing lodges as recommended by the Report of the Royal Commission on Aboriginal Peoples in 1996.