Antoine was mid-40s, tall and lean with shoulder length black hair. I met him in jail to prepare his sentencing for stealing lotto tickets from a corner store and many breaches of his release condition not to drink. He had never served federal time but had spent more than half of his past 20 years in provincial jail or on some form of court ordered restrictions. He was serving a life sentence for a life of petty crime. He was also articulate and insightful so I asked him why he was spending his life this way, “I was raised in an institution. An institution is all I really know.” Both he, like his parents before him, spent their formative years as children in the confines of a Residential School.
The Truth and Reconciliation Commission of Canada (TRC) recently published 94 Calls to Action as part of its final report on the Indian Residential School legacy. They touch every aspect of Canadian life from sports and recreation (87-91) to health (18-24) to the corporate business sector (92). Two speak directly to lawyers, law schools and law societies, three call for equity for Aboriginal…reconciliation between Canada’s aboriginal peoples and the rest of Canadian society demands the awareness and involvement of every Canadian. people in the legal system and 16 address the justice system generally. Many intersect with Canada’s various legal regimes, such as child welfare laws, and legal commitments, including the United Nations Declaration on the Rights of Indigenous People.
The Truth and Reconciliation Commission observed in the Executive Summary to the Final Report that:
Too many Canadians know little or nothing about the deep historical roots of these conflicts. This lack of historical knowledge has serious consequences for First Nations, Inuit, and Métis peoples, and for Canada as a whole. In government circles, it makes for poor public policy decisions. In the public realm, it reinforces racist attitudes and fuels civic distrust between Aboriginal peoples and other Canadians. Too many Canadians still do not know the history of Aboriginal peoples’ contributions to Canada, or understand that by virtue of the historical and modern Treaties negotiated by our government, we are all Treaty people. (emphasis added)
I spent my childhood in a middle class suburban home and attended a well-funded school that my parents chose for me. I learned about explorers opening up eastern Canada and pioneers taming the land in the west. I did not learn that simultaneous to these European-style ventures, Indian children were being rounded up and sent away from their parents to have the Indian educated out of them.
I attained undergraduate and law degrees. Still, I learned nothing about the residential school system that so deeply impacted the lives of the First peoples who lived on the land I now call mine as a Canadian. Even as a lawyer, after studying Canadian constitutional law, property law, family law and human rights law, I could not describe what a residential school was. So, I listened to Antoine but was il- qualified to truly understand my client or interpret his experience to the court in a meaningful way.
I believe that lawyers have a particular obligation and strong position from which to advance reconciliation and mend relationships with Aboriginal people across Canada. But reconciliation between Canada’s aboriginal peoples and the rest of Canadian society demands the awareness and involvement of every Canadian.
The average Canadian may be misinformed about the reality of being Aboriginal. The void of knowledge is too often filled with inaccurate prejudice: whether about free education (when in fact on-reserve education is comparably underfunded), free health care (a quick glance at health demographics should dispel this notion) or a lack of governance (despite the successful negotiation of self governance agreements by diverse groups across Canada).
The TRC reminds us:
Violence and criminal offending are not inherent in Aboriginal people. They result from very specific experiences that Aboriginal people have endured, including the intergenerational legacy of residential schools.
It should not be surprising that those who experienced and witnessed very serious violence against Aboriginal children in the schools frequently became accustomed to violence in later life. It should not be surprising that those who were sexually abused in the schools as children sometimes perpetuated sexual violence later in their lives. It should not be surprising that those who were taken from their parents and exposed to harsh and regimented discipline in the schools and disparagement of their culture and families often became poor and sometimes violent parents later in their lives. It should not be surprising that those who were exposed to poor education and to spiritual and cultural abuse in the schools later turned to alcohol and drugs as a means to cope.
The fact that there may not be appropriate alternatives for criminal sentences or that there are jurisdictional wranglings over Too many Canadians know little or nothing about the deep historical roots of these conflicts. This lack of historical knowledge has serious consequences for First Nations, Inuit, and Métis peoples, and for Canada as a whole. education funding, for example, are explanations for ongoing injustice. It is our inaction that allows these explanations to remain excuses. Aboriginal peoples have not and are not treated equally or with justice. Lawyers play diverse roles in the administration of justice and who are governed by a code of ethics, that I propose obliges us to be part of the solution to the crisis of the Canadian relationship with Aboriginal people. Our profession should be in an uproar.
Making available more and better information is only one aspect of the problems facing Aboriginal offenders and communities trying to help them reintegrate into society. The TRC notes:
Even if excellent Gladue reports were prepared from coast to coast, they would still fail to make a difference in the amount of Aboriginal over-representation in the prison system without the addition of realistic alternatives to imprisonment, including adequate resources for intensive community programs that can respond to the conditions that caused Aboriginal offending.
The ethical duty on defence counsel to seek the best possible outcome for a client and to make every reasonable argument in their favor makes the need to find alternative sentences more pressing. It may mean contacting a band council or community organization and discussing capacity and funding. Where there truly are no alternatives because of poor funding, a lack of training or underdeveloped programs, should we not consider whether there are Charter rights at stake?
Child welfare models are based on the best interests of the children but too often these proceedings end up focused on what programs or services a parent in crisis may or may not have access to. The result is that children are removed from their homes and may wind up shuttled between caregivers or institutionalized. Creative solutions are emerging such as removing the parent or guardian who needs help from the home while keeping the child there. There are also opportunities for community-led committees to help define what the best interests of a child in their community are and how to achieve them. These efforts require funding, capacity and possibly a rethinking of how child protection work is done. Lawyers, social workers and community leaders have the skills to accomplish changes while maintaining the best interests of the child and the spirit of the relevant laws.
The TRC’s Call to Action is an opportunity for other professions to question their relationships with their Aboriginal colleagues, clients or neighbours. It is an opportunity to examine whether they as individuals can rise to the challenges set out by the TRC in their area of influence, practice or experience whether, for example, in health care, education, or media.
Canadians should not accept complacency in the face of challenges for fundamental change. We have a collective responsibility to seek and demand equal justice for all.
About Caroline Wawzonek
