Changing Our History: Lawyers and Leadership

Canada is a lot of country. I recently had the pleasure of taking the train from Winnipeg to Toronto and I can testify that the enormity of this land cannot be experienced from the air. The magnificence of Canada's lakes and rivers can only be absorbed at ground level. We live in a country of immense resource and beauty. It is a legacy that deserves our attention and our care.

But picture postcard Canada is harshly juxtaposed with our racist shame. The natural beauty of this land is where we hide our ugly history of apartheid. Much like the beautiful countryside, our unpleasant past cannot be fully examined from cruising altitude. We can only breathe in the legacy of colonization when we see the social devastation that has been left in its wake. Our cities, towns and country are scarred by the policies of racial segregation and cultural genocide. If you cannot see it from where you are, then take a trip. The racist policies of the past have created the wounds of our present, and they are all too easy to see.

The train takes days to go from Winnipeg to Toronto so you approach each infrequent stop with a sense of anticipation and excitement. Towns like Sioux Lookout are not graced by tourists or their money. As we pulled into the station I peered nosily from the train; a discount food store, a bar. Maybe there was more, maybe not. Almost all the faces were Indigenous. I noticed a group of young men scuffing their heels outside the central bar. Nobody in the group was talking. They were just standing there, waiting. The only white faces were those of the disembarking tree planters on their way to camp. They wouldn’t be stopping at the bar.

I wondered where the liquor store was and as we pulled out of the station I saw it; the proud government signature above its welcoming door. There were men milling around the parking lot but nobody looked at the train or its passengers. They knew the tourists were not getting off here or at any of the communities nearby. Our arrival and departure would be met with the same indifference that seemed to blanket the whole town.

As the train pounded the tracks of northern Ontario I saw the boarded up shacks and rusted out boats of broken communities. First Nations communities. As the 'Canadian' (The rather ironic unifying name of VIA Rail’s transcontinental flagship) weaved through the majestic landscape we saw fragments of these places; glimpses of a world I barely know. There was a weight above these communities, a settled doom, heavy with a sense of displacement. Hollow places that are instantly recognizable as the "Rez." Railway ties, rusted propane tanks and tar peeling from the walls of dying shacks. The aching pain of poverty painted on the homes.

The train silently slouched to a stop in the wilderness. It was late afternoon and snow covered the ground. A new passenger joined the train. He was Indigenous, 35, 45. His face was etched with time. His ill-fitting plaid shirt and soft brown pants seemed incongruous with the winter landscape outside. The train was packed and the seat next to me was the only empty one in our car. He walked deliberately down the aisle, his eyes fixed to the floor. When he reached me, he paused. We had never met, and yet each of us knew the others story. As he moved past me a jolt of feeling sank into my stomach. He didn’t want to sit next to me.

I don’t know why he didn’t sit, but in that single moment I was painfully aware of how little our lives were connected. This briefest of glances, this non-contact, had somehow animated the history of Canada in my mind. The terror of cultural genocide washed over me and I was soaked in shame. There are two citizenships of Canada, forged in the racist crucible of colonization. The man I will never meet belongs to an Indigenous citizenship, one scarred by poverty and the generational pain of subjugation. I felt truly helpless as I stared out of the train at the darkening landscape. I wanted to do something about it all: the inequality, the poverty, and the pain. I wanted “Canadian” to mean the same for all of us.

We have created a genuine second-class cultural citizenship in Canada. An Indigenous citizenry defined by their incredible resilience. Despite generations of Indigenous men, women and children enduring racial subjugation, many Indigenous communities stand upon this land and seek nothing more than an equal opportunity to thrive. According to the Truth and Reconciliation Commission of Canada (TRC), reconciliation requires that we all come to terms with the past in a way that “overcomes conflict and establishes a respectful and healthy relationship among people, going forward” (TRC Executive Summary Introduction at 8 online [TRC Summary]) I can only hope that I would share the same generosity of spirit, were it me in the position of many Indigenous people in Canada.

Much has been written and read recently about the work of the TRC. As an outsider, an immigrant Scot who moved to Canada seventeen years ago, I have struggled to come to terms with the reality of colonization. As a criminal lawyer I have seen the social consequences of it up close. It has been hard for me to imagine an unyielding road to true social equality, a bridge from rhetoric and apologies to inclusion and social mobility for Aboriginal peoples.

The degenerative cultural genocide of Indigenous peoples was authored by our past. The social harms and economic marginalization it created is the legacy the TRC challenges us to change. Karl Marx observed that, " Philosophers have hitherto only interpreted the world in various ways; the point is to change it” (Marx “Theses on Feuerbach”). The time of realization has passed, and the time of action has come. The effectiveness of the TRC will be measured by the changes we make to Canadian society.

The Truth and Reconciliation Commission of Canada: Calls to Action, place a rightly heavy burden on lawyers and the legal system. Twenty-one of the ninety-four calls to action directly address the justice system. (See Calls 25-42 (Justice); Calls 50-52 [Equity for Aboriginal People in the Legal System]). Many more touch the legal world in realms as diverse as Child Welfare and Business. In fact, there are more calls to action aimed at the legal system and its actors than any other area of concern. If the Calls to Action are to truly propel our journey to reconciliation, then Canadian lawyers should, and indeed must, play an integral role.

Two of the calls should have an immediate and important impact on legal education:

27. We call upon the Federation of Law Societies of Canada to ensure that lawyers receive appropriate cultural competency training, which includes the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal–Crown relations. This will require skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism.

28. We call upon law schools in Canada to require all law students to take a course in Aboriginal people and the law, which includes the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal–Crown relations. This will require skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism.

Lawyers, law students and professors have been called upon as leaders in this social transformation. We have a specific role to play in effecting social change and ending the second-class citizenship of many Indigenous Canadians. The legal profession is uniquely placed to operationalize the Calls to Action and fashion a country defined by social and economic equality. All lawyers, in all spheres of practice, can use their position and privilege to guide Canada towards this goal.

The TRC Calls to Action go far beyond awareness of the social and emotional problems caused by colonization. We know there is a causal connection between the social policies of the past and the social problems of today. We know about the emotional devastation of Indigenous communities torn apart by substance abuse, violence and suicide. We know about the lack of quality housing and the lack of opportunities for education and employment on reserve. We know about the mind-boggling disparity in incarceration rates between Indigenous and non-Indigenous offenders.

Knowledge and understanding is not the issue facing Canadian lawyers (For a good starting point, law students who have not already done so can read the executive summaries of Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Supra TRC Summary) and the Commission of Inquiry into the Circumstances Surround the Death of Phoenix Sinclair. The recommendations highlight community-based solutions to some of the social problems caused by the cultural genocide of aboriginal peoples in Canada.

The issue now is change. How do we play our part in effecting meaningful social change that eradicates class and race based inequality in Canada? How can we eliminate our two-tier social citizenship while respecting the cultural identities of all Canadians? These are the questions that law schools, students and practicing lawyers must now answer. Our goal should be nothing short of destroying economic and class disparity in Canada; a disparity felt most acutely by Indigenous Canadians. In order to do this, we must come together as a community.

Recently, we have seen the power of a committed community. The terror of war and displacement overseas has seen Canada open its borders to those fleeing devastation around the world. I have witnessed Canadians come together to fundraise, to advocate and to care for those in need. Many of our own committed students and faculty at Robson Hall have given so much of themselves to helping refugees from Syria and elsewhere. Our community has risen to meet the challenges faced by a displaced population: poverty, food security and lack of safe and affordable housing and employment opportunities.

Of course, countless Indigenous people in Canada face many of these same social problems. I am not suggesting that the mobilization of compassion and productiveness we have seen in the refugee crisis would be better served among our own people. This is not an “either or” proposition. I am inspired by the resolve of those working with refugees in Canada. I believe this same resolve can help us tear down the barriers to social equality in our own society. The power of a committed community is boundless.

There are already many individuals and organizations that work tirelessly to eradicate poverty and social marginalization in Canada. I have done little to join this effort. Perhaps worse than doing little, I have worked as a criminal lawyer in a system that supports the use of financial resources as a means of securing release from custody. Manitoba Prosecutions and the courts often require an accused (the vast majority of whom are Indigenous) to come up with money or a surety (A friend or family member that promises to pay the court a sum of money if the accused does not follow their bail conditions) in order to be released from custody. This practice is enshrined in legislation (Criminal Code s.515(2)(c)) and disproportionately prejudices the poorest and most socially marginalized accused.

If we are all going to heal the "destructive legacies of colonization" (TRC Summary at 8) lawyers must play a vital role in bridging the divide left by the policies of the past. The legal profession must lead the change. In the realm of criminal practice, not requiring an accused to buy his way out of jail would be a good start. It will not solve poverty or marginalization, but it would be small step on the road to economic equality.

The relationship between Indigenous and non-Indigenous Canadians must be mutually respectful. It is our justice system, both civil and criminal, that can enshrine this respect in the fabric of a lawful society. The TRC Calls to Action are not an end unto themselves. Lawyers of all stripes must embrace these calls and take their place as leaders in the effort to change the history of Canada.