Mending the Chain – Part 1 of a series

Truth and Reconciliation recommendations seek justice for the survivors

EDITOR’S NOTE: The 94 recommendations of Canada’s Truth and Reconciliation Committee (TRC), chaired by Justice Murray Sinclair, were contained in the executive summary delivered to the federal government on June 2, 2015. The 300-page executive summary precedes the delivery of the full six volume TRC report, which is anticipated for delivery later this summer after being translated into a number of First Nation, Metis and Inuit languages. This article is the first instalment of a series that will delve into the key recommendations of the TRC grouped into the categories of justice, education, health, an Aboriginal Languages Act and appointment of a language commissioner, the creation of a national council of reconciliation and an annual ‘State of Aboriginal Peoples Report’ to be delivered by the sitting prime minister, the creation of a public inquiry into missing and murdered aboriginal women, as well as funding for the creation institutions, holidays and a National Centre for Truth and Reconciliation that will ensure the legacy of the residential school system will become an integral part of our national consciousness. In the spirit of opening up a dialogue between communities readers are invited to submit their own perspective on each instalment of this series for our page 4 letters section.

OTTAWA—Canada’s aboriginal population has long suffered a problematic interaction with the nation’s justice system. The indigenous population of the nation’s penal institutions outstrips their proportion of the general population and a 2013 special report by Howard Sapers, the person in charge of monitoring the Correctional Service of Canada, said in a special report that aboriginals made up four percent of Canada’s population but 23 percent of inmates in federal jails are indigenous offenders and that those numbers had skyrocketed in the previous five years by 43 percent.

Anishinaabek Nation Grand Council Chief Patrick Madahbee said that he is generally skeptical about the eventual impact of the TRC recommendations, although he has a great respect for the work that has been done by the committee. “I don’t believe it until I see it,” he said of the possibility that the federal government will move to implement any of the recommendations. “We have been the subject of so many reports and studies that never see the light of day. The TRC has been doing a superb job of listening to people and there is likely some healing that has taken place, but the government continues to refuse to deal with the whole range of issues that have been clear since long before the TRC report came out and I don’t hold out a lot of hope that this government’s approach is going to change any time soon.”

“I am of the same mind,” agreed newly elected Ontario Regional Chief Isadore Day, but he added that as a newly elected regional leader he has to maintain a positive approach to resolving those issues.

“I think the issues that we see highlighting the implementation of the Gladue Reports (specialized reports to the court that outline a convicted offender’s history and influences) provides an important lesson,” said Chief Day. He noted that the implementation in Sudbury has been fairly solid. “But when you look at Blind River that isn’t the case at all,” he said. “There definitely needs to be a consistent approach to application of the TRC recommendations across jurisdictions.”

“Residential schools inflicted profound injustices on aboriginal people,” reads the report’s preamble to the section dealing with justice recommendations. “Aboriginal parents were forced, often under pressure from the police, to give up their children to the schools. Children were taken far from their communities to live in frightening custodial institutions, which felt like prisons. The children who attended residential schools were often treated as if they were offenders and were often victimized.”

“This pattern of disproportionate imprisonment and victimization of aboriginal people continues to this day. The continued failure of the justice system denies aboriginal people the safety and opportunities that most Canadians take for granted. Redress to the racist and colonial views that inspired the schools, and effective and long-term solutions to the crime problems that plague too many aboriginal communities, call for increased use of aboriginal justice, based on aboriginal laws and healing practices.”

“To understand the full legacy of the harms of the schools, it is important to examine how the Canadian legal system responded to residential school abuse. Relatively few prosecutions for abuse resulted from police investigations,” continues the executive summary. “In some cases, the federal government actually compromised these investigations—and the independence of the Royal Canadian Mounted Police (RCMP)—to defend its own position in civil cases brought against it by residential school survivors.”

The first recommendation (number 25) therefore calls “upon the federal government to establish a written policy that reaffirms the independence of the RCMP to investigate crimes in which the government has its own interest as a potential or real party in civil litigation.”

The TRC illustrated the need for the affirmation of independence by highlighting the case of the RCMP investigation into the Kruper School in British Columbia. Despite the establishment of ‘Division E’ to investigate the allegations of abuse at the school, there was clear evidence presented to the TRC that the federal government interfered in the process due to their “strategic interests in defending itself in the many civil lawsuits commenced by former students.”

Recommendation 26 calls on governments at all levels “to review and amend their respective statutes of limitations to ensure that they conform to the principal that governments and other entities cannot rely on limitation defences to defend legal actions of historic abuse brought by aboriginal people.”

Despite 38,000 documented cases of abuse at the residential schools fewer than 50 prosecutions linked to those cases were found by the TRC. The RCMP’s own parameters show that the force regarded claims of physical abuse against aboriginal children as being “less serious than that of sexual abuse.” The disconnect between prosecutions and abuses was, in the words of the RCMP, regarded as “culture clash between the rigid, ‘spare the rod, spoil the child’ Christian attitude and the more permissive Native tradition of child-rearing.”

Further, only claims by residential school survivors that referenced physical or sexual abuse were considered by the courts when survivors turned to civil litigation in the 1990s. The courts “refused to consider on the merits the survivors’ claims relating to loss of language, culture, family attachment, and violation of treaty rights to education.” notes the report. “The Canadian legal system refused to consider the claims that survivors brought on behalf of their parents and their children. It also refused to provide remedies for the collective harms that residential schools caused to aboriginal nations and communities.”

In order to assist in bringing the legal system onboard, TRC recommendation 27 calls on the Federation of Law Societies of Canada to ensure that all lawyers “receive appropriate cultural competency training, including the history and of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, treaty 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.”

“There will be a need for courses at Osgoode Hall, or wherever legal professionals are taught,” agreed Chief Day. “That approach needs to be clear and consistent throughout the system.”

The justice recommendations also include calling upon the federal government to work “collaboratively with plaintiffs not included in the Indian Residential Schools Settlement Agreement to have disputed legal issues determined expeditiously on an agreed set of facts.”

The specific question of overrepresentation of aboriginal people in custody is addressed in recommendation 29, which calls upon all levels of government to “commit to eliminating the overrepresentation of aboriginal people in custody over the next decade and to issue detailed reports that monitor and evaluate progress in doing so.”

Included in the recommendations is a call to provide “sufficient and stable funding to implement and evaluate community sanctions that will provide realistic alternatives to imprisonment for aboriginal offenders and respond to the underlying causes of offending.”

Further, the recommendations call on the federal government to amend the Criminal Code to “allow trial judges, upon giving reasons, to depart from minimum sentences and restrictions on the use of conditional sentences.”

In addressing some of the root causes identified as stemming, at least in part, from the legacy of the residential schools, the TRC calls for federal, provincial and territorial governments to recognize “as a high priority the need to address and prevent Fetal Alcohol Spectrum Disorder (FASD) and to develop, in collaboration with aboriginal people, FASD preventive programs that can be delivered in a culturally appropriate manner.” In addition, reforms to the criminal justice system should include better addressing of the needs of offenders with FASD, including resources to better diagnose and provide community supports, enacting statutory exemptions from mandatory minimum sentences for those affected by FASD, community, correctional and parole resources to maximize the ability of people with FASD to live in the community along with the “appropriate evaluation mechanisms to measure the effectiveness of such programs and ensure community safety.”

Barriers to aboriginal healing lodges within the correctional system need to be eliminated, notes recommendation 35, and “more culturally relevant services to inmates on issues such as substance abuse, family and domestic violence and overcoming the experience of having been sexually abused,” are contained within recommendation 36.

As well, the federal government is called upon to provide more supports for aboriginal programming in halfway houses and parole services (recommendation 37).

Recognizing the role that early incarceration has played in recidivism, the TRC called on federal, provincial, territorial and aboriginal governments to commit to “eliminating the overrepresentation of aboriginal youth in custody over the next decade.”

As part of the strategy to make this a reality, the TRC has called for a “national plan to collect and publish data on the criminal victimization of aboriginal people, including data related to homicide and family violence victimization.” And further calls for “all levels of government, in collaboration with aboriginal people, to create adequately funded and accessible aboriginal specific victim programs and services with appropriate evaluation mechanisms.”

The issue of missing and murdered aboriginal women is addressed in recommendation 41, where the TRC “calls upon the federal government, in consultation with aboriginal organizations, to appoint a public inquiry into the causes of, and remedies for, the disproportionate victimization of aboriginal women and girls” with a mandate to provide an “investigation into missing and murdered aboriginal women and girls” and to investigate the “links to intergenerational legacy of residential schools.”

Finally, the justice recommendations call on the federal, provincial and territorial governments to “commit to the recognition and implementation of aboriginal justice systems in a manner consistent with the treaty and aboriginal rights of aboriginal peoples, the Constitution Act 1982 and the United Nations Declaration of Indigenous Peoples, endorsed by Canada in November 2012.”