TRC – reconciliationsyllabus

Reconciliation and Sentencing Law: Spending some time with Sharma?

The Supreme Court of Canada released its reasons in R v. Sharma on November 3, 2022. https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/19540/index.do

Here is the case history provided by the SCC:

In 2016, the respondent Ms. Sharma, an Indigenous woman, pled guilty to importing two kilograms of cocaine, contrary to s. 6(1) of the Controlled Drugs and Substances Act (“CDSA”). Ms. Sharma sought a conditional sentence of imprisonment, and challenged the constitutional validity of the two-year mandatory minimum sentence under s. 6(3)(a.1) of the CDSA and of ss. 742.1(b) and 742.1(c) of the Criminal Code, which make conditional sentences unavailable in certain situations. The sentencing judge found that the two-year mandatory minimum sentence under s. 6(3)(a.1) of the CDSA violated s. 12 of the Charter and could not be saved under s. 1. The judge therefore declined to address the constitutional challenge to s. 742.1(b), and he dismissed the s. 15 challenge to s. 742.1(c). Ms. Sharma was sentenced to 18 months’ imprisonment, less one month for pre-sentence custody and other factors.

Ms. Sharma appealed and, with the Crown’s consent, also brought a constitutional challenge to s. 742.1(e)(ii) of the Criminal Code. A majority of the Court of Appeal allowed the appeal. Sections 742.1(c) and 742.1(e)(ii) were found to infringe both ss. 7 and 15(1) of the Charter, and the infringement could not be justified under s. 1. The majority held that the appropriate sentence would have been a conditional sentence of 24 months less one day, but as the custodial sentence had already been completed, a sentence of time served was substituted. Miller J.A., dissenting, would have dismissed the appeal and upheld the sentence of imprisonment.

The outcome of the case is that the majority (Brown, Rowe, Wagner, Moldaver, and Coté) found there to be no violation of either s.7 or s.15(1) of the Charter. The dissenters (Karakatsanis, Kasirer, Martin and Jamal) came to the opposite position, finding violations of both.

The case is likely to generate lots of discussion, given the quite stark differences in how the majority and dissent (5-4 split) understood the challenges in front of them. Perhaps this will come as no surprise, given the number of interventions in the case (here is a link to the 23 facta filed in the case – Facta on Appeal). There is some powerful written and oral advoacy in this case, and there is much in here that could be profitably drawn into the law school classroom. Here is a quick link to the webcast of the case: Webcast of hearing in Sharma)

On November 7, there was a “Pop-Up Conversation on Sharma” at UVic law, with Professors David Milward, John Borrows, Patricia Cochran, Patricia Barkaskas and Rebecca Johnson, and Sentator Kim Pate and UVic law student Michael Davidson (2L in the JD/JID program). The point was to provide an introduction to the case, followed by a series of short (3-5 minute) interventions, attempting to start a conversation about the case, and about how to understand next steps forward in terms of addressing the crisis of over-incarceration. [On that front, here is a news item on the report of Correctional Investigator Ivan Zinger, released mere days before Sharma.]

For the purposes of #ReconciliationSyllabus, we gather here some of the resources from that event, to share with folks who are trying to figure out how to be responsive to the TRC Calls to Action in engaging with both the majority and dissent in this case.

First, here is a link to an audio recording of the Pop-up-Panel.

Rebecca Johnson (Introduction to the Case)	00:00
David Milward	09:15
John Borrows	12:20
Patricia Cochran	18:00
Kim Pate	22:45
Patricia Barkaskas	28:15
Michael Davidson	36:30
Questions & Conversation	39:15

Second, here is a link to the handout prepared for the conversation.

sharma-handout-rj Download

Third, here is a link to the background powerpoint prepared by Rebecca Johnson for use in the Criminal Law classroom [it is open access, so feel free to use, modify, change, as you will…. and to disagree!]

sharma Download

The audience also took up the relationships between litigating and legislating for change, pointing to Bill C-5, which attempts to reduce the number of ‘excluded offences’ in order to create the discretion needed to build sentencing practices that respond to the TRC calls to incorporate Indigenous centred approaches to justice.

There is so much to be said about this case, particularly the majority and dissent engage in quite different ways with the challenges ahead of responding to and reversing the complete crisis of Indigenous over-incarceration in Canada, and particularly the over-incarcernation of Indigenous Women.

We know there are many resources out there to help us, in our law schools, engage with the challenges ahead. We would love for folks to attach to this post any additional resources (articles, links, teaching materials, ideas) in order to begin changing either the discourse, or the legislative framework or the shape of our conversations (both in our classrooms, and in the broader public).

Implementing Indigenous Law in Agreements – Learning from “An Agreement Concerning the Stewardship of the Witness Blanket”

witness blanket

In October of 2019, through ceremony conducted in Kumugwe (the K’omoks First Nation Bighouse), the Canadian Museum for Human Rights (CMHR) and Artist Carey Newman entered into “An Agreement Concerning the Stewardship of the Witness Blanket – A National Monument to Recognize the Atrocities of Indian Residential Schools” . Under this agreement, the Witness Blanket would find a permanent home in the Canadian Museum for Human Rights in Winnipeg.

https://humanrights.ca/exhibition/the-witness-blanket

A group of us from the Indigenous Law Research Unit at UVic had the privilege of being present at the Ceremony, watching as artist Carey Newman and the CMHR (through its President and CEO John Young) entered into an agreement to be Joint Stewards to the Witness Blanket. This agreement is on the cutting edge of transsystemmic law. It is governed, shaped, and enacted through a weaving together of Indigenous and Canadian legal understandings and protocols. It contains both written and oral commitments. More specifically, it draws both Kwakwaka’wakw traditional legal orders and Canadian Common Law into collaborative engagement. Click on the link below to read more about the Ceremony.

https://www.theglobeandmail.com/arts/art-and-architecture/article-the-witness-blanket-an-installation-of-residential-school-artifacts/

The experience of reading the Written Agreement and of attending the Ceremony was powerful on so many levels. In particular, it was an inspiration and education on what might be possible in the work of law, as we think about next steps forward in legal education and practice.

Drawing on this experience, we drew on the Witness Blanket during the January segment of our Legal Process class this year. In this post, we share a number of resources that might be helpful for people in law wanting to think more about many of the things to learn from both the Witness Blanket, and the Stewardship Agreement. At the end of the post are a few comments on our own first experiences of drawing the Witness Blanket into the law school classroom.

We note here that the Agreement is shared with the permission of both Carey Newman and the Canadian Museum of Human Rights. Their willingness to have the agreement shared and made publicly visible is both a gift, and a teaching. There is more to be said about this teaching, and about the powerful work of Ceremony, and the Oral component of this agreement. I hope to return to those in a later post.

Here is a copy of the Agreement itself:

Witness Blanket Stewardship Agreement v04.4

This is an ‘annotated copy’ of the Agreement (Rebecca’s annotations) designed to organize some thoughts and make visible some aspects of the Agreement that can generate important conversations.

Annotated Witness Blanket Stewardship Agreement

BACKGROUND: What IS the Witness Blanket?

WitnessBlanket (2) — Carey Newman and the Witness Blanket (photo credit: Doug Little/CMHR)

For those who have not yet encountered the Witness Blanket, it is described on its website as follows:

Inspired by a woven blanket, we have created a large scale art installation, made out of hundreds of items reclaimed from Residential Schools, churches, government buildings and traditional and cultural structures including Friendship Centres, band offices, treatment centres and universities, from across Canada. The Witness Blanket stands as a national monument to recognise the atrocities of the Indian Residential School era, honour the children, and symbolise ongoing reconciliation.

http://witnessblanket.ca/

THE DOCUMENTARY

There is a wonderful documentary on the Witness Blanket, produced by Carey Newman and Cody Graham of M1 Films https://m1films.ca/portfolio_page/witness-blanket/. Below is a link to the Trailer for the movie.

There are two versions of the Documentary: one is 90 minutes, and the other is 55 minutes (edited down to make it easier for teachers to show it during a standard class time). You can contact the CMHR to arrange to have it streamed (no cost involved).

The documentary is powerful in so many ways, and can open room for many conversations:

It gets at the history and legacy of residential schools
It provides an introduction to the Indian Residential Schools Settlement Agreement
It enables one to listen to the voices of a number of survivors, and does this in ways that are contextualized and respectful, and which take up land, place, voice, memory, and more
it gets at the intergenerational transfer of trauma, and at avenues for disrupting those injuries and patterns (for Indigenous and non-Indigenous people alike)
it opens space for looking at the relationships between art and law (including questions about problem solving, process, creativity and collaboration)

THE BOOK

51YgZU4Je7L._SY461_BO1,204,203,200_

Another great resource for background is a book about Witness Blanket, called ‘Picking up the Pieces”. The book contains a collection of stories and reflections on segments of the larger blanket. It has many colour photos, and lots of closeups, and is organized so that you can explore small pieces of the Blanket in more intimate detail (along with stories related to the objects)

MEDIA CONVERSATIONS

Another resource is a 24 minute interview with Carey Newman on the APTN Program “Face-to-Face.” He was being interviewed at the Canadian Museum for Human Rights, during the launch of the book and Documentary “Picking up the Pieces: The Making of the Witness Blanket”. It is a lovely introduction to both the artist, and the work. Carey Newman speaks about community based and collaborative art practice, and there are some very interesting parallels there to legal practice and processes. Also some lovely thoughts on how to carry ‘the weight’ of difficult stories. I very much appreciated his comments about challenges in the ways we (artists and lawyers) attempt to tell complex and multi-layered stories.

A SIDE NOTE ON THE RELATIONSHIP BETWEEN THE WITNESS BLANKET, THE TRC AND THE IRRSA

It can be worth making visible the relationships between the Indian Residential Schools Settlement Agreement (IRSSA), the Truth and Reconciliation Commission (TRC) and the Witness Blanket. There were 5 main components to the IRSSA (which was the settlement of the largest class action in Canadian History. The first three involved agreements about payments that would be made to the parties to the action (still living survivors from a list of 139 schools co-managed by the federal government and 4 church organizations). But the last two components aimed at involving all Canadians in the discussion, and in the work ahead. These were:

The establishment of the TRUTH AND RECONCILIATION COMMISSION; and
The establishment of a fund to produce works of COMMEMORATION.

Of some significance is the fact that both the TRC and the Commemoration projects serve to benefit all of Canada. That is, you can see both these projects as funded not by the government or churches, but by the survivors themselves (as they chose to direct payments forward to the future, rather than directly to themselves). A moving gift to all of us.

And so, The Witness Blanket is one of the projects that emerged from the Commemoration component of the IRSSA, and is thus designed to engage all Canadians in the work of Truth and Reconciliation. For more on the Terms of Reference for both the TRC and the Commemoration fund, you can follow the link below (see Schedule J and Schedule N:

http://www.residentialschoolsettlement.ca/settlement.html

The federal government also has a webpage that organizes some information around Indian Schools Settlement Agreement (including summaries and links to more information on both the TRC and the Commemoration Projects.

https://www.aadnc-aandc.gc.ca/eng/1100100015576/1100100015577

SOME COMMENTS ON TEACHING WITH THE AGREEMENT

As mentioned at the beginning, we used the Agreement as part of our teaching during the during our Legal Process course in January. Legal Process is a mandatory class for our first year students. The majority of the class occurs in the first two weeks of September. It is an intensive course where the students spend the two weeks in a combination of small and large group settings. In the context of the small sections, they work in groups of 20 or so students and 3 teachers. They return to those groups in January for 2 mornings which have been devoted in recent years to TRC work.

This year, the first morning focused primarily on the TRC, and the second morning on the Witness Blanket. The second morning, there were three primary activities related to the Witness Blanket:

The students watched the Witness Blanket documentary as a group (an hour)
Students then met in their small groups to read the Stewardship Agreement. They were given an “assignment” to help guide them in their reading. Note, the premise of the assignment was that students could imagine themselves wanting to produce a postcast episode about the Witness Blanket. There was no expectation that they would in fact complete such a task, but the hope was that this imagined activity might help guide their reading in ways that would direct their attention to the importance of sound, image, translation, collaboration and more.
- - Witness Blanket Stewardship Agreement
  - Witness Blanket ‘Podcast’ Assignment
Students returned with their questions to meet as a large group, where, through the magic of a Video linkup, they were able to listen to Heather Bidzinski (Head of Collections – Canadian Museum for Human Rights). She spoke to them about her participation in the creation of the Stewardship Agreement, in the Oral Ceremony, and about challenges, lessons learned, and what is being carried forward through this form of legal work.

One of the powerful take away lessons for me came in Heather Bidzinski’s comments to the students that there were nearly a dozen prior versions of the Agreement, and that the work of arriving at the ‘final version’ involved more than two years of ‘building relations’. In short, she told them that the most powerful learnings came in the work PRIOR to the signing of the agreement. The magic, she argued, is not so much IN the written text as it is in the RELATIONSHIP that was built between the Parties as they spent time and energy learning more about the ways they might work with each other.

This insight is helpful in thinking about how we do the work of teaching about the TRC in the classroom. There is lots to be said about the concrete lessons plans and teaching materials, but also lots to be said about what we learn in the process of planning and trying to implement those plans. Doing TRC related work is affectively challenging, and can require much from both faculty and from students. One can anticipate that this work is more or less difficult for different students. It is helpful to remain reflexive in the exercises, as there will be things to learn in each encounter about way to support learning, both by students and professors. We acknowledge that we are baby-learners in this work, and that there are a number of bumps and bruises (both to ourselves and others) as we try to move ourselves along this path.

Some things we considered in setting up the exercise included:

There is great power in film to help convey some of these histories. The Witness Blanket documentary is particularly powerful in this regard. Let the students know this in advance, so they can be prepared for the different learning that can be enabled where they can see/hear/feel an argument.
Let the students know in advance that some of the students (and faculty and staff) have personal experience with residential school histories. It is important to be alert to this in dealing with each other, and kindness and care are crucial. The more advance notice, the better. There is power in watching a film in a group, but it is also possible to leave space for students to do the watching in smaller or more intimate contexts.
If the material is linked to a mandatory element (as ours is), then it can be helpful to create space for some students who have concerns to complete the requirement through an alternative exercise (that does not require them to be in the classroom with other students).
We involved our Amicus team (counsellors and cultural support people), so that there were people and resources to support students for whom the affective load of the material felt too high.
For at least part of the time, students worked in small groups. Each group had two professors and a grad student assigned to it, so there would be a range of experiences to draw on and from.
Advance workshops for faculty or students on Trauma-informed practice can be helpful. It also can be useful to create space for Faculty to work with each other in advance, so that they feel comfortable both with the material, and in working with students. It is helpful to remember that we, like the students, are often coming to the game with some gaps in prior knowledge about residential schools. Some tenderness and care with each other (and not only with the students) can be very helpful in doing TRC work in the law school.

There is undoubtedly more to say, and there are many ways to learn with and from the Witness Blanket Agreement. Certainly, for those of us in Law, the work of truth and reconciliation is the work of a lifetime. It is hopeful having models to look at, models that can help us think through more useful questions about ways to do the work. The hope is that these resources/links can provide some context for others to also explore the power of this Agreement for the teaching and practice of law.

We would love to hear ideas and thoughts about things you have tried in your own classrooms and law schools, as well as comments about things that might be done differently!

Gladue reports in the classroom: a group project from the Nunavut Law Program

IMG_20170917_213613_363 — Koojesse Inlet, Iqaluit in late September 2017

Benjamin Ralston – benjamin.ralston@usask.ca

What follows is a brief description of a group project that I put together for a course during the first year of the University of Saskatchewan’s Nunavut Law Program. While the context in which this assignment was created is unique, I hope this post might help spark others’ imaginations as to how a robust discussion of the Gladue analysis might be brought into the classroom.

Unique context

I was part of the team that delivered the first year curriculum of the Nunavut Law Program (NLP) during the 2017/2018 academic year. The NLP students are only now completing the ordinary 1L course load of their Juris Doctor degrees. The first year of their four-year program was something more sui generis. First year courses in the NLP included: Legal Process; Inuit History & Government Relations I & II; Introduction to Research & Research Methods; Writing & Communication I & II; Nunavut Land Claims Agreement I & II; Introduction to Professionalism; and Conflict Resolution & Reconciliation.

This group project was used as an assignment for the Introduction to Research & Research Methods course that I taught in the fall term of 2017. The course provided a general introduction to academic research, as well as an introduction to the unique ways in which research is conducted in legal studies and practice. It canvassed the formulation of research questions and plans, literature reviews, research ethics, methods and methodologies, and some of the tools available for legal and academic research. As the course preceded any black letter coursework, the focus was on ‘law-adjacent’ research rather than standard legal research.

The assignment

The students were assigned to create mock “Gladue reports” in groups of five. A Gladue report is a form of pre-sentencing report for Indigenous offenders that provides sentencing judges with the types of information that they need in order to fulfill their obligations under R v Gladue, [1999] 1 SCR 688, Sentencing judges are obliged to consider:

The unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and
The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage.

I put together this Gladue report assignment in order to have students practise their research skills on a project that was both concrete and clearly relevant to their overall legal education, but without requiring much familiarity with black letter law and legal research. It was an attempt at a problem-based learning exercise that would be open-ended enough to allow for creative responses from each group based on their own background knowledge, perspectives, and interests. I also wanted to encourage them to reflect on what they were learning in their Inuit History & Government Relations course in context to legal process.

The project was assigned on the first day of class. Each group was given a set of facts about a fictional character from one of the regions of Inuit Nunangat: Inuvialuit, Nunavut, Nunavik, or Nunatsiavut. Four of the fictional characters were Inuit and one was a fictional Sayisi Dene woman living within Inuit Nunangat. The fact scenarios for each group were meant to nudge the students in the direction of exploring a diversity of Gladue factors. Some but not all of the fact scenarios directly referenced residential school attendance. Others pointed students in the direction of examining how the Gladue analysis might relate to community relocations, Fetal Alcohol Spectrum Disorder (FASD), the child welfare system, out-adoption, and contemporary racism.

One major constraint on the project was that it would be difficult for students to employ the primary research method used by Gladue report writers: in-person interviews with the subject, as well as their family and community members. Still, we covered qualitative research and interviewing skills in the course and many students ended up interviewing local lawyers or individuals involved in restorative justice initiatives in order to flesh out the available alternatives to incarceration.

Students were encouraged to explore a wide variety of research methods by looking at peer-reviewed academic publications, grey literature, reports from commissions of inquiry, and case law to find information of relevance to the Gladue analysis. In terms of precedents, I provided students with access to three redacted examples of Gladue reports from British Columbia, Saskatchewan, and Ontario that included reference to secondary source research. It is worth noting that not all Gladue reports contain extensive secondary source research so I was selective about the precedents I obtained for this purpose. I wanted to ensure that the precedents were at least partially replicable in the classroom, as opposed to reports that are solely the result of interviews. I also provided the students with three examples of sentencing decisions that I felt clearly address both prongs of the Gladue analysis: R v Drysdale, 2016 SKQB 160; R v Christmas, 2017 NSPC 48; and R v Callihoo, 2017 ABPC 40.

The Gladue report project was also supported by guest lectures throughout the term. For example, Anisa White, Chairperson of the Gladue Writers Society of British Columbia, lectured the class via Skype on how Indigenous legal traditions can be incorporated within Gladue reports—a topic she has previously addressed elsewhere. Our cultural advisor, Aaju Peter, led a discussion of excerpts from Linda Tuhiwai Smith’s Decolonizing Methodologies to get students to think critically about the research process. During Restorative Justice Week, we also had representatives of the Department of Justice come in to speak to the students about restorative justice programming in Nunavut, including the Iqaluit Justice Committee. This was a happy coincidence. And while I was unsuccessful at arranging a guest lecture from someone involved in a Gladue report process elsewhere in Inuit Nunangat, a well-timed news article helped demonstrate the reports’ potential relevance to Inuit regions and was shared for discussion. Note that unlike Nunavik, Gladue reports are rarely if ever used in Nunavut courts.

The results

This group project was assessed through a combination of the final mock Gladue reports, group presentations on their work-in-progress in advance, and reflective essays mid-way through the project. The plurality of assessments allowed me to weigh in on their progress well in advance to see how the course materials were being applied in context to the assignment. This was a research class after all.

There is a broad scope as to what types of information may qualify as relevant to a Gladue analysis. While most Gladue reports are largely focused on a community’s history, the individual’s history, and what programming is available in the community, they may also engage with social science research and information on Indigenous legal traditions, among other things. I encouraged students to prepare their reports in response to the Supreme Court of Canada’s directions in R v Gladue rather than feeling constrained by the redacted precedents I provided, which were themselves diverse in their approaches and content in any event.

The students clearly took this advice to heart. One of the reports provided a very detailed treatment of how FASD relates to sentencing and the Gladue analysis, clearly linking this to the limited programming available in Nunavut. That same report also provided a detailed community history of Iqaluit, summarized in large part from the Community Histories component of the Qikiqtani Truth Commission’s Final Report. Other students contributed sections that addressed the impacts of the child welfare system on Indigenous children, for example, or that provided specific and detailed statistical information on how systemic discrimination manifests itself in specific communities. One report provided a detailed discussion of the impacts of high arctic relocations on Inuit in Nunavut and Nunavik. This was based in part on secondary sources but also included interviews with family members of one of the students in this group who experienced a relocation firsthand. More than one of the students’ mock Gladue reports touched on Inuit legal traditions as well.

The students’ reflection papers provided other interesting insights into how the Gladue analysis might be adapted to the realities of Inuit Nunangat. Several students raised concerns with the lack of Inuit-specific research available on the intergenerational impacts of the residential school system, community dislocation, and colonization. Many were uncomfortable relying on research that made broader generalizations about Indigenous experiences while being focused on First Nations rather than Inuit experiences. This was a good example of what we learned in the course about the identification of research gaps through a literature review. One student made a persuasive argument for the need to modify the name, form, and content of Gladue reports to better reflect Inuit culture and perspectives, linking this to course readings from Cindy Blackstock and Linda Tuhiwai Smith. Another who had a background in the criminal justice system persuasively argued that emphasis on community and familial dysfunction in a Gladue report could be coded as risk factors that lead to even greater levels of overincarceration for Inuit. Needless to say, I learned as much if not more than the students through administering this project.

Reflections for the future

Overall, I think this assignment was a success. Each group was able to demonstrate research skills on a project that was open-ended and interest-driven. There is enough complexity and depth built into the Gladue analysis that each group had the freedom to approach the assignment from unique angles and perspectives. The focus of the project was on developing and practising research skills, but this was accomplished in a way that I believe to be at least partially responsive to Call to Action #28.

On the other hand, the students’ inability to extensively engage in the interviewing process was a significant limitation. All groups conducted interviews regarding community-based resources that could be put forward as alternatives to incarceration and at least one group conducted interviews for the community history component of their report. Yet the investigation-type interviews conducted by Gladue report writers were not replicable in this assignment as the scenarios were fictional. This was disappointing as the students did not have a chance to practise what they learned about interview techniques as part of this project. For example, we had discussed the importance of asking open-ended questions, and clarifying and corroborating information obtained through interviews, all of which are equally relevant to the practice of law as they are to the Gladue report process.

These limitations may be addressed by having law students directly involved in the preparation of real Gladue reports through an externship program like the one that is apparently taking place at the University of Alberta. Unfortunately, in jurisdictions like Saskatchewan and Nunavut where there is no formal process for the preparation of Gladue reports, we have little choice but to use our imaginations.

Resources

Among other resources, students were assigned the following relevant readings during this course:

Kelly Hannah-Moffat & Paula Marutto, “Re-contextualizing Pre-Sentence Reports: Risk and Race” (2011) 12:2 Punishment and Society
Cindy Blackstock, “First Nations Children Count: Enveloping Quantitative Research in an Indigenous Envelope” (2009) 4(2) First Peoples Child & Family Review 135
Rebecca Johnson & Lori Groft, “Learning Indigenous Law: Reflections on Working with Western Inuit Stories” (2017) 2:2 Lakehead Law Journal 117
Hadley Friedland & Val Napoleon, “Gathering the Threads: Developing a Methodology for Researching and Rebuilding Indigenous Legal Traditions” (2015-2016) 1:1 Lakehead Law Journal 16
Linda Tuhiwai Smith, Decolonising Methodologies: Research and Indigenous Peoples (London & New York: Zed Books, 1999) [excerpts]
Inuit Tapiriit Kanatami and Nunavut Research Institute, Negotiating Research Relationships with Inuit Communities: A Guide for Researchers, Scot Nickels et al, eds (Ottawa & Iqaluit: Inuit Tapiriit Kanatami and Nunavut Research Institute, 2006)
Benjamin Ralston & Christine Goodwin “R v. Drysdale: A Gold Standard for the Implementation of R v. Gladue” (2017) 33:7 Criminal Reports 114

20171212_121309 — “Inuktitut word of the week” board in the NLP classroom, maintained by the Nunavut Law Students Society

The Blanket Exercise – Part 1

Introduction

img_20180725_181640 — A basket of blankets ready to go

In the Fall of 2017, the UVic Law Faculty decided to involve the full first year law school class in a form of the KAIROS Blanket Exercise as part of our mandatory Legal Process Course. We had been reflecting on the possibility of doing something like a Blanket Exercise for a number of years. The Truth and Reconciliation Commission’s Calls to Action(particularly #28, directed to Canada’s Law Schools) inspired us to start incorporating new ways of learning into our program.

In the interests of generating a conversation about embodied pedagogy and TRC work, I want to share here five different experiences that I have had with the blanket exercise (including the approach our law school took last year). Each encounter helped me recognize both the necessity and the challenges of doing trauma-informed, embodied pedagogy in the law school.

Just by way of provisional definition, by ‘embodied pedagogy’, I mean teaching in a way that acknowledges bodies, makes them visible, and moves them to the center of the learning experience. It is a way of teaching in which bodies are recognized as key to relationships, to understanding our histories of being, experiencing, and living in the world.

As you read about my description of each of the experiences I invite you to think about three different questions:

What is the goal of the exercise? To share information? To gather information? To created a common foundation for further conversations?
What advantages can embodied pedagogy bring to TRC work in the law school?
Is it possible to create a safe space in which the experience can unfold, one that is trauma-informed?

By the end of this piece I hope to have articulated some of the reasons why the UVic Law School decided to involve all our students in the blanket exercises as a starting point for a common understanding of our history of Indigenous-Colonizer/Settler relationships. I hope also to have shared some insights that emerged from reflecting on multiple engagements with the exercise.

Encounter #1 – Nervous Reluctance at the Very Idea

My first encounter could perhaps be described as an encounter with an idea. That is, my first encounter was not through participation, but through description of the exercise: my colleague Maxine Matilpi had participated in a version of the KAIROS exercise, and suggested that we do it with our students at UVic. As I understood it from her description, a floor would be covered with blankets representing North America before contact. Over the course of an hour or so, people would be taken through Canadian history in a way that performed small-pox, genocide, residential school, the foster care system, dispossession and more. At the end of the exercise there would be a visual map capturing the ways in which colonial practices have resulted in fragmented communities. The exercise would be followed by a debriefing session in which participants could discuss their experience of the exercise. Maxine reported that participants had found the exercise to be a powerful way of understanding this swath of history in a more embodied fashion.

While the exercise sounded interesting, it also made me very nervous. It seemed like the exercise would raise a lot of hard questions in a context where I was not confident we in the law school (I?) would have the capacity to address them. I was worried that law students might be resistant, that it might generate backlash, and that it might produce more harm than good. But I kept my ears open. And other friends, including Hadley Friedland, stepped forward to make the suggestion again. But at each mention of the exercise, while I found myself saying that it sounded ‘conceptually interesting’, my primary affective response was one of nervous reluctance (and refusal).

Unknown — Doing the blanket exercise in Edmonton

It was several years later that Hadley Friedland did what both Maxine and she had suggested that UVic should do. That is, she used a form of blanket exercise at University of Alberta with a group of over 200 law students and faculty. She adapted the Kairos script to be more attentive to the law school context. She involved people from local Indigenous communities and from the Indigenous Bar Association to facilitate discussion groups after the exercises. She didn’t let ‘logistics’ stop her: since there wasn’t a room large enough in their law school to physically pull this off, the exercise was run in the gymnasium at U of A. The event successfully met its objectives. Click below for accounts of the U of A experience in 2016 and 2017:

With my nervousness about the exercise tempered by evidence of its success at the University of Alberta law school, I moved in the direction of a small scale experiement – trying it myself.

Encounter #2 – The McGill Welcoming Week Version

The first time I myself participated in the Blanket Exercise was in Montreal during a Welcome Week at McGill. I was in town visiting my sister, and it just so happened that a group of McGill students (NOT associated with the law school), were running the exercise, in a week where there were multiple competing events. I was, in some ways, “a stranger in a strange land”, and there was some comfort in the idea of trying the exercise out in a context where I did not know anyone, and nobody really knew me. It was clear that time was of the essence and things were being brought together at the last minute. This is shorthand for saying, it was a very bare-bones exercise. The presentation didn’t feel glossy or polished. The people who were playing the roles of the facilitators and the settlers were volunteers. They were real people doing an exercise. There were no expectations that people had memorized or rehearsed lines, or that they were working to a professional standard. And so we were called in as participants in just the same way: there was no expectation that we had to do anything other than follow instructions.

Certainly, there was something quite powerful in having the exercise flow out in what felt like a very ordinary way. I felt a certain democratizing impulse in it in the way that the script was there and it didn’t require someone with an exceptional speaking voice to have power.

I was also struck by the relationship between what I knew in my head, and what that knowledge felt like when it took an embodied form. During the exercise, I was given a scroll which was to be read aloud at the relevant time. The text referenced the death of Indigenous women. There was nothing in the text that was new to me – by that I mean that the data was something that I was accustomed to teaching in my criminal law class. Yet, having to read the words out loud in this context was very hard. It was all I could do to try to read the words without crying. I was reminded that reading the words in my head is not the same as saying the words in ways which required my lungs to take breath, my vocal chords to do the work of speaking the sentence in time. It takes much longer to say the words out loud, than it does for my eyes to take in the meaning. Having to say it out loud is not the same as knowing it. Or as hearing it. I was reminded that the speaking of words makes them real, ‘in the body.’

I was also reminded that I have a great deal of personal discomfort with role-playing exercises. I am perfectly happy watching others do them, but I don’t have a strong desire to be a participant. Indeed, knowing that I might have to participate in something will often send me quite a few rows back in a classroom. I am much more comfortable in my head than in my body. I prefer talking about things to doing things. I am always aware of discomfort in my body when I am asked to perform in many of these contexts. I experienced some of this in doing the exercise, but in ways that involve productive discomfort.

As one example, the exercise opened with the instruction that we walk around on the blankets saying hello, greeting each other. That activity, itself, often takes me out of my comfort zone. I don’t enjoy parts of classes where we are supposed to walk around and introduce ourselves. For one thing, I am often uncomfortable shaking people’s hands: with how hard to shake, how soft to shake, are their hands arthritic, do I need to be careful how hard I squeeze, are my hand clammy or sweaty, will they want to shake my hand, will it be gross for them to shake my hand, is my hand too rough, how long should I smile, should I get eye-contact. These kinds of questions are running through my head in those exercises, thinking about my own comfort and also about the community of others of my loved ones who really hate these kinds of exercises.

There is something staged and false about that intro that I can feel in my body in a particular way, so I don’t really enjoy it. As someone who does not come from and has not embodied the Catholic tradition, I have also felt that way at the end of the Catholic mass where people turn to each other and say, peace be with you. Every time I am in one of those moments, I find myself thinking of my mother-in-law, who told me that she found that the most powerful part of the whole mass. For her, those moments of connection were powerful.

And so while I find them uncomfortable, I appreciate that they may be operating differently for others. The point is just that the exercise pushed me immediately into a space in which my body’s own discomfort was mobilized. In taking that first step and literally stepping onto the blankets, I was trying not to let my nervous giggle surface, walking around, shaking hands with people I did not know, wondering if I was operating appropriately or not. For me, this discomfort was productive – my participation was largely an information-gathering exercise to inform whether I could bring back and use this exercise in the places where I worked and lived. So that was good for me to know and helped temper the discomfort.

I found myself wondering if the exercise would have been different with trained actors reading the main roles. I also wondered if that would lead me to feel more engaged, or to experience greater distance. It certainly let me think about the real pragmatic questions about how much of the work is in the script of the exercise itself and how much is in the power-of-performance dimensions of the script. There was a debrief following the exercise. I did find that the conversation after the exercise was as at least as interesting as the exercise itself.

I came away from this first exercise with some valuable insights and with a curiosity and desire to participate a second time.

Click to continue to Blanket Exercise – Part 2

Bannock, a Graphic Novel & Conversation: Re-framing Justice Using the Teachings from “Mikomosis and the Wetiko” — by Veronica Martisius

[Ed Note: Veronica Martisius is a student at the University of Victoria Faculty of Law, the co-chair of the Indigenous Law Students Association, and was a co-op student with the Indigenous Law Research Unit at UVic during the 2018 Winter Term. We invited her to contribute a post reflecting on the workshop discussed below.]

In the wake of the acquittals of Gerald Stanley and Raymond Cormier for the murders of two Indigenous young people, Coulten Boushie and Tina Fontaine, The University of Victoria arranged ‘5 Days of Action’. During those 5 days, faculties and groups across campus held a number of action-based events. One of these was a collaborative workshop involving the Office of Indigenous Academic and Community Engagement, the Office of Equity and Human Rights, and the Faculty of Law. The two-hour workshop was held at the First Peoples House and was open to the public. Approximately 40 people participated. I was one of the facilitators of this workshop (along with Professors Gillian Calder and Rebecca Johnson), and offer here some reflections on the event.

The purpose of the workshop was twofold: 1) To actively engage in making UVic a diverse, welcoming and inclusive place to study, work and live and; 2) To create space for Indigenous laws. In their article Gathering the Threads, Napoleon and Friedland remind us that “State law is not the only source of relevant or effective legal order in Indigenous peoples’ lives…Indigenous laws continue to [exist and] matter today.”

Canada is a multi-juridical society, and, as such, justice systems ought to reflect an understanding of law across social boundaries in order to be just.

The Stanley and Cormier cases illuminate ongoing institutional discrimination and systemic racism on the part of Canada and its laws. In particular, Canada’s criminal justice system, which was imported from Britain and imposed on Indigenous peoples, does not reflect Indigenous values or notions of what justice requires nor does it incorporate Indigenous legal orders. But what if it did? What might that look like? To answer those questions we had the workshop participants take a close look at the story of Mikomosis and the Wetiko.

The graphic novel, Mikomosis and the Wetiko, is based on a story told by Val Napoleon, drawing on graduate work done by Hadley Friedland (now published as The Wetiko Legal Principles) and by the Indigenous Law Research Unit (ILRU) while it was working on the Accessing Justice and Reconciliation Project.

The story explores the tale of a Cree man sentenced to death by a 19th-century Alberta court after carrying out an execution ordered by his Cree community under a Cree legal concept known as Wetiko.

A team of Indigenous lawyers travel back in time to intervene and apply aspects of Cree law and legal processes not originally presented. With a more in-depth understanding of the circumstances, the court finds the accused not guilty.

*** In the graphic novel, Mikomosis executes Sap-was-te when it is determined by the decisions makers that there is no other way to keep the group safe from her increasing violence. Just as execution would not be an option in Canadian law today, it is important to point out that this would never be a current option in Cree law today either. ***

You might be thinking to yourself, “why is this story relevant in responding to the Stanley and Cormier verdicts?”

It is relevant because, as Robert Clifford (2014) argues, “colonial power structures are best mitigated and subverted by applying Indigenous narratives, including Indigenous systems of law.” In other words, Canada is a multi-juridical society, and, as such, justice systems ought to reflect an understanding of law across social boundaries in order to be just. Mikomosis and the Wetiko is one example of how Indigenous societies used and applied their own legal principles to deal with harms and conflicts between and within groups and how they might be usefully applied today. For information about a current example of Indigenous law and procedure in action on Coast Salish territory, click here.

During the workshop we started off by asking the participants two questions:

1) What do you think of, or picture, when you hear the word, ‘law’?; and

2) What do you think of, or picture, when you hear the concept ‘Indigenous laws’?

As you can see from the two images above, when thinking about the ‘law’, participants used various words that reveal what may be attributed to its adversarial nature. When thinking about ‘Indigenous laws’, participants used words that reflect a more holistic approach.

After the large group discussion, we divided up the participants into groups of three. Over a delicious lunch of soup and bannock, we asked each participant to read the graphic novel. In addition to being provided with a copy of the graphic novel, participants received a handout including a glossary of terms and Cree words, and a set of ‘re-framing’ questions that move from generalizations to specifics. For example, with respect to the latter, moving from “what is aboriginal justice?” to “what are the legal concepts and categories within this legal tradition?”

After lunch, each group engaged in a facilitated conversation. To help guide the conversation, we used the Mikomosis and the Wetiko: A Teaching Guide for Youth, Community and Post-Secondary Educators, and asked the following questions at page 40:

What does the graphic novel make you think about?;
What part made the most sense to you, or felt the most uncomfortable?; and
If you were a character in the graphic novel, who would you be? Who would you most want to sit down and talk with? What would you ask that character?

Each conversation generated a diverse range of comments and questions around the relationship between Indigenous laws and Canadian law, pan-Indigeneity, responsibility vs. guilt, safety and protection of the victim(s) and the community, different legal processes, burden of proof, gendered power dynamics, ‘Whiteness’, decolonization, and dispelling stereotypes about Indigenous peoples.

Participants expressed a desire for change with respect to addressing and eliminating the injustices that Indigenous peoples continue to face. They talked about how to affect change in their daily lives through introspection, getting to know the local Indigenous community, learning about the land they live, work and/or play on, their responsibility as guests/visitors, building relationships, engaging with their various social networks (family, friends, classmates and co-workers) about the issues, and lobbying the government. At the end of the workshop, each participant wrote themselves a letter as a future reminder of their individual commitment to take up the Truth and Reconciliation Commission’s Calls to Action.

In a March 14, 2018 article that explores the idea of a cross-cultural criminal justice system, law professor, Marilyn Poitras said, “[g]oing home to suburbia or the farm or the reserve and shutting the door is not going to work. How are we going to open doors, open hearts, open conversations? For the sake of future generations people need to talk with each other.”

If you are an educator, lawyer, law student or a concerned citizen who is not sure how to spark up meaningful discussion about ways to re-frame justice in Canada, consider bannock, a graphic novel & conversation to get the ball rolling.

Resources Referenced:

Stanley verdict: http://aptnnews.ca/2018/02/10/rallies-planned-calls-change-follow-saskatchewan-verdict/
Cormier verdict: http://aptnnews.ca/2018/02/23/raymond-cormier-acquittal-sparks-rallies-in-solidarity-with-tina-fontaine/
5 Days of Action: https://www.uvic.ca/equity/education/5-days-action/index.php
First Peoples House: https://www.uvic.ca/services/indigenous/house/
Gathering the Threads by Hadley Friedland and Val Napoleon: https://www.uvic.ca/law/assets/docs/ilru/Gathering%20the%20Threads%20Lakehead%20Law%20Journal%202015%20Friedland%20Napoleon%20.pdf
Mikomosis and the Wetiko: https://www.uvicbookstore.ca/general/browse/comix/9780000103147
Wetiko Legal Principles: https://utorontopress.com/ca/the-wetiko-legal-principles-2
Indigenous Law Research Unit: https://www.uvic.ca/law/about/indigenous/indigenouslawresearchunit/index.php
Accessing Justice and Reconciliation: http://www.indigenousbar.ca/indigenouslaw/
WSÁNEĆ Law and the Fuel Spill at Goldstream by Robert Clifford: https://dspace.library.uvic.ca/bitstream/handle/1828/5648/Clifford_Robert_LL.M_2014.pdf?sequence=3&isAllowed=y
Indigenous Law and Procedure in Action: Vancouver Island Esquimalt/Ditidaht Hunting Case: https://reconciliationsyllabus.wordpress.com/2016/10/31/indigenous-law-and-procedure-in-action-vancouver-island-esquimaltditidaht-hunting-case/
Bannock: A brief history: http://www.cbc.ca/radio/unreserved/bannock-wild-meat-and-indigenous-food-sovereignty-1.3424436/bannock-a-brief-history-1.3425549
Mikomosis and the Wetiko, Teaching Guide: http://www.indigenousbar.ca/indigenouslaw/wp-content/uploads/2013/04/Mikomosis-and-the-Wetiko-Teaching-Guide-Web.pdf
Understanding Whiteness: http://www.ucalgary.ca/cared/whiteness
TRC Calls to Action: http://www.trc.ca/websites/trcinstitution/File/2015/Findings/Calls_to_Action_English2.pdf
Academics Explore Cross Cultural Criminal Justice System: http://thestarphoenix.com/news/local-news/academics-explore-cross-cultural-criminal-justice-system

Thinking about “The Law of Evidence” through the Structure of Indigenous Language

IMG_20171129_160130 — My new favourite book

With classes nearly over this term, I happily turned to my “Books to Read!” pile. At the top of the pile was a new book by Marianne Ignace and Ron Ignace, Secwépemc People, Land and Laws (McGill-Queen’s Press, 2017).

So many of the summers of my life have been spent on the shores of the Shuswap Lake. The smell of the forests, the feel of the winds, sound of the water, the taste of thimbleberries… all that has been imprinted deep in my heart. I had been looking forward to spending some time with this book, to continue to learn about the history of the land, the people, and the laws of this place that I so love. I am only into the 4th chapter, but I am not disappointed. I can already see that this is going to be a book I will be carrying around with me.

In line, then, with my new goal for myself (to do at least one blogpost a week on what I am learning), let me share one of the amazing things I learned today from the this book. I learned that the Secwepemc Language is an amazing resource for learning about law! I finished reading Chapter 4 (“Secwepemctsin: The Shuswap Language”) this afternoon, and then spent the next hour walking up and down the halls of the law school, hunting down colleague after colleague to make them listen to what I had learned (Val, Pooja, Jess, Simon, Tim, and Bob have got to hear my enthusiasm first hand!).

The big discovery for me (on p. 138 of the book) was something called “Evidentials”. This is a form of suffix that does not exist in English grammar. In Secwepemctsin, as I understand it from the chapter, a suffix can attach to a verb, in a way that lets the speaker tell the listener about the evidentiary support for the statement. That is, it indicates how the speaker comes to know the truth of the statement:

from first hand knowledge,
from hearsay (what others have said), or
because there is physical evidence of the action.

In short, as the Ignaces point out here, when people are telling each other about things that happen in the world, they are also sharing information about the evidence that exists for the statements made.

Of course, we can share information about evidentiary support in the English language: it is just a matter of adding more detail. And when it comes to legal action, those evidential details matter a lot: if you appear as a witness in a common-law court, you will be asked how it is you come to know what you know; the presence of physical evidence to support the claim is alway relevant; there are all sorts of rules to govern hearsay evidence. That is, there is much to explore around evidentiary rules related to the relevance, credibility, reliability and sources of statements.

But there is something so interesting in how such questions are organized in Secwepemctsin in part through grammar. Questions of evidence seem to be woven into the structure of speech and thought (rather than being separate questions emerging primarily in the context of formal legal settings.) An orientation towards evidence is embedded in grammar itself.

What is so beautiful to me (or do I just mean mean ‘surprising’?) is that the structure of Secwepemctsin itself, as a language, orients itself towards transparency in the practices of validating knowledge. Grammatically, people tell each other not only what they know, but HOW they know it. This means speakers are grammatically required to make (suffix based) choices about the actions they describe, and listeners have the capacity to make choices about further inquiries needed on the basis of what they hear. Given suffixes, they can determine whether to seek further information from others, or to validate information by looking to physical traces to support what they have heard. Certainly, this requires speakers and listeners to engage their own faculties of reasoning in conversation, by reminding them that all statements have an evidentiary status of some sort. This is such a sophisticated and nuanced structure of thought. I have been reading a number of Secwepemc stories in English, and I have a new appreciation for the ways that that the stories, in their original language, would be carrying additional information and nuance.

This encouraged me to go back to the TRC calls to action, and the section on Language. Call #14 says “We call upon the federal government to enact an Aboriginal Languages Act that incorporates the following principles:

(i) Aboriginal languages are a fundamental and valued element of Canadian culture and society, and there is an urgency to preserve them.

There are interesting challenges in thinking about how each of us is invited to make the TRC Calls to Action “our own”. Call 14 aims at the federal government, and it asks for legislation: it is easy to see this call as within purview of others. And yet, there is something important in acknowledging that we are each in some way called to think about our relationship to the PRINCIPLES that are identified here. In learning more about Secwepemctsin (the language of the Secwepemc peoples), and about the place of evidentials in that language, I came to appreciate the importance of the principle expressed in TRC Call to Action #14: ‘that Aboriginal languages are a fundamental and valued element of Canadian culture and society’. There are very good reasons for all Canadians to begin to learn with and about the Indignenous languages of this country.

One starting point might be this book. Certainly, its discussion of Evidential Suffixes, is a wonderful way to draw insights from Indigenous Language and Indigenous Law into the Evidence Law classroom! Can’t wait to learn more from what Marianne Ignace and Ron Ignace have brought together in this book!

Children’s Art and Indian Residential and Day Schools

In between some errands that took me to downtown Victoria this week, I grabbed a few minutes to stop in at the Legacy Art Gallery. Screenshot 2017-11-25 12.57.31 The current exhibit is titled “There is Truth Here: Creativity and Resilience in Children’s Art From Indian Residential and Indian Day Schools”. I had some expectations of what I might see there: for the past two years, the UVic Law School has invited Professor Andrea Walsh (the Guest curator of the exhibit) to come and speak to the first year class about a collection of paintings done by children at the Alberni Residential Indian School.

This collection of children’s art, preserved by their extra-curricular art teacher Robert Aller, was gifted to the University after Mr. Aller’s death. At that point, recognizing that it might be possible to identify the creators of some of that art, steps were taken to locate the now-grown children, and return their art to them. The story of the Mr. Aller, the students, their art, and its re-patriation is a powerful moment in understanding the Canadian history of Indian Residential Schools and resistance by both children and some settlers to formal and informal policies of assimilation and cultural genocide. [Click here for a link to a short video on the project]

What was new to me were the pieces of art from the former Inkameep Indian Day School (the Osoyoos Indian Band, in the Okanagan). I took advantage of a few stolen moments to take a quick stroll through the Gallery to get my eyes familiar with the pieces, knowing that I would be coming back for an extended visit later this month. I also picked up a copy of a 2005 Gallery Catalogue Guide edited by Andrea Walsh, titled, “Nk’Mip Chronicles: Art from the Inkameep Day School.”

Having finished reading the Guide, I have been reflecting on some of the things that really struck me. One of these was the reminder that if a person is serious about learning the history of Residential Schools in Canada (and many of us are indeed serious), then there is much to learn: there were many schools, which operated over many years, and there are many stories to be told.

One of these is the story of the Inkmeep Day School. It is a story that speaks of the important work done by Chief Baptiste George to have a day school built in the community, “to keep his people together and to retain the Okanagan teachings.” The school opened in 1915, with the Band using their own funds to build the school, and hire and pay the first teacher (an African American man who had married an Okanagan woman and thus knew the language). The Guide makes visible the real challenges involved for the Band in attracting and keeping long-term experienced teachers (a challenge shared by many Indigenous communities).

The centre of this particular story is the relationship between one settler teacher (Anthony Walsh), and the children and families of the Inkameep community. During the ten years he taught at the Inkameep Day School (1932-1942), Anthony Walsh worked actively to learn about the people and culture of the place he was living. He learned to listen, and he valued and honoured the philosophies, stories, and experiences of the children.

During that time he worked with them, the children produced art that Walsh submitted to the Royal Drawing Society of London. The children produced plays based on Okanagan stories, were invited to perform them for audiences in both Canada and the US, and raised money for charities like the Red Cross. The children’s art was exhibited across Europe and Canada. Walsh worked with the children and their communities, “using the children’s art to oppose dominant views about aboriginal children and their place in Canada.”

When Walsh finally moved from the community, the teachers that followed did not follow his path: rather than incorporating Okanagan culture into the curriculum, they followed the assimilationist path more common in the rest of Canada (which included the decision by one teacher to burn papier-mache masks that the children had used in their dramas, as well as children’s art which remained at the school).

The story of Anthony Walsh and the children at the Inkameep Day School time thus invites us to both remember and reflect on the efforts of this one community (a First nation and its non-native neighbours) to be involved in the ongoing practices of building relations through cross-cultural exchanges through both visual and performing arts.

This story, and the art and performances it generated, left me thinking about the stories of the past that we choose to draw forward.

It reminded me of the importance of seeing forms of resistance, possibility and respect that were enacted in the past. It left me thinking also about the importance of similar action in the present. It reminded me of the importance of art in opening up spaces of connection, and spaces of relation.

It also made me think about ways people today might respond to the Truth and Reconciliation Commission‘s Call to Action #83:

83. We call upon the Canada Council for the Arts to establish, as a funding priority, a strategy for Indigenous and non-Indigenous artists to undertake collaborative projects and produce works that contribute to the reconciliation process.

Perhaps what should interest us is less the call for government to provide funding for such collaborations (though such funding would facilitate this work!) than the call for Indigenous and non-Indigenous artists to undertake such collaborations. I think the story of Anthony Walsh invites even those of us who are not artists to imagine ourselves as participants in this call to action. In his work as a teacher, Walsh collaborated with others through his engagement with the space of art, through learning to how listen to what the children’s art (and the children themselves) could teach. The engagement came even in the context of restricted funds. As Anthony Walsh himself argued in the 1976 interview above, “we miss opportunities because too often we wait for ‘funding'”. And so one question is, “what are we waiting for?”

There is much inspiration to be found in this story of the Inkameep Day School. It sets out for us an example of engagement through the arts. What we have here is the collaboration of children, their families, a teacher and the neighbouring community in drawing on the arts to open up space for sharing truths, for listening, for healing, and for learning different (and better) ways of living with each other. Surely this is a story worth telling, and also one worth trying on for size in our own lives.

If you are in Victoria, head over to the Legacy Art Gallery to check out the show. If time or geography makes that impossible, you should still check out the website for the exhibit, content and design by Dr. Jennifer Claire Robinson. It is rich with resources that can be worked into your own teaching. You can see pictures of all the works included in the exhibit from the four different schools (along with some discussions of the work from either the curators or the artists themselves): Alberni Indian Residential School, Inkameep Indian Day School, St. Michael’s Indian Residential and Day School, and Mackay Indian Residential School. The website (still being updated while the show is on) will also include intergenerational essays by relatives of the child artists. Plus there is more!:

Click here for the background story to the return of the Alberni Indian Residential School art
Click here for RIDSAR (Residential and Indian Day School Art Research) videos, and news media
Click here for a list of additional Resources (to both the Exhibition and TRC related links)
Witnessing is an important aspect of protocol for many First Nations. Below are links to four important discussions of what it means to be a witness in the context of Indian Residential Schools:
- “Preserving the Truth” — Carey Newman,
- “Children’ s Art: From Looking to Bearing Witness” — Andrea Walsh
- “What Does It Mean To Witness?” — Lorilee Wastasecoot & Jennifer Claire Robinson
- “Reflections From Legacy Staff” — Katie Hughes & Gillian Booth

Core Strengthening – A MOOC to get you going!

Part of TRC Calls to Action #27 and #28 includes training in “intercultural competency”. I find myself reflecting on the very real challenge for many of us working in law: how do we as professors strengthen the grounds of our own intercultural competency? Part of what we are engaged in is a new practice of balancing. What resources are available to both students and faculty alike?

There are some very interesting resources out there and available in the world. Just as one example, here at UVic, our colleagues Robina Thomas and Rob Hancock at the office of Indigenous Academic and Community Engagement have developed a Cultural Acumen Training, program, and have been providing the first module (an 80 minute ‘foundations’ session) to Faculty, to staff, and in classrooms. It is a delight (and a politically meaningful one) to see institutional support for the kind of learning/unlearning that has to be done as we move forward on this work. One of the ways I think all of us can contribute to the work is to support and make use of the resources available in our particular institutions (conscious of course of the thoughtful cautions of Jula Hughes re the colonization of cultural competency work). IMG_20171122_112632

I also want to do a big shout out to University of Alberta, and their Indigenous Canada MOOC (Massive Open Online Course) [taught by Professors Tracy Bear and Paul Gareau]. It is a wonderful response to the TRC, and I cannot recommend it highly enough.

If I were to suggest a gift for the holidays, it would be to give yourself the gift of signing up for this course. OK. The thing is, this gift is FREE! But you can also pay for it. I think it was something like $65 if you want to take it for the Certificate. I took the PAYMENT option, partly as a way of trying to keep myself accountable (and so i would have a small amount of pressure, so i would TAKE the time needed each week to actually DO the work).

The Course is super well designed, and has 12 lessons/weeks. The site tells you to anticipate a time commitment of 3-5 hours a work per week. I will say it took me less time… maybe because i am just so smart already?! 🙂 That said, i have subsequently returned to and re-watched several components (sometimes with my kids), so there you go on the time front.

Here some truly delicious things about the course:

It is in manageable time chunks! The course is online (I guess that is why one of the “O”s in “MOOC” is for “online?”) It has been designed so you can work around a fragmented schedule (if your life works as does mine). It is broken down into small video components (each between 10 and 20 minutes long at the most). The videos have little quizzes built into them (so you can answer questions right at the spot that you are getting access to new information). I totally enjoyed watching a segment or two in the evening, sometimes while eating dinner.
There is art! In the design of the course, they worked with artist Leah Dorion, to have her produce original art work for the course. For each week in the course, there is “Interactive Painting” segment where the artist walks you through one of the paintings, discussing the elements in the painting, and how they relate to the subject. Various elements from the paintings are then incorporated (as visual markers) into the weekly lessons in ways that really help to anchor and extend the content.
There is significant breadth in coverage. Topics for the 12 lessons include the fur trade and other exchange relationships, land claims and environmental impacts, Indigenous women, legal systems and rights, political conflicts and alliances, Indigenous political activism,urban Indigenous governance practices, contemporary Indigenous life, art and its expressions and more. There is also a great 49 page “Native Studies Glossary” with links to internet resources.
The production values make it a pleasure to watch. We academics are smart, but not always fun to watch when filmed. They did a really good job on the design, and so I found the mix of talking heads, images, animations, and text to really hold my attention. It is designed in a way to touch various learning styles. In short, the videos not only held my attention, but gave me lots to think about in terms of pedagogies! I am also in love with the intro music for the course (and often found myself humming along).

In short, there are great resources out there to support us as we do the work of extending our own intercultural acumen, of familiarizing ourselves with the history that is our own. This is a resource that I would feel comfortable recommending to students and colleagues alike. Certainly worth thinking about as a concrete action each of us can take in the direction of taking up our own personal obligations under the TRC to educate ourselves for the work ahead.

Pulling the Weeds – by Suzanne Lenon, Kara Granzow & Emily Kirbyson

As non-Indigenous faculty and graduate student teaching in the disciplines of Sociology and Women & Gender Studies, we regularly include discussions of settler colonialism in our course material. And, as teachers in disciplines that encourage critical thinking about societal power arrangements, we wish to develop learning resources in ways that build accountability to the TRC’s calls for reconciliation and Indigenous scholars’ calls for decolonization.To this end, we were awarded a small grant from our university in which we proposed to develop pedagogical tools that would more tangibly speak to the colonial politics of knowledge production, trouble the idea that settler colonialism is of the past, and ‘unsettle’ the racial and heteronormative colonial logics of identity and belonging.

Situated as we are at a post-secondary institution built into Blackfoot territories and in close proximity to the largest land-based reserve in the nation, we have a student body that seems to experience settler colonialism in a variety of ways, directly and/or recognizing its importance, or as completely disconnected from their everyday life. It is this full range of student experiences that we attempt to invite into an ‘unsettling’ pedagogy.

Unknown-3 — Spotted Knapweed in bloom [http://mtweed.org/weeds/spotted-knapweed/]

We offer here a discussion of one assignment we designed called “Pulling the Weeds.”^[1] The assignment was designed to foreground land as crucial to decolonization and to provoke student thinking on the relations between themselves, land, property, and nationhood in a local context (Tuck & Yang, 2012). Students were to (1) read the Wikipedia entry for spotted knapweed and submit a hard copy, marked with notes and/or highlighted excerpts; (2) go out on to the prairie and find the knapweed; (3) document the experience of picking it; and (4) write short responses to versions of the following questions:

Describe the experiences of seeking out the knapweed.
Describe the sensory elements of picking the knapweed (how did the soil smell, what was the texture of the weed, etc.).
Where did you pick the weeds? Whose land were you on?
What is your relationship to the patch of land that you picked the weed on?
Write on your (dis)identifications with the knapweed or the plants that you left in the ground.
Why do you think I asked you to pull an invasive plant species in this course?
What connections can you make to this week’s readings?

The activity was assigned in a second year feminist theory course, a third year sociology of race and ethnicity course, and in a graduate level methods and theory course. The readings that students were required to complete varied from course to course, and ranged from Leanne Simpson’s (2014) Land as Pedagogy: Nishnaabeg Intelligence and Rebellious Transformation, Adrienne Rich’s (1994) Notes Toward a Politics of Location, and chapters from Audra Simpson’s (2014) Mohawk Interruptus: Political Life Across the Borders of Settler States.

Students were encouraged not to worry about having the correct answer. They were encouraged to be creative and thoughtful, and to respond even if they were unsure of a question’s meaning. In spite of the bewildered looks when we asked them to go weed-picking, the very physical nature of the assignment expressed in their papers (the heat of the sun, the toughness of the weed’s roots, the itchiness of the weed, the pleasure of being outside), and the anxiety expressed about not being able to ‘find’ knapweed and hence complete the assignment, students wrote rich, varied, complicated, and thoughtful reflection papers. In their course evaluations, some students articulated the transformative learning that occurred from this assignment, suggesting that we delivered in fulfilling our institutional motto, “Fiat Lux” (Let there be Light).

Unknown-1 — Rocks painted by Alice Matisz, artist

However, we also wish to reflect here on two inter-related sets of limitations to the assignment.

The first set of limitations is related to the mechanics of the assignment and the strictures placed around it by virtue of being developed and carried out in the context of a post-secondary institution. We asked students to pick knapweed only once, but now wonder about requiring multiple knapweed pulls over the early fall months of the semester as part of an ongoing reflexivity-praxis assignment. Leanne Simpson (2014) writes in “Land as Pedagogy: Nishnaabeg Intelligence and Rebellious Transformation” that theory is not just an intellectual pursuit – “it is woven within kinetics, spiritual presence and emotion, it is contextual and relational. It is intimate and personal, with individuals themselves holding the responsibilities for finding and generating meaning within their own lives” (p. 7). This beautifully captures our aspirational desires for this assignment.

We wonder, then, what effect(s) several knapweed pulls might have on students, on their intimate engagements with the prairie, on their meaning-making of social locations, on fostering the process of an ‘unsettling’ pedagogy? Moreover, how would a focus on the restoration or identification of native plant species (rather than only on the eradication of invasive ones) shift the performative and meaning-making axis of this assignment? Yet, as Simpson also reminds us, neither the practice of picking knapweed nor the restoration of native plant species can be performative of land as pedagogy when the necessary conditions are not in place. For Simpson, such conditions include the requirement that our post-secondary institutions ensure “the full, valued recognition of [Indigenous] freedom, sovereignty and self- determination over bodies, minds and land” (p. 17).

The second set of limitations has to do with some of the oversimplifications of the assignment. We required students to identify knapweed with the help of a Wikipedia page that, among other things, describes the weed’s ‘systematics and taxonomy.’ We chose this website because it is highly likely that it would be among the first sites a student might otherwise visit to find out more about knapweed, and because the literary practices constituting the webpage’s knowledge production remind us of those employed in the classificatory work at the heart of scientific racism and the colonial project. What we did not foresee, however, was the extent to which students would rely on the language of the Wikipedia entry to explain their processes of weed identification thereby unwittingly reproducing and reifying colonial systems of classification. This constitutes more than a limitation for us; it is also a failure of the assignment.

Complicating this, students’ papers drew parallels between the tenacious ability of knapweed to stunt the growth of other plants and the white settlers who worked to invade and take over Indigenous bodies, lands, and lifeways. This raises a number of concerns for us. First, despite our attempt to heed Tuck and Yang’s (2012) warning, the assignment provokes primarily metaphorical understandings of knapweed as settler colonialism and its eradication as decolonization. Second, this metaphor relies upon and reproduces a settler/Indigenous dyad as ahistorical and naturally existing. Third, it naturalizes a hostile relationship between the two, the outcome of which is both anticipated and assumed final. How can this then constitute the assignment as an ‘unsettling’ pedagogy? As problematizing settler colonialism “as a living phenomenon?” (Monture 2007, p. 207). Moreover, we worry that in attempting to address “the settler problem” (Regan 2010, p. 11), we inadvertently re-centered precisely that which we hoped to unsettle. This is a failure for us. One of the unforeseen outcomes in attempting ‘unsettling’ pedagogy is producing communities of individuals who embody and enact another version of settlerhood, that of the enlightened settler. We realize that we must be vigilant about the subtle and less obvious forms that uphold settler colonialism: we worry that success in teaching about colonization that leaves any room for a redeemable enlightened and benevolent settler subject (including ourselves as teachers), whose governments have apologized and who ‘know better’ than earlier generations, is part of the ongoing remaking of settlement.

One of our intimate attachments is to be ‘good’ teachers, that is, to teach anti-colonization and antiracism on the Blackfoot territories occupied by the University of Lethbridge in a way that avoids the pitfalls of pedagogies of inclusion and the fallacy of ‘safe spaces’. We share our experience of this assignment in the conviction that the moments of disorder, failure and uncertainty that arise within our teaching practices are sometimes necessary mis-steps. Though such practices may propel us towards imagining other, perhaps less colonial, ways of being in and of the world, they are also only made because of the colonial foundations on which our presence here as teachers and citizens resides.

^[1] Pulling the Weeds was inspired in part by a published conversation between Snelgrove, Dhamoon, and Corntassel (2014) wherein Corntassel describes efforts, largely on the part of Cheryl Bryce of the Songhees First Nation, and a “Community Tool Shed”, to revive Lekwungen “foodscapes and landscapes” (p. 25). The Community Tool Shed, located in what is now commonly called Victoria, B.C., is a site that brings together Indigenous and non-Indigenous folks who work to rid Lekwungen homelands of invasive plant species and to foster traditional plant growth.

References

Monture, P.A. (2007). Racing and erasing: Law and gender in white settler societies. In S. P. Hier and B.S. Bolaria, eds. Race & racism in 21st century Canada: Continuity, complexity, and change (197-216). Peterborough: Broadview Press.

Regan, P. (2010). Unsettling the settler within: Indian residential schools, truth telling, and reconciliation in Canada. Vancouver: UBC Press.

Rich, A. (1994). Notes towards a politics of location (1984). In A. Rich (Ed.), Blood, bread and poetry: Selected Prose 1979-1985 (210-231). London: Little Brown & Co.

Simpson, A. (2014). Mohawk interruptus: Political life across the borders of settler states. Durham & London: Duke University Press.

Simpson, L. B. (2014). Land as pedagogy: Nishnaabeg intelligence and rebellious transformation. Decolonization: Indigeneity, Education & Society, 3(3), 1-25.

Snelgrove, C., Dhamoon, R., & Corntassel, J. (2014). Unsettling settler colonialism: The discourse and politics of settlers, and solidarity with Indigenous nations. Decolonization: Indigeneity, Education & Society, 3(2), 1-32.

Tuck, E. & Yang, K.W. (2012). Decolonization is not a metaphor. Decolonization: Indigeneity, Education & Society, 1(1), 1-40.

#StandForTruth, or,What is the place of Indigenous Laws in Truth and Reconciliation? (a bit of a rant)

The Supreme Court of Canada in Ottawa is shown on Tuesday, April 14, 2015. THE CANADIAN PRESS/Sean Kilpatrick

In the middle of the last gasps of marking law school final exams, I find myself mentally (and, frankly, emotionally) caught up in discussions about the upcoming Fontaine case at the Supreme Court of Canada. So… I thought I might as well get my stresses and anxieties articulated.

As I best understand it, the Fontaine case concerns what to do with the 38,000 (highly personal and confidential) records (plus another million supporting documents) that were collected or created during the Independent Assessment Processs set up as part of the Indian Residential Schools Settlement Act (IRSSA). (The Settlement gave us both the IAP and the Truth and Reconciliation Commission).

At the time survivors gave their testimony in the IAP, it was not made clear to survivors what would happen to the records. Now there is significant contestation: should the records be kept by Archives Canada? By the NCTR (National Centre for Truth and Reconciliation)? Should they be destroyed? Should individual former students have a say in the matter?

The resolution was to give individual former students a 15 year window to come forward if they wanted their documents archived with the NCTR. At the end of that period, all remaining documents are to be destroyed. The SCC will hear the case on May 25, 2017.

The Coalition to Preserve Truth has been granted Intervenor status in the case (artist Carey Newman, and lawyer Nicole Bresser have been driving forces behind the coalition). The Coalition is described thus:

We are the Coalition for the Preservation of Truth whose members are representatives of both residential school survivors and intergenerational residential school survivors. The coalition is formed to advocate for the preservation of the Indian Residential School Settlement Agreement – Individual Assessment Program’s documents.

The Coalition recognizes the ongoing impacts of intergenerational trauma and as such, we acknowledge that future generations have a right to know the content of these documents. The Coalition wishes to preserve these documents while honouring individuals’ rights to privacy.

I personally support the Coalition for Truth.

What has been tricky for me is trying to describe what this support means. So, I thought it would be useful to try to articulate (at least for myself) what it means for a non-Indigenous Canadian law professor to #StandForTruth in case like this. This is particularly so when I know that Indigenous colleagues and friends are significantly torn over the case, and may be lining up on both sides (for retention and for destruction. (You can see the Affidavit of Carey Newman here Affidavit #1 of Carey Newman, or view the Coalition’s funding campaign on the gofundme here).

In this case, at the heart of things, my support of the intervention of the Coalition to Preserve Truth is linked to their attempt to change the story that is being told about this case. Canadian law sees this as a story of privacy and confidentiality. It that the story that best describes the situation here? A story about the need to honour individual choice? A story about the protection of individual interests in privacy and confidentiality?

Those are, of course, important values, ones that have often been denied to Indigenous people in Canada (and certainly denied in the context of residential schools). And yet….The Coalition to Preserve Truth raises important questions about people in relation, and relationships to both the past and the future, particularly in the context of times of trauma and injury. Should the records related to residential school survivors be kept or destroyed? What are the relationships of the individual to the collective? To the past? To the future? The Coalition’s intervention, with its focus on intergenerational connections, invites us to understand that the case should not be decided in the absence of Indigenous Laws.

To put it bluntly, Canada has a long history of making decisions about Indigenous, Metis and Inuit peoples rather than with Indigenous, Metis and Inuit peoples. Will this case be similar?

That is, what matters here is not only the ‘outcome’ [destroy or keep the records], but also the ‘process’. It matters that there is space for Indigenous Laws to be enacted here. Or maybe flipped, it is very problematic that there has NOT been space for Indigenous Laws (and by that, I am including substance, process, protocol, ceremony and more) to be applied here.

I think that is why the intergenerational point the Coalition is making is so important. It is a question of Law. During the Independent Assessment Process, former residential school survivors shared stories of the ways that they had suffered harm that was both individual and collective. We already know that those stories we gathered and collected in ‘non-optimal’ ways. That is, they were not gathered in ways that would have better followed the laws (both substantive and procedural) governing the people whose stories were shared (be that Salish, Cree, Migmaw, Inuit, Metis, etc). They also were not gathered in ways that followed Canadian law (ie. by having explicit consent forms providing choice to witnesses).

And so we are now in a position where the Canadian legal system is positioned to decide how to best deal with yet another harm experienced by both the people who shared their stories, and by the families and legal orders to which those people belong. And it will decide it in the legal lingua franca of ‘jurisdiction, privacy, and access to information’.

As the case is set out, the solution is one which is flawed in so many ways. I get why people feel sick at the notion that, in the context of this history of genocide, the records that were created (the testimony that was witnessed) would be destroyed. I also get why other people feel sick at the notion that their words and memories will be permanently kept by the very government that made possible the very harms they suffered. The choice — Keep or Destroy — is a false and cruel one. (i.e., would you prefer I cut off your right arm or your left arm?) Framed in this way, the choice is one that (like the residential schools themselves) splits generations from each other, as people are required to consider which two untenable options will do less harm in the future.

And I acknowledge the (settler) desire I feel to keep quiet, rather than risk choosing ‘the wrong side’ in this struggle, or interfere in something that is not ‘my business’. But the history of residential schools IS my business. It is all our our business. And I can’t help but think that it is not OK for settlers to stand on the side in silence, as if we can best support and respect indigenous peoples by letting them fight it out (in the corner Canadian law and history has forced them into).

There is no easy solution here. But it is problematic to proceed as if Indigenous Laws are irrelevant, as if Indigenous Legal Orders do not have resources, as if Indigenous Communities are not deeply invested in how the memories of their peoples are held and kept and treated. It is also problematic to proceed as if survivor voices don’t matter (in either direction… destroying the voices of those no longer able to give consent, or denying the express wishes of some for destruction of their testimony, or denying that the entire process as created conditions of unsafety and new trauma for people)

It matters not just WHAT the Court does here. It matters also HOW the Court does it.

Indigenous peoples, in different communities, have resources for such moments, resources that are rich, and textured, and full of space to hold differences of opinion.

How do ‘we’ (people in the legal community) take up our TRC reconciliation obligations under Calls to Action #27, #28, and #50 to teach Indigenous Laws? How might we think about our obligations to Indigenous Peoples, and that includes obligations to take into account their own laws and own ways of resolving conflicts like these?

How does Canada enact its own obligations to deal respectfully, its own obligations to acknowledge the harm it has done, its own obligations to learn more about how it too needs to act in ways that respect its connections to the past and the future. Can the Supreme Court, at this moment, see the obligations that govern it? Obligations that may involve principles not only of Canadian law, but also of Indigenous Laws?

What I find powerful about the The Coalition for the Preservation of Truth, with its reminders about intergenerational connections, is its invitation for us to take law seriously. It invites us to understand that we (indigenous and settler people) are both a part of this story. It invites us to take seriously how we think about shared memory, and a shared past. It invites us to ask what it might mean to ACTUALLY honour the testimony of those who spoke their truth at the IAP hearings. Preserving Truth invites us to change the story we are telling about this case.

It invites us to imagine that it may be possible to simply stop for a moment. What ever happens in the Court room, is it possible for the rest of us to make space for the questions to be reframed? It is possible to acknowledge that Indigenous law must be part of the decision-making? What might the case look like were the courtroom to be populated with Indigenous peoples bringing principles of Indigenous law to bear in order to find solutions that truly honour the spirit of reconciliation? What might the case look like if our law schools were populated with Indigenous colleagues doing the work of Indigenous (and non-indigenous) law? (see Zoe Todd’s latest blog)

Of course, it is hard to talk about this without getting personal (or being personal?) Easy to blame the system. I am left wondering really about what it might mean for me (in my own classroom, in my own home, in my own interactions with others, in this blogpost?!) to begin to to talk about the ways that I too, living in unceded Coast Salish territories, might have legal obligations to learn the laws of this place, and to make good on my own legal obligations to the past and the future (and indeed to the present). What might it mean, anyways, for me to “Stand For Truth”, or “Stand In Truth” or “Stand With Truth”?

OK. Rant over for now. My hands up to my many Indigenous, Metis, and Inuit friends who bear the heavy weight of this case, which is re-traumatizing to people on so many levels.

Back to marking….

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