An independent and impartial judiciary is the right of all and constitutes a fundamental pillar of democratic governance, the rule of law and justice in Canada… Public confidence in the judiciary rests on the fact that their decisions are made according to law. – Canadian Judicial Council
Asked today if there is systemic racism in Canada’s justice system, Chief Justice Richard Wagner declined to make a definitive statement. He said it’s the job of judges to weigh the facts in individual cases and speak through their judgments, while it’s up to elected officials and others to make more broad statements. -CBC News, June 18, 2020[i]
At the heart of our judicial system is fairness to everyone who holds views with which the government doesn’t agree, and judicial independence. -English barrister John Mortimer, Q.C.[ii]
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Canada’s civil justice system was created and maintained so that citizens can resolve their legal disputes through impersonal, objective, state-provided judicial institutions, procedures and laws, rather than by way of pre-state, private, self-help procedures. Our civil justice system’s proper functioning depends upon the citizenry’s belief that these institutions, procedures and laws are always acting in an impartial and unbiased manner, free and clear of outside influences, especially political influences.
Many Canadian judges, in civil cases brought by Aboriginal bands and organizations, through their rulings on both procedural and substantive matters arising in these cases, are creating the impression that the court is no longer striving to appear impartial and unbiased, but rather, are content to allow the impression to reasonably arise in the minds of reasonable persons that the court is careless of or indifferent to this need to appear impartial, unbiased and free of political influences.
The damaging effect of this apparent carelessness or indifference is the lessening of the citizenry’s faith in the rule of law, part of the glue that holds civil society together, and the civic demoralization of the citizenry generally.
The Canadian Judicial Council’s Ethical Principles for Judges set out expected standards of judicial conduct. These Principles codify what Canadians, based on their common sense and experience, expect in any event.
The Ethical Principles state the basic rule governing judges’ conduct and demeanour as follows:
Impartiality requires not only the absence of bias and prejudgment, but also the absence of any appearance of partiality. This dual aspect of impartiality is captured in the oft-repeated words that justice must not only be done, but manifestly be seen to be done. The test is whether a reasonable and informed person with knowledge of all relevant circumstances, viewing the matter realistically and practically, would apprehend a lack of impartiality in the judge. (Italics added.)
The only mention of Aboriginal peoples in the Ethical Principles is as follows:
Judges are expected to be alert to the history, experience and circumstances of Canada’s Indigenous peoples, and to the diversity of cultures and communities that make up this country.
This neutral knowledge requirement cannot be interpreted as an instruction or suggestion to judges to treat Indigenous people appearing before a Canadian civil court differently than non-Indigenous people.
The Ethical Principles also articulate the venerable concept of judicial independence from other branches of government, and judicial independence generally:
Judicial independence refers to a state of mind or attitude in the actual exercise of judicial functions. It also connotes a status or relationship with others, including the executive branch of government and other judges. Judicial independence is the foundation for impartial decision-making.
In accordance with this concept, courts acting properly adjudicate matters before them without being influenced by either elite or popular sentiment, or by the political programs or goals of the legislative and executive branches of government.
The 2004 Supreme Court of Canada Haida Nation decision, which invented the duty to consult and accommodate First Nations bands which claim to be affected by new resource development projects, was based in part on the doctrine that the Crown must always act honourably in its dealings with First Nations in order to best achieve “the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown”.
The court used the word “reconciliation” in the legally discrete sense of meaning the legal meshing in the smoothest and most minimalist way possible, usually in the context of a section 35 consult and accommodate analysis in relation to a proposed resource project undertaking, of the pre-contact, section 35-protected legal rights of the particular affected (by the proposed resource project) First Nations band with the traditional sovereignty rights asserted by the Crown, so that the continued existence of each of these two inherently competing sets of rights is diminished and/or impaired to the least possible extent.
“Reconciliation” is a discrete legal term, exercise and goal used, engaged in and sought in a specific legal situation- usually, as stated, in the context of a proposed resource project- having the aim of accommodating both particular, asserted Aboriginal rights and “title” germane to that project, if any, with the traditional, legal rights and title of the Crown.
No court since Haida Nation has expanded on this discrete, case-specific definition of the word “reconciliation”, (hereinafter sometimes referred to as “Haida Nation reconciliation”), and wishful, pro-Aboriginal rights attempts by legal academics to do so have only been mere aspirational, abstract, speculative, “it should also mean this” efforts, all written with a view to move the law closer to Trudeau’s political aspirations in this regard as set out in his government’s Directive, (below), and in his government’s utopian, radical, Crown sovereignty-damaging Principles respecting the Government of Canada’s relationship with Indigenous Peoples. (“the Trudeau government’s Principles”)
But despite all this, the legal meaning of reconciliation remains the stubbornly dull, discrete, case specific and apolitical Haida Nation reconciliation meaning.
“Reconciliation”, in the legal and constitutional sense, is clearly not a social or political goal.
(Ironically, in its legal sense, Haida Nation reconciliation, by endorsing and protecting Aboriginal race-based rights, better ensures the continued legal and social separation of Aboriginal Canadians from the rest of Canadians. Hence it produces the opposite social and political result that the ordinary, non-legal meaning of the word implies i.e., the positive result of universalist social, political and legal coming together in racial and civic harmony, with all Canadians equal under the law- the meaning that most Canadians rightfully assume the word means, or at least should mean.)
Notwithstanding the very restricted and discrete legal meaning of reconciliation in the Aboriginal legal context, our governments have misleadingly, recklessly and wrongfully created the false impression that the doctrines of the “honour of the Crown” and “reconciliation” compel governments, corporations and Canadians in general to basically lie down and roll over in the face almost any and every Aboriginal demand of any kind- whether legal, social, political, financial or otherwise.
For this and other political purposes our governments have wrongfully converted the narrow, case-specific, legal doctrine of Haida Nation reconciliation into a moral, guilt-tripping, almost mandatory political and social program/movement, purportedly binding on all Canadians, which wrongful conversion has been shamefully and harmfully acquiesced in by other government-accommodating elite sectors of Canadian society – the media, academia, big business, law enforcement, municipalities and school boards, to name a few.
As a result, Canadians have been falsely led to believe that this political program/movement meaning of “reconciliation” is legally based, which it is not.
The Trudeau government, as evidenced by its Directive on Civil Litigation Involving Indigenous Peoples, (referred to above), led the way by adopting in 2016, (and reducing it to writing in 2019), a political policy/program to, in the name of this aspirational, political form of so-called “reconciliation”, not strenuously defend any litigation brought by Aboriginal groups against it, but rather settling generously all such litigation out of court as soon as possible.
According to the Directive its purpose is to “herald” the Trudeau government’s shift to “the recognition and implementation of Indigenous rights as the basis for relations with Indigenous peoples,” with the goal of advancing“reconciliation”, “respecting and advancing Indigenous self-determination and self-governance”and“fostering strong, healthy, and sustainable Indigenous nations.”
“Reconciliation” as used in the Directive clearly denotes a general political policy/program directed towards a generally political goal. The word “reconciliation” here has nothing to do here with Haida Nation reconciliation- the legal meshing in the smoothest and most minimalist way possible of the pre-contact, section 35-protected legal rights of a particular affected (by a proposed resource project) First Nations band with traditional, legal sovereignty rights asserted by the Crown.
The word “reconciliation” in the Directive is used outside the context of any particular law, either judge-made or statutory, the only contexts within which it could have legal meaning. The word has become here a political slogan- a political mantra- employed in the effort to achieve some political goal.
Yet despite this merely political, non-legal meaning and use of the word reconciliation, (hereinafter sometimes referred to as “non-legal, popular/political reconciliation”), through the Directive, the Trudeau government’s Principles and elsewhere, non-legal, popular/political reconciliation is being wrongfully and misleadingly passed off by Trudeau government politicians as another iteration of legal, Haida Nation reconciliation.
Aboriginal groups, seizing on the opportunities presented by this deliberate, obfuscating switch in meaning are all on board with this, now self-servingly hyping governments’ and Canadians’ alleged legal obligations to bring about “reconciliation” every time they make one of their endless money, program or power demands- demands which they say must be met in the name of this new, can-mean-anything, non-legal, popular/political reconciliation-demands that in no way relate to Haida Nation’slegal, case-specific, “reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown”true and only legal meaning.
Regardless of which version of reconciliation is being promoted, Haida Nation reconciliation or non-legal, popular/political reconciliation, both versions have as their fundamental goal the expansion of the illiberal, quasi-apartheid, “separate but equal”, socially divisive, constitutional status quo, whereby Canada’s Aboriginals, to their everlasting harm, solely because of their so-called “race”, (a fictitious scientific concept), are treated differently by the law than non-Aboriginal Canadians.
I will call the non-legal, popular/political form or reconciliation being promoted by the Trudeau government and others as “separate but equal reconciliation” because of its similarity to the racist, divisive, “separate but equal” Jim Crow laws in the American South that oppressed Blacks for over one hundred years after the end of the American Civil War.
Separate but equal reconciliation is to be distinguished from the form of reconciliation that the majority of Canadians want, that is, the kind of reconciliation that Gandhi, Martin Luther King and Nelson Mandela promoted: the universalist, supremely liberal, social, political and legal coming together in racial and civic harmony, with all Canadians regardless of their “race” becoming equal under the law. In this article I will call this liberal, unifying, race-free idea of reconciliation, “Nelson Mandela reconciliation”.
Canadians want to be bound together by Nelson Mandela reconciliation, not bound apart by separate but equal reconciliation.
Harmfully to Canada, our courts in this regard, which are supposed to be the unwavering backstop preventing politics from influencing the administration of justice, despite their aforesaid clear obligation to maintain an independent state of mind and a completely independent status and relationship with governments, are allowing this separate but equal reconciliation concept to influence their handling of court cases and to damage their public image of impartiality and independence.
The inevitable results of this are firstly, the appearance of their deliberations being influenced by politics; secondly, the appearance of the loss of their impartiality and independence; and thirdly, damage caused to the rule of law generally, precisely the results which Article 1.A.4 of the Ethical Principles warns against:
Judicial independence is fundamental to ensuring that decisions are made without external influence and to maintaining individual and public confidence in the administration of justice. Preserving the constituent elements of judicial independence is critical to the public’s perception of the impartiality of judges. In that sense, judicial independence is an important means to a fundamental end. Judicial independence ensures that judges are impartial in fact, and also that they are perceived to be so.
This disturbing judicial trend was evidenced in the trial decision of the 2019 Ontario Restoule case.
In this case, which is heading to the Supreme Court of Canada, the First Nations bands whose ancestors signed the 1850 Robinson Huron and Robinson Superior land-surrender treaties are suing Ontario and Canada for a declaration that in substance the treaties were not land-surrender treaties at all. Rather, they claim, they were land “sharing” agreements. Based on this “sharing” argument the Robinson Superior bands estimate that they have been short-changed in treaty payments over the years by Canadian and Ontario taxpayers, represented by the Crowns of Canada and Ontario, to the tune of approximately $100 billion. Presumably the monetary claim of the Robinson Huron bands is similar.
Restoule is a treaty interpretation case. It is vastly different from a Haida Nation-type legal situation. No proposed resource project is in issue. It in no way requires the Court to reconcile “the pre-existence of aboriginal societies with the sovereignty of the Crown”. Haida Nation reconciliation is not an issue in the case.
This is a profoundly serious case, with Canada-wide repercussions. The stakes are high. Such a case would traditionally demand the most disciplined, strait-laced, traditional and impartial conduct on the part of any judge presiding over it.
But that’s not what Ontario and Canadian taxpayers got. And it is they who will ultimately be on the hook for these multi-billions of dollars of damages if the appeal by Ontario to the Supreme Court of Canada is lost. (Canada, as per its Directive, in the craven name of “reconciliation” with and “respect” for “Indigenous peoples” did not appeal, preferring the showing of “respect” towards the abstract concept of “Indigenous peoples” over “respect” for its own sovereignty and for the pocketbooks of the Canadian taxpayer.)
Instead, the taxpaying citizenry got a trial proceeding that disturbingly evidenced the court improperly adopting the Trudeau government’s separate but equal reconciliation campaign to the conduct of a civil litigation trial, which represented a massive breach by the court of its obligation to have its conduct and deliberations be “manifestly seen” to be impartial and independent of and free from politics.
In her legal decision, which favoured the First Nations bands, the trial judge, Madam Justice Hennessy, unprecedently described the trial she had presided over as “a proceeding of respect and an exercise in reconciliation”.
A civil trial is a neutral, impartial legal process. Merely because a trial involves Aboriginal litigants, it is not supposed to thusly become, in addition to the adjudication of a legal dispute, a non-legal “exercise” in “reconciliation” between Aboriginal and non-Aboriginal Canadians, the latter a purely social and political exercise and goal.
The conduct of the Restoule trial had many more unusual and unprecedented political aspects to it.
It lasted for many days. The Court moved around to different judicial seats; Thunder Bay, Sault Ste. Marie and Sudbury, reflecting the pan-Northern Ontario nature of it. That was appropriate.
But the Court also sat at the Garden River Reserve near the Sault, the Fort William Reserve near Thunder Bay, and at Wikwemikong, on Manitoulin Island, the latter an unceded (by Indians) part of Canada. These are not legislated judicial seats for His Majesty the King to hold court. Wikwemikong is not even on Crown land.
The plaintiff First Nations bands were taking the position that the treaties were “nation to nation” agreements, (which position was basically confirmed by the court), thus raising reasonable questions about the appropriateness of the court of the nation of Canada sitting at locations controlled by alleged other “nations” that were suing it.
The impression was given that by holding Court on First Nations reserves, amongst other unprecedented and unsettling conduct, the Court was conceding aspects of its own sovereignty and buying into the plaintiff bands’ extremely flawed and fantasy-based “nation to nation” concept and argument, both of which were highly relevant to the outcome of the case. This showed “manifestly seeming” bias.
A pole was erected by the plaintiff bands in the front of the courtroom, with the permission of the judge and with, I have no doubt, the faint-hearted consent of the lawyers for Canada and Ontario, and was present there for all court days. It was called by the plaintiffs an “Eagle Staff”. It was placed in the well of the court, in front of the bar, near the court clerk. Eagle feathers hung from it. Obviously, this was of professed spiritual significance to the plaintiffs. As stated, the parties and the judge had agreed to permit the plaintiffs to erect these symbols of Anishinaabe culture, and perhaps of separate sovereignty, in the courtroom.
This allowance of a political/religious symbol to be erected in what is supposed to be a totally apolitical, neutral, impartial courtroom, was wrong. It was a violation of Article 5.A.6. of the Ethical Principles.
While judges may wish to signal support for causes or viewpoints through words or in the wearing or display of symbols of support, even if they seem innocuous, such communications may be interpreted as reflecting a lack of impartiality or the use of the position of the judge to make a political or other statement. For these reasons, judges should avoid statements or visible symbols of support, particularly in the context of court proceedings.
It is unsettling and unprecedented for there to be any symbols of sovereign government in the King’s courtroom other than symbols of the Government of His Majesty the King, to whom everyone in that courtroom, being citizens of Canada, were legally and loyally bound to.
In this general regard the court in its decision wrote:
“The First Nations were warm and generous hosts when the court convened in their communities. As a court party, we participated in Sweat Lodge ceremonies, Pipe ceremonies, Sacred Fire teachings, Smudge ceremonies, Eagle Staff and Eagle Feather presentations, and Feasts. During the ceremonies there were often teachings, sometimes centered on bimaadiziwin- how to lead a good life. Often teachings were more specific (e.g. on the role of the sacred fire, the role of the sacred medicines, or the meaning and significance of the ceremonies.) The entire court expressed their gratitude for the generosity of the many knowledge keepers who provided the teachings. I believe I speak for the counsel teams when I say that the teachings and the hospitality gave us an appreciation of the modern exercises of ancient practices.
Miigwetch. Miigwetch. Miigwetch.
It is unprecedented for a Judge to socialize with the litigants in a trial over which he or she is presiding.
To the extent that the Judge in Restoule was, by participating in these “teachings, ceremonies, presentations and Feasts” for the purpose of better understanding the plaintiffs’ alleged “ancient practices”- with a view to better informing herself about the “Anishinaabe perspective and worldview”- a trial issue– it is unprecedented that this evidence- unsworn- would be adduced outside the Courtroom- outside the judicial process.
Article 1.B.1. of the Ethical Principles states:
Communications intended to influence a specific judicial decision can only be received within the judicial process.
This judicially endorsed conduct gave the appearance of promoting, or at least being seen to be improperly influenced by, the Trudeau government’s separate but equal reconciliation policy.
Also, the court, in participating in all of the above activities, most of which took place outside the courtroom, and particularly those which took place at the personal “homes” of some of the plaintiff bands, also created, as stated, the appearance of bias, loss of independence and of “descending into the arena” of conflict, which courts are not supposed to do.
This case should have been adjudicated entirely within the King’s courtrooms, in the traditional, impartial and unbiased fashion, where the presiding judge traditionally comes to the case with the legally fictitious, “blank state” mind, and then tries the case solely on the basis of the facts properly put before the court in accordance with established laws of evidence and procedure.
It is not the proper function of a court to seek separate but equal “reconciliation”- a legally non-existent, totally vague, confusing and meaningless term- in cases involving Aboriginal litigants.
(It is also to be noted that no out-of-Court visits were made to the defendant Canada’s and Ontario’s “homes” in Ottawa and Queen’s Park.)
This writer has further parsed the Restoule trial decision along the above lines elsewhere, and has also parsed the Court of Appeal’s decision, which narrowly upheld by a 3-2 vote Justice Hennessy’s decision.
It is noteworthy and troublesome that none of the Court of Appeal judges commented unfavorably, or at all, on the trial judge’s improper infusing of the unprecedented concept and practices of separate but equal “reconciliation” into the conduct of the trial, which concept and practices so seriously violated the principle of judicial proceedings needing to be “manifestly seen” to be free of popular and political influences, and which so manifestly created the impression that the court was not seeming to be impartial.
Silence in this important regard by higher courts can reasonably be seen by lower courts across the country and by the citizenry and others as consent. It is sincerely hoped that the Supreme Court of Canada, in its decision on Ontario’s appeal, however it decides, will send a message to all courts in Canada that separate but equal “reconciliation” is the business of the legislatures of the country and the citizenry generally, and that it is not the business of the courts.
Other cases and situations before and after Restoule demonstrate these dangerous trends of apparent judicial bias in favour of Aboriginal litigants in civil cases, and of courts generally allying themselves too closely to the Aboriginal “side” of reasonably disputed, contentious, political and historical issues, and thus, by compromising their need to appear impartial and independent of popular sentiment, politics and government, violating their Ethical Principles.
In the 2011 case Keewatin v. Ministry of Natural Resources the issue at trial was whether Ontario had the power alone to “take up” lands in northwestern Ontario under Treaty 3 so as to limit the Grassy Narrows First Nation’s harvesting rights under the treaty, or whether the Canadian government had to approve as well.
In her trial decision in favour of the Grassy Narrows band the trial judge, Madam Justice Sanderson, criticized Ontario and Ontario’s lawyers for in effect fighting fairly but nonetheless fighting too hard for their side of the case. As she said in part:
“Ontario’s approach to this litigation, while pleasantly civil, was strongly adversarial. Always focusing on its own proprietary rights, it downplayed the plain and clear reference in the Harvesting Clause to Canada…Ontario was attempting to use traditional Euro-Canadian common law property principles to support the relief it was seeking, despite the evidence of Chartrand called by Ontario that Ojibway concepts were very different (e.g., they did not have a concept of buying and selling land).” (Italics added.)
The trial judge adopted an inappropriate and unjustified sarcastic tone when commenting on the substance, and even the style, of the Ontario lawyer’s handling of the case:
“From the beginning of opening arguments until the end of the case, counsel for Ontario chanted the phrase “Honour of the Crown” almost like a mantra, as if the reassuring cadence of its repetition would salve any concerns this Court might otherwise have about its failure to honour Treaty Rights in the past.” (Italics added.)
This trial had been a fair fight. The Grassy Narrows band had a very capable and sophisticated legal team working for them. Ontario was being attacked with the full force and effect of “Euro-Canadian” law! There was no other law presented in the courtroom! How could it not but react and respond in kind? Despite all this the judge clearly suggested that, in this Aboriginal rights case, where the “honour of the Crown” was in issue, the proper course of action for Ontario was to, in effect, defend itself with one hand tied behind its back, and further, that Ontario’s lawyer should have, during the trial, partially pre-judged the case in favour of Grassy Narrows and adjusted his conduct accordingly – that he shouldn’t have advocated so fully and strenuously on behalf of Ontario .
This is all contrary to centuries of ethical principles to the effect that a trial lawyer is bound, within the law and by the rules of ethics, to fight as hard as he can for his client!
Ontario’s Rules of Professional Conduct for lawyers describes the lawyer’s function as advocate as “openly and necessarily partisan.” Accordingly, the lawyer is generally “not obliged…to assist an adversary or advance matters derogatory to the client’s case.” These rules obligate a lawyer, when acting as an advocate:
“…to raise fearlessly every issue, advance every argument, and ask every question, however distasteful, which the lawyer thinks will help the client’s case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law….”
The Keewatin trial decision suggests that lawyers themselves, officers of the court, who are key instruments of due process and the hitherto blind rule of law, when they are on the other side of any case involving the assertion by Aboriginals of any Aboriginal rights-related claim, should not act so fearlessly and forcefully, should in effect partially favor the interests of their Aboriginal opponents over those of their own clients, even a government client, so as not to be too “strongly adversarial.”
In this respect the trial judge’s improper admonition of counsel in this case violated Article 2.C.6. of the Ethical Principles, which states:
Judges should remain alert to the lawyer’s legal and ethical duty of resolute advocacy on behalf of a client and commitment to the client’s cause.
The Keewatin trial decision was overturned on appeal, and that appeal decision upheld by the Supreme Court of Canada, but these inappropriate statements of Justice Sanderson were not criticized or commented on by either the Court of Appeal or the Supreme Court of Canada. Again, such silence on such an important issue can reasonably imply agreement on the part of the higher courts with Justice Sanderson’s biased and chilling (for lawyers in future cases) rebuke of counsel, who was just doing his job properly and in the traditional manner.
Perhaps the Supreme Court of Canada did quietly agree with Justice Sanderson in this regard, because in 2013 Beverly McLachlin, sitting Chief Justice of the Supreme Court of Canada, in an after dinner speech said that Canada attempted to commit “cultural genocide” against Aboriginal peoples.
The problem with this is not just that it was a patently false and ignorant thing to say, which it was. She was no historian and that simplistic, nuance and context-free statement showed that.
The problem was and remains that she was the Chief Justice of the Supreme Court of Canada wading into a highly contentious, current political and historical debate, and on behalf of the entire court system of Canada, coming down on one side of it- the Indian Industry[iii] and Trudeau government side- all in blatant violation of Article 5.B.2. of the Ethical Principles, which states in part:
Speaking in public carries risks to the public perception of the judge’s impartiality and must be approached with care. Judges should give careful consideration to a range of factors when deciding whether to accept a speaking invitation and, if so, what the judge may properly address in a speech. These include: (i) the organization inviting the judge to speak; (ii) the anticipated audience; (iii) the topic or general theme to be addressed in the speech; (iv) the degree to which the topic relates to matters concerning the judiciary or the courts; (v) whether the topic or the judge’s remarks relates to a matter of public policy or public controversy. (Italics added.)
There are only limited circumstances in which a judge may speak publicly. Article 5.B.6 of the Ethical Principles states:
Public Statements
There are limited circumstances in which judges may properly speak out, though with restraint, about a matter that is publicly controversial, namely, when the matter directly affects the operation of the courts, the independence of the judiciary or fundamental aspects of the administration of justice.
The topic of alleged “cultural genocide” of non-Aboriginal Canadians against Aboriginals affects none of these three things.
Rather, it directly relates to Canadian history and affects numerous Aboriginal rights cases before the courts, then and now. There is huge public controversy over the issue of whether this alleged “cultural genocide”, clearly connoting criminal and/or immoral behaviour on the part of past and present non-Aboriginal Canadians, ever happened in Canada’s history.
The clear message that any lawyer involved in an Aboriginal rights case acting for the non-Aboriginal party in that case would take from Justice McLachlin’s judicially unethical statements was that the court hearing his or her case would from the outset of it have an ingrained bias in favor of the Aboriginal party, and that the presiding judge’s judicial reasoning would be infused with and distracted by all kinds of unknown “pro-Aboriginal” political, moral and emotional sentiments and highly questionable, contentious, prejudicial, historical conclusions.
Chief Justice McLachlin’s statements were judicially reckless. As present Chief Justice Wagner said in the headnote above, judges should, on such issues, if they feel compelled to speak at all, “speak through their judgments, and leave it to elected officials to make broad statements.”
The damaging consequences of her “broad” statements -the reasonable apprehension of bias and the appearance of compromised judicial independence in Aboriginal rights cases- especially because the Supreme Court since then has made no penitential effort to retract or counter her statement, which it must do– are still being felt and experienced today.
In the 2021 case of Ginoogaming First Nation v. Her Majesty the Queen et al., a case directly involving Haida Nation reconciliation, discussed at length by this writer elsewhere, the First Nations band sought and obtained an injunction preventing the mining claimholder, the principle of which was Michael Malouf, from exploring its claim on the ground that a part of the mining claim area was “sacred land”.
The presiding Judge was Madame Justice Susan Vella, who was appointed to the Superior Court of Justice in 2020. When in private practice, according to the federal government’s short biography of her which was part of their announcement of her appointment, she “served as Commission Counsel to the Ipperwash Inquiry and Initial Lead Commission Counsel into the Missing and Murdered Indigenous Women and Girls Inquiry.”
The Executive Summary of the Final Report of the Missing and Murdered Indigenous Women and Girls Inquiry, at https://www.mmiwg-ffada.ca/wp-content/uploads/2019/06/Executive_Summary.pdf, accuses Canada of past and present “acts of genocide of Indigenous peoples”, allegedly enabled by “settler colonialist structures.”
It is reasonable to assume that Justice Vella, having been a lawyer for the Inquiry, helped to shape these false, inflammatory, in any event, highly contentious, public “blood libel” views.
(The Ontario Superior Court of Justice, which Justice Vella was presumably happy to be appointed to, would be, in the words of the MMIWGI, such a genocide-enabling “settler colonialist structure”. This is a perfect example of people in the Indian Industry and elsewhere, while taking full advantage of the fruits of “settler colonialism”, hypocritically denouncing and decrying it.)
The Ethical Principles state that a judge should not preside over a case “where the judge… expressed views evidencing bias regarding a litigant or an issue that is before the court.”
These decidedly political and very controversial views of alleged “acts of genocide of Indigenous peoples” enabled by “settler colonialist structures”, such as the Government of Ontario and mining prospectors in Ontario like Mr. Malouf who derive their mining rights from Ontario, should have caused Justice Vella to declare herself possessed of an appearance of bias and conflict of interest.
She should have recused herself from hearing this matter.
It was a Zoom hearing. Justice Vella heard the day-long arguments in her Toronto office. Hung conspicuously on the wall behind her and visible to the litigants all day was a colorful Aboriginal art print. Given the judge’s known, pre-appointment professional background the display of this print was, as was the erection of the Eagle Staff in the Restoule courtroom, a clear violation of the stricture in the Ethical Principles against displaying anything that could reasonably be interpreted as a symbol of support for one party in the case before her.
Certainly, in this case, when Mr. Malouf saw that print, being already aware of Justice Vella’s pre-appointment background, he reasonably felt that he was appearing before a biased judge and was likely going to lose, which he did.
In her written decision Justice Vella referred to Canadians like Mr. Malouf as “settlers”, (as in “settler colonialist structure”), a highly politicized term (which she declined to define), a term that was not part of the record, (but a big part of the MMIWGI Summary with which she was previously associated), which term was obviously meant to impart negative connotations about people like Mr. Malouf.
Mr. Malouf was born in Canada and has lived almost his entire life in Geraldton, Ontario.
Perhaps Mr. Malouf’s company deserved on the merits to lose the injunction argument. Had there not been all these indicia of bias, despite the judge’s extremely poor reasoning in justifying the injunctive relief she granted to the First Nations band,[iv] he would have likely accepted his loss with a measure of equanimity.
But because of the presence of these indicia of bias, his post-hearing thoughts focused and continue to focus more on not being able to get a fair hearing in an Ontario court, the very civically destabilizing thoughts that strict compliance with the Ethical Principles is designed to deter.
(The atmosphere of perceived bias created by Justice Vella was such that Ginoogaming’s lawyer, as part of a written submission regarding costs, felt judicially unchecked enough- comfortable enough- encouraged enough by Chief Justice McLachlin’s ignorant but influential remarks in this regard- to baselessly assert the existence of her client’s “constant cultural and social “anxiety” it experiences brought about by what Canada admits has been and still is a genocidal colonialism”.)
In Aboriginal-related civil cases the courts, again allowing themselves to be influenced by considerations of separate but equal reconciliation, have developed an unhealthy and unwarranted tendency to relax or even dispense with the traditional judicial rules and standards relating to the proving of facts.
Since 1997 Aboriginal oral tradition evidence,[v] a profound exception to the hearsay rule has been permitted, where third and fourth-hand “recollections” and “retellings” of ancient, supposed “facts” has been admissible in court as proof of the facts testified to. This has been of great advantage to Aboriginal litigants- an advantage non-Aboriginal litigants are not entitled to.
Now that natural advantage is being increased by courts in Aboriginal-related cases starting to take “judicial notice” of facts, meaning they are just accepted as being true without the necessity of any live person testifying in open court to them and being subject to cross-examination. Judicial notice applies to two kinds of facts: “(a) those that are so notorious or “accepted”, either generally or within a particular community, as not to be the subject of dispute among reasonable persons; and (b) those that are capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy”.
But the “facts” now being taken judicial notice of in Aboriginal-related cases are neither “accepted” by the general community nor are they capable of immediate and accurate demonstration. In fact, they are highly contentious and very difficult to prove, and are often mere “broad statements of elected officials” and others. As such, when they are taken judicial notice of by a judge, an unfair advantage is seen to be given to the Aboriginal litigant, and again, an appearance of seeming bias is created.
In a pre-trial decision in the Restoule case whereby the trial judge made an order permitting live broadcasting of the trial proceeding, Justice Hennessy wrote:
The relationship between the Indigenous people and the Justice system has been called dysfunctional by the TRC and The Honourable Frank Iacabucci. The integrity of the justice system is at stake when parties who have developed a rational distrust for a system cannot access, for whatever reason, the forum in which key questions and debates are played out: questions about how the Treaty came to be negotiated, who the signatories from each side were, the intention of the signatory Chiefs and the Crown representatives, and the post-Treaty communications. (Italics added)
There was no cogent or reliable evidence before Justice Hennessy for her to conclude that the plaintiff First Nations bands in the case before her had a “rational distrust” of the justice system. With that comment asserting that the alleged distrust was omnipresent and “rational”, she was indicting the entire administration of justice system in Canada vis-à-vis Aboriginals. The unexpert opinions of the two sources cited, however fashionable and reflective of elite sentiment, were just that: opinions. She adopted these mere, highly contentious, out-of-court opinions as fact. The trial had not yet started, but with that kind of comment being made, Canada and Ontario’s lawyers had to know where the judge’s sentiments about the merits of the case were going to lie. This “premonition of doom” feeling on the part of litigants and their lawyers is what the Ethical Principles are designed to avoid.
In her decision at trial Justice Hennessy wrote:
“I can also take judicial notice of the difficulty of interpreting legal terms to lay people. This is compounded when there is a large cultural gap”.
Her trial decision, involving a potential cost of over $100 billion to Canadian taxpayers, was very much influenced by this loose sentiment. There was a real, contentious issue of whether there was such a “large cultural gap.” The “legal terms” at issue were not particularly complicated. They are written in plain English and were fully translated before the treaties were signed. There was 150 years of post-treaty conduct by both parties evidencing what they thought the terms of the treaties meant. The Aboriginal treaty signers and witnesses at trial were all highly intelligent persons.
It is certainly neither “notorious” nor “accepted” that Aboriginals cannot understand basic legal concepts. To suggest this is to infantilize them, and, in the context of the Restoule trial, to appear to favour them.
As evidenced above, our courts are now making unsupported sweeping historical and moral pronouncements about complex, multi-faceted, nuanced and contentious Canadian historical events, by way of in effect taking judicial notice of them, and then allowing these unsupported, out-of-court pronouncements to infuse the tone of their deliberations and affect the outcome of their decisions. These opinions and pronouncements go well beyond the limits of the courts’ expertise and the limits of their intellectual, moral and judicial authority.
They undermine the appearance of impartiality so necessary for the proper and effective operation of the court system.
In the 2021 Supreme Court of Canada decision R. v. Desautel, where the court granted Haida Nation “consult and accommodate” Aboriginal rights to certain non-resident, non-citizen, American Indians, the court wrote:
The displacement of Aboriginal peoples as a result of colonization is well acknowledged:
Aboriginal peoples were displaced physically — they were denied access to their traditional territories and in many cases actually forced to move to new locations selected for them by colonial authorities. They were also displaced socially and culturally, subject to intensive missionary activity and the establishment of schools — which undermined their ability to pass on traditional values to their children, imposed male-oriented Victorian values, and attacked traditional activities such as significant dances and other ceremonies. In North America they were also displaced politically, forced by colonial laws to abandon or at least disguise traditional governing structures and processes in favour of colonial-style municipal institutions.
(Report of the Royal Commission on Aboriginal Peoples, vol. 1, Looking Forward, Looking Back (1996), at pp. 139-40)
These are simplistic, context-free, nuance-free, misleading, obiter opinions, unnecessary to the conclusion the court reached, based on a 1997 Royal Commission Report that, so biased and unrealistic were its observations and conclusions, it was shelved immediately upon receipt.
The Court here, being the ultimate arbiter of “colonial laws” which allegedly “forced” negative consequences on Aboriginal peoples, was even indicting itself with these improperly considered, unsupported statements, thus undermining its own authority to preside over the case (!)
In the 2021 Yukon Court of Appeal decision in Dickson v. Vuntut Gwitchin First Nation, where the issue was whether the Canadian Charter of Rights and Freedoms applied on First Nations reserves, (the court ruled that it technically did but that it could be arbitrarily blocked from applying at the will of band leadership, making First Nations reserves Charter-free zones), the Court of Appeal approved of the trial judge in effect taken judicial notice of the following “facts”:
The displacement and alienation of Vuntut Gwitchin people from Vuntut Gwitchin Territory through imposed colonial laws and policies including residential schools, Indian Act administration and resource development without Vuntut Gwitchin consent or involvement has caused significant harm to the integrity and health of the Vuntut Gwitchin as a collective.
These momentous, profound political, historical and social conclusions, which would normally require textbooks of detailed facts and arguments to properly analyse and reach, involving days of expert, cross-examined witness testimony in open court, were based on mere brief, unsupported, conclusory statements contained in self-serving affidavits of witnesses for the Vuntut Gwitchen First Nation.
With IPhones, satellite TV, indoor plumbing and heating, health care, the ability to fly to Dawson City and elsewhere, Vuntut Gwitchen, “as a collective”, might just possibly be doing better now because of those “colonial” things.
The court could have just as easily, and with more reason, taken judicial notice of the fact that no First Nation in Canada has ever indicated any desire to go back to the way their ancestors lived prior to contact with European Canadians, leading to the conclusion that in fact they are doing better now because of those colonial things.
Only in Aboriginal rights cases now do Canadian courts so relax their evidentiary standards so as to now, always in support of the Aboriginal “side” of the case, in the complete absence of expert testimony, accept such questionable, contentious, vague, conclusory statements as proof of the facts asserted therein, and only in Aboriginal rights cases, seemingly awash in and overwhelmed by sentiments of separate but equal “reconciliation”, always in support of the Aboriginal “side” of the case, do they partially base their decisions on such threadbare, unsubstantiated, controversial, politicized and self-serving allegations.
In 2019 Aboriginals sued the federal government, alleging in their class action Statement of Claim that Canada was liable to them because, as Canada later wrongfully and shamefully admitted, it failed “to ensure that class members have access to potable water of adequate quality and quantity”, and “in comparison to municipal and private water systems, First Nations disproportionately experience long-term drinking water advisories”. The claimants alleged that Canada violated their rights under the Canadian Charter of Rights and Freedoms, breached their alleged fiduciary duty to them, and failed to act in accordance with the “Honour of the Crown.”
In accordance the Trudeau government’s sovereignty-destroying Directive and its ongoing heedless and unprincipled giveaway of billions of taxpayer dollars to legally undeserving Aboriginal litigation claimants the federal government quickly threw in the towel in the lawsuit and, In December 2021, the First Nations Drinking Water Settlement Agreement was approved by the court.
This settlement agreement, in addition to evidencing the Trudeau government’s reckless compulsion to pay billions of dollars of taxpayers’ monies to Aboriginal litigants when there is absolutely no legal or even policy reason to do so, also evidences the worst tendencies of the Canadian judiciary to, in Aboriginal-related cases, violate, (no doubt with the best of intentions), numerous core strictures in the Ethical Principles: avoiding the appearance of bias, creating a perception of conflict of interest, improperly taking judicial notice of unproven, contested facts, failing to maintain the independence of the judiciary from the legislative and executive branch of government, becoming an instrument for the carrying out of government political policy and making or agreeing to statements showing general bias against Canadians and their governments, and corresponding partiality to Aboriginal interests.
This settlement pays money to individual Aboriginals, numbering 142,300, and to First Nation bands, numbering 258, all affected by long-term drinking water advisories.
In his reasons judicially approving this improvident settlement Mr. Justice Favel of the Federal Court of Canada agreed with the outrageous, patently false, blood libelous, “broad statement” of the “elected official”, Marc Miller, Minister of Indigenous Services, that: “The deficits pertaining to drinking water infrastructure on reserves are a result of systemic racism”.(Italics added.)
“Systemic racism”. The Federal Court has judicially declared that Canadians and Canadian governments are racist.
Article 4.B.1. of the Ethical Principles states:
Equality in Proceedings
Judges should avoid comments, expressions, gestures or behaviour that may reasonably be interpreted as showing insensitivity to or disrespect for anyone. Examples include inappropriate comments based on stereotypes linked to gender, race, ethnicity, religion, culture, sexual orientation, gender identity or expression, differing mental or physical abilities, age and socio-economic background, or other conduct that may create the impression that persons before the court will not be afforded equal consideration and respect. Inappropriate statements by judges, in or out of court, have the potential to call into question their commitment to equality and their ability to be impartial.
How can Canadian non-Aboriginal litigants now not feel fear, hesitation and insecurity in the Federal Court- in all courts– that the deck is stacked against them, with this disrespectful and stereotyping insult from this court in the front of their minds?
In addition to compensating both First Nations bands and their individual members Canada has also agreed to provide funding to fix the drinking water problem moving forward. Canada agreed to make “all reasonable efforts” to ensure that Aboriginals have regular access to safe drinking water in their homes. In support of this Canada is required to spend at least $6 billion through March 31, 2030, at a rate of at least $400 million per year on water and wastewater on First Nation reserves.
Contrary to the principle stated in the legal cases Marchi and Tanudjaja that issues of government core policies and priorities should not be subject to judicial review and supervision-that these are ballot box issues, not judicial ones– Canada shamefully agreed that this prospective $6 billion (minimum) obligation will be subject to judicial review and supervision. Canada can be hauled back into Court if for any reason it fails to deliver on this clean water utopia promise to the Aboriginal claimants.
It is long-established law that “core policy decisions” by governments, as embodied in its laws, will not give rise to civil liability to citizens inevitably affected by them, because, as the court in Marchi stated, the legislative and executive branches have “core institutional roles and competencies that must be protected from interference by the judiciary’s private law oversight.”
This is the main reason amongst a myriad of other reasons why this settlement is harmful to the national interest; the $6 billion prospective aspect of it represents a shocking and craven submission by the executive branch of the government to the judicial branch- a profound breach of the separation of powers doctrine- which is contrary to the reputation, function and best interests of both.
Justice Favel, to protect and preserve the independence of the court from government and politics should never have agreed to this. It goes against the government’s “core policy decisions” immunity.
By approving this prospective aspect of the settlement, the presiding judge showed partisanship and failed in his duty to protect the independent function of both his court and of the legislative branch of government.
This compromise of judicial independence would never happen but in an Aboriginal rights-related case, where the courts are allowing themselves to be influenced by emotion-based, separate but equal reconciliation.
Judges, citing the public interest, frequently reject negotiated litigation settlements brought before them for judicial approval. Justice Favel should have rejected this one.
Justice Favel too-quickly skated over and away from the government core policy immunity principle. He ignored limitations law. He ignored the bulk of the common law which states in effect that the government owes no duty of care to its citizens, including its Aboriginal citizens, to provide them with clean drinking water.
He wrongly took judicial notice of the highly questionable, contested and sweeping political, historical and social “facts” that there was a “tragic relationship between poor drinking water, mental health, and youth suicide…” and that “contaminated water has forced members to relocate, which perpetuates the history of displacement of Indigenous peoples from their lands and the separation of families”.
Adding to the sense of unseemliness surrounding this settlement, was the fact that the pre-appointment career of Justice Favel, echoing Justice Vella’s situation, gives rise to a reasonable apprehension of bias and conflict of interest on his part in this matter.
On conflict of interest the Ethical Principles state in part as follows:
5.C.2 The potential for a conflict of interest arises when the personal interest of the judge (or of those close to the judge) conflicts with the judge’s duty to adjudicate impartially. Judicial impartiality is concerned with impartiality in fact and in the perception of a reasonable and informed person. As a result, judges should be attentive to both actual conflicts between their self-interest and their duty of impartial adjudication, and to circumstances in which a reasonable and informed person would reasonably apprehend a conflict. 5.C.3 Conflicts of interest may arise from: a pecuniary or non-pecuniary interest in the outcome; a close family, personal or professional relationship with a litigant, counsel or witness; or the judge having expressed views evidencing bias regarding a litigant or an issue that is before the court.
Prior to his appointment to the Federal Court in 2017, while in private practice, Justice Favel acted largely for Aboriginal clients, was a member of the Oversight Committee of the Indian Residential School Settlement Agreement, taught “First Nations economic development” at the University of Saskatchewan College of Law, and, according to the government website announcing his judicial appointment, is “a member of Poundmaker Cree Nation, (who) maintains close connections with his community and served on the Band Council from 2012 to 2013.”
Adding to this is the fact that the Settlement Agreement order Justice Favel signed defines “First Nations Class Members”, who have until March 7, 2023, to make a claim, include “any Impacted First Nation that elects to join this action in a representative capacity.”
Justice Favel would have known that it was and is a distinct possibility that Poundmaker Cree Nation would elect to join in the action and claim compensation. They may already have done so. In such circumstances, as a member of Poundmaker First Nation, he has a potential conflict of interest, or perhaps even an actual one, which violates the Ethical Principles and thus brings the administration of justice into disrepute.
Justice Favel may be entitled to a compensation cheque someday arising from his own court order.
On this ground alone he should have recused himself from involvement in this matter. Federal government lawyers should have asked him to recuse himself. Had they not been so cowed and neutered by the Directive, they would likely have done so.
In January of 2022, in another, much bigger case, the federal government announced a $40 billion settlement of alleged, nation-wide Aboriginal child welfare “inadequate funding” claims.
The Court decision that preceded this settlement was again written by Justice Favel, whose pre-appointment career and willingness to preside over a case where he had an actual or potential conflict of interest, as stated, gives rise to a reasonable apprehension that again, he would appear to be biased in favor of the Aboriginal “side” of this case, and in fact, would appear to be biased in favor of the Aboriginal side of any Aboriginal rights-related case he might be presiding over.
His decision, just as his drinking water settlement decision did, skated over and skated away from the government core policy immunity principle. In addition, and again, having his pre-appointment career in mind, his decision as a whole- deciding every issue of fact and law in favor of the Aboriginal “side” on the weakest and most strained and forced grounds- gives rise to both a reasonable apprehension of bias and the appearance of compromised judicial independence.
(The federal government properly appealed the decision, but then, in accordance with the Directive, and political pressure from the Trudeau government and the Indian Industry, abandoned the appeal and entered into this improvident settlement, once again throwing the precedential interests of the Crown and the interests of Canadian taxpayers to the wolves.)
It cannot be said that the above instances of the judiciary’s departure from accepted impartial practices and principles in Aboriginal-related matters are isolated. Neither can it be said that they happen all the time.
But in my opinion, it’s a serious problem for the administration of justice, and the trends don’t look good.
In November of 2021 Chief Justice Robert Bauman of the Court of Appeal of British Columbia and the Yukon told a legal conference in Vancouver that “the Canadian justice system must recognize the existence of the many Indigenous legal orders in Canada, reconciling them with the common law and current legal protocols.” He said: “the process of reconciliation, including legal reconciliation, must be prioritized.”
He talked about non-Aboriginal Canadians and their governments’ “jealous need forcontrol”being “destructive.” He referred to the ancestors of non-Aboriginal Canadians as “uninvited guests” in Canada. He said that the courts “must act responsibly within the matrix of Indigenous customs, traditions and protocols”.
He described the court system which he was partly responsible for as “a barrier to justice” for Aboriginals.
Everything Chief Justice Bauman said was untrue.
Everything he said constituted disrespectful, stereotyping “broad statements” that, if they had to be made at all, as per Chief Justice Wagner, should only come out of the mouths of “elected officials”.
What does the Justice mean by “reconciliation, including legal reconciliation”? He must mean something legal beyond and in addition to Haida Nation reconciliation. What is that? He should have defined it! Judges, more than anyone else, are supposed to deal in legal specifics, not can-mean-anything non-legal, merely aspirational, popular/political terms, the latter the province of politicians and laypersons alone.
The idea of “Indigenous legal orders” is largely a myth.
His “uninvited guests” comment was simplistic and misleading beyond belief.
What “Indigenous customs, traditions and protocols” is he talking about? The existence of these supposedly still existing things is forever asserted and never actually demonstrated.
Again, the problem is not that what Chief Justice Bauman said was untrue. The problem is that he said these things at all. It’s neither his business, nor that of his court, or of any court, to opine, especially in public speeches, on such non-legal, contentious, social, popular/political matters.
Who is the unelected Justice Bauman to be telling his audience that Canada’s laws must be changed to recognize these things?
It is the business of the legislatures alone to fundamentally change Canada’s laws like that, not the business of the judiciary, whose job is simply to, as per Chief Justice Wagner and hundreds of years of legal tradition, interpret and enforce the law- to “weigh the facts in individual cases” on properly adduced evidence, and only “speak through their judgments.”
Now, having made all these pro-Aboriginal, stereotyping, pro-Trudeau government, nationally divisive Principles statements, constituting a massive violation of the Ethical Principles, he has tainted the entire B.C. court system- and all of Canada’s court systems, with the strong appearance of institutional bias in favor of Aboriginals and the Aboriginal side of any court case involving Aboriginals.
How demoralizing for any non-Aboriginal, B.C. litigant, often the descendant of an “uninvited guest” ancestor, in a court case involving B.C Aboriginals.
How demoralizing for and to the administration of justice in British Columbia and in all of Canada.
Civil litigation lawyers worth their salt know that one of their major tasks is to make their client appear to be the “good guy” and their opponent’s client the “bad guy” in the judge’s mind, so that in tossup situations the judge, being human, might be more disposed to favor the good guy- the lawyer’s client.
They also know, as the old legal saying goes, that the most important person to leave the courtroom at the end of a trial is the losing litigant. He has to leave with the belief that even though he lost, he had a fair trial. Good judges agree with this, and in fact it is one of the underlying rationales of the Ethical Principles, a rationale designed to ensure that although the man lost his case, he didn’t lose his faith in the impartiality and independence of the court that heard it.
The way it is now in Aboriginal rights-related civil cases is that from the opening “hear ye, hear ye, hear ye” the Aboriginal litigant is the pre-established “good guy” and the Crown, or the corporation or the mining prospector like Mr. Malouf is the pre-established “bad guy” with the pre-established uphill battle.
The automatic “bad guy” in the Canadian civil justice system today is the Crown or, more usually, the non-Aboriginal private litigant who naively doesn’t know about “Indigenous legal orders” and is oblivious to Chief Justice Bauman’s notion of seeking “destructive control” of Aboriginals. He never dreams that he would ever be considered a “settler-uninvited guest” in a court of his own country. He believes in racial equality and Nelson Mandela reconciliation.
He believes that the role of the court in his upcoming trial, which has taken him years and a small fortune in legal fees to get to the courtroom door, is to just give him a fair trial.
And when, in these situations, these things he was naively unaware of emerge as influences or factors in the trial, even if he only reads about them in the newspaper, if this non-Aboriginal litigant loses the case, whether he/it deserved to lose on the merits or not, when he leaves the courtroom or his lawyer’s office for the final time, like Mr. Malouf, he takes away with him a diminished faith in the impartiality and independence of the court that presided over it.
Unfortunately, Chief Justice Bauman’s remarks, echoing former Chief Justice McLachlin’s, and reflected in the cases referred to in this article and elsewhere, reflect a nation-wide, pre-established, “good guy-bad guy” judicial trend fueled by considerations of promoting separate but equal reconciliation, with the Aboriginal litigant invariably being the good guy.
This is very harmful to the long-term health of an impartial and independent system of justice.
“Wokism” is a noun, often used disparagingly, connoting the promotion of “liberal progressive” ideology and policy as an expression of sensitivity to systemic injustices and prejudices.
The Trudeau government’s separate but equal reconciliation campaign is an illiberal iteration of wokism.
Recent studies are starting to indicate that the promotion of wokism in any of its forms, and its three “liberal-progressive” ideological siblings, diversity, equity and inclusion, has the opposite effect than that intended. A resentful backlash happens.
People naturally don’t like to be told that they are, as a result of the accident of their birth, and regardless of their personal circumstances, “privileged”.
People naturally don’t like their individuality to be disrespected and stereotyped- or experience their ancestors being disrespected and stereotyped- by being reduced to an impersonal “ist”: a “colonialist” or a “settler racist”.
People don’t like to be told that they and their ancestors are all part of a malign, “systemically racist”, colonialist structure designed to discriminate against and do harm to their Aboriginal fellow citizens.
“Virtue and merit can become their opposites if they are exacted or compelled”.[vi]
Canadians have every reason to be proud of both the history of Canada, which, as it relates to Aboriginals, is a relatively conscientious and honorable one. They have a right to be proud of the present state of Canadian society, which is marked by, amongst other positive qualities, the highest degree of racial decency exhibited towards Aboriginals.
The only kind of reconciliation ordinary Canadians want is Nelson Mandela reconciliation, and our courts go against the grain of this noble and liberal popular sentiment when they allow themselves to appear to promote the opposite- separate but equal reconciliation.
Our Canadian judiciary makes a big mistake when, as they are doing, they join in with the other elite sectors of society- academia, government, the civil service, law enforcement and the media- and with them form a giant, united, woke, Greek chorus of elite nay-singers about Canada’s past and present dealings with Aboriginal peoples.
As stated, a backlash is caused and the rationale of the Ethical Principles is undermined.
Canadians’ past and present dealings with Aboriginal peoples, including court dealings, have been generally conscientious and honorable. Canadians know that and feel genuine and justified resentment towards the judiciary when they see it join and sing along with this political, race-obsessed, close-minded, accusatory chorus of nay-singers.
By joining this chorus- by breaching their Ethical Principles obligation to appear to be independent of such popular/political, accusatory, divisive agglomerations – they are hurting the causes of impartial justice, an independent judiciary and the effective rule of law.
All members of the Canadian judiciary need to take a step back in this regard, re-read and re-think the Ethical Principles as they might apply to the Aboriginal situation in Canada today, both in and out of court, and then, through their rulings and out-of-court behavior, depart from the non-legal, separate but equal “reconciliation” stage- leaving the politicians and lay persons there to sing their false, blood libelous songs on their own.
The judiciary must retreat back into the respectable shadows of traditional, identity politics-free, political correctness-free, judicial conduct.
They must retreat from the perceived promotion of, or from allowing themselves to be co-opted into seeming to support, separate but equal reconciliation.
This would not be a retreat after all.
Rather, it would in fact be a great advance towards the restoration of civil justice in Canada not only being impartial and independent, but “manifestly seen” to be impartial and independent.
The brave new world is threatening us in all its greyness and its hideous attempt to impose a dictatorship on thought. The great advantage of the old gods, and the old religions, is that they sprang from life and cared nothing for political correctness…We have to depend nowadays, for sane and liberal opinion, on the judges and on the church. – John Mortimer Q.C.[vii]
Peter Best
Sudbury
March 8, 2023
[i] Supreme Court’s Chief Justice calls for more diversity in Canada’s legal system
[ii] From his biography Murderers and Other Friends, his funny, warm and erudite chronicle of, amongst other things, his life in court. Penguin Books Ltd., London, 1994, at page 153.
[iii] British Columbia Aboriginal writer/lawyer/businessman Calvin Helin, the son of a Tsimshian Nation chief, in his book Dances with Dependency, Out of Poverty Through Self-Reliance, (above), has a harsh view of what he calls the “Indian Industry.” He writes:
“If lasting solutions are to be found (to eliminate the “dependency mindset” forged by the welfare economics of the reserve system) the real Aboriginal social and political problems must be discussed openly and frankly…Aboriginal citizens must squarely face the Industry of Non-Aboriginal Hucksters and “consultants”, and those Aboriginal politicians who are openly profiting from this sea of despair and poverty. In spite of what they say, this “Indian Industry” has no real interest in changing a system from which they are profiting.” (Italics added.)
[iv]Just one egregious example being: “Letter writing, while a convenient way to paper communication, is not necessarily adequate in the Indigenous cultural context within which governments must deal, and ineffective within the Anishinabek cultural context as described in the evidentiary record by Ginoogaming’s witnesses.”
[v] This romantic judicial invention exists despite the fact that “oral histories” are told by way of general stories that capture only the history’s essence so that the retelling allows for embellishment to meet the expectations of the audience or purpose of the teller. Clearly this form of knowledge transmission does not accommodate complex organization of information. The development of history, logic, science, and philosophy requires that observations and arguments be recorded so that they can be analysed. Without writing, the verification and refutation of assertions becomes impossible, because there is no mechanism to determine what was actually said.” – Frances Widdowson, Disrobing the Aboriginal Industry-The Deception Behind Indigenous Cultural Preservation, McGill Queen’s University Press, Montreal, 2008, at page 203.
[vi] From Christopher Hitchens, Letters to a Young Contrarian, Basic Books, New York, 2001
[vii] Murderer’s and Other Friends, ibid, at pages 259 and 240.
