The Judicial and Senatorial Ethical Principles Lost Sight of by Senator Murray Sinclair

“A Judge who uses the privileged platform of judicial office to enter the political arena puts at risk public confidence in the impartiality and independence of the judiciary” (1)

“A Senator shall uphold the highest standards of dignity inherent to the position of Senator.” (2)

The mystery of why some people suddenly eschew their past principles is an enduring one. The phenomenon is especially notable in relation to people who acquire power and fame. The effects of this and the tendency to want to hold on to that power and fame can change the patterns of a lifetime.

I think that this happened to Senator Murray Sinclair.

His Truth and Reconciliation Report Summary (“the Summary”)(3) released when he was still a Judge, is the very opposite of what one would reasonably expect from a Judge. Rather, it was a sad masterwork of material omission, hyperbole, misrepresentative history, crude attacks on our governments, past and present, discourteous, dishonourable and unjustified attacks against good people both alive and long dead, relentless animus against non-Indigenous “Canada” and partisan mean-spiritedness. It treated context as an impertinence and nuance and complexity as virtual enemies.

Yet Senator Sinclair’s entire working life before his TRC work had been one of successful admission into the upper social and professional echelons of multi-cultural Canadian society, of receiving fulsome benefits and privileges from governments and his fellow citizens, (which continue), and of prospering at a level well beyond that of the average Canadian. His life was an object lesson that race, and in particular, Indigeneity, is no barrier to achieving success in Canada, and that one can succeed and prosper in the racially integrated world of 21st century Canada and still fully retain and celebrate one’s own culture and heritage.

Raised on the former St. Peter’s Indian Reserve north of Winnipeg, he had a stellar high school career, graduating as class valedictorian and athlete of the year in 1968. He was in the Air Cadets. He became Manitoba Attorney General Howard Pawley’s Executive Assistant in the early 1970’s. His second university degree was in law. He started practicing law in 1980 and only practiced for eight years (usually a minimum of ten years is required) before he was appointed a Judge of the Provincial Court of Manitoba. In 2001 he was elevated to the Manitoba Court of Queen’s Bench where he served until 2009, when he agreed to be the Chair of the Truth and Reconciliation Commission. Clearly, this Indigenous gentleman was a favoured and successful son of the Manitoba establishment.

As a courtroom lawyer and a long-time Judge Senator Sinclair absorbed and practiced the ethical rules and principles that properly bind all those who have the privilege of participating as Officers of the Court in the administration of justice. As a lawyer he followed the Law Society of Manitoba’s ethical requirement (4) to treat all tribunals with candour and fairness “in a way that promotes the parties’ right to a fair hearing in which justice can be done.” He followed the ethical requirement to, in making representations to a tribunal where the opposing interest was not present, and “where the full proof and argument inherent in the adversarial system cannot be achieved…take particular care to be accurate, candid and comprehensive in presenting the client’s case so as to ensure that the tribunal is not misled.” (In civil court situations where the other side is not present, the lawyer basically must present the other side’s version of events as well as his own. A material omission uncovered later can bring about severe sanctions on the lawyer’s client and serious harm to the reputation and standing of the lawyer in the eyes of the Court.)

As a lawyer Senator Sinclair practiced the ethical requirements never to “misstate facts or law” or make “irresponsible allegations” to a tribunal or “suppress what ought to be disclosed.” He never “deliberately refrain(ed) from informing a tribunal of any binding authority that the lawyer considers to be directly on point and that has not been mentioned by an opponent,” because he knew, as all lawyers are bound to know, that, “in the eyes of the public, professional knowledge lends weight to the lawyer’s judgements or criticism.”

These ethical principles are seared into the psyche of every trial lawyer.  When the young Murray Sinclair went to the Bench these principles remained an active, central part of his twenty one year career as a Judge. Two other principles became second nature to him there: “hear both sides” of every case, and, when deciding a case give full reasons so that the losing party, always to be treated with restraint, decorum and respect, understands why he lost, both principles central to the maintenance of public faith in the administration of justice.

This non-partisan, sober, objective, fact-based “judiciousness”- fundamental to the rule of law- represents the essence of a Judge and is the wellspring of public confidence in his and his Court’s authority, all of which weaves the heavy mantle of influence that Judges wear and that Judge Sinclair wore when his Summary was released, which mantle gave his Summary, in the eyes of the trusting, generally unknowing public, such apparent “weight”.

“Apparent” only, because in fact Judge Sinclair had inexplicably eschewed his twenty nine year habit of judiciousness in favour of partisanship- eschewed the search for truth in favour of a political cause. While trading on his heavy Judge mantle, he abandoned in the Summary all the above-listed principles of judicial ethics and decorum, thus both compromising the image of our Courts and leaving a luridly false impression of residential schools in the minds of the public.

The Summary, which comprises the entirety of Volume 1 of the six volume, 3500 page Report, and which is the only volume that, as would be expected, most people would read, boldly and falsely asserts that residential schools constituted intentional “cultural genocide” of Indigenous peoples, that no good came from them, that the organizers and teachers in them were in various ways bad faith and bad acting people, and that anyone who ever attended one should automatically be called a “Survivor”, because the schools were  all supposedly so terrible. To the extent that anyone who attended one went on to become influential leaders in their communities and in all walks of life, which the Summary acknowledges, (and there were thousands!), according to the Summary this was only because they were “resilient, courageous Survivors” who achieved this success “despite their traumatic childhood experiences.” (5)

But Senator Sinclair knew that this was not the full picture. In 2010 he wrote in the Calgary Herald:

“While the TRC heard many experiences of unspeakable abuse, we have been heartened by testimonies which affirm the dedication and compassion of committed educators who sought to nurture the children in their care. These experiences must also be heard.” (6)

There’s not a hint of this positive thought or sentiment in the Summary.

Buried deep in the Summary itself are reports of positive experiences had by students. In Volume 4, page ix, it states:

“Many students had positive memories of their experiences of residential schools and acknowledge the skills they acquired, the beneficial aspects of the recreational and sporting activities in which they engaged, and the friendships they made. Some students went to public schools so that they could graduate and attend post-secondary institutions and develop distinguished careers.”

Further, even deeper in Volume 4, is a full chapter, entitled “Warm Memories” containing numerous positive recollections of persons who were clearly not residential school “Survivors”, but rather were residential school Thrivers. Many of their stories were about Indigenous cultural preservation and celebration, rather than “genocide.” (7)

Again, there’s not a hint of these unequivocally positive and very relevant stories in the Summary.

There’s a reference to the Northern Ontario residential school at Spanish in the Bibliography of the Summary, but no reference anywhere in the Summary to the famous book about that school, Indian School Days, by Basil Johnston, (8) a generally positive account of his experiences there.  Mr. Johnston, because of his attendance at that school, went on to become a high school teacher and then an ethnologist with the Royal Ontario Museum. He gave a “qualified yes” to the question: “Is there a place for residential schools in the educational system?” It is wrong that, being in abject service to its all-encompassing narrative of genocidal trauma, the Senator Sinclair and his TRC deliberately omitted from the Summary all reference to this balanced and authoritative account and assessment of residential schools. It was too full of inconvenient truths, I guess.

Mr. Johnston’s book was referred to however deep in Volume 1 of the Report in relation to discussions about truancy, discipline and diet, and, most importantly, because it should have informed and balanced the Summary, a summary of the main reasons why students were enrolled in the school, none of which had anything to do with “cultural genocide.” The Report stated (at page 281):

“Basil Johnston, who entered the Spanish, Ontario, boys school in the late 1930’s, recalled that most of that school’s students “came from broken homes; some were orphans, having lost one or both parents; others were committed to the institution as punishment for some misdemeanour; and a few were enrolled by their parents in order to receive some education and training.”

Retired Supreme Court of Canada Justice Jack Major was a friend of Basil Johnston and knew the residential school at Spanish quite well. He regards it, based on his personal experience, as having been a generally positive place for the students who went there. He says that the notion that pupils were torn from happy homes is a myth. He remembers that a lot of the students there were rescued from starving on trap lines and many had tuberculosis for which they received special care. He wrote that it’s true that English was paramount, “but how else to equip the students to function off the reserve?” He also wrote:

”It is strange that native spokesmen are reluctant to tout any success in the modern world of pupils of residential schools…I suppose the silence reflects the motives of the vocal elements and misguided followers.” (9)

The TRC Report was released on November 15th, 2015. Between that time and his appointment to the Senate in April of 2016 Judge Sinclair engaged in a vigorous public campaign to promote the findings of his Commission. But this was injudicious. Once his Report was released he should have remained publicly silent, letting his Report speak for itself. He should have followed the letter and the spirit of the ethical rule binding Judges to “only speak from the Bench,”, or in this case, only through the Report.

The Ethical Principles for Judges warn Judges who serve as inquiry commissioners:

 “Judges are asked frequently to serve as inquiry commissioners. In considering such a request, a judge should think carefully about the implications for judicial independence of accepting the appointment…For many of the inquiries or boards place the judge in a position where he cannot escape controversy…It has been proved time and time again that in many of these cases the judge loses in dignity and reputation, and his future is appreciably lessened thereby. Moreover, if the judge remains away from his regular duties for very long periods, he his apt to lose his sense of balance and detachment; and he finds that the task of getting back to normal and of adjusting his outlook and habits of mind to purely judicial work is by no means easy” (10) (Emphasis added)

 I think that this is part of what happened to Judge Sinclair over the painfully long five year period during which the TRC did its business. He lost his sense of balance and detachment. During that time he had politically compromised himself so much he could never have returned to the Bench as an active Judge. The Senate appointment, which he applied for, represented a professional lifeline thrown out to him by the Trudeau Liberal government whose controversial and unprecedented Indigenous “nation to nation” policies Judge Sinclair had so closely allied himself with.

After the release of the TRC Summary the renowned Cree residential school Thriver, novelist, playwright, classical pianist and Order of Canada recipient Tomson Highway, who, shamefully, was not asked to testify before the Commission, (I believe that they knew he would have more inconvenient truths to tell and they shunned their duty to hear him), echoing Basil Johnston, publicly said of his residential school experience:

“All we hear is the negative stuff, nobody’s interested in the positive, the joy in that school…You may have heard stories from 7000 witnesses that were negative. But what you haven’t heard are the 7000 stories that were positive… I have a thriving international career, and it wouldn’t have happened without that school.” (11)

This did not deter Mr. Sinclair, who, in April of 2016 retired from the Bench and went to his great reward in the Senate, from continuing to perpetuate the narrow, rigid “genocidal trauma” narrative of residential schools laid out in his Summary.

In 2017 Senator Lynn Beyak from Dryden, Ontario publicly said in effect that some good happened in and resulted from residential schools and that many of the teachers and organizers in them were well-intentioned. For saying exactly what Basil Johnson, Tomson Highway and all the witnesses in the “Warm Memories” chapter of his own Summary had said Senator Sinclair, sounding like Sean Hannity, called her a “denier”, “delusional”, and suggested that she was “slow-witted” or “dim-witted.” (12) After that, for this apostacy, he led a campaign to have her kicked out of the Senate.

This conduct on the part of Judge Sinclair was in my opinion contrary to the judicial precepts and rules of decorum listed above that ought to have guided, and ought to be still be guiding post-Bench, his conduct in relation to the issue of residential schools in Canada. In the minds of the people, “Once a Judge always a Judge.”  

A Judge, when he retires, continues to trail clouds of judicial glory behind him to the end of his days. He forever owes a debt to the people and institutions which make up “the Administration of Justice”, which he must always service but which he can never completely repay.

 By failing to present “the other side of the story” in his Summary he misled the great tribunal that is the Canadian people. By downplaying to the point of effectively suppressing the “warm memories” of many school attendees and denying or ignoring all the facts that didn’t fit his narrative of “cultural genocide”, he failed to follow the dicta “hear both sides” and “give full reasons to the losing side” (being the great mass of the unrepresented, trusting Canadian people), that must bind Judges. By “selling it” publicly after its release, while still a Judge, rather than remaining silent and letting the Summary and the Report speak for itself, he became openly partisan. By launching ad hominem attacks on mild dissenters like Senator Beyak, and anyone since who has dared to openly disagree with him or any of his ninety-four highly political and presumptuous “Calls to Action”, despite no longer being a Judge, in my opinion he failed to act with the judicial decorum and restraint that people still expect of a Judge, retired or not. As stated, in the eyes of the general public, “once a Judge always a Judge,” particular a Judge who became as famous as Judge Sinclair. The judicial mantle should never be completely discarded, as it was by Mr. Sinclair.

And when one is a Senator, one should act with the dignity and restraint expected of a Senator. A Senator holds his office because he is appointed, not elected. He is not so much a tribune of the people as he is a person empowered by mere appointment to exercise “sober second thought” over the actions of the House of Commons. The Senators Code of Ethics requires a Senator to “refrain from acting in a way that could reflect on the position of Senator or the institution of the Senate.” He “shall perform his or her parliamentary duties and function with dignity, honour and integrity.” (13)

In my opinion Senator Sinclair has not acted in accordance with these ethical precepts.

 His partisan, injudicious, undignified, indecorous attack on Senator Beyak was just the beginning for him. Since then this former Judge, again, in my opinion improperly trading on his august position as a former Judge and now as a Senator, has launched political attacks anyone who disagrees with him on any Aboriginal-related issue as either ignorant or racist. Recently, because Manitoba Premier Brian Pallister complained that in his view the federal government was planning to treat Manitoba Aboriginals preferentially over non-Aboriginal Manitobans in the distribution of Covid-19 vaccine, Senator Sinclair wrote, with his Rage Meter turned up to its usual eleven, that Premier Pallister was playing “the race card”, was “blind to his own racism”, and that “Canada and the provinces have waged war against Indigenous people through law for generations. You’re just part of the current “race war”, Mr. Premier, and-sadly-one of its leaders.” (14)

This was disgraceful and ridiculous. It would have been actionable defamation in the private sector. Here is a Senator, the appointed holder of what is basically a patronage sinecure, attacking an elected Premier of a Province, calling him a racist and accusing him of sowing racial division in his Province. This is a dishonourable and undignified attack on an elected representative of an entire Province- his own Province- the Province that treated him so well and made him who he is! This kind of excessive, insulting partisan attack by a mere political federal government appointee against an elected Provincial Premier reflects very badly on the position of Senator, on the Senate as an institution and on the federal government.

 Along with his personal and political attack against Premier Pallister this Senator is even attacking the Canadian judicial system by accusing all Judges, including his own former fellow Manitoba Judges (presumably excluding himself), of participating in this fantasy “race war” against Aboriginal people! This irresponsible and groundless attack on Canada’s judiciary, a major part of the constitutional makeup of Canada, (of which he was an integral member for 29 years!)  is a breach of both judicial and Senatorial ethical principles. I doubt that any of his former colleagues on the Manitoba Bench recognize any longer the intemperate partisan that he has become. 

Judge Sinclair only got the position of being the TRC Chairman because he was a Judge. From that he spring-boarded to the Senate. As such a favoured Canadian son he therefor owed and continues to owe a duty to the Canadian people, to the Courts, to the Senate and to all the other constitutional elements that together comprise the Canadian State not to undermine it and to approach the great and delicate official tasks assigned to him, and their aftermath, in a judicial and judicious manner. This well-provided and greatly favoured son of Manitoba and Canada (15) has failed to do that. He seems to have forgotten that the weighty judicial and Senatorial mantles of influence he has been wearing for the past several decades come with responsibilities to his country far greater than advocating for just one partisan cause, and the Canadian welfare is the worse off for it.

Peter Best, December 20th, 2020

Footnotes

1-Canadian Judicial Council, Ethical Principles for Judges, section D.1.- available online

2.Senate of Canada, Ethics and Conflict of Interest Code For Senators, section 4- available online

3-Final Report- Truth and Reconciliation Commission of Canada, James Lorimer & Company Ltd. Toronto, 2015 (“Summary”)

4-Law Society of Manitoba Code of Professional Conduct- on Law Society’s website

5-Summary, page 20

6-Calgary Herald, August 5, 2010

7-Volume 4, TRC Report, pages 185-188.

8-Basil H. Johnston, Indian School Days, University of Oklahoma Press, Norman, 1988, at page 12.

9-All from an e-mail to writer dated July 17th, 2019. The full email quote is in There Is No Difference, An Argument for the Abolition of the Indian Reserve System, Telwell Talent, 2020, at page 648

10- Ethical Principles For Judges, paragraph 8

11-Full quote and citation in There Is No Difference, at page 649

12-Senator Murry Sinclair responds to Lynn Beyak’s defence of residential schools -cbc.ca/news, March 29, 2017

13- Senators Code, above, paragraph 4

14- Murray Sinclair, Opinion, Premier seeks to divide province with incendiary comments on vaccine, First Nations: Sinclair, cbc.ca/news, December 5th, 2020.

It’s Senator Sinclair who is being “incendiary” here. As usual the CBC acts as a willing conduit for Senator Sinclair’s divisive and angry rhetoric. In fact the media in general treat Senator Sinclair like Moses just down from Sinai, glowing like Charlton Heston, his Report his Commandments, with the media being the awe-struck, gaze-averting, kneeling, unquestioning Israelite acolytes. “Such is the power of reputation justly acquired that its blaze drives away the eye from nice examination.” (Samuel Johnson on Milton.)

15- He’s to retire from the Senate in early 2021. When he does he will start collecting from Canada’s taxpayers a Senator’s pension, to be added to the two approximately $300,000 (total) annual Judge’s pensions (one from the Manitoba Provincial Court and the other from the Court of Queen’s Bench) he already receives. Pretty good for a downtrodden victim of Canada’s “race war” against Aboriginal peoples.

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