The Blanket Exercise – Part 1

Introduction

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A basket of blankets ready to go

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

In the interests of generating a conversation about embodied pedagogy and TRC work, I want to share here five different experiences that I have had with the blanket exercise (including the approach our law school took last year).

In the post Blanket Exercise – Scripts, Scrolls, Suggestions, you will find links to the copy of the script as we used it at UVIc, along with some notes on the challenges of actually doing the exercise. By that, I mean the concrete, practical questions related to the space, facilitators, training people, food, acoustics and number of blankets. Those considerations are the real, practical guts of what it took in order to run this exercise. Follow that link if you want to begin with those practical questions.

The remainder of this conversation (broken into three posts) is a series of reflections on my five encounters with the Blanket Exercise. Each encounter helped me recognize both the necessity and the challenges of doing trauma-informed, embodied pedagogy in the law school.

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

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

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

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

Encounter #1 – Nervous Reluctance at the Very Idea

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

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

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Doing the blanket exercise in Edmonton

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

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

Encounter #2 –  The McGill Welcoming Week Version

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

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

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

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

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

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

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

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

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

Click to continue to Blanket Exercise – Part 2

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Blanket Exercise – Part 2

Encounter #3 – Material Culture and Rebellion in Whitehorse

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The Healing Totem in Whitehorse

My next encounter with the Blanket Exercise happened in Whitehorse, at a day long applied workshop on the TRC and the Calls to Action, being jointly sponsored by KAIROS, the Yukon Public Service Commission, the Council of Yukon First Nations and the Yukon Human Rights Commission.   The first half of the workshop was dedicated to the Blanket Exercise.

From the outset, there were some visible differences from the context of the exercise I had done in Montreal.  It was not just numbers (Montreal had involved a dozen or so people, and there were three times that many in Whitehorse). In Montreal, the organizers had no idea how many people would show up, and so there was a certain improvisational necessity involved.  In Whitehorse, people registered in advance, and so the organizers had a good sense of not only how many, but of which people would be there.

This time, the exercise was run by facilitators who clearly had significant experience with running the exercise, who knew how many people would be there, and who had a sense of comfort with the performative dimensions of the script. One of these dimensions involved the use of “material culture”:  the woman running this exercise had brought a large selection of goods, and she had placed them all over the blankets — moccasins, scarves, beads, wooden boxes, carvings, children’s knit mittens, animal pelts, and containers of medicine. When the exercise began and participants were invited to take our place on the blankets, we were also invited to pick up the items on the blankets and carry these objects with us.  We were told we could use them to trade with others.

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Material culture embedded in the exercise

I found that this time, making introductory contact with others was much easier.  I wasn’t told simply to greet others; I had a concrete object in my hands, giving me an easy topic of conversation in case of awkwardness. It also meant I could take my attention off of the others on the blanket, and give attention to the thing I was holding.  It made me feel a bit less awkward.  Additionally, there was an instant bond between me and the object I first picked up — a pair of hand-made gloves that I knew to have been made by the mother of a student in our law school class. The object gave me something tactile, visual and sustainable. The ability to focus my attention on the object was less stressful to me than having to focus my attention of people’s faces.

As this was my second time with the exercise, I was also more curious about what people were thinking, so there was an impetus for me to go engage and exchange with others in a more exploratory way.   As I did so, I realized that there was something more going on with the use of the objects. Early on in the exercise I recognized that not only did I have an object that I really loved, but also that it was “worth” more than many of the other objects people were carrying. Nevertheless I found myself seeking out people with other items and hoping to trade with them, which would mean surrendering my (valuable) object for their (less valuable) item. In part, I knew that none of these goods were really mine and so the question of value didn’t matter. At the same time, having a more valuable object gave me an inroad to making a connection with someone else on the blanket. I quickly realized that though my object may have been worth more than theirs, the exchange of my more valuable goods with what they had available was a way for me to open a conversation with that person, a way of building a relationship for the future.

Gaining that insight through this additional element of the exercise opened a spot for me to begin re-thinking my assumptions about trade. I recalled the ways in which people talk about Indigenous peoples as having made a bad trade, and realized that colonizers may have been really missing the point. The reasons for the trade may have been something very different than an assessment of equivalent values of the object.  The objects themselves might be part of the work of building longterm relations and commitments between people. For me, that piece of insight, which happened as part of the trading element of the exercise, before anything negative happened, was a piece of great value for my own understanding.

Throughout the entire exercise, we carried our goods with us. However, the goods of the people on the blanket who got small pox or who were killed off, were left behind, abandoned and alone on what become unoccupied blankets. In many cases these blankets were isolated from the other blankets and as such there was no way for those of us who remained to get them, for we couldn’t move to that space.  The loss of objects, and their ‘capture’ by the settlers, was very visible in this part of the exercise.

While participants in my McGill experiences were mainly settlers, in Whitehorse I had the opportunity to do the exercise where the majority of participants were Indigenous people.  There were also a significant number of participants (both Indigenous and settler) who were doing the exercise for the third or fourth time.   And so, there were some striking differences in how this experience unfolded.

As part of the exercise, corners of blankets are folded by the colonizers, reducing the “footprint” of the blanket. In Whitehorse I had the chance to witness another person on a blanket, enacting very strong moments of rebellion. The colonizer/facilitator would push the blankets to reduce their space, but when the facilitator turned their back, the person simply ‘undid’ the fold, and returned their blanket to their former space.  I was taken aback, as it had not occurred to me that I could resist.  I also noticed one participant who kept their feet pinned to the corners of their blanket, with a very aggressive and hostile stance, trying to ‘face-down’ the colonizer each time they approached.  At first, it was disquieting to witness this stance — to see the anger and the determination in their refusal to move off of the blanket when instructed. It was in that moment that I realized, if that person was resisting, I, too, could resist. And so my own resistance was inspired and born, my own rebellion was supported.

From that time forward, I too, tried to keep as much of my body as possible on the blanket to prevent it from being pushed in. Shortly after this, one of the colonizers made us sit on the ground. When we were made to sit on the ground I had a strong felt experience of constraint. I am aging and my body is never as limber as I imagine it to be. So sitting on the floor, trying to occupy my space, was difficult when I couldn’t easily move around on the blanket. I experienced discomfort in my body as I tryied to maintain positions that were quite unnatural in order to continue to occupy space, in order to protect it from colonizers. Further, I noticed that each time that I thought I had re-stretched my blanket out, as soon as I gave my attention to another part of the floor for a moment, I would turn again to find that the settler had come around and pushed the blanket back once more, erasing the gains that I had worked so hard to maintain in the first place. I became aware that in order to protect my space, I had to keep my eyes on it at all times, taking my focus off of anything else that might be happening in the world around me.

At one point during my resistance, a colonizer finally came and stood right beside me. I was being actively surveyed. The person’s proximity made it impossible for me to increase my resistance, constantly pushing my blanket into smaller and smaller shapes. There was something nearly claustrophobic about this encounter of restraint and constraint that left me feeling anxiety in my body.  I was not new to the history of legal constraint, but I had not expected to feel it so viscerally in my body.  What was surprising to me was physically feeling an overlap between my intellectual knowledge and my body, being enacted through this pretend exercise of restraint.

As an aside, this version of the exercise also made use of powerpoint.  A screen was set up to one side of the room, and it projected sometimes the text of the scrolls that individuals were reading, and sometimes images which supported those scrolls. The powerpoint was an interesting addition, and I found myself wondering at the work it was doing.  The images sometimes added a visceral punch to the words we were hearing.  It also provided another site of focus when the affective parts of the exercise were mounting.  However, it also was a site of distraction that sometimes pulled me out of the embodied dimensions of the experience and into something that echoed with my classroom experiences (of greater distance).  I was left thinking about both the additions and detractions of having that additional visual/textual field.

I found the debrief session at the end of the exercise to be a site of significant learning.  During the circle, one of the Indigenous participants shared that they had participated in this exercise before and had really hated it. They had started this time with a similar feeling. They had been wiped out with small pox right in the first round and thus been denied the opportunity to resist or rebel or to push back against the exercise and had been moved back to the side to sit in a chair and observe.  There was a moment however, when they thought about the ways the ancestors are said to be still present. This person began to consider how they might participate in the exercise even though they were dead. Though they were in the dead area of the circle, this person began calling out in a low whisper to Indigenous people in their quarter, messages of support and resistance, encouraging them to be strong, to stand in solidarity, to hold the line, to push back.

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Leaving Whitehorse, and heading for home

It was also moving to listen to other other Indigenous participants who had remained on the blankets til the end, and to hear them speak of how powerful it had been to them to hear these words of support, love, and resistance being spoke from ‘the past/the ancestors’.  It pushed me to think about my own experiences of the relationship between the past and the present , and of the role of memory in evoking the strengths of those who have gone before, and how such memories can strengthen those who come after.

I felt very grateful to have been in circle with both Indigenous and non-Indigenous participants, learning from each of them about insights (whether comforting or painful) that had come up through this moment of shared experience.   I was also struck by the realization that the Exercise need not be understood as as ‘one-time’ event; there was much that could be learned through multiple iterations.  The flight back to Victoria had my mind circling around questions of material culture and rebellion.

continue to Blanket Exercise – Part 3

Blanket Exercise – Part 3

Encounter #4 – Preparing for Action – The UVic Faculty & Staff Experience

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A trial run planned for a quiet morning in the Fraser Building

With the knowledge that Hadley Friedland had run it at the University of Alberta for first year students and that it had gone very well, and having done the exercise twice myself, we began discussions within our faculty about the possibility of trying it ourselves.   I began to seriously consider doing it as part of our Legal Process Course the following year.

However, before making the commitment to run this with our first year students, we thought it best for faculty and staff to have the experience ourselves so we might have a better idea of how it might be experienced by the students.  This, we thought, would help us better sketch out what kinds of support we might want to put in place for this exercise.

And thus it was that, on a quiet day after classes had ended for the summer, a  group of twenty faculty and staff gathered together to do a trial run of the exercise.  We chose Our Indigenous colleagues Val Napoleon and Darcy Lindberg to play the roles of the colonizers. While I suppose it is not necessary, there is some value in having one of your Indigenous colleagues play this role.  By ‘cross-casting,’ the person playing the colonizer is able to occcupy that role with some distance, and without as much angst. It also avoids replicating colonial roles in the encounter for Indigenous colleagues (ie don’t put people in the roles they historically might have had).

We didn’t do much in the way of preparation, since we were largely thinking about  questions like ‘long would it run’ and ‘could we do it ourselves’ or ‘did we need experts’? We also were thinking about how to ‘break’ the exercise. That is, we were beta-testing, in the hopes that we could anticipate the hard parts, and be prepared with responses in the event that something unexpected happened (as is so often the case in life).

Unbeknownst to the rest of us, our two associate deans (Gillian Calder and Freya Kodar) had determined that they would take on the role of Indigenous resisters, and see just how far they could push the facilitators (imagining a scenario where students might make such a choice).  As the exercise unfolded, they engaged in increasingly visible acts of resistance, drawing on accounts I had given them of my earlier experience in Whitehorse and pushing it even further. At the height of their most rebellious moments, Val, who was playing the role colonizer, finally went off script, simply went up to the two of them and told them they were dead and moved them off of the blankets and to the side. So.  That took care of that! (or at least, let us see what ways we might have to creatively respond to resistance without paralysis, while still staying within the spirit of the exercise).

After this, the rest of  exercise proceeded in line with the script.  That unexpected resistance in role-playing by Gillian and Freya certainly gave us more to talk about in our debrief circle at the end.  For all of us, it opened space for a discussion of the more brutal (and even ‘illegal’) forms of state action and repression.  The debrief was also a great way for us all to learn about our shared history together (important at this juncture in time), and for staff and faculty to be sharing some of our fears, hopes and insights about working together with the students.  It certainly generated conversation that was open and relationship enhancing.

In doing this very small scale trial run experience, there were many small logistics details that also became visible to us.  We could better see the challenges of being able to hear individual speakers (neither Val nor Darcy had booming public speaking voices) and a better appreciation of how many blankets we would actually need to cover the projected space. The most important part of this exercise was helping faculty to become comfortable with the format and content of the exercise so that we would be positioned to anticipate places where the exercise might be challenging for some students and to think about steps we could take in advance to ensure a supportive environment for the experience.

Having had a number of discussions about the exercise, about its strengths and limits, and about the ways we might work with it (or that it might work on us), we prepared to run the event with our first year students.

Encounter #5 – Running the Exercise at UVic as part of Law 106: The Legal Process

The planning for the event required us to spend time really engaging with the substantive guts of “trauma-informed practice”, and more mundane but no less crucial guts of the logistics of organizing an event for the full first year class.

a.  Mandatory or Voluntary?

After our trial run, we debated whether or not to make attendance mandatory. We were conscious of the richness of conversation around voluntary vs. mandatory learning, and there were compelling arguments on both sides.  It seemed obvious that there would be people (whether students, faculty or staff) for whom the exercise might be quite challenging or upsetting.  But on the other hand, there are many elements of the first year curriculum that are difficult for Indigenous and newcomer students alike (this is self-evident to Criminal Law profs!).  Many courses contain elements can be very difficult for our students, but they remain mandatory nonetheless.  We also worried about signalling that our Indigenous students were too fragile for the exercise, or already knew everything that would be covered, or that the difficulty of a topic should be dealt with through distancing. In addition, the substantive content in the Blanket Exercise was in support of the work that was planned by the professors teaching the Constitutional Law and Property Law classes. A further issue was that the exercise was being done as part of the Legal Process course, which is a course that has always been evaluated in part through mandatory attendance.  Would we make an exception for an exercise focused on the place of law in colonial history? A final consideration was that Call to Action #28 of the Truth and Reconciliation Commission’s Final Report had called for mandatory education about residential school.

Even though we were leaning in the direction of mandatory attendance, we still struggled: we could imagine there might be good reasons to allow some people with particularly complicated histories to have the opportunity to opt out.  And we did discuss opening the possibility that there might be some students who could fill the mandatory requirement in a different way.  But given that we had a class of students were were new to us and each other, we did not have a good mechanism for identifying people who might find it difficult.  If we were to send out specific emails, we would be operating on guess-work, and perhaps unfounded assumptions.

After much discussion, we decided that attendance would be expected.  Our goal was to emphasize this event as part of the regular curriculum, and something that the entire school was invested in.  Part of emphasizing to the students the importance of the activity was signaled through having nearly all of our Legal Process Professors (that is, all professors teaching first year courses) participate in the Blanket Exercise. We had our  Dean (Jeremy Webber) be one of the participants, taking on one of the primary narrator roles (reading all of the “Legal Issues” slides).

b. Putting Supports in Place

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The UVic Amicus Team: Christina, Tim, Yvonne and Darcy

Once we decided the exercise would be mandatory, we worked to put in place a rich layer of supports.  We involved our full Amicus Team, including our embedded counsellor. We also had active involvement from the Indigenous Law Students Association, and the Law Students Society.

I would really emphasize here the value of including the Indigenous students in the planning and operationalization of the Exercise.  Upper year Indigenous students played key roles (both speaking parts, and carrying microphones to those reading scrolls) in the exercise, which meant that there were many levels of mentoring and engagement that extended beyond the exercise.

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photo by Maryse Bernard

We also coordinated with the   the First People’s House at UVic, which has elders in residence, and the space to do smudging and other ceremony that might be helpful to Indigenous students who might feel the impact more deeply than anticipated.

As an aside, we highly recommend building close relationships between the law school and similar Indigenous Institutions you have at your own universities:   so many times, our Indigenous students have been supported by the First Peoples house where are own capacities have been either underdeveloped or absent. So too, they have provided us in the law school (faculty and staff) with ideas, suggestions, and support as we have worked to learn more about ways we can better do the work of Truth, Reconciliation and Justice in Law.

c. The Logistical Challenges

On the logistics front, we turned our attention to the questions of both ‘when’ and ‘where’.  With respect to timing, we decided against holding it in the first few weeks of classes when students are still getting to know each other and are experiencing a level of vulnerability that is common to people at the start of a new program.  At the same time, we didn’t want to wait too long, since we wanted the exercise to provide a common foundation for the work students would start doing in their constitutional and property law classes. So we choose a day 6 or 7 weeks into the term and re-designated all first year  morning classes that day as classes in the Legal Process Course.  This would enable all 120 students in the program to attend the exercise.  Though the actual exercise would be complete by lunch time, we also cancelled all first-year afternoon classes, so the students would have down-time after the event: time to process their own learning at their own speed.

With timing settled, we had to tackle basic logistic questions around the ‘where’.  We needed to find a room that would enable us to have 125 people first walking around in an open space, and then later sitting on chairs in circles of roughly 25 people.   The Law School itself did not have a room with that capacity so we rented a space in the Student Union Building on campus.  We organized the space in advance (chairs, blankets, powerpoint, audio system, tables on the sides, etc), and set up stationary microphones and mobile microphones to ensure participant speakers could be heard when it was time to read their scrolls.img_20180727_1043063

We also decided to provide food: oranges and apples, Halloween candy, bottles of water and seaweed snacks (this is the West Coast, after all!). The goal was both to enact the principle of feeding the body while feeding the mind, but also to provide a way for students to move themselves out of one space and into another in a natural way.

As with the Whitehorse example, we included objects placed on the floor so that people could pick them up, carry them, and have things to trade or touch. In feedback, after the event, some student spoke specifically to the value of these objects, saying that they found it helpful, when parts of the exercise were difficult, to have something in their hands to provide a focus point for them.

d. Closing the Circle

The Blanket Exercise closes with a debriefing session done using a circle.   While the exercise had proceeded with the full cohort on the blankets, we now divided them back into their small sections, so that the circle/debrief was conducted within a small group of 20-25 people who had already developed close relations with each other in the context of their first two weeks intensive course.  In this context, the students were coming back to this specific small group format after 4 weeks in the standard classes.  For the debrief, rather than having it be ‘open’, there were some guiding questions.  Each person in the circle was invited to share two things: one thing they learned from the event, and one thing they would like to learn more about.  In terms of the structure of the circle, we have found that it is optimal to have two faciliators there, sitting beside each other, so that the first person ‘opens’ the circle (is the first to speak), and the other ‘closes’ the circle.  This gives a bit more control to the facilitators, in terms of the ability to offer some words in their final comments that might address anything that came up in the circle that was challenging or difficult.

Finally, students were asked to do a short reflection piece (a few lines to a few paragraphs) the day after the event on their Coursespace Blog.  In part, this was to remain consistent with the structure of the Legal Process Course, in which there was a blog requirement at the end of each day of the course.  But we also hoped that this requirement would provide students with an opportunity to further process their own response to the event, and indeed, they were invited to give critical commentary if they so desired.  From my perspective as the Director of the Legal Process course, the student blogs were insightful, inspiring and hopeful.  Some of them were also difficult.  Where students students had found the exercise hard, they had no problem telling us so.  And they were also incredibly generous in sharing some ideas about additional/different things we might try the next time we ran the exercise.

Circling Back After the Fact – Some Final Thoughts

While the set-up for 120 people is a lot of work, once the exercise begins, it does its own work. Part of its power is the content. Part of the work is the embodiment question. These kinds of pedagogies are certainly non-traditional within the law school context, but they do open up space for a quite different conversation about history and the way we place ourselves in it. I imagine that over time, it might be possible to continue to adapt the script in response to the experiences of colonization in different provinces, and to contemporary events.  The more this history becomes part of our common heritage, the more room there will be to add additional layers of nuance to the event.

At UVic we continue to discuss the importance of the exercise and whether participation by first year students should be mandatory. The exercise can be valuable from a pedagogical perspective because it gives students a common lived experience and language to build on throughout their program. We are conscious that the exercise must be trauma informed.  The first time we ran the blanket exercise we tried to do this through different methods by providing: on-site support; debrief and processing opportunities (circle and writing); and an option to opt out of the exercise with alternate “assignment” where potential trauma outweighed the benefits of participating in a group exercise.

In the end the vast majority of the students were there, and there was follow-up with those who had been unable to attend for any number of the usual reasons (sickness, family emergencies, surgery).  For the most part, I would say that the successes of the exercise outweighed the difficulties.  This is not to say there weren’t difficulties.   And in the aftermath, students did come to us with important questions about things that had been less than successful, and about strategies we might employ the next time around.

The question of ‘mandatory vs. voluntary’ continues to be a live one.  It is not unrelated to a second question, which is, ‘how much information do students need in advance.’   Though we told the students about the exercise in general, some were unprepared for the emotional impact.  This is a challenge since saying “this exercise engages with questions of residential school” may not be adequate preparation for students who have not had much prior education.  Our way of preparing the students may have been inadequate for some students with hard family histories with residential school, and who may feel the impact of the exercise in more complicated ways.   The students were not necessarily saying that they should be excused from the exercise, but rather that a thicker description might have enabled them to go into the exercise better equipped for the work that it might do.

We had sent a note to the students telling them it was mandatory, but also indicating that if they had concerns, they could speak with either me or the associate dean.  Our thinking was that this was a way for students with concerns to open a conversation (which would allow us to work with them to find an alternative).  But some students certainly did not see this as enough of an opening, and felt themselves to be required to be there in ways that were not helpful.  That is, with different information available (including a more explicit note that the exercise could be met in other ways), they may have chosen to do the exercise, but with a greater sense of freedom about that choice.

The conversations with the students after the fact were helpful in terms of helping us think more broadly about all the different ways to begin the conversation about the exercise (for example, that it might be helpful to include the students in a discussion about the values of mandatory and voluntary attendance).  We certainly were reminded that Indigenous students have long had to carry particularly heavy roles in law schools across Canada, and that it is not a bad idea to involve them earlier and more actively in the conversations about how to do the set up for exercises such as these.  For example, some Indigenous students nicely articulated for us the position that they KNEW the exercise was going to bear heavily on them, but that they also felt it important that they were visible there to their non-indigenous classmates.  What they sought was not necessarily an exemption, but a role in the decision-making that acknowledged the ways their participation was both important and signficant.

In short, the Blanket Exericse raises lots of hard questions. We do not have all the answers, but this should not stop us from participating in or running the exercise. Discomfort is an important part of the embodiment of what is being experienced and learned.  It matters that we work in collaborative ways that acknowledge that embodiment plays itself out differently for different people.  The use of embodied pedagogy in the exercise – physical, emotional and intellectual discomfort, role playing, the physical representation of territory, the movement through territory, the loss of territory, etc – leaves the experience planted in the brain and the body.

LINKS TO EXPLORE

Click here for  a link to Blanket Exercise – Scripts, Scrolls, Suggestions.  As its name suggests, this post contains a list of documents that we used in the UVic version of the Exercise.  That is, a copy of the modified script as we used it, along with some notes on the challenges of actually doing the exercise. By that, I mean the concrete, practical questions related to the space, facilitators, training people, food, acoustics and number of blankets. Those considerations are the real, practical guts of what it took in order to run this exercise in the law school.

Click here for a link to the KAIROS website, which has more information on how you might take up the exercise in your own school, community, or institution.

Here below for thinks to reports on people using the blanket exercise in other Canadian Law Schools:

Blanket Exercise – Scripts, Scrolls, Suggestions

This past year at UVic, we used a version of the Kairos Blanket Exercise with the first year law school class.  We did this as a required element of our Legal Process Course, as part of our work of responding to the the Truth & Reconciliation Calls to Action.  For some reflections on my own experiences with this exercise, follow these links:

.In this post, I attach a copy of the script as we used it, along with some notes on the challenges of actually doing the exercise. By that, I mean the concrete, practical questions related to the space, facilitators, training people, food, acoustics and number of blankets. Those considerations are the real practical guts of what it takes in order to run this exercise.

With respect to our use of this embodied pedagogy at the law school, here are three documents:

  1.  THE SCRIPT – Script 2017 Attached here is the version of the Blanket Exercise that we did at the law school.  This is a version that begins with the structure of the KAIROS exercise, but which has been through a number of modifications.   We drew heavily on Hadley Friedland’s adaptation of the original script which includes significantly more legal content, including specific cases and pieces of legislation.  It also usefully draws a number of “Legal Issues” into the structure of the exercise, creating a script that targets legal education.  We also drew on adaptations to the script made by Ardith Walkem and the CLE BC people who had focused the text to emphasize aspects of British Columbia’s particular colonial history.   Drawing on these sets of modifications, we had a text that focused both on the law and on British Columbia.
  2. THE POWERPOINT – Scrolls and Legal Issues    We debated whether or not to also use powerpoint to project the words of the scrolls (being read by the participants).  Lots of good reasons to do it and not to do it.
  3. SET UP & STRUCTURE – 2017 Oct – Blanket Exercise Memo on setup and implementation  This is a set of draft notes about how we tried to set up the exercise, working with a group of 120-140 people.  Feel free to add, modify, or extend the thoughts here.

A final note here is that one route if you are interested in the Blanket Exercise is to get in touch with the folks at KAIROS.  Check out the Kairos website for useful information about working with their original script, accessing trained facilitators, and building ongoing educational partnerships.

“The Confederation Debates”: Promoting Reconciliation in grade 7-12 Curriculum

“The Confederation Debates”:

Promoting Reconciliation in grade 7-12 Curriculum

 

Daniel Heidt, dheidt@uwaterloo.ca

Robert Hamilton, robert.hamilton1@ucalgary.ca

 

The pursuit of reconciliation between Indigenous and non-Indigenous Peoples is becoming more and more widespread, permeating unexpected aspects of Canadian life. Many teachers across the country are eagerly taking up this challenge, but sometimes struggle to find accurate and appropriate lesson plans to work with.

The Confederation Debates took up this challenge in one small area by developing mini-units for grade 7-12 teachers that bring Treaty histories into Confederation discussions. For historians and legal scholars, the term “Confederation” is usually constrained to visions of the 1864 conferences at Charlottetown and Quebec City with the likes of John A. Macdonald, George-Étienne Cartier and Leonard Tilley. A charitable few academics extend this to include the Red River Resistance (around present-day Winnipeg), British Columbia and Prince Edward Island, which all entered Confederation by 1873. Even these depictions leave out many of Canada’s provinces as well as Indigenous Peoples not present for the Red River Resistance.

The Confederation Debates challenges these preconceptions. In addition to expanding the temporal scope of “Confederation” to include Canada’s most recently added provinces and territories, its leadership wanted the project to affirm that Indigenous Peoples were — and continue to be — “partners in Confederation” (as the Royal Commission on Aboriginal Peoples insisted). Thus, on the project’s website, treaty texts and records of treaty negotiation are positioned alongside the verbatim records of legislative debates about each province’s decision to join or reject Confederation.

While the project lacked the resources to reproduce the texts of all historic and modern Treaties, along with the records of their negotiation our team, a multi-disciplinary team comprised of Robert Hamilton, Daniel Heidt, Jennifer Thivierge, Bobby Cole and Elisa Sance, developed educational mini units that allow grade 7/8 and high school students across the country to develop a multifaceted understanding of their province’s entry intoBC-ConfederationDebates-Cover Confederation. To guide this team’s work, the project’s leadership sought the guidance of John Borrows, who provided helpful and regular oversight. Each mini-unit, catered to address each province’s curriculum requirements, is split into “parliamentary” and “Indigenous” sections. The former provides the research sources and original records necessary for an engaging mock parliamentary debate on a province’s entry into Confederation. The latter section contains two lesson plans about Indigenous peoples and their roles in shaping the country.

In developing these lesson plans, we sought to challenge historical narratives which minimize or erase the role of Indigenous peoples, providing an understanding of Confederation which recognizes Indigenous agency. This required rethinking notions of Confederation that construed Indigenous peoples as cultural minorities within a broader political community.  These activities were developed to emphasize simplicity, Indigenous agency, and fiduciary obligations. To that end, the mini-units begins with a brief summary for teachers about conceptualizing confederation:

There are two very distinct stories we can tell about Confederation and Canada’s Indigenous Peoples. In one story, Indigenous Peoples are largely invisible. Here, their only presence is found in s.91(24) of the British North America Act, 1867, where “Indians, and lands reserved for the Indians” were deemed to be federal, as opposed to provincial, jurisdiction. This has subsequently been interpreted as providing the federal government with a power over Indigenous Peoples and their lands. The Indian Act of 1876, which is largely still with us today, was passed on this basis. This created what political philosopher James Tully has called an “administrative dictatorship” which governs many aspects of Indigenous life in Canada. Many of the most profoundly upsetting consequences of colonialism are traceable in large part to the imposition of colonial authority through s.91(24) and the Indian Act of 1876. 

But there is another story as well. Canada did not become a country in single moment. Though the British North America Act, 1867, created much of the framework for the government of Canada, Canada’s full independence was not gained until nearly a century later. Similarly, the century preceding 1867 saw significant political developments that would shape the future country. Canada’s Constitution is both written and unwritten. Its written elements include over 60 Acts and amendments, several of which were written prior to 1867. The Royal Proclamation, 1763, for example, is a foundational constitutional document, the importance of which is reflected by its inclusion in s.25 of the Canadian Charter of Rights and Freedoms. The Royal Proclamation, 1763 established a basis for the relationship between the British Crown and Indigenous Peoples in North America. By establishing a procedure for the purchase and sale of Indigenous lands, the proclamation recognized the land rights of Indigenous Peoples and their political autonomy.

Both the pre-Confederation and post-Confederation treaties form an important part of this history and what legal scholar Brian Slattery calls Canada’s “constitutional foundation.” It is through Treaties such as these that the government opened lands for resource development and westward expansion. It is also through the treaty relationship that Indigenous Peoples became partners in Confederation and helped construct Canada’s constitutional foundations. 

Our challenge was to present narratives of Confederation that provide students with a glimpse into the complexity and pluralism in Canada’s founding in ways that were historically accurate and accessible for students in the grade ranges we targeted.

Towards this end, we developed two exercises focusing on Indigenous issues as part of the lesson plans. The first is a “leaving a trace” exercise that helps students to understand how cultural misunderstanding can come about, as well as how historical events are shaped by both the chronicler and the interpreter of historical narratives. The exercise requires students to silently draw their own recent activities or conversations and then ask their peers to interpret those ‘records’ without any contextual information. This exercise encourages students to think critically about the materials used in their second activity.

The second activity is a mock “museum curation” exercise where students learn about a Treaty in their province by breaking into groups to study one of up to six ‘artifacts.’ One group researches the treaty, other groups study Indigenous and Crown negotiators, and at least one group studies a cultural object that was important to the negotiations. For example, in the British Columbia exercise, groups receive one of the following:

  • Text of a Vancouver Island Treaty
  • Biography of Sir James Douglas
  • Biography of David Latass
  • Biography of Joseph Trutch
  • Written description of the WSÁNEĆ reef net fishery
  • Records of treaty negotiation and comments on treaty implementation

Each item or historical figure was carefully chosen for the historical information and perspectives they exemplified. Teachers also have a list of questions to guide discussion. The first group is provided with a text of one of the Vancouver Island Treaties. We felt that it was crucial for students to actually engage the text of treaty.

ReefNets-ConfederationDebates

Using these ‘artifact’ records, each group is expected to produce an exhibit to share their findings (ex. a diorama, poster etc…) and the teacher then guides the class through the exhibit with questions designed by our team to spur discussion. In the case of the Vancouver Island Treaty, for example, the questions include:

  • What rights and responsibilities are recognized in the treaty?
  • The treaty uses complex and technical legal language. Did you find it easy to understand?
  • Would it have been difficult for people who did not grow up speaking English to understand the language used?
  • Which of the parties to the treaty might have benefitted most from having it written this way?
  • How might current understandings of the treaty be shaped by the fact that the only copy is written in English and articulated in dense legal language?
  • What might be missing from the treaty as it is presented here?

These questions were designed to help teachers to guide the students through a critical Mistahimaskwa-ConfederationDebatesreading of the text while developing their critical faculties. Some of the questions could elicit quite sophisticated answers. But we also believed that it could open students’ (and perhaps even teachers’) minds to new ways of understanding treaty relationships.In addition to these questions, The Confederation Debates encourages teachers to invite local Indigenous leaders to also join this tour, hoping that it will allow these local leaders to comment on the displays and raise important questions about representations of historical relationships and the nature of the Crown obligations undertaken in the treaties.

Taken together, our team hopes that these activities will be one of the many tools that teachers will use to help their students explore history, historical narratives, Indigenous agency, and the meaning of Confederation. By helping students to learn that Confederation encompasses all of Canada’s provinces, territories and Indigenous Peoples, we hope to foster dialogues that will improve Indigenous and non-Indigenous relationships.

This work, however, is not yet finished. To complete its bold vision of educational materials, the project is still in need of volunteers. Despite undertaking considerable preliminary planning, the project ultimately lacked the resources to complete mini-units for the territories as well as Newfoundland and Labrador. If anyone is interested in co-developing the Treaty sections of these mini-units, please contact one of us and we’ll be happy to share the work completed to-date.

 

 

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

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

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

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

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

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

Mikomosis
Photo by: Veronica Martisius

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Discussion Visual
Discussion Visual

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

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

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

Resources Referenced: 

Incarcerating the victim: Indigeneity, gender and the Canadian legal system’s treatment of ‘Angela Cardinal’

Earlier this week, I posted a long thread on twitter about state processes relating to ‘Angela Cardinal’.  The original thread can be seen here.  This post gathers my tweets into a single place, edits them for clarity and format, provides more links, and expands a bit on some of the discussion I provided.

Cardinal is a pseudonym for an Indigenous woman who was the victim of a kidnapping and aggravated sexual assault committed by Lance Blanchard.

You may know her as the woman who was shackled and imprisoned, ‘ostensibly to ensure that she provided testimony’ at Blanchard’s preliminary hearing.  Canadian media reported this story in mid-2017 (warning: this link contain photographs of Cardinal’s injuries) for example here.

Justice Macklin (2016 ABQB 706) described Cardinal’s treatment by the justice system as ‘appalling’.  Complaints were filed with the Alberta Judicial Council (‘AJC’) against the preliminary hearing judge (complaints reported here).

Two important things happened in this case in late February 2018.  First, an independent investigator released a report on the incarceration of Angela Cardinal.  Second, the AJC issued a press release stating that it had concluded ‘that there was no misconduct’ on the part of the preliminary hearing judge.  This release was not posted on a government website, so far as I can tell, but I obtained a copy of it from the AJC and it formed the basis of media reports such as this and this.

The Report documents failures of the Alberta Legal System and makes recommendations about matters such as improving victim support services in Edmonton.  The AJC press release is shorter.  The AJC release and the Report are at odds with one another in two respects.

The legal and factual basis for Ms Cardinal’s incarceration

First, the Report states that Ms Cardinal’s detention ‘was not contemplated by any section of the Criminal Code’ including s 545 (which was relied upon in court).  The AJC release asserts that ‘There was a factual and legal foundation for the remand order made by Judge Bodnarek.’

The AJC release does not state what the factual or legal basis for Ms Cardinal’s detention was – it merely asserts that one exists.  I asked the AJC (by email) to explain the basis it had identified. The reply from legal counsel to the Provincial Court of Alberta said in part:

‘The Judicial Council has, in summary form, set out its findings and reasons in the press release. This is an unusual step, taken solely because of the intense media interest that has occurred. It is clear that the Council’s decision is at odds with some of the statements made in the Campbell report. The Council will not speculate as to the basis for the statements made in the Campbell Report.

Given that this matter is still before the Courts, the Judicial Council will not be providing any further comment.’*

* My understanding is that the portion of the Blanchard matter which is still before the Court is the Crown’s application for a dangerous offender order in respect of Mr Blanchard.

The judicial deprivation of any person’s liberty is the most serious step available to Canadian law and is rightly subject to Constitutional protections. The deprivation of Angela Cardinal’s liberty was astonishing – as she said herself ‘I’m the victim and look at me. I’m in shackles.’

Particularly in light of the Report’s conclusion, there is a genuine public interest in understanding what legal and factual basis the AJC identified for Cardinal’s incarceration.

For me, the AJC’s assertion raises troubling questions such as:

  • Are other sexual assault victims at risk of similar orders if they have trauma responses to the experience of testifying?
  • Is the AJC endorsing the judicial incarceration of sexual assault complainants to secure their testimony?

The role of Indigeneity, gender and class in Ms Cardinal’s treatment

The second discrepancy relates to this paragraph from the independent Report, which appears on p16:

Screenshot 2018-02-27 17.13.09

(The submission made by IAAW and LEAF which is referenced in the above paragraph can be read here.)

The AJC release states that ‘There is no evidence whatsoever that the gender or aboriginal status of the complainant influenced any of Judge Bodnarek’s rulings in this case.’

This one requires a little more unpacking.

Trying to adopt a generous reading, I take the AJC’s statement to be a conclusion that Judge Bodnarek’s reasoning was not based – explicitly or implicitly – upon the discriminatory stereotypes against which much SCC and Court of Appeal case law warns.

But it may also be the case that Ms Cardinal’s gender, Indigeneity and class were important to a judicial understanding of this case.  The CJC Ethical Principles for Judges state at p23:

Screenshot 2018-03-01 14.00.06

The commentary on this principle explains a little further what the CJC intends:

Screenshot 2018-03-01 14.01.01

The SCC and Courts of Appeal have, of course, made similar statements about the importance of substantive equality and the value of ensuring that legal processes – particularly those related to sexual violence – accord substantive equality, including to Indigenous women.

It is inherent to substantive equality that identifying differences between people and considering the relevance of those differences may be necessary in order to secure substantively equal outcomes.

I interpret this ethical principle to be an invitation to Canadian judges to consider whether and how factors such as Ms Cardinal’s Indigeneity, gender and homelessness may be relevant to a case in which she participates as complainant.

Viewed from this perspective, the AJC’s conclusion that Ms Cardinal’s Indigeneity and gender did not influence Judge Bodnarek’s rulings (including his decision to incarcerate Ms Cardinal) seemingly fails to engage with the expectation set out in the ethical principles.

Why does it matter that the AJC release implicitly adopts a formal equality benchmark – asserting the irrelevance of race and gender – to the rulings in this case?

We know very well that Indigenous women disproportionately experience sexual assault and interpersonal violence.

We know that colonialism and state policies such as the taking of land and imposition of residential schooling have inflicted poverty and intergenerational trauma on many Indigenous people and fractured many Indigenous families.

We know that widespread racism against Indigenous people has translated into systemic bias within the Canadian criminal legal system.

We know that Ms Cardinal was homeless when she was assaulted and at the time of the preliminary hearing.

These and other factors are considered further in the IAAW and LEAF submission to the independent investigation.

If Ms Cardinal had been on trial, as an Indigenous person she would have been entitled to have these matters considered under s. 718.2(e) of the Code, Gladue and Ipeelee.  As a victim in this case, one might hope that she would – at a bare minimum – be accorded equivalent consideration.

Context and circumstance

Judge Bodnarek faced an extremely difficult situation in the preliminary trial and he seems (based on the facts found by Macklin J at trial) to have acted in part on the basis of factual misinformation from lawyers.

The AJC release states that the panel was ‘acutely aware’ that Ms Cardinal ‘was a person, an individual with a name, history and heritage.’  It calls upon ‘all participants in the justice system’ to strive to ensure that’ victims of crime – particularly Indigenous victims – are treated with respect.  This paragraph seems to be in tension with the proposition that Judge Bodnarek acted properly when he acted without regard to Ms Cardinal’s gender and Indigeneity.

The bare assertion that Ms Cardinal’s race and gender did not influence the rulings in this case raises more questions than it answers.  It is at odds with the Report’s conclusion that systemic bias played a role in how the case unfolded, and particularly with the  statement in that Report that ‘To ignore this aspect of Ms Cardinal’s case is to ignore the broader problems facing the criminal justice system, and the troubling statistics concerning its treatment of Indigenous women.’

Having reviewed the transcript of the preliminary hearing, IAAW and LEAF also reached a quite different conclusion from the AJC about the role of stereotypes in this case:

Screenshot 2018-03-01 14.41.38

and:

Screenshot 2018-03-01 14.56.33

The IAAW and LEAF submission and the independent Report both provide justifications, based on a careful reading of the relevant transcripts and other documents, for their conclusion that systemic bias played a role in the incarceration of Angela Cardinal.  Read against the background of these documents, the AJC press release feels unconvincing and it raises real concerns for me in its lack of clarity about the law relating to the incarceration of victims of sexual violence.

The AJC release does state that ‘media reports do not fully reflect the difficult circumstances of the proceedings’.

Given its view that the media reporting so far has been incomplete, it seems a shame that the AJC has not taken the opportunity to correct the public record and thereby to explain the basis on which they concluded that Judge Bodnarek had a legal and factual basis for ordering the incarceration of Angela Cardinal.

Under s. 34(5) of the Alberta Judicature Act, the AJC had no obligation to make any part of its deliberations public.  It’s good that they responded to public interest by providing some information.

It must also be said that even if the AJC’s conclusions on the points I have canvassed were different, this would not necessarily lead to a conclusion that the Judge committed misconduct.

However, required by the AJC’s process to rely on the press release alone, I am concerned that both the AJC and Judge Bodnarek may have fallen into the context-blindness against which the independent Report warns.

Concluding thoughts

As I write this lengthy post, I am extremely conscious of a broader socio-legal context.  The reports and recommendations about the Blanchard case were released on the heels of the not-guilty verdicts in the Stanley and Cormier trials.  Readers who want to know more should follow Indigenous voices on twitter (here’s a good list to start with) and read some of the brilliant scholarship being produced by Indigenous academics (for example here, here, and here).

I am tremendously grateful to the Institute for the Advancement of Aboriginal Women and LEAF National for the leadership they have shown in studying and drawing attention to the enormous problems that persist within the Canadian legal system’s treatment of Indigenous women.  Their work has given form and shape to the Canadian principle of substantive equality, pushing against an institutional current that pulls insistently towards denying the relevance of gender, race and other characteristics.

I was hesitant to post these reflections here because I do not yet have a teaching plan or any real suggestions about how we might draw on these materials in our teaching.  I’m grateful to Rebecca Johnson for suggesting that I should document these thoughts, and I invite others to share ideas about how we might build upon them in working towards a #reconciliationsyllabus.

Relationship disclosure

I am now a member of LEAF’s Legal Practice Board, however I was not a member of that board when LEAF and IAAW prepared their submission to the Independent review, and nor did I play any part in the preparation of that submission.