Reconciliation in a different key: contemplations from abroad

Much like others who have posted on Reconciliation Syllabus, I began my teaching career as the TRC call to action was announced. As a new hire in the Department of Child Law at Leiden Law School in the Netherlands, I wasn’t bound by the TRC’s 28th recommendation, but felt, in my own way, morally bound to engage with it. Perhaps this was because, as a 2015 DCL Teaching Fellow at McGill’s Faculty of Law, I had already been thinking about the place of chthonic legal traditions in the context of Legal Traditions, a graduate-level compulsory course for students of the Institute of Comparative Law. And perhaps, this was also due to my research interests in law and religion, constitutionalism and education law, as well as a long-term engagement with cultural competencies and law (by way of Jean-François Gaudreault-DesBiens and Diane Labrèche’s project on cultural competencies for the Quebec Bar).

 

But how do you talk about, and engage with, the TRC and reconciliation from abroad? And more importantly, how do you do so in a meaningful manner?

 

In the context of my appointment, I was expected to teach in the newly minted advanced LL.M. on international children’s rights. We currently have eight students enrolled for the first year of this program, which makes for an unbelievable student-teacher ratio, but also, allows us to go into deeper conversations about various subjects. One of the modules that I have been co-teaching is on children’s socio-economic rights, which includes a class on the right to education. I had also been asked to contribute to a general introductory class on children’s rights, which again, included a course on the right to education. My reflections therefore concern my experience teaching the right to education and the TRC at both graduate and undergraduate levels.

 

I was asked to teach a class on the right to education at the undergraduate level, to a class comprised mostly of exchange students and others interested in an introductory class in children’s rights (about fifty students in all). While the first half of the course focused on the right to education (international provisions, UNCRC general comments, etc.), the second half was dedicated to talking about the right to education as rights subjects. It is in the context of the second half that I chose to engage with the TRC. My aim, in the forty-five minutes I had, was to introduce students to the TRC; I had prescribed a small portion of the TRC report (pages 2-24) to students in advance, as a way to engage with “education” in the context of western dominance of children’s rights scholarship as well as education about one’s rights. None of the students in the class were Canadian; none, it seemed, had heard of the TRC prior to my class. This gave me pause for thought. While I had been living in Canada, the TRC made headlines routinely, but it made me wonder how (or whether) this was translated abroad – or whether, for those in Europe (as I am now), the discussions of vulnerability and marginalization were reserved for the burgeoning refugee crisis. Within the context of the class, I introduced the TRC by way of the “Aims of the TRC” video by Commissioner Marie Wilson. I then wanted to contextualize this by talking about Recommendations 27 & 28 with students. I asked them how, beyond the context of cultural competencies and a compulsory course on indigenous legal orders, could we engage with and think about this within our greater legal studies? As a rejoinder, I also asked how we could better engage with this story in the context of primary and secondary school, as I was teaching a class on the right to education. The answers I received went in different directions: within the context of law, a student from the UK suggested it could be included in a foundations class (for him, foundations was a capstone class at the outset of his legal studies); another student from South Africa proposed that it could be within classes on constitutional law (as she had, for discussions on apartheid). Outside of law, one Dutch student in education studies proposed that this could be addressed in civics classes at the primary and secondary school levels – while another student in political science also made a similar suggestion. While these ideas were interesting, they required much prompting on my part, which made me think perhaps I needed to give students more context about Aboriginals in Canada if I wanted deeper answers.

 

Armed with these insights, I taught the right to education again, a few weeks later, within my advanced master’s class on children’s socio-economic rights. I thought, as I was putting this class together, of the irony of “education” in the context of residential and industrial schools. Two quotes haunted my preparations:

 

When the school is on the reserve the child lives with its parents, who are savages; he is surrounded by savages, and though he may learn to read and write his habits, and training and mode of thought are Indian. He is simply a savage who can read and write. It has been strongly pressed on myself, as the head of the Department, that Indian children should be withdrawn as much as possible from the parental influence, and the only way to do that would be to put them in central training industrial schools where they will acquire the habits and modes of thought of white men. (Sir John A. Macdonald, as cited in TRC Principles, p.6)

 

[…]

 

if you wish to educate these children you must separate them from their parents during the time that they are being educated. If you leave them in the family they may know how to read and write, but they still remain savages, whereas by separating them in the way proposed, they acquire the habits and tastes—it is to be hoped only the good tastes—of civilized people. (Public Works Minister Hector Langevin, as cited in TRC Principles, p. 29)

 

While again, I spent the first half of the class on the international and regional instruments that protect the right to education, the second half of the class was dedicated to thinking about, and discussing, how the right to education can also be a vehicle for understanding our rights as rights subjects. Like the undergraduate class I had taught, I had prescribed a portion of the TRC report (this time, pages 1-55) and had introduced this portion of the class with the TRC video. I took care in explaining afterwards, what where some of the long-term repercussions of the residential school system (including challenges in meeting basic needs, health challenges, education, disproportionate engagement with the justice system). Again, I spoke of Recommendations 27 & 28 of the TRC report to explain my interest in pursuing this subject further within the context of this class. Unlike my undergraduate class, however, I focused on the TRC recommendations that spoke directly to education (Recommendations 6-12). I asked students what they thought of these recommendations in light of the first half of the course, where we had focused in great part on Article 28 of the UN Convention on the Rights of the Child, which protects, amongst other things, against corporal punishment (and links to Recommendation 6, which recommends repealing Article 43 of the Criminal Code), but also, other international instruments that protect a child’s cultural heritage in the face of education and Canada’s difficult relationship with the UN Declaration on the Rights of Indigenous Peoples. Interesting questions came up from students, such as “what the difference is between Aboriginal children being educated on reserve, as opposed to off reserve?” That is not a question that can be addressed in two minutes. It requires – and deserves – deeper attention. Another student asked how (or whether) non-Aboriginal early education would address the questions of cultural competencies, as noted in Recommendation 12? This question also raises important questions of how these issues are tackled in mainstream early education. I also received some very engaged answers from students who come from countries dealing – or have dealt – with historical injustice. A student from Israel said it depends on whether you go to an integrated school or not. If you do, she said, there are discussions about how do you deal with Independence Day, for instance. But she noted that if you are a non-integrated school, there is no real impetus to address the question in a practical sense. A student from South Africa noted that apartheid was addressed in history classes when in primary/secondary school and then through constitutional classes later on. Interestingly, that he said that learning about apartheid in a post-apartheid setting actually had a nation-building effect for him (but a caveat is made about schools in townships not being as integrated and therefore unlikely to engage with this as a positive identity-crafting experience).

 

Introducing the TRC in the context of children’s socio-economic rights revealed the challenges in addressing this multifaceted issue in such a short time frame, without being able to engage more deeply with the socio-historic underpinnings. But at the same time, it enabled me to speak about inequality, justiciability and the educational project –all central to discussions on socio-economic rights – in a different key than other examples. Reconciliation and the reconciliation syllabus project therefore invite us to think (even) more critically about how and why we teach, wherever we are.

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Reflecting on the #Reconciliationsyllabus in Evidence law

2015-12-14 17.36.31.jpgI write this post from Tofino, on the unceded territory of the Nuu-Chah-Nulth First Nations.  In truth, I am taking a break from grading my evidence law exam papers, each of which contains a student’s answers to two questions predicated on an Aboriginal title claim.  It feels like a good moment to reflect on the steps I have taken this year and in previous years to integrate attention to reconciliation within my course on evidence.

When I first started teaching evidence law, Christine Boyle warned me that one of the perennial challenges of this course was the difficulty students have in identifying which rule is triggered by a given fact pattern.  About six years ago, I decided to tackle this challenge with a new approach:  I shifted my classroom teaching around to spend as much time as possible on a case-based learning approach.  (Case-based learning is not the same as problem-based learning, but it’s also different from the case method.  Essentially, students are asked to work in small groups on a fact pattern that develops as the term proceeds.  That way, they can become immersed in an unfolding scenario and have a chance to apply the rules they are studying more or less immediately. In my class, the case-based learning is not assessed, but I (tell my students that I) carefully design my final exam to resonate with themes they have encountered in the case-based learning exercises.)

This year, I set students to work on two files: one criminal (based on the Australian case of R v Conway, a police officer charged with conspiracy to murder his ex-wife), and one based on Halalt v District of North Cowichan (ie a file which required students to engage with the distinctive evidentiary context of s. 35 rights).  I updated my materials on the evidentiary dimensions of s. 35 claims to incorporate the SCC decision in Tsilqhot’in (which had been decided since I last taught the course).  I also integrated some of the insights of the TRC Executive Summary, to strengthen the observations made in Delgamuukw about the importance of ensuring that the adverse effects of colonization on Indigenous communities should not act as a bar to success through a facile application of Eurocentric notions of proof and reliability.

This is the first year since teaching the course in this format that I have had a class comprised entirely of students who have completed a compulsory constitutional law module on s. 35 rights and title.  The difference in their understanding of the substantive law and the context of reconciliation was striking – it made my job so much easier.  This seems to me to constitute tangible evidence of the value of making such modules compulsory.

When I first adopted the case-based learning method, my hope  was that working with the evidentiary rules in the context of case files would help students to see the purpose behind the rules, and thereby improve their capacity to identify which rule to use at a given time.  This hope has largely been fulfilled, but the unanticipated benefit that case-based learning has also offered is that it has made classroom discussions about how the politics of knowledge and power can be traced throughout evidence law much richer.

This year, in the session I always run near the start of term on the challenges of building an evidentiary record in a s. 35 claim, we talked a great deal about the impact of residential schools on community memory and the preservation of traditional knowledge.  One of the things that often emerges from this class is that students turn to research to learn what they don’t know about a given Indigenous culture (in this case, the Halalt First Nation).  I find I have to remind many of them – I try to do it gently – that when representing a First Nation, they have the gift of working with those who know the culture best, and who are best placed to educate them.  I talk to them about Pooja Parmar’s wonderful work (http://www.cambridge.org/ca/academic/subjects/law/socio-legal-studies/indigeneity-and-legal-pluralism-india-claims-histories-meanings?format=HB) which conceptualises of lawyers in Indigenous rights claims cases as translators, with an ethical responsibility to try to understand and communicate Indigenous perspectives, not just to fit legal problems into legally cognizable categories.

I picked up on the theme of residential schools in the final exam, with an elder whose traditional education had been interrupted by his removal to residential school and a Province that argued that his knowledge should therefore be given little to no weight. (The character in my fact pattern was based on the evidence and biography of an elder who testified in Coachiching FN v AG Canada, 2014 ONSC 1074.)  My students have dealt sensitively with this fact pattern, including the residential school dimension.

While I feel this term has been a good one in terms of further integrating the #ReconciliationSyllabus into evidence, I have lingering worries.  I worry about asking my Indigenous students to learn about a system of rules that – for all its rhetoric about and (I think often genuine commitment to) avoiding Eurocentric reasoning, ultimately takes its authority from and is beholden to the authority of a colonial Crown.

In my mid-term feedback, many students expressed appreciation for my attention to s. 35 cases but a few asked for something “more practical”.  I try to explain why s. 35 litigation is crucial for practice in BC – real estate, commercial, resource, environmental, administrative, criminal law all engage with s. 35 – but in responding to this resistance, I also try to argue that all Canadian lawyers have an ethical responsibility to understand and do justice to Indigenous perspectives and to recognise the contemporary effects of colonialism (the TRC helps me to do this).  I know that they won’t all leave my course persuaded, but hopefully the first time they encounter these arguments outside law school, they’ll feel more informed.  I’d love to incorporate something deeper about Indigenous law and an example of evidentiary practices within the law of a BC First Nation, but I haven’t found the right example yet.

I haven’t seen my teaching evaluations yet, of course, but I had a thoughtful and generous group of students this term.  Their openness and sensitivity made it possible to explore the #ReconciliationSyllabus more deeply, and I believe that has translated into their work throughout the term.

Reflections from a First-Timer: The TRC and First Year Criminal Law

Lisa Kerr, Assistant Professor, Queen’s University Faculty of Law

The TRC Calls to Action arrived in the year I began my first term of law teaching at Queen’s. Recommendation 28 speaks to the need for law schools to teach the history of Indigenous people and the law, including understanding the history of residential schools and their legacy. As a newly-appointed professor teaching Criminal Law, this recommendation called on me to address the effects of this legacy on Indigenous people in the justice system and in incarceration.

With that call to action, and with Recommendations 30, 31, and 32 specifically imploring our society to eliminate overrepresentation of Indigenous people in custody, improve access to community sanctions as a realistic alternative to imprisonment, develop responses to the underlying causes of offending, and amend the Criminal Code to give trial judges the ability to depart from mandatory minimum sentences and make greater use of conditional sentences, my work in developing a first year Criminal Law class consistent with these goals was cut out for me.

Next semester, when I teach Sentencing and Imprisonment, an upper level course, these topics will be a focal point of the course. But first year course planning presented more of a challenge, as both sentencing and a wider sociological lens often do not find much space in the first year curriculum. The subject matter of first year tends to focus on the “front end” of the criminal justice system. Questions of guilt and innocence are often assessed in isolation from the root causes of crime and the question of the state’s capacity to impose fair, productive and truly proportionate punishment. What’s more, I knew that the task of teaching the black letter law alone could be challenge enough in my first year.

I planned to follow the syllabus of my experienced colleagues Don Stuart and Lisa Dufraimont, who have generously shown me the ropes. Not surprisingly, I discovered their course plans to be demanding, comprehensive, and full of tricky issues and complex doctrine. I knew that such experienced teachers would be able to move through the material elegantly, weaving in concerns about the impact of criminal justice on particular populations and embedding critiques of misguided legislative approaches into black letter lectures. But would I be able to do that? As I contemplated both absorbing and conveying this rich course, I knew I was at far greater risk of getting bogged down. I worried that I might become overly focused on the technical aspects – which students seem prone to doing as well – and ultimately I could fail to linger on the profound questions of fairness and the lens of social justice that can be applied to any criminal law case and that must be developed so as pursue the TRC recommendations. My awesome teaching mentor Darryl Robinson helped me think through these and other teaching challenges each week in the fall term. Happily, I have many years ahead to keep contemplating the question of optimal balance in the first year curriculum between law’s context and its formal rules.

In contemplating a concrete strategy to follow the TRC recommendations relevant to my class, I remembered how Michael Jackson at UBC always taught sentencing first. So I brought Gladue and Ipeelee to the beginning of the course. These are the cases where the Supreme Court of Canada directs trial judges to make meaningful use of s. 718.2(e) of the Criminal Code, setting out a number of guiding principles to ensure that sanctions other than imprisonment should always be considered for offenders, “with particular attention to the circumstances of Aboriginal offenders.” We talked in class about how this is a uniquely Canadian approach. I argued that it is a credit to our legal system that we are willing to acknowledge something about our history of colonialism and racism at the critical moment of responding to a criminal offence. I noted that Americans are always surprised to hear of this approach, invariably replying “but that’s unconstitutional – that’s a race-based distinction.” We talked about the value of Canada’s commitment to substantive equality and our ability to distinguish between ameliorative and harmful legal distinctions.

To introduce and contextualize these cases, my class discussed the incarceration rate for Indigenous adults in Canada, which is about 10 times higher than the incarceration rate of non-Indigenous adults. I put that statistic in comparative context, noting that this is in fact significantly worse than the overrepresentation of black people in the U.S. system (albeit on a far different scale). The comparison is often surprising to Canadian audiences.

We also discussed how legal rules aimed at ameliorating a social problem like systemic discrimination don’t always have intended immediate effects – a good general lesson for first year students. Indeed, the over-representation of Indigenous people in Canada’s correctional system continued to grow in the last decade, despite Gladue. The current levels of growth are most alarming: since 2000-01, the federal Indigenous inmate population has increased by 56.2%, and the overall representation rate in the inmate population has increased from 17.0% in 2000-01 to 23.2% today. Looking at the years since 2005-06, there has been a 43.5% increase in the federal Indigenous inmate population, compared to a 9.6% increase in non-Indigenous inmates. Focusing on Indigenous women, the problem is even worse. They represent 33.6% of all federally sentenced women in Canada but are only 2% of the Canadian population.

Rates of incarceration are not the only important topic. Our class also discussed the substance of incarceration: the experience and quality of punishment matters too. Here, the evidence is clear that Indigenous prisoners often have more difficult prison experiences. Both Indigenous men and women are routinely classified as higher risk, meaning they are overrepresented in segregation and maximum security populations and have less access to early release. We talked about the limits of an ameliorative sentencing rule to address these institutional dynamics. This also gave us a chance to think about the real meaning of a prison sentence. Too often, the discourse of criminal law alludes to the justifications of ‘deterrence’ or ‘retribution’ without linking those concepts up to a particular institutional regime. Without attention to what the criminal justice system actually delivers to offenders – long after a decision about guilt – these justificatory concepts are little more than empty rhetoric.

In sum, frontloading Gladue and Ipeelee allowed us to ask some big questions about the legitimacy of criminal law, not only for Indigenous people but for the entire system. And it strikes me that pursuing reconciliation in these ways in the first year Criminal Law syllabus improves the scope and themes of the course overall.