Of expertise, ‘activism’, and substantive equality for Indigenous Canadians

Introduction

This is a case note about R v Heimbecker, 2019 SKQB 204 and a meditation on some mechanisms by which colonial courts fail to accord substantive equality to Indigenous people within Canadian legal processes.

In Heimbecker, a Saskatchewan judge declined to allow Senator Kim Pate to testify as an expert witness in relation to the proper sentencing of a young Indigenous woman. Although the Crown consented to much of Senator Pate’s evidence, the judge excluded her evidence entirely because:

[45]                                 I have grave concerns about the Senator’s ability to fulfill her duty to the court as an independent and impartial witness in light of her three and a half decade old advocacy role. In coming to this conclusion I must make clear that I am in no way casting aspersions upon Senator Pate or suggesting that she would intentionally give evidence in such a way as to sway the court in a particular direction vis-à-vis Ms. Heimbecker.

[46]                                 However, I am not persuaded that Senator Pate can so easily shed the cloak of advocate or the mantle of activist. And, at the end of the day, this court cannot be a platform for Senator Pate’s social advocacy.

The case, and the expert evidence

Ms Heimbecker is an Indigenous woman who had pleaded guilty to, and was due to be sentenced for, two counts of possessing cocaine for the purposes of trafficking.

Senator Pate’s evidence was offered alongside a Gladue report, character evidence, and a pre-sentence report. The topics on which her evidence was offered were listed in the judgment as follows:

(i) the impacts of incarceration on young people and, in particular, on young Indigenous women;

(ii) declassification delays systemic within the [Corrections Service] which results in an automatic maximum-security classification for female Indigenous offenders, which delays access to programming and delays their access to potential early release in accordance with the statutory eligibility dates for day parole or full parole;

(iii) the lack of access to rehabilitation programming and healing lodges due to the classification delays and limited resources;

(iv) the consequences of overcrowding in prisons for women;

(v) the costs to the Canadian taxpayer of prison versus costs associated with a non-custodial/community-based disposition; and

(vi) how the prison system does not meet the sentencing principle of denunciation or deterrence as research and study, including research by the Department of Justice Canada, has demonstrated that incarceration does not serve as a deterrent, including for young Indigenous women.

The Crown objected to Senator Pate’s evidence on point (vi), arguing that this is a question of law and not a matter for evidence. However, it consented to the evidence being offered on the remaining topics.

The admissibility judgment

Justice MacMillan-Brown adopted an active conception of her ‘gatekeeper’ role as trial judge, observing that ‘I would be shirking my duty as gatekeeper of the evidence if I qualify Senator Pate as an expert simply because of a lack of objection by the Crown.’

The judge relied largely on the Supreme Court of Canada’s decisions in R v Mohan, [1994] 2 SCR 9, White Burgess Langille Inman v Abbott & Haliburton, 2015 SCC 23 and R v Bingley, 2017 SCC 12. Quoting from each of these decisions, MacMillan-Brown J found that Senator Pate met the ‘modest threshold’ for independence and impartiality set out in White Burgess and therefore proceeded to the second stage of the admissibility test set out by Cromwell J for the SCC in that case. However, she concluded that Senator Pate’s evidence was inadmissible in its entirety at the second, ‘gatekeeping’ stage.

Justice MacMillan-Brown focused her concerns regarding Senator Pate’s independence and impartiality on Senator Pate’s occasional use of the term ‘activist’ or ‘advocate’ to describe her work with criminalized women. So, for example:

Does an “activist” or an “advocate” have a role as an expert witness for the court – regardless of her impressive background and expertise?  The answer, I find, is no.  [para 42]

I am not persuaded that Senator Pate can so easily shed the cloak of advocate or the mantle of activist. And, at the end of the day, this court cannot be a platform for Senator Pate’s social advocacy. [para 46]

The judgment gives rise to two important questions, both of which shed light upon the limits of the legal system’s capacity to respond to TRC calls to action 30 – 32 and MMIWG calls to justice 5.11 – 5.17 and 14.3:

  1. did the trial judge apply the admissibility test correctly in this instance?
  2. how do implicit beliefs about legal impartiality and political activism operate to shield the legal system from grappling with the colonial harms of the legal system?

Was the trial judge correct?

The leading decisions on the independence of expert witnesses are White Burgess and Mouvement laïque québécois v. Saguenay, 2015 SCC 16. In White Burgess, the SCC allowed the admission of expert evidence from an accountant who was a partner at a firm that had a financial and reputational interest in the outcome of the case. Justice Cromwell stated that the relevant question is whether there is evidence to suggest that an expert witness is actually biased, or actually lacking in impartiality (see e.g. para 50 and 57). To exclude on this basis, the judge must identify evidence that the proposed expert witness is in fact biased or lacking impartiality in her work in the case, or acting as an advocate for a party. Where the witness indicates that she is aware of her duty of independence and intends to comply  with that duty, and the evidence otherwise suggests that she understands and able to discharge that duty, it is an error to exclude on the basis of a lack of independence.

MLQ v Saguenay was not cited in Heimbecker. It is a pity that MacMillan-Brown J did not turn to this decision, as it would likely have provided clarity. In that case, MLQ challenged a practice adopted by the City of Saguenay of beginning its City council meetings with a prayer. The basis of the challenge was that this practice offended against the principle of religious neutrality and infringed religious freedom. The case was first brought in the Quebec Human Rights Tribunal by MLQ and a named plaintiff. MLQ is a non-profit organization that ‘advocates the complete secularization of the state in Quebec’. Most of its activities relate to the state use of Christian religious practices and symbols.  In this case, the Tribunal held that the practice of starting meetings with the prayer infringed the religious freedom of the named plaintiff, who was an atheist.

Saguenay appealed from the Tribunal’s decision on several bases, including the Tribunal’s reliance upon expert evidence given by Mr Daniel Baril. Mr Baril’s qualifications are not described in detail in the decision, but the judgment notes that he was a co-founder and member of MLQ and had previously taken public ‘stands’ on the issues being considered in this trial (here is a recent example of an op-ed by him). The Quebec Court of Appeal held that the Tribunal had erred by relying on Mr Baril’s evidence in preference to that offered by two experts called by Saguenay. Specifically, Mr Baril’s independence was called into question because he is ‘an advocate for secularization of the state’ (SCC decision, at para 104).

The SCC unanimously disagreed with the Quebec Court of Appeal’s characterization of the duty of independence. The Court held that assessing whether an expert is able to discharge the duty of independence ‘requires consideration of, inter alia, the substance of the expert’s opinion.’ (at para 106) For present purposes, the key passage of the SCC’s decision is as follows:

the entire discussion on Mr. Baril’s opinion with respect to state secularism, which the Court of Appeal stressed in its reasons, actually missed the point. The expert evidence of Mr. Baril and of the respondents’ witnesses was relevant only to the determination of whether the prayer at issue was religious in nature. And that is exactly what the Tribunal used it for. Mr. Baril’s opinion regarding the role of the state in religious matters goes to the definition of the state’s duty of neutrality. That is a question of law that is within the jurisdiction of the courts. It is distinct from the expert’s views on the religious nature and discriminatory effect of the prayer.

In short, by focusing on Mr Baril’s work as an advocate for secularism and his role at the MLQ, the Quebec Court of Appeal had misunderstood the nature of Mr Baril’s work as an expert in this case.

With respect to MacMillan-Brown J, I believe that she has made a similar error in Heimbecker.  Justice MacMillan-Brown appears to have focused largely, if not entirely, on Senator Pate’s occasional use of the word ‘activist’ or ‘advocate’ to describe aspects of her work  in her former roles. (Prior to her appointment to Senate, Senator Pate was Executive Director of the Canadian Association of Elizabeth Fry Societies and holder of the Sallows Chair in Human Rights at the University of Saskatchewan.) The judgment does not engage with the substance of Senator Pate’s proposed testimony or with the foundation for that testimony. As a reminder, the topics on which Senator Pate’s evidence was offered included the impacts of incarceration on young Indigenous women, resources available within the corrections system to Indigenous women, and evidence about the (in)effectiveness of incarceration as a means of deterrence. These matters are relevant to the determination of a fit sentence for Ms Heimbecker; and they are the kind of questions that can be rigorously studied using appropriate research methods. By virtue of her lifelong work, Senator Pate is distinctively – perhaps uniquely – placed to assist the court to understand the Canadian research on these matters.

Information very similar to that which was offered by Senator Pate in this case was foundational to the Supreme Court of Canada’s decisions in R v Gladue, [1999] 1 SCR 668 and R v Ipeelee, 2012 SCC 13. In those decisions, the work of Professor Michael Jackson was cited to ground the SCC’s expressed concerns about the over-incarceration of Indigenous people in Canada and the Court’s interpretation of s. 718.2(e) of the Criminal Code. Like Senator Pate, Professor Jackson describes himself as an advocate.  Like Senator Pate, Professor Jackson has a long and honourable history of activism with respect to the harms inflicted by the colonial legal system on Indigenous Canadians.

The rule of law, substantive equality, and what the legal system ‘knows’

‘Rule of law’ is a phrase that is presently being wielded by settler governments against Indigenous Canadians and their allies. In the context of the Wet’suwet’en hereditary chiefs’ opposition to the route proposed for a pipeline through Wet’suwet’en territories and Indigenous and settler engagement in civil disobedience to protest the State’s handling of this dispute, settler politicians and courts alike are repeating a mantra that positions the colonial state legal order as the sole and proper arbiter of right and wrong on questions of justice for Indigenous people. Never mind that Canada and BC have had twenty three years to act on the SCC’s direction in Delgamuukw v BC, [1997] 3 SCR 1010 to negotiate in good faith with Wet’suwet’en hereditary chiefs to resolve their land title claims:

By ordering a new trial, I do not necessarily encourage the parties to proceed to litigation and to settle their dispute through the courts.  As was said in Sparrow, …, s. 35(1) “provides a solid constitutional base upon which subsequent negotiations can take place”.  …  Moreover, the Crown is under a moral, if not a legal, duty to enter into and conduct those negotiations in good faith. (para 186)

In a speech she gave to the House of Commons Justice Committee in the wake of the Cabinet ‘shuffle’ that removed her as Minister of Justice and Attorney-General of Canada, the Honourable Jody Wilson-Raybould, Puglaas, observed:

[M]y understanding of the rule of law has also been shaped by my experience as an Indigenous person and leader. The history of Crown-Indigenous relations in this country, includes a history of the rule of law not being respected. Indeed, one of the main reasons for the urgent need for justice and reconciliation today is that in the history of our country we have not always upheld foundational values such as the rule of law in our relations with Indigenous peoples. And I have seen the negative impacts for freedom, equality, and a just society this can have firsthand.

In my own research, I have observed the truth of Puglaas’ observation. Canadian law and legal actors have a dismaying tendency to forget or overlook core tenets of Canadian state law when the rights and interests of Indigenous Canadians are engaged. For example:

  • The Crown, defence and trial judge in R v Barton, 2019 SCC 33  failed to accord Cindy Gladue (the Cree/Métis victim in that case) the procedural protections granted by s. 276 of the Criminal Code. Throughout the trial, Gladue was subjected to racialised and gendered stereotypes about Indigenous women who exchange sexual activities for payment. Gladue’s dignity and humanity were thoroughly disrespected during Barton’s murder trial, to the extent that a portion of her body was actually entered as evidence. Because of Canadian principles of standing in criminal cases, Gladue and her family were never legally represented in the process of determining whether her rights had been breached.
  • A botched crime scene investigation, coupled with racism towards Indigenous eyewitnesses, contributed to the circumstances in which a jury acquitted Saskatchewan farmer Gerald Stanley of all charges after he killed Cree man Colten Boushie by shooting. (See the forthcoming special issue in the Canadian Bar Review for more about this case.) Both the crime scene investigation and the Crown’s approach to the credibility of the Indigenous eyewitnesses were starkly at odds with the standards that Canadians would expect in a case where a victim was shot in the head with a semi-automatic handgun. The poor quality of the police investigation hamstrung the Crown, depriving them of the opportunity to properly assess Stanley’s defence of accidental hangfire. For more on the impacts of this case on Cree people in Saskatchewan, and Colten Boushie’s family’s reaction to the case, see Tasha Hubbard’s wonderful film nîpawistamâsowin.
  • In the case of R v Lance Blanchard, 2016 ABQB 1323, woman who is publicly known by the pseudonym Angela Cardinal was arrested and held in remand. She was the complainant in this case and not the accused – but the Crown and preliminary hearing judge believed that she was at risk of failing to appear to testify. The trial judge who eventually heard this case described Ms Cardinal’s treatment as ‘appalling’. An independent review concluded that there was no legal basis for Cardinal’s arrest and that her treatment reflected a lack of cultural competence  on the part of the legal actors.

In her recent book Implicating the System, Elspeth Kaiser-Derrick explored the narratives used by Canadian judges when sentencing Indigenous women. She found that judges have difficulty understanding and applying the tenets of Gladue and Ipeelee, particularly with respect to the impacts of colonialism upon Indigenous women. She also found that Indigenous women’s criminal offending is deeply connected to their victimization, both personal and structural. In the 175 cases Kaiser-Derrick reviewed, she found many examples of cases in which judges sentenced Indigenous women to a term of incarceration for the stated purpose of giving them access to treatment and services in prison. Kaiser-Derrick’s finding makes Senator Pate’s proposed evidence in Heimbecker especially salient.

What does all of this have to do with Heimbecker? This pattern of cases suggests to me that the Canadian legal system may be particularly prone to ‘forgetting’ or mis-applying its own rules when those rules operate to protect or advance the rights and legal interests of Indigenous people. In the Heimbecker decision, the politically charged word ‘activist’ appears to have deflected the trial judge from a careful application of the relevant rules of evidence. In consequence, a young Indigenous woman will be sentenced on the basis of some contextual information – e.g. the Gladue report – but without the benefit of structural information that should as a matter of justice, bear upon the determination of a fit sentence in her case. As in Barton, Stanley and Blanchard, this deprivation of procedural rights and legal protections appears to operate in a manner that insulates the colonial legal system from hearing evidence about the extent to which that system inflicts harm on Indigenous people.

It is not my intention to suggest that the dynamics I have traced in this post are conscious or to suggest, for instance, that legal actors deliberately fail to accord legal protections to the Indigenous people with whom they are dealing. Rather, I believe that this tendency to overlook procedural protections reflects deep and long-held implicit beliefs about the legitimacy and universality of criminal legal processes, and the tendency to cast Indigenous challenges to State processes as political rather than legal. Colonial law’s procedural protections have been established on the basis of implicit norms that reflect the interests and rationality of a privileged group, largely white men, who historically held a monopoly on law making, policy decisions, and the legal profession. Generations of Indigenous, feminist and critical race scholars have traced the mechanisms by which claims for the extension of these protections to those who do not embody these norms have been delegitimized and sidelined. Even though many historically narrow rules have been broadened to reflect the Charter value of substantive equality, judges seem to have particular difficulty according the full value of these expanded rules.

Expert evidence is a crucial means by which information about the harms inflicted by colonial law on Indigenous people can enter the adversarial common law process. The Supreme Court of Canada’s caselaw indicates openness to hearing expert evidence that contests the taken-for-granted universality and neutrality of Canadian law. However, cases such as Heimbecker suggest that we have more work to do to educate judges about how to exercise their responsibilities as legal gatekeepers in a manner that accords substantive equality to Indigenous Canadians.

Meanwhile, while acknowledging the profound constraints imposed by legal aid, I hope that some consideration is given to appealing the admissibility decision in Heimbecker. That decision does seem to be out of step with Canadian legal principles.  If left uncorrected, it has the potential to undermine Indigenous Canadian’s capacity to put important evidence before colonial courts. Both statistics and lived experience indicate that much more fundamental change is needed to the colonial legal process of sentencing Indigenous people. But in the context of the present system, Heimbecker removes one of the few existing tools available to Indigenous Canadians in individual cases to educate colonial courts about the harms inflicted on Indigenous people by the colonial criminal legal system.

Note: on 1 March 2020 at 1:40pm BC Time, I edited this blog to remove two references to a mandatory minimum sentence. Although the decision itself is unclear, I understand that the offences to which Ms Heimbecker pleaded guilty do not carry a mandatory minimum. However, the standard tariff for these offences requires a jail term.

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