Xwelíqwiya – The Life of a Stó:lō Matriarch

XweliqwiyaIn a recent conversation, Gillian Calder commented on how helpful she has found the IFLS blog (thanks Sonia Lawrence at Osgoode!), and particularly those posts titled “What we are doing/reading/thinking”.   These posts point/link to interesting texts (without worrying about doing the full out suggestion of how those texts might be used).  The posts do serve to get the creative juices running.  Gillian suggested that folks might consider doing something similar with #ReconciliationSyllabus.

In that spirit, I thought I would share some thoughts on a wonderful new book on my bookshelf: Xwelíqwiya – The Life of a Stó:lō Matriarch.  While I haven’t fully sorted out full teaching materials using the book, I am convinced that it is a powerful resource for those thinking about TRC work in the law school.

The book is about the life of Rena Point Bolton.  Rena Point Bolton is, amongst other things, the mother of Steven Point, British Columbia’s first Indigneous Lieutenant Governor.  Rena is a force of nature herself.

The word “Xwelíqwiya”  in the title is her name in Halq’eméylem , the language of the Stó:lō people.

As the books explains, Stó:lō is the Halq’eméylem word for “river”, and the Stó:lō are the river people. In this case, the lower Fraser River.  In the summer, making the trip from Victoria to the Shuswap, the drive through Abbotsford, Harrison Hot Springs and Chiliwack is in fact a drive through Stó:lō territory (or, Stó:lō tém:éxw).

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Another great resource!

As is all too often the case, the first challenge for me was the limits of my own limited language fluency.  That is, the title.  I was just not sure how to pronounce Rena Point Bolton’s name in Halq’eméylem!  Richard Daly, the other co-author, gives a good approximation of how to do it, while acknowledging the challenges for English speakers, since nearly half of the sounds in the Halq’eméylem language don’t exist in English.  But the book invites the reader to nonetheless plunge in and try.

As an aside, Halq’eméylem has 8 different sounds for what in English is the letter “K”! (click here for a link to an interesting article on the expressive qualities of the language, and here for a link to the First Voices, website, where you can listen to and learn words in the language).  I found myself heading to my bookshelf to flip through my copy (well… the copy I lifted from my mom’s bookshelf?) of the award-winning Stó:lō-Coast Salish Historical Atlas.   It’s another great related resource to check out (click here for a link to a “good reads” review of the book).

But, back to Xwelíqwiya.  I have been practicing saying her name outloud, trying to put the sound of her language into my mouth.   I am still processing the book, but have found myself bringing it up in conversation on a daily basis since completing it.   There is so much in there that is interesting.  For today, here are a few comments.

Firstly, I have been increasingly looking for biographies and life histories of women.   There are some out there, but not nearly enough.  And there are CERTAINLY not enough books out there that engage with the lives of Indigenous women.  This book does that, situating Rena’s life in the flow of both Stó:lō history, and colonial history.  It does so in a way that engages with questions of land, language, lineage, class, marriage, child-raising, economy, culture, politics, and change.  Law is never far from the surface.

What was so remarkable was the way that the book was able to follow this one woman’s life over a period of 90 years in a way that personalized questions of history and politics.  Her story is told in a way that let me both have a sense of proximity to her “voice”, and simultaneoulsy contained the kind of “distance” necessary for a measured appreciation of the depth of her actions, her contributions, and her own learnings.

Second point?  This book left me reflecting on the power of its  two-voiced authorship.  This book was written collaboratively with social anthropologist Richard Daly.  At the beginning of the book, there is a discussion of the practice of joint-authorship used here.  They situate this decision against the background of Salish practices of legal governance: in the context of potlatchs and other important governance work, families will hire a Speaker — that is, someone who will speak publically on behalf of the family (rather than having the family themselves do the speaking).  They make visible that Richard Daly’s role in the project was theorized in this way — his role was very much like that of a Speaker.  There is much to be talked about in terms of the way the authorship of this book is thus an example of Salish practices of legal governance, enacted in a contemporary context, with a non-Stó:lō writer being asked to play a part in what is very much the operationalization of a Stó:lō way of living.

This book is largely written with future Stó:lō readers in mind (Rena says this explicitly), but it is also written in a way that invites the non-Stó:lō reader to join, to listen, and to begin to feel the different rhythms of Stó:lō  life, and to appreciate the power of culture, and of women’s place (historically and in contemporary society) in maintaining, promoting and developing social and legal life.  There is a section at the beginning that talks about the different conventions of reading for Stó:lō and settler readers, and what each can know about the other in order to have a productive conversation.  That was really helpful!

The book itself contains so much nuance and complexity about questions of identity, and of pragmatics, and of strategy.  It helped me get a better appreciation of the many ways that we are all actors in history, and of the many pathways that women have walked, and how sometimes those paths circle back to beginnings.  It also explicitly took up questions of silence — of how Indigenous people (and Indigenous women in particular) have experienced both silence and silencing, and of the politics of silence at different moments in time.  It asks us to understand the different meanings of silence, and to ask when the time might come to change some of our strategies.  Really powerful.

Lots to be said about this book, which I think is another of those must-have books.  It is certainly a true gift to those who are seeking to take up the challenge of the Truth and Reconciliation Commission for all Canadians to increase their cultural knowledge. Indeed, six of the Calls to Action place this goal at the centre of calls to “professionals”.  We see acknowledgement of the need for cultural competency in the six calls aimed at:

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  • 23 – Health Care Professionals
  • 24 – Medical and Nursing Schools
  • 27 – Law Societies
  • 28 – Law Schools
  • 57 – Public Servants
  • 92 – The Corporate Sector

I came away from the book having had a taste of what it is to live within a Stó:lō life-world, and the beginnings of an appreciation for the rich history that is written on the land that I live on.  I also have an appreciation for the gift of story, and for this book’s invitation to understand the power and possibility of beginning to live in right-relation.  I love this book, and will be returning to it!  Take a look, and see what you think.   Or, maybe write us a post about something you are looking at these days?   Sharing what we are reading is one way to help us think about the project of decolonizing, and of diversifying the reading lists (particularly the required reading) in our courses.

 

 

 

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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:

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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.