Idea for First Year Criminal Law?: Teach a class on R v. Kikkik (1958)

118136408_640If you are looking for a unit to add into your Criminal Law class, I would recommend taking up the 1958 case R v. Kikkik.

This was the high profile trial of an Inuk woman who was charged with murder (for killing her brother-in-law, who had killed her husband), and with child abandonment (for leaving two of her children behind when she tried to walk the 45 miles to nearest trading post).  These events took place in the winter of 1958, after the Ahiarmiut had been ‘relocated’ from their traditional lands at Ennadai Lake to Henik Lake (to a place hundreds of miles away, where there were no caribou, and where many Ahiarmiut starved to death).

I don’t think the case shows up in any of the mainstream criminal law texts, but was one of the big showtrials of its time (covered by TimeLife).  As a result, there is lots of material to drawn on for teaching!  Part of what it makes it a great case to teach, especially in first year, is that there is a documentary film you can use!  In what might be the only example I can call to mind, the documentary is made by Kikkik’s daughter, Educator Elisapee Karetak (who was a baby at the time). [Elisapee was also a cultural advisor to the first Akitiraq Law Degree Program]

I use this film/case in the very first few weeks of the class.  I don’t have them do any mandatory readings, i just arrange for them to see the film.  I have tried both having a lab session (in which they watch together), and simply letting them watch it on their own time.  There are different advantages to each approach.  The film is accessible on Vimeo (“Kikkik” https://vimeo.com/18742945.

After they have seen the film, we spend class time talking about “the facts” (as seen by the criminal justice system), both the successes and limits of that system, and then work outwards in layers to explore what other harms are present, what is not visible within the Canadian justice system, and the after-effects into the future.

Though it is early in the term, the case is memorable and carries its weight, so that we can return to it throughout the year (much in the way that some scholars use the Marshall inquiry).  My experience is that the first few week are not “too early.”

What you get is:

  • a really compelling narrative (which makes it accessible for students)
  • a rich text (which means  you can work with it on many levels, which means it works both for students with more and with less prior education/knowledge/experience with the intersection of crim and colonization)
  • both historical distance (which makes the case somewhat easier to process), and an active layering into the present (which makes visible connections between past and present)

I have been using the film/case in my criminal law class (for the past 10 years) and have found the case to be both powerful and pedagogically awesome.  (I should also say that i have taught it in different ways in different years, and have learned new things from it each time…. i think this is a great case for people wanting to start to take small steps in shifting their materials, and it would work no matter what case book you were using)

Pedagogy Notes:

  • it is a fantastic way of including the history of arctic relocations, and of the “e-number system”
  • it is a case that the judicial system “got right” (people can feel good about the possibility that the judicial system can get it right… but can also see why ‘getting it right’ is not enough)
  • It makes visible the ways that the larger systemic harms suffered by the Ahirarmiut were completely invisible to the Canadian judicial system (that is, criminal law doesn’t easily make visible the harm of relocation itself). This weaves itself back into the materials throughout the year
  • it raises questions of gender, necessity, self-defence, mothers-and-babies-in-jail, child apprehensions, right to counsel, confessions, translation, juries, judges charges to juries, media coverage of judicial system, etc etc.  [especially if you use the transcript].  There are many ways you can easily refer back to the case throughout the year in ways that support better knowledge about the history of Aboriginal/Crown relations.
  • Because this case was a HUGE show trial in the 50s (made the world stage), there are lots of materials you could draw on: The trial transcript, media coverage, sculptures, films. This means that the case/film works well with a variety of different learning styles

OTHER COMMENTS ON RESOURCES:

  • UVic has a copy of the trial transcript (for the murder trial) in our law library. In an upper year legal theory course, the students read the whole transcript.  I don’t do that in first year crim, but there are some parts of it that are really excellent for teaching with! I made a PDF copy for the students, divided into two PDFs
  • If you like to use images in class, here is a link to the powerpoint I sometimes use.  Feel free to modify, extend, alter, make it your own, etc.
  • If someone wanted to read more about it, I wrote an article that looks at the 4 genres in which the story could be told (i don’t assign it, but it can be helpful background for someone wanting to familiarize themselves with the story, or pull things out of bibliography…or if you want to talk about genres of justice, and challenge the assumption that justice finds its purest expression in the genre of criminal law cases) 
  • there are two versions of the film.  The shorter vimeo one (link above), and a longer one that has an additional 30 minutes of footage taken after the elders had returned to the home from which they had been moved.  I really love the longer version, but it is only online in the inuktitut version (as far as I can tell).  Students find it easier to access the shorter version.  If you have time to do a larger screening, the longer one has additional material that is very powerful.

OK.   other suggestions welcomed!

Criminal law & procedure

For my first subject-specific post, I’ve chosen to talk about teaching criminal law to first year students.

This coming year, I’ll be using Roach et al Criminal Law & Procedure (11th ed) for the first time – in the past, I have used custom materials that were first prepared by Isabel Grant but have more recently been kept up to date by Christine Boyle, Janine Benedet and myself.  There are trade offs to both choices.

I like very much that the Roach casebook foregrounds the troubled relationship between the Canadian criminal legal system and Indigenous people, in part through its extended use of the Donald Marshall Jr wrongful conviction as a case study (ch 4).  Prof Roach is coming to speak to our students about Marshall in October.  But I’d like to make sure that they are introduced to some of the difficult issues before then.  In September, I will ask them to read the extracts from the Report of the Aboriginal Justice Inquiry of Manitoba and from Dr Mary Ellen Turpel (LaFond)’s 1993 paper ‘On the Question of Adapting the Canadian Criminal Justice System for Aboriginal People’s: Don’t Fence Me In’ (both contained in chapter 4 of Roach et al).  Alongside these texts, I will set pages 211 – 215 and 217 – 228 of the Summary of the Truth and Reconciliation Commission Report (http://www.trc.ca/websites/trcinstitution/File/2015/Findings/Exec_Summary_2015_05_31_web_o.pdf).

I considered inviting students to read an extract from Jane McMillan’s excellent recent article on the Marshall Inquiry: L Jane McMillan, ‘Still Seeking Justice: The Marshall Inquiry Narratives’ (2014) 47:3 UBC Law Review 927 – 991 (http://ubclawreview.ca/issues/volume-473/l-jane-mcmillan-still-seeking-justice-the-marshall-inquiry-narratives/), but I think that the sheer amount of reading and the complexity of the issues risks overwhelming students who will still be in their first month of law school.  Ditto Sherene Razack’s piece, ‘Gendered Racial Violence and Spacialized Justice’ from Razack’s edited collection Race, Space and the Law (a copy is online here: http://web.uvic.ca/~ayh/104%20Razack%20WS104.PDF).  But both are excellent resources and worth mentioning to students who are interested in pursuing these questions.  As I will post in a future update, I use the Razack chapter in my jurisprudence course.

One challenge I have experienced in teaching classes regarding Indigenous people and the criminal legal system is that our students vary widely in their past exposure to and understanding of Canada’s colonial history and present, and the impact of that history and present on Indigenous people.  The TRC Summary offers a very helpful resource for students who have less understanding of this history.  My plan for these classes will be to take things slowly and to adopt Tracey Lindberg’s extremely helpful principles for pedagogy when teaching students who are encountering Indigenous perspectives and Indigenous culture for the first time (http://www.cbc.ca/radio/q/post-show-notes-shad-s-week-seven-highlights-1.3106456).  In fact, I will post these principles (with due credit, of course!) into my syllabus and invite students to discuss them early in the term.  I would appreciate hearing from others about how you handle this challenge, and whether you have resources you can share to help with this.

The Canadian criminal legal system is and has historically been a source of enormous harm to Indigenous Canadians.  I find it difficult to teach classes about Indigenous encounters with the Canadian criminal law because I want to:

a.  ensure students have a sense of the magnitude of over-representation of Indigenous Canadians in most aspects of the criminal legal system (as victims, in prisons, as children, as women, …) and the relative under-representation of Indigenous Canadians as judges and lawyers (and, Kokepenace reminds me, as jurors); but also

b.  resist reinforcing pejorative stereotypes of Indigenous people as leading disordered lives of addiction and violence.

I think the TRC will help me do this, but I am interested to hear ideas from others about how to walk this line.

I will seek to return to the principles introduced in these classes throughout the year.

Towards the end of the year, we reach a module on sentencing. Gladue and Ipeelee present teaching challenges of their own, as does the increasing reliance on mandatory minimum sentences and the restrictions on conditional sentences.  I will put up a separate post on these issues.

General principles of reconciliation syllabus

I really love Rebecca’s idea to use local reference points to introduce the reconciliation syllabus to JD students.  At UBC, we are blessed to be located on unceded Musqueam land in close proximity to the Musqueam reserve and to have a cohort of Musqueam, Tsleil-Waututh & Squamish students, not to mention wonderful Indigenous faculty members.  So much of the Canadian law on Aboriginal rights and titles has come from right here – R. v. Sparrow [1990] 1 SCR 1075 and R. v. Guerin [1984] 2 SCR 335 are, of course, the biggest examples.  We can and should do more to make these connections between place and curriculum alive for our students.

Once one expands into BC as a whole, of course, the connections (and the legal histories) become even richer and more vibrant.  T’silqhotin explodes the concept that Aboriginal title is confined to postage stamp reserves, and we need to interrogate the implications of that recognition for other parts of BC and Canada.  I really like Cole Harris’s book Locating Native Space because it demonstrates just how historically contingent the BC reserve system was, and how it could very easily have been otherwise.  It shows that our colonial forebears were well aware of what they were doing when they stripped First Nations of their land and property – this is, I think, an important antidote to the anachronistic concept that we are, somehow, more enlightened in our dealings with First Nations than the colonial governments of first contact.  (To compare and contrast the tactics of the early BC governors around reserve allocation with the tactics of current federal and provincial governments in the NEB process re Northern Gateway would, for example, be a fascinating exercise.)

The UBC Museum of Anthropology and Musqueam have collaborated on an exhibition (c̓esnaʔəm, the city before the city) to examine Musqueam identity and worldview.  It offers lots of information – including oral histories and so on – but just as importantly, it aims to emulate Musqueam ways of teaching.  It’s only scheduled to remain in the physical space until January 2016, but I believe that the content will be archived online and will remain available (http://www.thecitybeforethecity.com)

One concern I have is about how to incorporate Indigenous perspectives, Indigenous elders and Indigenous teaching into our curriculum without making overwhelming demands on Indigenous leaders and Indigenous colleagues and without cultural appropriation or misrepresentation.  Any ideas that others can share on that question would be extremely helpful to me.

Another thing that I want especially to raise and discuss is the TRC recommendation that inter-cultural conflict resolution should be taught in law schools.  I love this idea, and I am really not certain about how to advance it.  Do others know of good resources that might assist us to tackle this recommendation?

A further thing I wonder and worry about is how especially to support our Indigenous students as they are learning law.  Changing the curriculum to ensure that Indigenous law and Indigenous perspectives are foregrounded with great respect is important – but so too is the material context in which our students study.  Recognising that law school presents financial, emotional and other challenges to many students, I suspect that these challenges are especially acute for Indigenous students.  Easing these challenges seems an important part of the #reconciliationsyllabus.

My next task is to be a bit less introspective, and a little more instrumental, by posting some of the readings I actually use and discussions I lead in various courses.  These could, I’m sure, be improved and added to and, yes, critiqued – please add your thoughts!

This is my first blog post.  And this is such a sensitive and important topic.  Please give me feedback on whether I have understood the format correctly, and expressed myself in a helpful way!

apihtawikosisan.com

CaptureThis amazing resource is the work of Chelsea Vowel, Metis, Plains Cree speaking, LLB holding powerhouse (i’ve never met her, but have been following her online for years).  She is a go to source for me.  She tweets at @apihtawikosisan. She’s even made a video game and has a podcast called Metis in space (about scifi and indigenous issues).   On her site she blogs but has also put together what she calls a primer on Aboriginal Issues. http://apihtawikosisan.com/aboriginal-issue-primers/legal-links/  

Highly recommended for a visit.  Even if you don’t put her things on the syllabus, I think that directing your students to the blog is a really important move.  I think that generally trying to send students to indigenous media sources is part of this work, since, “digital natives” or no, they can have remarkably narrow web habits.   The web offers the possibility of seeing how current events are filtered through different perspectives.

-Sonia

 

Wampum at Niagara (it’s not just about the Royal Proclamation)

In 2014, the Canadian Association of Law Teacher’s held their annual conference in Winnipeg (http://www.acpd-calt.org/wp-content/uploads/2014/06/CALT-Conference-Program-May-26.pdf).
Ovide Mercredi gave a speech at the dinner. During his speech he asked the group what significant anniversary was happening in 2014. The answer was the anniversary of the Treaty of Niagara. He then challenged us as to why so few of us knew that and why we weren’t teaching the Treaty making as opposed to just the Royal Proclamation.  I have lots of excuses, but none are very good.
Whether for the Reconciliation Syllabus or for ConLaw teaching, I can’t recommend John Borrows’ Wampum at Niagara enough.
“Wampum at Niagara: The Royal Proclamation, Canadian Legal History, and Self-Government.” In Aboriginal and Treaty Rights in Canada: Essays on Law, Equality, and Respect for Difference. Vancouver: University of British Columbia Press, 1997. 155-172.
SFU even has it online http://www.sfu.ca/~palys/Borrows-WampumAtNiagara.pdf
It is listed on the UBC indigenous foundations site too.

I think that is particularly important for those in my geographic area, given the nations who were represented at Niagara.  But I think the article goes well beyond that in outlining the significance of Niagara.

-Sonia

Finding Resources Close to my Shuswap (Secwepmc) Home

By Rebecca Johnson

TRC Recommendation #28 says:

We call upon law schools in Canada to require all law students to take a course in Aboriginal people and the law, which includes the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal–Crown relations. This will require skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism.

I have been thinking about how to develop curriculum that addresThe view from my mom's Shuswap homeses this recommendation, and in doing so, have been thinking about how to make this recommendation more ‘personal’.  That is, I have been thinking about ways the recommendation could be rooted in my own sense of “home”.  What would it mean to find resources that speak to my own embedding, as a Settler-Canadian, in these histories?  What would it mean to see MYSELF in this history?  And so, I started to think about resources that are linked to my ‘heart-home’:  the Shuswap Lake.

Here are some pieces I have been thinking might work together as a pod of resources, one which is located in BC (given my location here), and which is located in the Shuswap (Secwepmc territory)  where I spend my summers.

I thought it a good place to start because I have spent so much of my life there, I deeply love the land there, and grew up (like many Settler Canadians) knowing NOTHING of the real history of the place, or of the law of the Secwepmc, or of this history of Setter/Secwepmc interactions.

Partly, I wonder if one way for many of us in law schools to start doing this work is to start it from the place that we are AT.  That is, to try to gather together the resources that might enable us to really teach our students in the spaces that they learn… so they begin to see how the various stories of law are all around them in a very concrete way.

I do not, of course, think that is the ONLY way to approach the work, but I do wonder about the ways the work might feel if we take seriously the ways in which we too (i am presuming a settler ‘we’ here, but am open to conversation on that point) are living on particular places, and might benefit from taking seriously the histories and resources of those places.

And so, here is a first intervention, and I REALLY welcome ideas and feedback about resources, stories, documents that might work together to think about law school curricula linked to Secwepmc territory.

so… a starting place might be basic information about the territory, told from the perspective of current indigenous political communities.  As a starting place, it might involve some attention to using the names indigneous communities use for themselves.  So… if not ‘drop’ the Shuswap, then at least think about also usins Secwepmc (or at least beginning the discussions of naming).  And so, maybe begin with some links to how the communities describe themselves and their lands.  Maybe a link like this? http://tkemlups.ca/our-land/

Might be useful to start with questions about land and governance.

  • Memorial, to Sir Wilfred Laurier, From the Chiefs of the Shuswap, Okanagan and Couteau Tribes of British Columbia. Presented at Kamloops, B.C. August 25, 1910 

http://shuswapnation.org/to-sir-wilfrid-laurier/

Then, what about histories of residential schools?  In this case, we have a wonderful memorie written by a student who attended the Williams Lake residential school.

  • They-called-me-number-one-250x386 Bev Sellars, They Called Me Number One.

This book came highly recommended by friends.  I just finished it last weekend.  So much in there to talk about and discuss.  Here is a link to a short review of it:

https://www.alumni.ubc.ca/2014/events/book-club/they-called-me-number-one-by-bev-sellars/

The book is full of material that could link in easily to any number of courses and topics.  It deals with language, parenting, land, education, torts, crime, politics, policing, governance, religion, hope, despair, etc.

There are some very obvious links to mainstream curriculum.  For example, the Principal at the Williams Lake Residential School was Archbishop O’Connor (familiar in the criminal law curriculum with respect to the right of an accused to have access to the private counselling records of a ‘complainant’ in a sexual assault case).   I found it interesting to re-think/teach the story of O’Connor against the context of the work done in Bev Sellar’s memoire.

  •  R v. O’Connor

          http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1323/index.do

Another recourse to link in could be this:

  • Report on the Caribou-Chilcotin Justice Inquiry 1993

http://www.llbc.leg.bc.ca/public/pubdocs/bcdocs/149599/cariboochilcotinjustice.pdf

Here, there is a chance to look at the Report of an Inquiry, and in this case, a fairly short report.  Nicely, Bev Sellars was involved in the Inquiry, so her memoire provides an occasion to ask questions about what does or does not end up in the Report of the Inquiry itself.

  • Links to the present might include exploration of the 2010 BCLA intervention in on-going conflict between RCMP and the Williams Lake Community (which gives an opportunity to explore how contemporary moments of conflict find roots in the deeper histories)

https://bccla.org/news/2010/09/conflict-between-rcmp-and-aboriginal-community-in-williams-lake-must-be-investigated-and-resolved-says-bccla/

Well… this is just a start.  Would love to hear ideas from others about how these pieces might be pulled together (or substituted with others) in the interests of moving towards TRC2015 Recommendation #28