The Kamloops Indian Residential School, the Doctrine of Discovery, and the International Criminal Court

The editor of the Georgia Straight recalls how a Canadian court dealt with Indigenous voices in a case involving one of its contributing writers

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      (This is longer than most articles that appear on media websites.)

      Nearly six years ago, I testified in B.C. Supreme Court about what I perceived to be a relentless public-relations campaign against the newspaper that employs me, the Georgia Straight.

      It came in response to a 2012 feature article by journalist Laura Robinson about what happened in a Catholic day school in Burns Lake in the late 1960s and early 1970s.

      Eight Indigenous former students at the Immaculata Elementary School in the Roman Catholic Diocese of Prince George had sworn affidavits about either experiencing or witnessing mistreatment by former Vancouver Olympics CEO John Furlong when he was a teacher there.

      I testified that as an editor, I had an option: I could put those affidavits in a filing cabinet or I could allow those voices to be heard by running Robinson's article. I felt that eight affidavits would be enough.

      They weren't.

      Even though Furlong eventually halted his lawsuit against me before it went to examination for discovery, our newspaper was pummelled in the Canadian media.

      Repeatedly, stories would appear online, in print, and in the broadcast media disparaging Robinson as having a vendetta against Furlong.

      It was a marvelous way of diminishing the voices of the Indigenous people. Make the messenger, not the Indigenous people themselves, the focus of the story.

      There were the occasional exceptions—most notably under the bylines of Joan McEwen, Sandy Garossino, and Bob Mackin writing for smaller online outlets, and Lori Culbert at the Vancouver Sun—but by and large, the national media lined up with Furlong. 

      Lengthy broadcast segments hosted by high-profile news anchors Chris Gailus and Lisa LaFlamme gave Furlong a platform to rip our paper. Their networks did not give anywhere close to equal time to those making the allegations.

      The Vancouver business community also rallied to Furlong's defence, with the Vancouver Board of Trade holding an event in his honour. There was no invitation to those who swore affidavits about what happened to them in elementary school.

      A speaking engagement with Furlong was cancelled by UBC and then reinstated, even after some former students shared their stories with UBC president Santa Ono. There was no invitation to the former students in Burns Lake to speak on campus.

      A judge was assigned to preside over Robinson's defamation suit against Furlong after he'd halted his action against her. 

      This judge dismissed her case, accepting his lawyer's arguments that the Indigenous people's affidavits were inadmissible.

      This judge also ruled that Furlong was entitled to respond in the manner that he did because Robinson's articles and comments constituted an attack on Furlong's character, conduct, and credibility.

      Therefore, whatever Furlong said about her, no matter how sexist or even false, was protected by qualified privilege. That's because in the eyes of the judge, these comments were not made or actuated by malice.

      Laura Robinson lost her defamation suit against John Furlong after a judge refused to allow Indigenous people's affidavits to be admitted in court.
      John Cameron

      Indigenous voices weren't heard in court

      "Ms. Robinson and Mr. Smith of the Georgia Straight believed that statutory declarations would provide a guarantee of the truth of the allegations in a way that initialled statements could not, because the individuals would understand that they were under oath to tell the truth," the judge wrote. "However, in the circumstances of this case, statutory declarations could not deliver that guarantee."

      I actually do not recall ever stating that the affidavits "guaranteed" they were truthful. But the pattern of allegations were worthy of covering—given that they were provided under oath, where there can be heavier consequences for lying—and that Furlong had declined to respond to them.

      The one major outlying allegation in one of the affidavits was not published in our paper because it wasn't reinforced by other affidavits.

      The judge emphasized that it didn't really matter if the Indigenous people thought that their memories were true.

      "They may well have believed their stories, but the issue is whether their memories of childhood trauma, related some forty years later, were reliable in the sense of being accurate recollections of their experiences with a particular person, namely John Furlong."

      I'm no lawyer, but  after the trial I thought a lot about the Supreme Court of Canada's 1996 Van der Peet ruling.

      It stated: "The courts must not undervalue the evidence presented by aboriginal claimants simply because that evidence does not conform precisely with the evidentiary standards applied in other contexts."

      Then again, these Indigenous people were not "claimants" in a legal sense—they were affiants, whereas the actual legal claim was filed by Robinson against Furlong. So perhaps the judge was legally justified in stifling Indigenous voices under Canada's "rule of law".

      Furlong's lawyer, John Hunter, was later appointed as a B.C. Court of Appeal justice. I have to give Hunter credit—he did a brilliant job on Furlong's behalf, ensuring that Indigenous people couldn't be heard in court in this case.

      Then for good measure, Robinson was savaged in a Globe and Mail opinion piece by former attorney general Geoff Plant. He claimed that Robinson had not only inflicted "brutal harm" on Furlong, but also on "former students who were victimized by her zealotry".

      That was the coup de grace.

      My testimony was mostly ignored in the decision apart from where it could be used to undermine Robinson's case. For several years, this experience made me reluctant to ever want to testify again in court.

      In the wake of Robinson's article, I was a witness of sorts to the RCMP's investigative zeal when it came to allegations by First Nations people.

      One of its officers asked me to give him the affidavits. I told him that he should obtain a production order from the court. As far as I know, he never followed through on this relatively routine measure.

      During Robinson's investigation, the Roman Catholic Diocese of Prince George refused to grant her access to its records. These records were never entered in court in her lawsuit against Furlong.

      Six of the former students, all members of the Lake Babine First Nation, subsequently filed a human-rights complaint against the RCMP.

      They alleged "adverse differential treatment and denial of access to police services based on race and national or ethnic origin". The Canadian Human Rights Tribunal has decided to hold a hearing.

      "The case demonstrates the inequality that Indigenous communities experience in accessing justice," the complainants alleged. "It reveals the biased attitudes and systemic discrimination that exists in police investigative methods, and shows how Indigenous victims of abuse suffer adverse impacts, such as being disbelieved and/or dehumanized, being subject to incomplete and/or inadequate investigations, receiving little or no support, and being treated with a lack of respect and dignity."

      None of these allegations have been proven at this point.

      Their complaint also noted that RCMP documents show that the Mounties were aware that if one allegation in particular was substantiated, "it will prove to be an embarrassment at a number of levels of governments, private and sporting corporations, associations and other organizations including the Canadian and International Olympic Organizations….Should the allegation(s) be substantiated, the entire matter will likely be linked to the greater issue of First Nations and Native Residential Schools.”

      The Prince George Citizen published a glowing article about Bishop John Fergus O'Grady when he retired in 1986.

      Kamloops principal built more schools

      Why am I mentioning all of this now? It's because a former bishop of the Roman Catholic Diocese of Prince George was once principal of the Kamloops Indian Residential School. That's where Tk’emlúps te Secwépemc leaders say 215 Indigenous children were buried in unmarked graves.

      John Fergus O'Grady was in charge of the school from 1939 to 1952. There's no indication of when these bodies were buried on the school grounds. It may not have occurred during O'Grady's tenure.

      Robinson's story shone a light on the role that O'Grady played in building more than a dozen Catholic schools. This earned him the nickname the "Bulldozer Bishop".

      This week, the former chair of the Truth and Reconciliation Commission of Canada, Murray Sinclair, criticized the Mounties' response to the unmarked graves. It sounded oh so familiar to me, in light of reports that I mention deeper in this article

      “They’re now beginning to question those who have made this story available and unfortunately, (in a) typical heavy handed and ham-handed police way, they are simply intimidating people, rather than helping them," Sinclair said at a parliamentary committee on June 3.

      He's called for an independent investigation overseen by a parliamentary committee.

      The Catholic Church has still not opened its files. And anyone connected in an official way to this horror story in Kamloops—be they religious, governmental, or police officials—keeps uttering pious declarations expressing their deep sorrow.

      Meanwhile, 15 Canadian lawyers have signed a letter asking the International Criminal Court to investigate the Canadian government and the Catholic Church for crimes against humanity.

      Under the Rome Statute, of which Canada is a signatory, the International Criminal Court has jurisdiction over the crime of genocide, crimes against humanity, war crimes, and the crime of aggression (i.e. when nation states attack other nation states in the absence of self-defence).

      The list of crimes against humanity includes the enforced disappearance of persons.

      The International Criminal Court's jurisdiction extends to states, like Canada, that have ratified the Rome Statute. The crimes can only be prosecuted if these states are unable or unwilling to do so themselves.

      There's been evidence in the past of the state's lacklustre response to Indigenous people's concerns about the RCMP.

      A 107-page report by the B.C. Civil Liberties Association, called Small Town Justice, was released in 2011. It noted that 10 current and former RCMP officers from Kamloops had been criminally charged or criminally investigated as the report was going to press, reflecting almost 10 percent of the force.

      In Kamloops, the report stated, "aboriginal people reported that the loss of aboriginal special constables meant that urban and local aboriginal communities no longer felt served by people who understood aboriginal culture".

      The author of the report, future attorney general David Eby, wrote that despite these issues, participants at a public event at Thompson Rivers University had many positive comments about the RCMP's conduct in Kamloops.

      Human Rights Watch researcher Meghan Rhoad travelled 6,000 kilometres across northern B.C. listening to Indigenous women and girls'  stories about their encounters with the RCMP.
      Charlie Smith

      International groups wrote about RCMP

      A more damning report was issued two years later by Human Rights Watch regarding the Mounties' interactions with Indigenous women and girls in northern B.C.

      It was called Those Who Take Us Away: Abusive Policing and Failures in Protection of Indigenous Women and Girls in Northern British Columbia, Canada.

      "In ten towns across the north, Human Rights Watch documented RCMP violations of the rights of indigenous women and girls: young girls pepper-sprayed and Tasered; a 12-year-old girl attacked by a police dog; a 17-year-old punched repeatedly by an officer who had been called to help her; women strip-searched by male officers; and women injured due to excessive force used during arrest," the 87-page report stated.

      "Human Rights Watch heard disturbing allegations of rape and sexual assault by RCMP officers, including from a woman who described how in July 2012 police officers took her outside of town, raped her, and threatened to kill her if she told anyone."

      Amnesty International published a 78-page report in 2016 focusing on violence perpetrated against Indigenous women and girls in connection with resource development in the Peace River region of northeastern B.C.

      "RCMP confirmed that many of the officers working in the northeast have only recently graduated from their police training," the report stated. "Conversations with law enforcement suggest at least a tacit understanding that police are sent to remote and northern communities as a learning opportunity and to 'pay their dues'."

      Then in 2019, the National Inquiry into Murdered and Missing Indigenous Women and Girls described what happened in Canada as "genocide".

      "Thousands of women's deaths or disappearances have likely gone unrecorded over the decades and many families likely did not feel ready or safe to share with the National Inquiry before our timelines required us to close registration," the report stated. "One of the most telling pieces of information, however, is the amount of people who shared about either their own experiences or their loved ones' publicly for the first time. Without a doubt there are many more.

      "We do know that thousands of Indigenous women, girls, and 2SLGBTQQIA have been lost to the Canadian genocide to date," the report continued. "The fact that First Nations, Inuit, and Métis Peoples are still here and that the population is growing should not discount the charge of genocide; the resilience and continued growth of these populations don't discount the many actions detailed within this report, both historical and contemporary, that have contributed to endemic violence against Indigenous women, girls, and 2SLGBTQQIA people."

      Unceded Chiefs director Doreen Manuel has tried to draw attention to the impact of the Doctrine of Discovery in the state's treatment of Indigenous peoples.
      Taehoon Kim/Capilano U

      Crown sovereignty derived from colonial doctrine

      The Supreme Court of Canada still hasn't repudiated the Doctrine of Discovery, which was advanced by European monarchies to justify the seizure of Indigenous-occupied, "non-Christian" lands in North America.

      This doctrine imposed Crown sovereignty over Indigenous peoples—something highlighted in Secwepemc and Ktunaxa filmmaker Doreen Manuel's documentary Unceded Chiefs.

      In an interview with the Straight last year, Manuel expressed deep concern over Canadians' lack of awareness about the doctrine, which she said has legitimized theft of Indigenous lands.

      “They have no clue of what the Doctrine of Discovery is and how all other laws are stacked on top of it—and how unfair the foundational laws in Canada are,” Manuel said.

      The Canadian courts have not unshackled their jurisprudence from this colonial doctrine. In this regard, Canada is following the lead established by the United States in the late 18th century.

      My personal experience in the legal system as it dealt with Indigenous people's voices is but a tiny sliver of what's unfolded in this country since Confederation.

      I only cite it here to provide context for anyone who might wonder why Canada's actions in connection with unmarked graves in Kamloops warrant an external review by the International Criminal Court.

      Support is available by calling the 24-hour National Indian Residential School Crisis Line at 1-866-925-4419.