Poring over the long, laborious drift of our Truth and Reconciliation Commission (TRC) brings to mind Charles Dickens’ description in Bleak House of horse-haired solicitors, mistily engaged in “making a pretence of equity with severe faces”. Ever since the TRC was spawned on the pages of Schedule “N” to the Indian Residential Schools Settlement Agreement, there has been a steady ratcheting of the rhetoric tarring Canada’s hitherto good name as a just society. This reached its nadir with the TRC’s most recent offspring, the National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG), and its charge of genocide against the Government of Canada. Again hearkening back to Dickens, “Never can there come fog too thick, never can there come mud and mire too deep, to assort with the groping and floundering condition which this High Court of Chancery, most pestilent of hoary sinners, holds this day in the sight of heaven and earth.”
Given the severe crimes which lie at the heart of the MMIWG – murder and abduction – it’s odd that due process and other rudimentary tenets of procedural fairness received such short shrift. Instead, the inquiry developed into a woke-fest of jingoism, ramshackle evidence-gathering and conclusions that could just as easily have been conjured by a hand-wringing undergraduate with a few hours to spare, rather than the $60 million-plus price tag handed to the taxpayer.
This is all the more incomprehensible because Canadians have a readily available and well-proven users’ manual for investigating abuse and the illicit leveraging of government power. The collective body of principles known as the Common Law enables citizens to challenge governmental abuse of power. Its principles include the duty to act fairly, impartial weighing of the evidence, procedural guarantees and presumption of innocence.
In the MMIWG these were rubbished in favour of an entirely new lexicon, that of “truth-gathering”, “colonization”, “oppression”, “calls to action” and “healing”. Why did we not hear so much as a whimper from the law societies? How did the Canadian jurisprudential tradition of fairness and impartiality morph into a culture of voluntary confessions, collective guilt and language straight from the mouths of social justice warriors?
I’d like to think this was a one-off hijacking of our otherwise healthy tradition. Or is this the new normal? The answer sits in part, somewhat obscured by the passage of time but still plain to see for those who look, in the terms of reference for the TRC itself – buried in that Schedule “N” to the Indian Residential Schools Settlement Agreement (IRSSA) of 2006 that is referred to above. Its creation corresponds to one of five “elements” created to bring closure to the Indian Residential Schools (IRS) legacy.
The overarching issue of the previous IRS class action litigation was sexual, physical and spiritual abuse. The legal case hinged on whether the Government of Canada – as the architect of Indigenous education policy – and the Catholic, Anglican, United, Methodist and Presbyterian churches – as administrators of that policy – were liable to former schoolchildren who had suffered abuse committed by staff. The unprecedented development known as the TRC rested, in its entirety, upon this process of causation. Its Calls for Action were the result.
The TRC’s creation was part of a settlement package in a private lawsuit. To give an idea of what was at stake, imagine a civil claim by a white family against, say, a radical Christian sect because their five-year-old child was abducted, forced into a cloistered existence, beaten and sexually abused. Consider the financial compensation such a tort would bring. Now, multiply that case by 79,000 – the number of surviving former IRS pupils who joined the class action as plaintiffs. Whoever in the federal Department of Justice concocted the exit plan – the creation of the TRC – must be privately rejoicing.
But the TRC did not bring closure. In part due to its name and in part due to its ambitious “Calls to Action” it became, notwithstanding criticism from all sides, a template for ongoing relations between Indigenous people and the rest of Canada, or “settlers” in the new lexicon. Schedule “N”’s introductory paragraph states that the TRC’s mandate is born of “an emerging and compelling desire to put the events of the past behind us”. It positions the “truth-telling and reconciliation process as part of an overall holistic and comprehensive response to the Indian Residential legacy…”
It is more accurate to say that the TRC was born of a compelling desire by the federal government and the Christian churches to put behind them an explosive and costly class action. It is these two entities that stand accused in the moral docket of the nation’s history. Indeed, in its final ruling on an appeal of a case that lies at the heart of the matter, the Supreme Court of Canada in 2017 reiterated that the IRSSA “is at root a contract.” The “people of Canada” are not a party to that contract.
No matter; the authors of Schedule “N” simply forged ahead as if they were. “Reconciliation,” the seminal document continues, “is an ongoing individual and collective process, and will require commitment from all those affected including First Nations, Inuit, and Métis former Indian Residential School (IRS) students, their families, communities, religious entities, former school employees, government and the people of Canada.”
Wait a minute. Government and the people of Canada? How did the people of Canada get roped into private litigation?
I don’t recall collaborating with or having any insider knowledge about the IRS system, except indirectly through my own experiences as a student of the Christian Brothers of Ireland in the 1970s. Many of these experiences paralleled the troubling stories I later read about residential schools. But despite the everyday abuse, I don’t hold all Christian clergy, or all Irish, responsible for what I experienced. And I definitely don’t recall having mandated the Canadian government to abduct Indigenous children and socially re-engineer them through a residential schools system whose creation predated my own birth by more than half a century.
One of the approximately 140 such facilities was St. Anne’s Indian Residential School in Fort Albany, in the James Bay area of Ontario. Some of the former pupils who had boarded there between 1941 and 1972 later formed a survivors’ group. In 1992 they met at the Keykaywin Conference (not to be confused with the larger and broader annual Keywaywin Conference of regional First Nations) to discuss abuse and healing. The core summary of the conference’s proceedings made a harrowing assertion about conditions at St. Anne’s:
“Almost everyone had been physically abused, humiliated, and spiritually abused. Some of the physical abuse described included being stabbed with a pencil, made to eat vomit, forced to kneel for hours on concrete floors, being locked in dark basements, being punished for things not done, being dragged by the hair, and being subjected to electrical shocks in an ‘electric chair.’”
When I first read this summation, none of these allegations struck me as far-fetched. From 1960-1972, I was educated at Catholic schools run by the Sisters of St. Anne and subsequently by the Christian Brothers of Ireland. At my parish, St. Peter’s in New Westminster, B.C., the Missionary Oblates of Mary Immaculate – who were the co-defendants alongside the Sisters of St. Anne and other Catholic and Christian Churches in the IRS litigation – indoctrinated me in the tenets of the Church.
Beatings, attempted sexual interference and the like were our fare. My parish rector, Father John Edward McCann, would later face multiple sex-related charges for his horrific abuse of my friend’s devout 14-year-old sister, pleading guilty and serving a 10-month prison sentence. A close friend of mine had his eardrum punctured by one of the Christian Brothers. Two former teachers at my school, Brothers Short and English, achieved national notoriety in the Mount Cashel Orphanage debacle.
And note: we did not attend school in the isolation of Fort Albany but in New Westminster, a suburb of Vancouver where, incredibly, the Christian Brothers and the Oblates could hide in plain sight. If there was anything off the radar screen, a quick shuffle and Brother Bob’s off to Antigua for a cooling-off period. If even schools in urban neighbourhoods were savannahs for these social predators, it is not hard to envision similar or worse and more widespread abuses occurring on Indian Reserves. Nor is it at all hard to understand why Indigenous ex-students – at a geographical, social and linguistic remove – came to see themselves as “survivors.”
The information brought forth at the Keykaywin Conference was sufficient to allow Fort Albany First Nation Chief Edmund Metatawabin, himself a St. Anne’s survivor, to take the evidence to police. Soon thereafter, the OPP initiated an investigation into St. Anne’s and expanded the inquiry as others came forward. In a CBC News article on March 29, 1998, Jorge Barrera described the course of events:
“Over the next six years, the OPP would interview 700 victims and witnesses and gather 900 statements about assaults, sexual assaults, suspicious deaths, and a multitude of abuses alleged to have occurred at the school between 1941 and 1972.”
Investigators eventually identified 74 criminal suspects and charged seven people. As Barrera reported, five were convicted of crimes committed at the residential school. Ann Wesley, a Cree nun and former pupil at St. Anne’s, was convicted of three counts of common assault, three counts of administering a noxious substance, and one count of assault causing bodily harm. She received an 11-month conditional sentence. Jane Kakaychawan, an Ojibway nun born in Ogoki Post, Ontario, and a former pupil at the McIntosh Indian Residential School north of Vermilion Bay, Ontario, was convicted of three counts of assault causing bodily harm. She received a six-month conditional sentence.
John Moses Rodrique, a cook at the school later employed by Indian Affairs, pleaded guilty to five counts of indecent assault. He was sentenced to 18 months in jail. Claude Lambert, a child-care worker at St. Anne’s, pleaded guilty to one count of indecent assault and was sentenced to eight months in prison. Marcel Blais, who worked in the kitchen, pleaded guilty to one count of indecent assault on a male. He did not receive jail time.
The OPP investigation, however, was withheld and disappeared into the sands of the IRSSA, as part of a complex interplay of funding, political apologies and compensation by the federal government, including the IRSSA and the TRC. As reported by Barrera:
“From 2008 to 2014, the federal government omitted references to the OPP investigation, including the convictions, from the official St. Anne’s record, known as the school narrative, used during compensation hearings created by the 2006 Indian Residential Schools Settlement Agreement.” (Emphasis added.)
Even at this remove, one can imagine the federal government’s desire to contain a Pandora’s Box of what might prove to be generational litigation. Although church and state were co-tortfeasors, there are two distinct pools of liability. The forcible abduction of children from their communities was presumably government jurisdiction, whereas the sexual abuse of First Nations children while at the mercy of religious organizations in remote communities was the work of IRS staff.
If this was the strategy, it has to be said that it was “successful”. Liability has been capped, the waivers signed, the evidence has for the most part disappeared, and the TRC and its successor inquiry, the MMIWG, have largely become a glorified victims’ impact statement, naturally with the requisite eagle feathers, healing ceremonies and dream wheels. And best of all, from the defence lawyers’ standpoint, the multitude of threads and tendrils coming out of the TRC have thoroughly obfuscated individual criminal liability, which has somehow vanished into thin air. In sum, the victims, by being lumped into an indeterminate, amoebic mass, have been denied the chance to face down the criminals who wrought this upon them.
In another sense, however, liability wasn’t really capped at all, merely transferred and widened. For, thanks to Schedule “N”, the entire population of Canada finds itself in the docket. And the collective punishment shows every sign of being open-ended and essentially without borders. This, notwithstanding that a core purpose of the TRC was to inform the Canadian public about practices that had not been disclosed to them. Regardless of race, creed, gender or when their ancestors might even have arrived in Canada, our children are being perp-walked down the country’s streets to purge their fathers’ or grandfathers’ unnamed sins, committed on an Indian reserve 700 km north of Toronto between 1941 and 1972.
The Canadian government had no choice but to acknowledge publicly its role in creating a policy, later characterized by the courts as “horrific”, of separating entire communities from contact with their own children. But the people of Canada? On that logic, the people of Canada owe me an apology too. And they don’t.
The most significant casualty inflicted by the abuses committed by the Christian Brothers and other religious orders – even worse than the skewing of normal sexual development at a vital stage of life – was the erasure of our trust in teachers, in our parents, and in the education system. The proper forum to expose this culture of abuse, like any liability claims, would have been a courtroom. In courtrooms, the links of causation are established, damages are weighed, the accused are prosecuted and the public need for retribution is assuaged.
The OPP had begun that painful process and was carrying it forward with demonstrable success until lawyers and politicians short-circuited it via the IRSSA. The concept of “truth and reconciliation” was then wrenched from contexts utterly foreign to the Canadian experience. They were Chile’s inquiry into the deaths and disappearances of thousands of private citizens under the previous military junta of General Augusto Pinochet, and South Africa’s Truth and Reconciliation Commission investigating gross human rights violations including abduction, torture and murder under that country’s previous Apartheid regime.
From this vantage point, Canada’s TRC looks like a burlesque three-act morality play. The Tartuffian villains – being Church and King – strike a plea bargain in Act I, don the robes of moral rectitude in Act II and, in Act III, the drama concludes with a mournful procession, wherein the people of Canada self-flagellate for crimes they neither committed nor benefited from.
My anger and sense of powerlessness at McCann’s horrific abuse of my friend’s teenaged sister is somewhat appeased by the knowledge that in the end, he was caught. He was charged, did hard time and was eventually driven into that good night from Our Lady of Mount Carmel in Ottawa, where he had burrowed himself and continued to preach. He had his photo splashed across the newspapers.
But the nearly 80,000 Indigenous people who were parties to that class action have been denied the principal solace of a victim, namely, to confront the individual accused. At the same time, the trusting Canadian people have been tarred with collective guilt via these settlement mechanisms for atrocities they never even contemplated, much less authorized – either explicitly or implicitly. It betrays a cynicism and disingenuousness that has a particularly Canadian flavour.
In her 1963 book Eichmann in Jerusalem, the German-American political philosopher Hannah Arendt denounced the assignment of collective guilt as the “quintessence of moral confusion.” She noted that the concept of collective responsibility resulted in a perverse moral dead-end: innocent German citizens admitting their “collective guilt” for Auschwitz or Dachau, while the real criminals showed no remorse. Collective guilt, she concluded, is a fudging of moral responsibility, allowing the guilty to escape responsibility for horrific crimes while the innocent are forced to do penance for acts they had nothing to do with.
Not so long ago, liberalism devoted its moral and intellectual energy to determining and defining the individuals’ rights and responsibilities. It was the natural extension of humanism, the philosophical revolution defended by Copernicus and Galileo, by other brave individuals from Erasmus to Thomas More, and thereafter by the Enlightenment philosophes. Many of them risked their lives to proclaim and defend the autonomy and moral worth of the individual. A man could go on the rack or lose his head for lèse-majesté or the crime of blasphemy. (Ironically, Thomas More was the namesake of my alma mater, a patron whose courage and moral decency was, during my time, honoured in the breach.)
Schedule “N” betrays our liberal heritage, evincing an atavistic nostalgia for a time when Church and King judged and sanctioned the herd’s moral worth. A Deo rex, a rege lex, as James I infamously put it: “The King is from God, the law from the King.” Taking things a step further, our government, via the back door of a settlement agreement, has decided that the Canadian public is guilty for the sins of Ottawa.
The drafters of Schedule “N” cynically decided that the people of Canada, a demographic of 37.7 million stretching across 9.985 million square kilometres, should stand in the docket because of the acts of a Cree nun, an Ojibway nun, a cook, a kitchen worker and a child-care worker on a James Bay reserve (and, no doubt, numerous other individuals on numerous other reserves who were never charged or named because the criminal investigation was deliberately halted). They have no evidence of causation linking the Canadian public with these perpetrators because there is none.
This lack of causation between the perpetrators and the Canadian public holds equally true for the 80,000-plus claimants who received compensation under the settlement agreement. The IRS network was created exclusively by a federal agency. It was administered exclusively by the aforementioned churches. They and their agents, subalterns, and church hierarchies right up to the Curia, the Archbishop of Canterbury and the Canadian Conference of Catholic Bishops are the malfeasors. Not the people of Canada.
In his June 11, 2008 speech in Parliament, Prime Minister Stephen Harper rose “to apologize to Aboriginal peoples for Canada’s role in the Indian Residential Schools system.” He did so “on behalf of the Government of Canada and all Canadians.” (Emphasis added.) Harper’s speech disclosed clearly that the government was prepared to accept political responsibility for the “misguided” policy of forcibly removing children from Indigenous families while distancing itself from the sexual and physical abuse committed at the residential schools. This allowed it to conjure up a familiar role as in loco parentis and compensator-in-chief.
The Conservative prime minister’s speech also provided, one presumes unwittingly, the key to the “apology creep” that has since spread nationwide, with no end in sight. Harper’s successor at 24 Sussex Drive, on the day following the publication of the MMIWG report, declared that “we accept the finding that this is a genocide”. Why indulge in such inflated rhetoric? Why such irresponsible damning of all Canadians?
The result of this drift-net of guilt is that we, the people of Canada, are left not only with our self-perception in tatters but with a question as yet unvoiced: Who orchestrated this farcical Commedia dell’Arte, in which the possibility of determining liability vanishes and reconciliation is forever frustrated? And this short-circuitry does no justice to the victims. Instead, it leaves our judicial garment threadbare and us all the poorer for it.
David J. MacKinnon is an historian, lawyer, translator and novelist (Leper Tango, The Eel and Franck Robinson monte au paradis); his autobiography, A Voluntary Crucifixion, was published last year. MacKinnon is also co-founder of the Long March to Rome, an Indigenous-led mission to the Vatican.