Juno News - October 22, 2024


B.C. lawyers ATTACKED as ＂racist＂ for correcting facts about Indian Residential Schools


Episode Stats

Length

26 minutes

Words per Minute

164.01143

Word Count

4,341

Sentence Count

274

Misogynist Sentences

2

Hate Speech Sentences

6


Summary


Transcript

00:00:00.000 Two British Columbia lawyers are facing accusations of genocide denial and racism
00:00:08.060 for daring to suggest that the BC Law Society correct a mandatory Indigenous sensitivity
00:00:15.080 training manual. The correction? That 215 bodies have not been found at the site of the former
00:00:22.940 Indian residential school on the Kamloops Indian Reservation. They wanted to add the word
00:00:28.520 potentially to this claim, which is in line with what the Kamloops Indian Residential School Band
00:00:34.580 themselves say. But by daring to suggest that correction, both lawyers, Jim Heller and Mark
00:00:41.720 Berry, have faced accusations of racism. Well, joining us now on the show is Jim Heller, one of
00:00:48.060 the two lawyers. Jim, thank you so much for joining us and take us through what has happened here,
00:00:53.760 because reading this story in the National Post, I really couldn't believe it.
00:00:57.240 Right. Thanks for your interest. And first, you know, at the risk of having you somehow
00:01:03.980 stigmatized as a denialist, I have to say the claim was 215, not 214. Okay. So anyways. Yeah. Okay. So
00:01:14.320 basically what happens is I think everybody, anyone that's going to watch this show likely, and
00:01:20.360 probably any Canadian and maybe anybody in California, perhaps even Uruguay, might know,
00:01:28.100 should know, that on May 27, 2021, there was an incredibly explosive report that was issued by the
00:01:37.820 Kamloops Band, the Indigenous Band in Kamloops, in conjunction, I think, with the government at that point,
00:01:47.960 saying that they had found through ground penetrating radar, they'd found 215, the remains
00:01:54.700 of 215 children that have been students at the former Kamloops Indian Residential School.
00:02:01.340 So there's an apple orchard outside of the old school, the school has been closed for some
00:02:05.980 time now. But apparently through GPR, ground penetrating radar, radar, research or examination,
00:02:14.280 they'd found these 215 kids. And that was just, that was amazing. That was like staggering. It seared
00:02:21.720 the Canadian conscience. It just riveted the world. I think it immediately became an issue with the United
00:02:30.920 Nations. Suddenly Canada is being considered in a way that's never been considered before. It's suddenly
00:02:35.800 we're a genocidal country. Our prime minister directed that the flags across the country should
00:02:42.980 be lowered. They stayed lowered for months on this basis. Hundreds of churches were, or no, over a
00:02:52.000 hundred churches, I believe, were vandalized and or arsoned. All as a result, the anger was amazing,
00:03:04.180 the shock and the shame. So anyways, all right, that all happened three and a half years ago.
00:03:09.700 And I think that immediately when people heard that, I know that when I first heard that,
00:03:14.920 I felt all of that. And the thing is that people immediately suspected that we're going to find out
00:03:20.140 more about this. We're going to get to the truth of this soon. Everybody wanted that truth. We wanted
00:03:24.920 to know with certainty what exactly was what. I mean, it sounded like we knew right at the outset,
00:03:31.780 but then it became kind of clear that, wait a sec, this was, it wasn't completely conclusive. So
00:03:36.840 when that became known, we all wanted to know what happened, what the story was.
00:03:41.940 I don't think anybody would have thought that over three years later, there still has been no
00:03:47.320 excavation on that site. And we don't know for a fact what, if any, there are any bodies there,
00:03:54.900 if there are 214 or 215 or 200. In fact, that 215 assessment was immediately dropped down to 200,
00:04:04.840 but that seems to get lost and makes it a little bit. So anyways, that happened.
00:04:08.780 And then we just kind of life proceeded. There was lots of fallout from that report and the assumption
00:04:19.400 that it was valid and accurate. But what happened most immediately, and the reason that we're talking
00:04:24.560 right now is this. In February 23, there was a woman that was convicted of criminal contempt of court
00:04:34.140 here in British Columbia on the basis of, she was a pipeline protester and she was indigenous and she
00:04:39.820 went to court, um, for sentencing because for contempt of court and at her sentencing, her lawyer, um, in,
00:04:50.220 uh, in informing the court about some of her indigenous heritage, um, factors, which is something
00:04:57.660 that all indigenous offenders, um, have taken into consideration for themselves. And that that's,
00:05:04.380 that's, um, part of our law now in Canada, her lawyers started talking about the remains of these
00:05:10.300 215 kids have been unearthed in Kamloops. And, and the judge, the sentencing judge kind of stopped
00:05:15.500 at one point and said, well, wait a sec, that didn't happen. And they had an exchange back and forth.
00:05:21.820 And the judge finally settled on their potential. These are potential unmarked graves.
00:05:27.420 And when she did that, the courtroom exploded and all of this woman's followers, um, started
00:05:34.460 calling out to the judge, calling her racist, denialist. I hate that term, but that's
00:05:39.580 the term that they were using. They had to be, um, taken out of the courtroom by the sheriff.
00:05:44.380 So one might think that'd be the end of it, but it wasn't. What happened afterwards was that that
00:05:50.540 same lawyer went to the court of appeal and he appealed her sentence on the basis that the
00:05:56.700 judge had made those comments. And therefore the judge was biased. Therefore the judge was
00:06:01.660 biased against his client and all of that. So then the court of appeal and three judges,
00:06:08.380 they considered that issue. And they came down with the ruling on July 22nd and on July 22nd,
00:06:15.180 they issued a ruling, um, that was penned by the chief justice of our court, uh, in British Columbia.
00:06:21.900 His name is Len Marchand, and he in fact is indigenous himself. And he very carefully considered
00:06:28.540 what happened at the sentencing. And he basically said this, um, the truth and reconciliation commission,
00:06:37.180 um, the band itself. Now at this point, they, they speak in terms of a contingent contingency. They,
00:06:43.100 they say these are potential unmarked graves. So how could it have been wrong for the judge herself
00:06:49.020 to have done that? And so he dismissed the appeal. So there's nothing wrong with that. So then what I did,
00:06:54.300 I thought, that's not, that's not good. That's not good that that lawyer might have taken the same
00:07:01.420 training. Oh, well, wait a sec. We're not the training yet. So this is what happened. In our
00:07:05.740 training that we have, this mandatory indigenous training that we have, um, we are told that they
00:07:11.020 had, that they did discover 215 children's bodies, uh, at that site. And then in fact, the, um, the band
00:07:18.380 had known that all along and, um, anyways, that's inaccurate. So I wrote to the trainers and I said,
00:07:24.860 Hey, look at this decision. I think it's incumbent upon you to, to change things. And they didn't get
00:07:31.740 back to me. So I wrote them again and said, what's happening. Why aren't you getting back to me? Your
00:07:36.060 facility for feedback and, and commentary and all that is email. You're supposed to get back to me.
00:07:41.420 You said that you would within two days. They didn't. So I wrote them a third time. And once again,
00:07:46.540 I said, you know, what's going on, this is like a serious, important issue. You should correct the
00:07:51.500 training, please. Now that was a fair, um, email, but once again, they didn't get back to me. So,
00:07:58.140 um, I brought a resolution with a colleague of mine, Mark, Mark Berry, and we brought a resolution to the
00:08:04.780 membership of the profession. We have an annual general meeting and this resolution was that, um,
00:08:11.660 the law society do what I was asking the trainers to do, which was just
00:08:16.060 modify the training to make it comport with, um, our current state of knowledge. So
00:08:22.700 brought the resolution and we have like a discussion period before the AGM. It's about a month long,
00:08:29.580 but during that period, lots of different things happen. Um, the law society itself slammed us.
00:08:36.380 It came out with a gratuitous press release saying that we were, that we were racist. So, um, well,
00:08:43.420 what it said was that our, our resolution show that there's a lot of racism left in the profession
00:08:50.540 that needs to be rooted out. And obviously they're implying that we were racist. Yeah. And, uh, saying
00:08:55.900 that our, our resolution was frivolous, vexatious, and unnecessary, and, you know, lots of other,
00:09:01.980 unnecessary. I mean, it's ridiculous to say unnecessary when you're correcting a factual inaccuracy.
00:09:08.540 Like, of course, it's necessary. If it's a mandatory training and people are being told
00:09:12.220 something that isn't true, it's necessary to correct that you would think. You would think
00:09:16.380 that, but I'll tell you, let me tell you some of the arguments against this. It's really kind
00:09:19.260 of fascinating and it's all kind of on this whole, um, uh, I guess, um, woke, uh, unwoke axis.
00:09:29.820 It all falls along those lines. So some of the feedback that we got either kind of criticism
00:09:34.780 at the AGM or in the law society portal where they open up a discussion page beforehand or other
00:09:40.940 press releases that, that, um, the BC first nations and the BC civil liberties union and the Canadian
00:09:47.580 bar association, they all put out. One of the arguments that they made was that, you know what,
00:09:53.100 even if it's inaccurate, this is, this is like unseemly, like you don't go against the oppressed
00:10:01.260 narrative, regardless if it's accurate or not. Like, for example, I said that, um, there was an
00:10:07.260 issue as to whether or not even the claim was 200, 215 right off the bat. The woman that did the GPR study
00:10:15.500 was told about at least one little area that 15 of the anomalies that she thought could be bodies
00:10:21.900 weren't. It was clear that they weren't. So she brought it back down to 200, but somehow nobody
00:10:27.820 seems to have taken account of that. So that's why I trained since 215. So anyways, the, some of the
00:10:32.540 criticism we got was like, it's unseemly, you know, you're, you're not indigenous. It's not your story.
00:10:38.620 It's not your narrative. These aren't your facts anyways. Okay. Let's talk about my perspective
00:10:45.660 here. I'm a lawyer. I think that we should deal with things as lawyers. We're evidence oriented.
00:10:52.620 You know, sometimes we get into the pick a uni kind of details on a granular basis. And sometimes
00:11:00.220 it really matters and really important decisions, you know, hang in the balance. Someone can be convicted
00:11:05.260 of murder and spend the rest of his life in jail because of that, you know, was it one inch or two
00:11:11.500 inches that, you know, that kind of an assessment we should be bringing, we should be looking at this
00:11:16.940 issue through that same lens, perhaps more than any other, um, kind of, uh, um, uh, part of society.
00:11:25.580 I think that's incumbent upon us as lawyers to do that. And we weren't doing that and we're not doing
00:11:30.460 that anyways, what happened was despite all of that horrible, unnecessary, um, I would say not just
00:11:38.700 spurious, but defamatory, um, pushback that we got, um, we still got 48%, 48% of the lawyers
00:11:50.060 were willing to kind of vote. And the law society would know who they were because all the votes are
00:11:55.180 anonymous, maybe to the membership, but not to the law study. We're willing to, to say, you know what,
00:12:00.220 they, they should change that training. Just change it. Not a big deal.
00:12:04.300 Yeah. And, and so on and on, sorry. No, no, no, that's fine. I want to give you,
00:12:10.860 I want to give you this chance because you know, the problem we have, Jim, that I see is that
00:12:16.380 not only did you experience this, um, you and your colleague experienced this pushback
00:12:20.940 at the legal profession, but in the media, in the media profession, you know, we can't, we,
00:12:25.660 we can't have certain conversations without being labeled as racist and denialist and you and your
00:12:31.820 colleague were labeled publicly by the BC First Nations Justice Council, I believe as being genocide
00:12:40.140 deniers. Yeah. Now, you know, racist genocide deniers you and you're not a racist, are you, Jim?
00:12:46.860 I don't think so. And, and, and also, uh, in the chat portal, I believe you correct me if I'm wrong
00:12:54.940 here, but the, the BC, uh, lawyers association, they had to shut down the chat portal because of
00:13:01.260 the abuse that you and Mark were receiving from other lawyers. Well, okay. That's an interesting
00:13:07.340 thing. So we have this portal and, um, we're getting some support and, um, then we're getting a lot of
00:13:14.380 pushback from lawyers that are making these kinds of arguments, the same arguments they made at the
00:13:18.060 AGM. And in fact, the AGM is available as a YouTube video. You could, someone could watch it.
00:13:23.740 Um, you know, for example, it's not our story. It's not our issue. And by the way, I really
00:13:28.860 disagree with that. I think that we all as Canadians own this story. Um, the purported victims of the
00:13:36.300 story on the victims, uh, own the story and the purported people that are associated with the,
00:13:41.660 um, the dominant, um, culture and society that, that might've perpetrated these crimes,
00:13:46.940 if in fact they took place, they own the story too. We all own the story. Anyways,
00:13:51.980 we were told it's not our story, not ours to even speak to. Um, we were told that we must be coming
00:13:58.620 at this with some sort of a black heart, bad faith, uh, motive to try to embarrass, um,
00:14:06.780 the band or, or to try to undermine, uh, the momentum of the general idea of truth and reconciliation.
00:14:16.540 Um, all of that. And, um, so what, but anyways, that, that carried on for a while until here's my
00:14:23.420 theory. The law society didn't explain why they shut it down. They just said that these are intemperate
00:14:27.740 comments. What I think happened was that there was one person in particular that cited the law society's,
00:14:34.140 um, uh, denunciation of us and said, well, the law society says that you're racist.
00:14:39.980 Maybe you should be subject to, um, some sort of, um, professional conduct, uh,
00:14:46.860 disciplinary accusation. And at that point, I think the law society took note of, of the
00:14:53.020 Frankenstein that they had created. And I thought that maybe it's a bridge too far and they shut it
00:14:57.260 down, but in shutting it down, what they were doing was derailing the entire AGM resolution voting
00:15:05.020 process because we needed that portal arguably to kind of, you know, canvas ideas and stuff.
00:15:12.060 So they derailed that and they kind of, um, well, nonetheless, like I say, we got 48% of the vote.
00:15:18.460 Right. And then soon after it's gotta be said, we have this member of parliament, um, uh, Leah
00:15:29.100 Ghazan, is that her name? The NDP member of parliament tabled a resolution in parliament to
00:15:34.300 actually criminalize anybody raising an eyebrow against anything that anyone says it's kind of part
00:15:42.780 of that anti, anti, anti, um, anti dominant society narrative with respect to residential schools.
00:15:51.900 Sorry, go. Well, I mean, you're, you're exactly right because that legislation, this residential
00:15:56.940 school denialism legislation that Leah Ghazan proposed would criminalize repeating what has
00:16:03.900 been written in the truth and reconciliation commission report, right? It would make it illegal
00:16:09.020 to say, to, to repeat the positive experiences from the residential school system, which were published
00:16:15.580 in that report. Besides that point, I want to ask you this. Yeah. What does, what does, what does the
00:16:22.140 action that has been taken by the BC, uh, first nations justice council and the law society of British
00:16:29.020 Columbia? What do you think this does to benefit the lives of indigenous Canadians? If anything at all?
00:16:33.980 Oh man, that's such a great and fundamental question and gets so lost in the mix and in all of this. And what does
00:16:42.380 it do to our courts? Can I, I think there's a, let's go, let's do both. Yes. First, the, the indigenous
00:16:50.140 communities of Canada themselves. So can you imagine you're raising a kid, um, who's young, he was too young to
00:16:57.420 even, um, know about the announcement was first made three years ago. So maybe he's like eight years old, nine years old.
00:17:04.300 And now you're telling him, or he's hearing about it from others about these 215 children that are buried
00:17:11.980 outside this residential school. That's like, um, you know, I'm not a big horror movie fan, but it's not
00:17:17.900 kind of like, um, uh, the, uh, medieval horrors or something like that. You're raising these kids
00:17:24.540 with these horror stories. How can that be? If it's not true. And I'm not saying one way or the other,
00:17:30.380 there could be bodies there. There could be bodies in some other outside, some other residential
00:17:34.540 school. There could have been something very nefarious done. I don't know. I mean, I don't
00:17:40.780 think my own views on that are really that important. You know, I'm doing my own reading
00:17:45.020 about that. I'm trying to learn what I, what I can about it. I did read Unmarked Graves,
00:17:50.460 which is a book that's, that is nothing but some very thoughtful, studious essays by serious people
00:17:56.940 like, um, retired judges and, um, academics in the, in the country. But nonetheless, my opinion,
00:18:04.060 notwithstanding, we're telling these kids that this is a fact. How can that be good for them? How can
00:18:11.500 that be good for their, their relations with, um, others? I don't think it's a good thing at all.
00:18:18.860 You know, I've got a number of indigenous clients and, and I, I think I've got a really good rapport
00:18:23.180 with them and I've told, I've told them about this resolution and, you know, for what it's worth,
00:18:28.460 they, they actually, they, they understand it. They, they support it. So I don't think it's good
00:18:33.100 that we're doing that. That whole denialism thing is terrible, horrible. I'm Jewish. I lost a lot of
00:18:39.500 family in the Holocaust. I'm not happy about even our criminalization of, um, stupid talk of
00:18:48.860 the Holocaust denialism, but at least, at least I see a distinction here. So in that same decision,
00:18:57.660 the court appeal decision that came down July 22nd, it's called RV Dick. Her name is Miranda Dick.
00:19:03.260 Justice Marchand rightfully noted that a good definition of denialism, a recent coinage, I would
00:19:09.500 imagine, I guess, you know, is that it's like resistance or, or kind of denial, um,
00:19:17.660 non-acceptance of a well-established fact. So if, for example, they were to excavate
00:19:26.060 and they were to find these bodies and we knew that, then you've got your well-established fact
00:19:32.220 and there's still going to be people I would imagine, because it's a big world out there,
00:19:35.980 they're going to say, I don't think that's real. I think that that video footage that they're showing
00:19:40.220 us of those remains that were, that they've shown now at this, this horribly solemn, terrible press
00:19:46.860 conference. I'm just saying, imagine, hypothetically, they did that. I think that those are fake. I think
00:19:51.100 the whole thing's fake. Like the moon landing is fake. That would be, I think then you're venturing
00:19:56.140 into this kind of crazy, um, irrational realm that you can start calling denialism. But when it's
00:20:02.140 people that are saying, why don't you just do the work? Why don't you like, let's see the reasons to
00:20:07.660 think that maybe these reports might be, um, uh, might be valid. Maybe not, you know, why don't we just do
00:20:14.860 the work. So now that's what I think it has the impact it has on indigenous communities in Canada
00:20:21.580 generally. I want to say, but same about the legal system. So I think it's really bad to do this.
00:20:30.460 One of the things that the people have done indigenous and non-indigenous is they've kind of
00:20:39.420 tried to boost up the credibility of claims to an exceptional level that they're not subject to
00:20:48.140 scrutiny. And I think that's really bad. So for example, let's say that someone, they did, uh,
00:20:55.180 excavation and they found some remains and they're able to do some forensic, um, meaningful forensic
00:21:00.060 work. And they ultimately charge someone and that person's still alive. They're like an 85 year old
00:21:05.340 former priest from the Kamloops residential school. And he gets charged and let's say he
00:21:10.780 hires me and I'm his lawyer. I mean, I, it's still okay to be his lawyer, isn't it? Well, let's just
00:21:16.780 assume that. Yeah. Well, then at that point, if some of the case against him is going to be premised on,
00:21:23.500 um, live witness testimony, what's called Viva Voce testimony from witnesses. And they bring someone
00:21:30.940 forward and says that I was told, and it's got a hearsay problem, but nonetheless, I was told by
00:21:36.220 someone that they had to wake up in the middle of the night and they had, they dug a hole and that's
00:21:40.140 being used at that point, whether it's me or whoever, that lawyer is going to be cross-examining that
00:21:47.420 witness. And that witnesses credibility, maybe their sincerity, maybe, maybe their sincerity, or maybe
00:21:55.740 just their reliability, you know, maybe they're sincere, but they're maybe their accuracy is going
00:22:00.540 to be subject to scrutiny and, and it will be tested. And you will not have a judge telling the
00:22:07.340 jury in that case, Hey, listen, this is an indigenous witness. So you have to treat their evidence
00:22:14.380 different than you would that cops witness that cops evidence. No, no, no, no. They're a human being
00:22:20.300 and their evidence gets challenged and tested like any other human beings. But the band now, sadly,
00:22:26.860 the bands and all of the woke agencies, like our, our beloved, um, law society, British company law
00:22:34.860 society, they've kind of fallen into this, um, really kind of sad indulgence that might feel good,
00:22:41.340 but it's not good for the law. And it's not good for anybody where they're saying, hold on,
00:22:45.180 you have to believe, you have to believe you have to accept, um, the, um, whatever the account,
00:22:52.940 you know, of, of these people. And I'm sorry, man, it's just not like that. We live in a, in a society
00:22:59.260 with the rule of law. And, um, that's how we try to get to the truth. And the truth still matters.
00:23:04.860 I think this might be my final words as I face execution, you know, for, um, for my denialism for
00:23:12.620 giving this interview. Hey, do you, do you really have to air this? I've got, I've got dependence.
00:23:17.820 I've got people that I'm just kidding. You know, the truth does matter and it's important to say
00:23:24.300 it. It's important to challenge it. And I find it shocking really that the BC law society would
00:23:30.700 take such a, uh, an opposing stance to the, to the chief justice of the BC superior court.
00:23:37.420 Um, it's, it's, it's unbelievable. Uh, yeah. Can I say one further thing? Cause I feel we're, we're
00:23:45.740 kind of, yeah, yeah. We're, we're kind of like, um, pushing the envelope on, uh, time wise. So I just
00:23:52.780 want to say one thing. I think it's interesting, not just on this issue, this issue, but on any issue
00:24:01.660 where there's kind of like a, um, uh, easily identifiable, um, kind of victim group. And in
00:24:10.620 this case, definitely the indigenous people are the victims here. And I'm not saying that they're
00:24:15.180 not victims. I'm not saying that they, that they have not been disempowered. I mean, obviously the
00:24:19.980 history of Canada, this was at one point, they were the only people here, et cetera, et cetera, et cetera.
00:24:25.020 But, but generally when it comes to woke groups, where you have woke issues, where you have
00:24:32.780 disadvantaged groups, here's what society has to do. We have to get to a point where those
00:24:38.620 disadvantaged narratives and things that they say are still correctable. Cause that's the problem
00:24:44.620 here. We think that they can't be corrected. And like, for example, black lives matter.
00:24:49.820 Um, Michael, what was his name? Wilson. Um, uh, can't remember the, the guy that supposedly said
00:24:56.460 hands up, don't shoot. Well, we know that he didn't say hands up, don't shoot, but the narrative
00:25:00.380 was so brittle. There was no room for correction. And so with all of these things, there has to be
00:25:06.380 room for correction. I think that's what I've butted up against here. The, the idea that the bands
00:25:12.380 is so fragile, they've been so disadvantaged, so disempowered that they can't be corrected. I
00:25:17.340 don't think that's true. I think they, there is room for all of it. Don't throw the baby out with
00:25:21.340 the bathwater, correct, strengthen, reaffirm, you know, reevaluate your position, maybe shift two
00:25:27.500 degrees to the left, two degrees to the right. That's life. That's how we, that's how we should
00:25:32.060 interact with one another. No narrative is beyond reproach. Absolutely. And no matter what it is,
00:25:40.300 getting to the truth and making the truth stand on its own and not, you know, not, not pushing,
00:25:46.460 uh, lies and myths, truth and mistruths as though it's, as though it's gospel and factual
00:25:50.940 is absolutely critical in every profession. So, uh, Jim, uh, thank you for speaking to us. Thank you
00:25:56.220 for sharing this story. And, uh, I really feel like it is one that is, you know, I don't think
00:26:01.900 you're going to be the only person to be labeled racist, um, for trying to correct this narrative.
00:26:07.260 I've been labeled racist. And I think many other people who do stick their necks out in the line
00:26:11.420 for the truth will end up with that same, with that same label. Well, we're not done yet. Yeah. Thanks.
00:26:16.860 Thanks a lot. Thanks for your interest. Thanks for your time. And, um, yeah. Okay. Thanks, man.
00:26:22.700 Absolutely. Thank you, Jim.