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

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, 0.84

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 0.99

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 0.98

00:15:56.940 school denialism legislation that Leah Ghazan proposed would criminalize repeating what has 0.56

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 1.00

00:18:48.860 the Holocaust denialism, but at least, at least I see a distinction here. So in that same decision, 0.94

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 0.99

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 0.99

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. 0.98

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.

Juno News - October 22, 2024

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

Episode Stats

Summary

Transcript