In 2015, the conclusion of the Truth and Reconciliation Commission of Canada (TRC) provided Canadians with documentation of the cultural genocide endured by Indigenous youth through residential schools. The purpose of the TRC was to lay the groundwork for ‘reconciliation’ where settler Canadians would work to close social, economic, and political gaps with Indigenous peoples created by centuries of colonialism.
Yet in February 2018 — less than three years later — the consecutive acquittals of Gerald Stanley and Raymond Cormier for the deaths of 22-year-old Colten Boushie of the Red Pheasant First Nation and 15-year-old Tina Fontaine of the Sagkeeng First Nation have blown away any remaining mystique of ‘reconciliation.’ Settler Canada, by reproducing the injustices it pledged to address, is not committed to reconciliation.
The ongoing failure of the Canadian criminal justice system for Indigenous youth is only part of the problem. The problem is how systems intersect to make Indigenous deaths possible. The problem is how, even after death, settlers continue to twist narratives and portray death as a normal, expected, and deserved outcome for the colonized.
Stanley’s trial revolved around the purported malfunctioning of the gun that killed Colten Boushie on a Saskatchewan farm. Yet much settler deliberation focused on Stanley’s ‘right’ to protect his property and family from ‘trespassers’ — a deeply ironic ‘right’ given that his farm sits on Treaty 6 land. The Indigenous peoples who signed the treaty, with the Crown in 1876 were unable to fully understand its meaning due to it being written in English; they were told that settlers were borrowing the land, when in fact it was being purchased from them.
What do we make of the escalatory and disproportionate use of force, including guns, that is frequently justified against minoritized communities? Or of the fact that the Royal Canadian Mounted Police’s (RCMP) investigation of Bouchie’s death negligently destroyed evidence and treated his family as if they were suspect? Instead, Stanley was acquitted, received over $200,000 in GoFundMe support, and is currently pursuing publishers to write a book and explain his ‘side’ of the story.
Tina Fontaine, on the other hand, engaged with the police, hospital, and child and family services, which had placed her in a hotel prior to her disappearance. Her body was later recovered from Red River in Manitoba. Yet The Globe and Mail headlined a story, “Tina Fontaine had drugs, alcohol in system when she was killed: toxicologist.” Indigenous responses later caused the paper to change the title.
Invoking stereotypes of the ‘drunken Indian’ and suggesting that Fontaine’s death was her own fault rather than that of the killer who threw her body into a river, or that of institutions that abandoned their responsibility to protect her is how many absolve the Canadian state and settlers of any culpability. From Boushie to Fontaine, we — the criminal justice system, the police, the child welfare system, the media, and the settler Canadian public — have been shown to protect settlers and defame dead Indigenous youth. Settler Canada is unwilling, unready, and undeserving of reconciliation.
The criminal injustice system
The legal system is central to the pro-death policy imposed upon Indigenous communities — especially when it comes to the nature of juries. Battleford, Saskatchewan — where Stanley was acquitted — was also the site of the 1885 hangings following the Riel Rebellion, the largest mass execution in Canadian history. Eight Indigenous men were hanged and buried after an all-white jury trial, a judge, and Prime Minister John A. MacDonald all expressed antipathies toward them as “Indian rebels.” In 1971, an all-white jury wrongfully convicted Donald Marshall Jr., a Mi’kmaq man, of murder. These historical examples of all-white juries are part of a trajectory that has led to an overrepresentation of Indigenous peoples in the justice system; they constitute 25 per cent of inmates despite being approximately four per cent of the population.
Tina Fontaine’s case, meanwhile, is paralleled by the 1971 murder of Helen Betty Osborne, among countless other missing and murdered Indigenous women, girls, and two-spirit people. Although Indigenous peoples constituted 30 per cent of Osborne’s community, the defence used peremptory challenges — the right to reject a prospective juror without providing any reason — to keep all prospective Indigenous jurors off the jury. An all-white jury subsequently convicted only one of four accused men of her murder.
In light of this history of legal injustice, part of Indigenous resistance efforts is the reclamation of the law as a space for Indigenous youth. The University of Toronto Indigenous Law Students’ Association (ILSA) is one such organization; it “provides a social network for Aboriginal law students and is committed to furthering awareness of Aboriginal legal issues.” On March 1, the ILSA held a panel discussion about the Colten Boushie verdict.
Kent Roach, Professor of Law at the University of Toronto, discussed the various aspects of the trial that contributed to the acquittal of Stanley. First was the issue of Indigenous underrepresentation on juries. According to s. 629 of the Criminal Code of Canada, the jury panel can only be challenged on the basis of “partiality, fraud or wilful misconduct.” This does not account for proportional representation on a jury roll or the actual jury. In Stanley’s trial, the jury was entirely white with no Indigenous representation. Roach advocates for the ability of the accused or prosecutor to challenge jury panels if they fail to be representative based on a fair sample of the community at hand.
A recent Toronto Star-Ryerson School of Journalism investigation confirmed this representation problem. It reveals how, based on an analysis of 52 criminal trials in Toronto and Brampton, 71 per cent of all jurors were white, even though people of colour constitute the majority of the cities’ demographics. Evidently, juries across Canada do not reflect the diversity of the community in which trials are situated. Roach advocates for outreach and support for Indigenous and Black communities to ensure they have easier access to serving on juries.
The second panelist, Mi’kmaq lawyer Shannon McDunnough, further spoke of the importance of the jury pool of prospective jurors — especially because they are overwhelmingly white, middle-class, and middle-aged. Many lower-income, and minoritized people cannot afford to miss precarious work for jury duty, as opposed to those who have well-paid contracts. Indigenous peoples often are excluded because of barriers related to transportation, child care, and elder care. The final jury pool thus ends up with a socioeconomic and racial skew. This comes at the cost of alternative worldviews that, in the case of Indigenous peoples involved in trials, can other help other jurors understand what it means to be and live as an Indigenous person. McDunnough stated that jurors are doing a public service, and as such, should be accomodated financially so lower-income and minoritized communities can serve on juries.
In conjunction with more representative juries, Roach advocated for the abolition of peremptory challenges — Stanley’s lawyer used them to exclude visibly Indigenous peoples from the jury. Furthermore, he spoke of the need to expand challenges for cause. Prospective jurors were not questioned as to whether the racial dynamics of the case would affect their ability to impartially decide the case. Prospective jurors should be vetted for subconscious racism and challenged for cause if they are deemed partial, especially when the victim in question is Indigenous.
A jury is ideally representative of the wider community and must deliberate and come to a unanimous decision. Yet if a jury is misrepresentative and impartial to racially loaded cases, the biases in the decision-making process favour accused killers like Stanley at the cost of Indigenous victims, and they disadvantage Indigenous individuals when they are the accused. This only serves to further alienate Indigenous communities that are already disabused of the criminal justice system, which has continually failed them.
The ILSA, in solidarity with other Canadian law schools raising awareness about the Boushie and Fontaine cases, backed up its panel with a teach-in on March 14. Law students and faculty alike walked out of class and sat together at the Jackman Law Building atrium for discussion. The purpose was to educate people on how institutions — such as the police, jury selection, and child welfare systems — collude through and with the legal system to create results such as the acquittals. Speakers mentioned the need for more Indigenous perspectives and legal traditions in the study of law and the need to keep conversation alive about the Boushie and Fontaine cases outside the classroom.
One step in the direction of legal pluralism and equity is taking place at the University of Victoria, which recently announced that it will offer the world’s first Indigenous law degree. Students in the program, expected to initiate in September of 2018, will earn two professional degrees in Canadian common law and Indigenous legal orders. This initiative is a response to the TRC’s 50th call to action, which calls for the development of Indigenous law institutes. According to Canada Research Chair in Indigenous Law John Burrows, “Indigenous law looks to nature and to the land to provide principles of law and order and ways of creating peace between peoples; whereas the common law looks to old cases in libraries to decide how to act in the future.”
The law and the criminal justice system has historically been a colonial operation that favours settlers at the expense of Indigenous peoples. For some, it is a site in which serious reform is required to build equity; for others, legal pluralism and Indigenous traditions are the way forward. The work of ILSA suggests that, in light of the Boushie and Fontaine cases, Indigenous youth are at the forefront of reclaiming and re-imagining the space of law to create a justice system that serves Indigenous peoples.
DARREN CHENG/THE VARSITY
“Stolen children on stolen land”
The death and life of Fontaine also illustrates how the criminal injustice system interlocks with a wider network of colonial infrastructure to facilitate the exploitation and degradation of Indigenous lives.
In Manitoba, where Fontaine grew up, in the province’s Child and Family Services there are 11,000 children who have been removed from their families and are currently in the child welfare system. Of those children, 10,000 are Indigenous — a staggering 91 per cent. The First Nations Child & Family Caring Society estimates “ there are three times the number of First Nation children in foster care than there were at the height of the residential schools system.” When the present-day child welfare system is tearing families apart even more rapaciously than under residential schools, it amounts to an escalation of colonial warfare against Indigeneity. While we, as settlers, may have the impression that Canada ended its genocidal practices in the last century, numbers show that the destruction of Indigenous communities is ramping up, not winding down.
At Toronto’s “Justice for Tina Fontaine” rally on March 3, speakers called out the system for what it is: a child welfare industrial complex. One mother whose son was put into the care of the state at a psychiatric hospital decried the many actors who profit from Indigenous children being taken from their homes: “Native women did not have children to be meal tickets for lawyers, psychiatrists, judges, child welfare employees, directors, executive directors, and managers.”
Others benefit from the industry as well: the hotels paid to house foster children; private foster care agencies contracted by the government; non-Indigenous foster parents who earn allowances; and not least, sexual predators and human traffickers.
Another speaker at ILSA’s event, an Inuvialuit woman named Crystal Lee, lamented that Fontaine’s death was a deliberate outcome: “Canada failed Tina long before she was murdered.”
One of the most common reasons given for apprehending Indigenous children is caregiver poverty and substandard housing. These conditions are, unsurprisingly, the product of the Canadian government, which has repeatedly been found liable of discriminating against Indigenous children by starving them of equal funding compared to non-Indigenous children. A sinister formula thus emerges: make reserves unfit for living, seize the children, profit from the children, continue decimating Indigenous presence, repeat. This is the colonial pipeline that whisked Fontaine from her family and ultimately discharged her body into the Red River. This is why the TRC zeroed in on child welfare as its first call to action. How can Canada possibly pursue reconciliation when there will be no intact future generations with whom to reconcile?
Resistance efforts
Although they are in the crosshairs of these colonial systems, Indigenous youth are surging to the front lines to push back. The rally for Fontaine at Nathan Phillips Square was organized by Madyson Arscott, a grade 10 Ojibwe student only a year older than Fontaine was when she died.
Later on the afternoon of the protest, other young activists established the Soaring Eagle’s Camp on the front lawn of the Old City Hall courthouse. Inspired by sister camps in Winnipeg and Calgary, the occupation commemorates Boushie and Fontaine and highlights the “continuation of Canada’s colonial violence towards Indigenous peoples on Turtle Island,” according to their pamphlet. The site of the month-old camp is intentional, explained Gein Wong, who has been present since day one: “There’s a lot of Native folks, or Indigenous folks, who are charged in the city with whatever charges. They actually go into here and have to go to court in this building. And so, for that reason, it’s important to have a presence here because this is where the justice system is, where it is actively operating.”
The Soaring Eagle’s Camp draws on the legacy of other direct actions in the city. Last July, the alarming suicide rate among Indigenous youth, particularly in Pikangikum First Nation, led to the formation of the Ground Zero camp in front of the Indigenous and Northern Affairs Canada (INAC) Toronto office last summer. This camp was in fact a re-occupation of INAC; the camp’s first incarnation took place in April 2016 following the Attawapiskat suicide crisis. The second Ground Zero camp lasted 157 days to create public awareness about the loss of Indigenous youth and demand the federal government to increase funding for First Nations communities. The camp ended only due to the harsh late December weather.
Yet the members of Soaring Eagle’s Camp share the view that their camp is distinct from previous actions. According to Wong, “What’s notable this time around is that it’s all young, new generations that’s actually stepping up and organizing, with the guidance and the support of the folks who have done it before, and the elders. That is powerful to … have new generations step in.”
This ethic of youth solidarity rippled through conversations with other members of the camp, who emphasized the importance of young Indigenous people showing up for other Indigenous youth. When Arscott addressed the crowd at the Fontaine rally, she concluded her speech with a request: “I want each and every one of you to say something with me for the Indigenous youth in the crowd. Ready? You are worth the effort. You are worth the effort. You are worth the effort.”
DARREN CHENG/THE VARSITY
Reconciling reconciliation
For reconciliation with Indigenous peoples to occur, the meaning of reconciliation itself must be reconciled by settler Canadians. Is reconciliation just performative rhetoric, or is it substantive action that requires us to recreate our workplaces, classrooms, and institutions in the image of Indigenous worldviews, knowledges, and governance structures? What are settlers willing to give up so that justice — socioeconomically, legally, and politically — for centuries of colonialism may be served?
Kennes Lin, a Youth Leader for Canadian Roots Exchange (CRE) an organization dedicated to developing relationships between Indigenous and non-Indigenous youth, and a student at the Factor-Inwentash Faculty of Social Work, shared her perception of reconciliation, prior to the verdicts, as a non-Indigenous person. “As a first-generation immigrant settler, I viewed ‘reconciliation’ as a responsibility to learn about the truth and unbiased history of the land I am living on, and to be self-aware of how my role as an immigrant meant I have been implicated as a settler colonizer in the project of colonization. I viewed ‘reconciliation’ as a need for me to understand my positioning first, and then to reach out and bridge the gaps in relationships with Indigenous folks.”
Following the verdicts, Lin said she is more critical of what ‘bridging the gap’ means. “With the verdicts as blatant evidence of overt and covert racism, ‘Truth before reconciliation’ to me now means being more targeted in addressing racism. While reconstructing is needed, I don’t view it as in my place to be doing it — it needs to be from First Nations, Metis and Inuit communities themselves. What I can do is to target institutional racism, as a way create space for decolonizing reconstruction work to happen.”
As for the role of non-Indigenous youth, Lin notes, “what you can do always depends on what you know yourself to have the capacity to do — if rallies are for you, go to them. If writing policy is more you, that works too. There’s a lot of work to do in all areas of deconstructing and reconstructing.”
Max FineDay, member of Sweetgrass First Nation and Co-Executive Director of CRE, defines reconciliation as the process of restoring the original relationship between Indigenous and non-Indigenous peoples. As with any process, there are failures; the two verdicts, while deeply disappointing, are not entirely surprising for FineDay. “Time and time again, the justice system shows that it fails, just like education, like health. The systems upon which Canada was founded do not serve Indigenous peoples.”
FineDay also speaks of the high suicide rate among Indigenous youth compared to non-Indigenous youth. “Canada is not the great country of justice and human rights and equality that we like to think we are. We are coming to a crossroads. Indigenous youth are the fastest growing demographic in the country. We have Indigenous youth now who are in 20 years going to be professionals in the workforce. Or if we don’t go down the path of reconciliation we’ll build more prisons, there will be more suicide, we’ll lose more people to violence. Youth are critical because we have an opportunity to stop the cyclical violence that has been happening for centuries.”
FineDay added that Canadians in Toronto or Ontario should not be smug and view anti-Indigenous racism as exclusive to prairie provinces like Saskatchewan and Manitoba; rather, it exists and must be addressed everywhere. In Toronto, more than four in five Indigenous families live in poverty.
“When I went back to my community and knowledge keepers [following the verdicts], they told me, Âhkamêyimo — which means ‘persevere.’ This work is hard but it’s valuable. It’s incumbent upon all of us, Indigenous and non-Indigenous, to work for those who have come before us, who have worked towards reconciliation long before it was trendy, to ensure that Indigenous peoples can see justice,” he reflected.
In the context of Tkaranto — the Mohawk origin of ‘Toronto’ — the restoration of the original settler-Indigenous relations is governed by two treaties: the Two Row Wampum and the Dish With One Spoon. The Two Row Wampum is an agreement reached in 1613 between the Haudenosaunee and Dutch settlers to co-exist in peace, friendship, and respect: the two rows of purple wampum beads symbolise two vessels, a birchbark canoe, and a European ship travelling down the same river in parallel, never interfering in the other’s path. The Dish with One Spoon is a covenant among the Anishinaabe, Mississaugas, and Haudenosaunee to share and protect the territories around the Great Lakes and St Lawrence, as represented by the ‘dish.’ According to this treaty, we take from the land only what we need, we leave enough for everyone else, and care for the land and one another without resorting to violence.
If Canada is to reconcile with Indigenous peoples, Canada must first resolve what reconciliation means for itself. The Boushie and Fontaine verdicts this year indicate that Canada’s current reconciliation process does not work for Indigenous peoples. Canada can either continue a performative reconciliation that inflicts systemic colonial violence onto Indigenous youth or commit to a process of justice and restoration as imagined by Indigenous youth. Unless the latter occurs, colonization will continue to be the defining relationship between settlers and Indigenous peoples.
Editor’s note (January 8, 2024): The name of one of the authors has been temporarily removed from this article for safety concerns.
