A Just Society? Canada’s Adventure in Truth and Reconciliation

Canada’s Truth and Reconciliation

THERE ARE few political speeches that make Canadians swell with pride. Chief among them is Pierre Trudeau’s address to the Liberal Party on becoming its leader, and the country’s prime minister, in 1968. In that great year of possibility, if often frustrated possibility, a young Trudeau bounded victoriously to the stage and with calm eloquence crystallized the nation’s aspirations in a way seldom done before or since: “Canada must be unified; Canada must be one; Canada must be progressive; and Canada must be a just society.” It was a moment where Trudeau’s gift for pithy statement shined, though that gift could descend to cheap sound bites—“Just watch me” was his infamous phrase before implementing martial law—and further still to obscene gesture.

But of course national aspiration is quite a different thing from national actuality. Despite the double emphasis on unity in his first speech as prime minster, Trudeau would do a good deal in that office to isolate portions of the country and fan the flames of regionalism. And, as Harold Cardinal saw so clearly in The Unjust Society, there was in Trudeau’s vision a large blind spot in regards to the plight of First Nations. In his first complete term, he and his Minister of Indian Affairs Jean Chrétien drafted a “White Paper” outlining a plan to assimilate aboriginals once and for all. As a view of Canadian society it showed little regard for a minority group’s right to self-actualization and a much greater sympathy with the longstanding government position on the “Indian Problem”: a Eurocentric sense of superiority that sought paternalistically to cure natives of their own culture.

If Trudeau and Chrétien can be forgiven for the “White Paper”, it is not because it was an isolated proposal from which they wisely retreated, but rather because one cannot expect them to be immune to the largest and most profound of Canada’s blind spots. The country’s sense of its respect for minority rights and of the absence in its borders of American-style race problems continues to form a large share of its national pride, exercising a willful ignorance of the plight of aboriginals. Canadians responded with shock and bewilderment when Archbishop Desmond Tutu, visiting in the midst of the 1990 standoff in Oka, Quebec between Mohawks and the military, commented on the parallels between treatment of First Nations and the South African apartheid they abhorred, and saw fit to remind them that aboriginal “culture must be recognized as having integrity and must not be subverted.”

I recalled Bishop Tutu’s remarks earlier this summer when the government of Canada announced with evident self-satisfaction that it had become the first Western democracy to launch a Truth and Reconciliation Commission. Their satisfaction is entirely misplaced. The lofty abstract absolutes in their title notwithstanding, Truth and Reconciliation Commissions (TRCs) are always exercises in addled justice. At their worst truth commissions are used by governments to shield powerful officials from the conviction, or even the embarrassment, that open trial would yield. With his special capacity for cruel farce, Idi Amin established such a commission in 1974 to investigate the disappearances for which he was responsible. When it recommended reform of the police and security forces in its final report–which Amin did not publish–his government promptly fired the head commissioner and sentenced another to death on trumped-up murder charges. Disappearances and torture were mounted with renewed zeal in the remaining years of Amin’s government and that of his successor, Milton Obote. In a similar spirit, Bolivia’s 1982 National Commission of Inquiry into Disappearances was underfunded to the extent that it was unable to produce a final report at all or lead to prosecutions, a convenient outcome for a transitional government that had retained many officials from its predecessor.

At their best, TRCs are used in moments of governmental transition to protect fledgling democracies from the civil turmoil likely to arise from prosecuting still powerful members of a disgraced regime. Nations choosing this recourse have likely already endured a great deal of bloodshed and seek to initiate a new era of fair government rather than to upset a tenuous settlement of hostilities. In such instances the transfer of sovereignty to those political groups that were once the targets of persecution is itself a form of justice on the perpetrators of tyranny, though mere loss of political station is hardly just punishment for the widespread human suffering that tyrants cause. Argentina’s landmark Commission on the Disappeared provides an example. On becoming president in 1983, Raúl Alfonsín established an independent commission, chaired by author Ernesto Sábato, of ten individuals with a strong record of supporting human rights. Testimony given to the commission was compiled in a two-hour documentary aired on national television, and its final report, Nunca Más (Never Again), was published in book form to become a national bestseller. Equally important was Alfonsín’s decision to vacate the blanket amnesties that the country’s military leaders had granted themselves. This allowed evidence gathered to be used in the prosecution of the chief perpetrators of disappearances, and resulted in the conviction and imprisonment of the five most senior members of the country’s military junta. When prosecutors sought also to indict the middle-ranking officers most directly involved in the mass murder of the disappeared, the army launched a series of revolts that threatened full-scale rebellion, forcing Alfonsín to put an end to the trials. While not an entirely satisfying outcome, the Argentine example shows a nation pursuing justice insofar as it is able. Violations of human rights were carefully recorded and made a matter of both public record and popular memory. The calling to account of army criminals was suspended only upon the direct threat of a civil war likely to cause a return to military rule and the massacres attending it.

The combination of truth commission and prosecution has also been used effectively in South Africa. Though Bishop Tutu used the 1995 TRC as an international platform on Christian grace, the commissions did have an eye to prosecution. Amnesties were granted only to those individuals who agreed to provide testimony in criminal trials. The commission was thus more invested in plea-bargaining than it was in the kind of unindicted public confession with which it is often associated. Most recently, a TRC and war crimes court sat simultaneously for a time in Sierra Leone. Though this simultaneity produced procedural complications described in former chief justice Geoffrey Robertson’s indispensable Crimes Against Humanity, it has also yielded some impressive results: the commission produced its final report in 2004, made widely available on its Web site, and trials initiated in 2003 by the Special Court of Sierra Leone have already convicted three former leaders of the military regime and two members of its security forces, with further convictions forthcoming. The court was established jointly by Sierra Leone and the United Nations, lending it an international legitimacy also animating the decision to try Liberian president Charles Taylor at the Hague.

CANADA’S TRUTH and Reconciliation Commission arose out of the 2006 Indian Residential Schools Settlement Agreement, which was a response to the mounting number of damages claims before the courts and to the cataclysmic failure of the government’s dispute resolution program launched in 2003. The two-billion dollar settlement established not only lump-sum payments to former students of residential schools, but also provisions for investment in aboriginal education and health services and memorials for the victims of these institutions. Prime Minister Stephen Harper also provided a memorable formal apology on June 11, 2008 before the House of Commons and several First Nations leaders who sat as honorary guests, acknowledging the schools’ systemic abuse of children and the dire social consequences arising therefrom.

The next day saw a government apology of quite a different kind. A member of Harper’s caucus, Pierre Poilievre, grumbled to the press on the day of the prime minister’s apology about the cost of the settlement package, wondering if the government would get “value for all of this money” and insisting that aboriginals must learn “the values of hard work and independence and self-reliance.” In a single stroke, Poilievre not only rehearsed the basic terms of anti-aboriginal sentiment, but also showed that the Government of Canada has far from acknowledged its past crimes—and still has, among its highest officials, the sentiments of paternalism and cultural superiority that produced them. His comments sounded suspiciously like the justification for residential schools provided by Minister of Indian Affairs Frank Oliver in 1908: to make the “Indian” a “self-supporting member of the state, and eventually a citizen in good standing.” Poilievre dutifully stood in the house on June 12 to deliver a somnambulatory prepared apology of the sort in vogue for politicians who have done something so idiotic as potentially to interfere with re-election. Equally dutifully, the house gave his speech an accepting round of applause, apparently forgetting that an apologetic bigot is a bigot nonetheless. He continues to sit in the Commons, to hold a place in the caucus of the governing party, and to serve as parliamentary secretary to the president of the Treasury Board.

In the spirit of Poilievre’s apology for being “hurtful” rather than of Harper’s apology for the government’s abuse of First Nations, Canada’s TRC is much more concerned with providing a forum for victims’ personal narratives of trauma than it is with seeking justice for crimes against humanity. Indeed its mandate is designed not to allow it to play even an information-gathering role for later criminal investigation. The commission will hold no subpoena power and will rely exclusively on voluntary testimony; it will provide a final report “without making any findings or expressing any conclusion or recommendation, regarding the misconduct of any person”; it “shall not name names” of those who have not already been convicted of misconduct; it will go so far as to silence victims by expurgating from the record names included in testimony; and the commissioners will hold sessions in camera at their own discretion.

This flies in the face of the growing precedent in international law that has culminated in Sierra Leone’s two-part process of truth commission and special court, and hearkens back to the blanket immunity that troubled processes in Uganda and several South American countries. A comparison of the Canadian commission’s mandate with its counterpart in Sierra Leone is instructive. While the Canadian document is far superior in the area of windy platitudes—“this is a profound commitment to establishing new relationships embedded in mutual recognition and respect that will forge a brighter future”—the Sierra Leone mandate shows consideration of international human rights law and concern over the impunity of perpetrators entirely absent in Canada’s effort. It describes the limits of the South African TRC’s investigation only of “gross violations” and refers to standards of international law and of the African Charter on Human and People’s Rights in its consideration of the abuses to fall under its scope. It chafes at the Lomé peace agreement’s provision of pardon to Sierra Leone’s perpetrators of human rights violations, points to the UN’s condemnation of such pardon, and reserves the right to “make observations and recommendations about the wisdom of the amnesty provision in the Lomé agreement.” The Sierra Leone commission also declares in its mandate that the errand of the special court is a vital complement to its own. Citing Louis Joinet’s work for the UN, it emphasizes three principles for the protection of human rights: the victims’ right to know, the victims’ right to reparations, and the victims’ right to justice. The Canadian approach, which cites no international legal precedent or thought, addresses only the first two of these rights and seeks actively to frustrate the third by being constituted so that the information it records will be of no use in criminal proceedings.

While the Canadian commissioners are all exemplary individuals with long service to aboriginal communities, not one of them is an expert in human rights law, and, breaking from what has become the norm, there has been no effort to involve the international and non-governmental organizations who would provide greater legitimacy and external scrutiny. The measures adopted thus betray the same exceptionalist attitude toward international law animating the decision by Canada, the United States, Australia, and New Zealand to be the only four nations to vote against the entirely uncontroversial UN Declaration on the Rights of Indigenous Peoples. While Canada’s TRC promises a “victim-centered” process, it flouts human-rights precedent by offering victims little more satisfaction than a talking cure.

It may be objected that Canada is not Chile, or South Africa, or Sierra Leone. It is a pacific democracy with more polite crimes against humanity. Such sentiments arise from the willful ignorance of which the nation has too long been guilty. We know that aboriginal children were forcibly removed from their families to be placed in residential schools. We know that in their desire permanently to end the “Indian Problem” these schools severely punished the use of aboriginal languages, even outside of the classroom, and all other expressions of aboriginal culture. We know that in the early twentieth century, mortality rates in residential schools were as high as fifty percent and commonly over twenty percent, arising largely from communicable diseases against the spread of which precautions were consciously avoided. We know that Indian Affairs so drastically underfunded the schools that the ministry’s frocked and collared henchmen overcrowded them with no regard for sanitation or diet and generated income by replacing instruction with farm work, turning schools into forced labor camps. We know that physical and sexual abuse was widespread in these schools, with the attempted escapes that were common among students receiving especially harsh retribution. And we know that this is a remarkably recent past, with the last residential school closing in 1996, and that some perpetrators must still be alive and awaiting justice.

What’s more, we know all of this from a long line of government documents and reports already available. The crimes of residential schools received thorough attention in the 1996 report of the Royal Commission on Aboriginal Peoples, which called for a still unseen public inquiry, a body that would take names and recommend actions to redress cases of abuse. The truth-gathering project of the present commission will put a more human face on the suffering that Canada has caused. This is a significant step, and one going much further than the United States and Australia have done in addressing similar crimes, but it does not go nearly far enough when the crimes committed amount to an intention to commit genocide. I do not use that word for its sensationalist charge, but because the residential schools qualify for its application by the standards of the UN’s Genocide Convention, such as II(c), “deliberately inflicting on the group conditions of life calculated to bring about its destruction in whole or in part,” and especially (e), “forcibly transferring children of the group to another group.” Commenting on section II(c) in the draft convention, the Secretary General averred that “if members of a group of human beings are placed in concentration camps where the annual death rate is thirty per cent to forty percent, the intention to commit genocide is unquestionable.” Given our knowledge of their mortality rates, this muster for “unquestionable” intention to commit genocide is one that Canada’s residential schools come very close to passing.

We must also consider the crime of “cultural genocide,” the desire to eliminate a group’s cultural attributes. This is a category less clear in international law due more to the internal politics of the UN than to the culpability of the offense, to which any student of Yiddish can attest. Though it is not defined in the final version of the Genocide Convention, an earlier draft had identified prohibiting the use of a language and preventing access to religious or cultural sites as effecting cultural genocide. Of this the residential schools are unquestionably guilty.

A just society would not allow such crimes to be committed with impunity. If the current commission is incapable of delivering justice, Canadians must abandon their apathetic brand of citizenship and, to use another Trudeauvian phrase, go over the heads of the present Truth Commission, reminding the Government of Canada that as a member of the United Nations and signatory to the International Criminal Court it is obliged to meet the standards of international law in confronting crimes against humanity. We might truly be termed progressive only when Canadian society at large sees that fundamental to its self-identification as just is the trial of those who have victimized the First Nations. Others in impoverished, war-torn, and politically precarious conditions have sought truth and justice with admirable courage and commitment; Canada continues to heap shame upon shame in not directing the attention of its cozily idle judges and legislators to the punishment that atrocities deserve.

A Canadian citizen, Feisal G. Mohamed is an Assistant Professor of English at the University of Illinois and a Milton scholar. Photo: St. Paul’s Indian Industrial School, Middlechurch, Manitoba (Public Domain / Wikimedia Commons).