Is Mark Kersten planning to sue the Minister of Justice, Arif Virani, for crimes against humanity?

Mark Kersten - Image from The Breach

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By Nina Green

When Kimberly Murray delivered her final report to the Minister of Justice, Arif Virani, at her two-day National Gathering on 29-30 October 2024, it was apparent that the purpose of her final report was far outside her mandate, and that in fact Canadian taxpayers had spent $10 million dollars, not on finding a way to commemorate the graves of missing Indian residential school children - because there are no missing Indian residential school children, as Kimberly Murray herself told the Senate - but on breaching the 2006 Indian Residential Schools Settlement Agreement under which Canadian taxpayers paid billions of dollars, and at the same time negating reconciliation, by finding a 'workaround' to prosecute 'Canada' and the 'Catholic Church' in the International Criminal Court (ICC) under the Rome Statute for crimes against humanity under the pretext of Indian residential schools - and this despite the fact that the Rome Statute is non-retroactive.  Article 24 of the Rome Statute, to which Canada is a signatory, provides that prosecutions at the ICC under the Statute are prohibited for events which occurred prior to 1 July 2002, and the last Indian residential school closed in 1998.

According to Murray, the way to get past the unequivocal non-retroactivity of the Rome Statute is to claim that 'Canada' and the 'Catholic Church' are guilty of a continuing crime against humanity because they continue to conceal what happened at Indian residential schools.  Murray's argument thus is that since the crime allegedly continues to the present day, the limitation period in the Rome Statute which entirely prohibits prosecutions for events which occurred prior to 1 July 2002 does not apply.

At a panel on the topic on 30 October 2024 chaired by Beverly Jacobs, a law professor at the University of Windsor who stated that since 1994 she has been looking for a way to prosecute 'Canada' for genocide and crimes against humanity, Mark Kersten of the University of the Fraser Valley, a part author of Murray's report, explained in detail what needs to be established in order to bring about a successful prosecution against 'Canada' and the 'Catholic Church' for crimes against humanity on the pretext of Indian residential schools.

Kersten explained that the first step - and the step on which everything else in the prosecution depends - is to prove that there was an enforced disappearance, i.e., the children at residential schools were deprived of their liberty by force.  Kersten disposed of that first step as though it were a slam dunk.  In fact, that point cannot be established at all, and any prosecution against 'Canada' or the 'Catholic Church' would thus fail from the outset.  Why?  Because there are thousands of extant application forms which establish that status Indian parents applied to send their children to Indian residential schools.  It was an official Department of Indian Affairs requirement that an application form be signed by a parent before a status Indian child could be admitted to an Indian Residential School.  Moreover Department of Indian Affairs annual reports establish that only about one-third of status Indian children ever attended an Indian residential school, a fact which causes the claim that status Indian children were deprived of their liberty by force to fall to the ground, as does the fact that attendance at Indian residential schools was completely voluntary until 1920, and even after 1920, when the Indian Act was amended, a status Indian child did not have to attend an Indian residential school if there was a day school on the reserve.  The Federal Day School Settlement established that there were 699 Indian Day Schools in Canada.  About one third of Indian children attended them.  The other third didn't go to school at all.

In summary the claim that status Indian children were deprived of their liberty by force thus fails completely, putting an end to any possibility of a prosecution of 'Canada' or the 'Catholic Church' at the ICC for crimes against humanity on the pretext of Indian residential schools.  The one-third who did attend Indian residential schools did so on the basis of applications signed by their parents.  Another third attended Indian day schools on their reserves from which they returned home to their parents at night.  The remaining third did not go to school at all.

The word 'Canada' has been used advisedly so far because Mark Kersten entirely omitted mention of the most important aspect of any prosecution at the International Criminal Court under the Rome Statute for crimes against humanity.  That crucial aspect is Article 25 of the Rome Statute which states that only a 'natural person' can be prosecuted.

In other words 'Canada' as a country, or the federal government as an entity, or the 'Catholic Church' as an entity, cannot be prosecuted in the International Criminal Court under the Rome Statute for crimes against humanity.  Only a natural person, that is, an individual living human being, can be prosecuted.

That leads to the question raised at the outset.  Is Mark Kersten planning to prosecute a living representative of the federal government - the current Minister of Justice, Arif Virani, for example?  Or the current minister of Crown-Indigenous Relations, Gary Anandasangaree? Prime Minister Justin Trudeau?  Former Prime Ministers Jean Chretien, Paul Martin or Stephen Harper?  Or a Member of Parliament such as Leah Gazan, whose great-grandfather had a positive experience at an Indian residential school?  Or the Pope, as a representative of the Catholic Church?  Or William McGrattan, President of the Canadian Council of Catholic Bishops?  Or other individual Canadian Bishops?  Or, in fact, all of the above, and others as well?

Which 'natural person' does Mark Kersten intend to prosecute for crimes against humanity in the International Criminal Court?  Canadians need to know.

The absurdity of the federal government having funded Kimberly Murry to produce this report is now evident.  Canadian taxpayers paid $10 million dollars to allow Kimberly Murray to bring together Indigenous activists from across the country at her largely-secret National Gatherings in major Canadian cities for the past two years.  Anyone who watched the two days of proceedings at her final National Gathering in Gatineau on 29-30 October 2024 saw what Kimberly Murray has accomplished during her tenure on full display, as evidenced by this CBC article which quotes Indigenous leaders rejoicing at the prospect of 'going international' with criminal prosecutions.  Notably missing at Murray's final National Gathering was any talk of reconciliation.  It was all about punishing Canada and the Catholic Church by criminally prosecuting them at the International Criminal Court for their attempts to provide education and health services to Indigenous children, and silencing so-called 'denialists' via an amendment to the Criminal Code through Bill C-413 as well.  Kimberly Murray has thrown reconciliation out the window and opted for vengeance.

Should Minister of Justice Arif Virani use Kimberly Murray's 1000-page report, which breaches the 2006 Indian Residential Schools Settlement Agreement, and negates reconciliation, as anything other than a doorstop?

You be the judge.

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Thanks for reading. For more from this author, read Is the Minister of Justice, Arif Virani, being advised about missing children and unmarked graves by the people who caused the problem in the first place?

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