The Subversion of BC Law

When indigenous feelings trump non-indigenous liberties

Image via CBC.

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By

James Pew

What happens when a law society chooses indigenous narratives over truth? B.C. lawyer Jim Heller is finding out. He and a colleague were accused by the B.C. Law Society of “residential school denialism and engaging in racism and discrimination” for bringing forward a resolution last fall to the annual general meeting. The resolution requested two small language adjustments be made to a training module on indigenous culture. The explosive, unfortunate, high profile, and highly public affair that ensued is a prime example of the unnecessary controversy that arises when feelings trump facts in this post-truth paradigm wrought by Canada’s own “decolonizing” social justice left.

The training in question is part of a course which takes lawyers six hours to complete. In 2019, this newly created course was made mandatory even though its content has nothing to do with the law and is entirely centered on indigenous culture. All other courses offered by the B.C. Law Society have customarily been electives focusing on specific legal areas. Lawyers are required to complete 12 hours of course time per year, and usually choose offerings topically consistent with their specialty. However, this mandatory course, essentially an indigenous cultural sensitivity course, which eats up 50% of a lawyer's valuable continuing education, represents an unprecedented departure from the law society's traditional approach.

What were the language adjustments that Heller and his resolution co-signer Mark Berry recommended for the indigenous culture course at the BC Law Society? Here is the paragraph in question:

“On May 27, 2021, the Tkʼemlúps te Secwépemc Nation reported the discovery of an unmarked burial site containing the bodies of 215 children on the former Kamloops Indian Residential School grounds. Although the discovery was shocking to many Canadians, many Indigenous residential school survivors had previously reported the existence of unmarked burial sites, and the unexplained disappearances of children; the discovery confirms what survivors have been saying all along."

Heller and Berry proposed that the first sentence be changed to, “discovery of a potentially unmarked burial site on the former Kamloops Indian Residential School grounds.” And that the following line be dropped: “the discovery confirms what survivors have been saying all along.”

The following will illustrate that their motivation for taking action via an AGM resolution did not occur out of malice, or in a vacuum. But first, turning to Veteran B.C. lawyer Barry Kirkham who believes the law society is “stepping completely outside its normal mandate to take positions on Indian issues and to support untruths.”

In a recent presentation posted on professor Frances Widdowson’s SoundCloud, Kirkham explained that the central role of the Law Society is to accredit lawyers. Consistent with these goals, “they have extensive experience in continuing legal education courses, which are geared to assist lawyers in staying up-to-date in their various fields of endeavour.” However, things have tilted to the postmodern, and the social justice left have subverted this otherwise principled institution. According to Kirkham, training that used to be “entirely voluntary,” is now “all part of ethics courses,” with at least a portion of it made compulsory.

It should come as no surprise that the mandatory portion of the law society’s training, the one exception to an otherwise volitional process, is a course on indigenous culture. Subversion operates by the continuous taking of seemingly innocuous steps. The imposition of indigenous cultural sensitivity re-education is to inculcate throughout the legal culture of Canada, a reluctance, even an abhorrence, to questioning the postmodern (ahistorical) narratives of the social justice left. In this case, those narratives, lacking corroborating evidence and chock full of logical inconsistencies, concern the shared history of indigenous and non-indigenous Canadians.

From Kirkham’s presentation:

“It's essentially a course teaching Indian culture that's not relevant to 99% of what most lawyers do, and they saw fit to make it compulsory…every lawyer who's called to the bar in British Columbia must take that course as a condition of practice, or someone who, say, was a judge and returns to practice has to take this course as a condition of practice.”

And concerning Heller and Berry:

“Heller's point with the Law Society was you cannot say in a course like this that 215 bodies have been discovered. It's simply untrue, and he proposed very politely and respectfully the most modest amendment to the description of the course by putting the word 'potential' in front of bodies, and also deleting references to knowledge keepers that had talked about the bodies for years and years… this is an amendment that the Law Society ought to have been grateful that a lawyer drew their attention, and adopted it immediately.”

Indeed. Do facts and evidence matter or don’t they?

Heller had attempted on several occasions to discreetly bring the falsehoods contained in the indigenous training module to the attention of the law society. But to no avail. Unsurprisingly, he was ignored. Those who have subverted Canadian institutions have done so in coordination with the broad public acceptance of social justice narratives. When those narratives are challenged, the response is a brutal lashing out initiated by the casting of aspersions. According to leftist activists, only racists question the narrative claims of the historically marginalized. And further, the left ones ask rhetorically, who is more historically marginalized, and therefore worthy of constant cultural protection afforded no other people group, than the exalted first inhabitants of the New World?

The answer to this, if it is to align with the social vision of the radical left, is that indigenous narratives cannot be challenged, nor can indigenous people or culture be mocked, or be seen as being mocked regardless of intent. Heller and Berry were to be made examples of. How dare they question the unanswerable oral story-telling’s of indigenous elders and knowledge keepers. Apparently it’s even racist to ask for substantiation through evidentiary means. When Heller and Berry implied that evidence is required to corroborate the knowledge keepers in Kamloops, they had all but invited the assault that followed.

Regardless, Heller and Berry seem to have understood all of this from the get go. Formerly bringing the issue forward through a resolution was the only way the law society was going to address their concerns. They also knew about a recent and relevant controversy involving a B.C. Supreme Court Justice who presided over a case against eight activists, so-called “land defenders,” who had disrupted construction of the Trans Mountain pipeline expansion project in Secwepemcúl’ecw. One of the eight, Hereditary Chief Saw-ses, is a “survivor,” a former student of the Kamloops Indian Residential School (KIRS).

It was February of 2023 during sentencing when all hell broke loose. Justice Shelley Fitzpatrick was negotiating Gladue submissions and pre-sentencing reports and made a fact-based comment concerning KIRS to one of the eight land defending activists. The Gallery of indigenous activists erupted in outrage. However, before I bring readers down into the depths of the courtroom muck, allow me to provide a brief explanation of the Gladue system.

A Gladue submission is an illiberal legal instrument only available to those of indigenous ancestry. The rationale is based in part on the over-representation of indigenous people in the Canadian prison system. Essentially, it is a special appeal made to the court by defence attorneys on behalf of their indigenous clients who have been found guilty of crimes. Sentencing judges are to consider the effects of so-called intergenerational trauma claimed by the social justice left to be caused by colonialism and Indian Residential Schools. This trauma is said to uniquely affect indigenous communities, and therefore lesser punishments are awarded to modern day indigenous criminals.

Returning to Justice Fitzpatrick and the wrangling over the finer points of sentencing for the first of the eight, “settler-ally” activist Susan Bibbings. The contentious remarks uttered by Justice Fitzpatrick during the proceedings, the antecedent to the aforementioned breaking loose of hell, were simply “there are no bodies that have been unearthed” at KIRS. GASP! Cries of “how dare you say that,” “There is no respect,” and of course, “RACIST!”, exploded throughout the courtroom.

Technically, Bibbings is not indigenous so the Gladue privilege does not apply in her case. However, it is interesting how her lawyer attempted to glom onto the spirit of the Gladue principle by invoking Bibbings’ indigenous public service activism. He requested that Justice Fitzpatrick consider Bibbings’ tree planting when deciding on a sentence, emphasizing that Bibbings had helped plant 215 trees to commemorate the children discovered at KIRS. The outrage and contention that followed Justice Fitzpatrick’s correcting of the record concerning what has and has not been discovered at KIRS became a focal point of the Gladue hearings as they subsequently unfolded that week.

Of course Justice Fitzpatrick could not be more correct, she could not be more aligned with the truth, no bodies have been discovered at KIRS, but none of that matters to the social justice left when one of their key narratives are threatened.

Six of the eight “land defenders” were charged with criminal contempt and given sentences of 28 to 32 days, but appeals were made on the basis of Justice Fitzpatrick’s truthful comments concerning KIRS. According to Kirkham, “the defence appealed the verdict to the Court of Appeal on the grounds that the judge had demonstrated bias, disqualifying bias, against the defendant,” even though the justice's comments were “entirely outside anything relevant to the particular sentencing of this particular accused.”

So the matter went before the Court of Appeal where the Chief Justice of British Columbia, Len Marchand from Kamloops, who is indigenous, wrote the judgment on behalf of the three justices deciding the appeal. Their decision was that Justice Fitzpatrick was not biased. Justice Marchand’s judgment quoted extensively from the final report of the Special Interlocutor for Missing Children and Unmarked Graves Kimberly Murray, who was careful in her report to refer to the discovery at KIRS as “potential” unmarked graves.

With the matter seemingly settled Heller and Barry felt emboldened to bring forward their resolution which was consistent with the judgment of B.C.’s top Justice, who also happened to be a well-respected indigenous man. The stars seemed aligned for the resolution. What could go wrong? Heller and Berry thought.

The first defamatory attack against Heller and Berry came from the British Columbia First Nations Judicial Council (BCFNJC) who called the resolution racist and claimed it “supports residential school and genocide denialism.” The second attack came when the law society re-published BCFNJC’s statement and implied in their own comments that Heller and Berry were racist and that any lawyer voting for the resolution would be as well. They also insinuated that the resolution was “frivolous, vexatious and unnecessary.” That is when Heller launched his defamation suit against the B.C. Law Society.

According to Kirkham, “...here's a major institution in our society, the Law Society, that is deliberately, after extensive correspondence and facts put before it, and a decision of the Court of Appeal put before it, has refused to back off this utterly false blood libel of Canada, and has insisted that anybody who even suggests that the blood libel is not true, is racist and discriminatory, and we have to eliminate racism in our profession. I mean, it's one thing to be sympathetic and supportive, it's entirely another to support outright lies in respect of factual matters…It just shows the extent to which sympathy for indigenous has overwhelmed people's sense of propriety, sense of truth, If we can't have truth, how can we have reconciliation?”

On Feb. 22, Vancouver-Quilchena MLA Dallas Brodie posted the following on X in support of Heller: “The number of confirmed child burials at the former Kamloops Indian Residential School site is zero. Zero. No one should be afraid of the truth. Not lawyers, their governing bodies, or anyone else.”

At the time, Brodie was the BC Conservative opposition critic for the attorney general. Her X post predictably catalyzed immediate censure from NDP members, such as B.C. MLA Christine Boyle, but surprisingly also appeared to cause division in the conservative party. Á'a:líya Warbus, Indigenous MLA for Chilliwack-Cultus Lake, clearly a conservative trapped in an NDP body, responded on X: “Inform yourself, get the latest facts, research and talk to survivors. Questioning the narratives of people who lived and survived these atrocities, is nothing but harmful and taking us backward in reconciliation.”

B.C. Conservative Leader John Rustad, who just over a year ago was ousted from the Liberal party for an X post he made critical of leftist climate change narratives, reportedly asked Brodie to remove her post. Brodie refused. Much opprobrium was directed her way. In a video interview with professor Widdowson posted to X to defend her position, Brodie can be seen mocking the concept of relative truth – where people subscribe to their own truth, where the only thing lacking is the truth. This is the postmodern subjectivity that led the nation to believe the “truths” of indigenous knowledge keepers who falsely claimed former residential school students had been murdered and discarded in shallow graves in the Kamloops apple orchard. Rustad, in spite of his illiberal treatment by the Liberal party over his climate comments, disingenuously misconstrued and conflated Brodie’s effective critique of the concept of postmodern truth with the mocking of Indian Residential School “survivors.” With this, he shamefully removed her from the Conservative party.

Again we see Indigenous feelings elevated over non-indigenous liberties. If the Conservative MLA critic to the attorney general is not permitted to prioritize facts over indigenous feelings, if as in this case, the mere appearance of offending indigenous sensibilities, even when that was clearly not the intent, is enough to cancel non-indigenous people from their positions of influence, what exactly does that say about the state of Canada? Can we still claim to be a liberal society, when so much illiberal protection and advantage is afforded to a single ethnic group? Does all of this not add up to the grand illiberal subversion I’m constantly harping on about?

There is so much more that can be said on this file, and things are still developing. I will return soon to this subject and provide some analysis of how Heller and Berry’s resolution was received at the B.C. Law Society, how the voting turned out, and cover in greater detail the Law Society's response to Hellers defamation civil claim. In addition, I have my eye on Dallas Brodie so will also include any related developments which may occur in the coming days.

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Thanks for reading. For more from this author, read People are upset…and they’re Indigenous! GASP!!

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