Justice Harry LaForme and I discuss the importance of Indigenous lived experiences in the judiciary as he reflects on his judicial career, trauma-informed decision making and his growing concerns about the increasing barriers for Indigenous lawyers who may wish to pursue judicial appointments.
This episode discusses racism, colonization and intentional Indigenous exclusion from the Canadian judiciary.
Season 1, Episode 14
Myrna: I’m Myrna McCallum, Métis-Cree lawyer and passionate promoter of trauma-informed lawyering. Welcome to my new podcast, “The Trauma-Informed Lawyer,” brought to you in partnership with the Canadian Bar Association.
I believe that law schools and bar courses are missing a critical competency requirement in their curriculum: trauma-informed lawyering. Becoming a trauma-informed lawyer will, among other things, challenge you to critically reflect on your personal behaviors, beliefs, and biases; call on you to positively transform the way you approach advocacy; guide your practice to avoid doing further harm to others; and ask that you commit remaining open to learn new and old knowledge you didn't know you needed before beginning your career. Your education starts right here, right now. This podcast comes to you from the traditional, unceded territories of the Sḵwx̱wú7mesh [Squamish], səl̓ilwətaɁɬ [Tsleil-Waututh], and xʷməθkʷəy̓əm [Musqueam] people.
Welcome back to the Trauma-Informed Lawyer Podcast. Before we get started on today’s episodes, I just have to give a big shout out to the BC Law Foundation. The BC Law Foundation funded a grant project that Golden Eagle Rising Society and I did on creation a trauma-informed legal practice toolkit. To my knowledge, there is nothing like this anywhere and, I have to say, that it was quite the project. There were a lot of bumps and challenges, to say the least, to getting this thing to completion but I’m so happy to say it is complete. I’m so very proud of it and I’m so very grateful to all those who contributed to this incredibly innovative trail-blazing content. If you would like a copy of the Trauma-Informed Legal Practice Toolkit, send an email to suzy@spiritworks.ca. Include your request and your mailing address, and she will send one out to you ASAP. Otherwise, if you give it about a month, Golden Eagle Rising Society is creating an online version on their website and there will be a pdf version of the Toolkit available for download.
Recently, I had a conversation with retired justice Harry LaForme. Harry LaForme is Anishinaabe and a member of Mississauga of the New Credit First Nation of Southern Ontario. In 1994, he was appointed a judge of the Superior Court of Justice and was, at that time, one of only three Indigenous judges ever appointed to this level of trial court in Canada. In November 2004, he was appointed to the Ontario Court of Appeal and is the first Indigenous person to be appointed to sit on any appellate court in the history of Canada. He retired in October 2018.
Now, when I invited Harry to have a conversation with me, I really didn’t know where this conversation was gonna go. And, as you will here today, we focused a lot of our time together on the so-called diversity deficit in the Federal Court. There are not enough Indigenous lawyers appointed to that Court—or any other court, actually, for that matter—and, so, Harry and I chat about why we think that is and, maybe, what needs to be done. I hope you enjoy today’s episode.
Myrna: Welcome, Justice Harry LaForme!
Justice Harry LaForme: Thank you.
Myrna: So good to meet you. Actually see your face and—
Justice Harry LaForme: I know! As I was said, I mean, I feel like we’ve known each other for years, maybe even forever, so. [Laughs] That’s how much I follow you, by the way.
Myrna: [Laughter] That’s so awesome. I feel the same way. There’s some folks I meet and it’s like I’ve always known you. I think part of it is because we seem to have parallel purpose that drives what we do and why we do it and all of that.
Justice Harry LaForme: I know, and, um, one of the things that I find with your posts, for example, and the comments that you make, they so jive with mine. But, they’re always filled with passion and, to me, all of these issues are about passion and you have to address them with passion, otherwise, I’m not sure you could do the job, you know? I mean, if you’re going to be a voice, you have to be a passionate one. And, that passion comes out of experiences, too. That’s where it comes from. The more you learn, the more passionate you get, because it’s not good.
Myrna: Absolutely. And, I think, the legal profession in which we work—and this justice system overall—requires a lot of passionate participants and players because, I think, for too long, there’s been a lot of either indifference or apathy or just straight up acceptance: like, “this is the status quo and we’ll just accept it as it is.” And, honestly, for Indigenous people, that status quo is not working. It’s imprisoning us, it’s killing us, it’s excluding us, it’s doing significant harm to us.
Justice Harry LaForme: I think about the title of your podcast and the mission you seem to be on, which is the traumatized representing traumatized, or traumatized decision-making, and it . . . I think to myself, I mean, everything about our lives and our history is trauma. Even when we were kids, for example, growing up on the reserve. It was a life and you just sort of rolled along with it. I remember I’d get up in the morning, do something, head up to my grandpa’s place just up the road, go and hang out with my grandpa in the garage, and we’d just sit there, and stand there, and talk, you know? And, watch the rain, maybe, sometimes, or anything like that. And, I didn’t actually know those loving moments were actually traumatic moments because that’s the way we lived.
We lived under the thumb of the Indian Agent and Indian Affairs, you know? It was the government. And, you don’t even know that. And, when you learn that and appreciate that later, it just makes you angry. Like, here I am with my grandpa, for crying out loud, and I am supposed to be loving this and enjoying it, and then I learn later, and I accept later, that even those beautiful moments were part of the trauma of what we grow up with. And, I think that gets missed every once in a while when people try to decide who should be judges, and who should be doing this, or etc.
And—I mean—and it’s all words, because nobody really, really droves down into what that means. And, if you accept that life’s experiences inform decision-making, then you gotta figure out an Indigenous person from birth, literally, on a reserve, knows what that means and that life that they’ve lived—and I know from my own experience it’s true—your life’s experiences and the lives you’ve lived does inform your decision-making, absolutely, and we’re missing that.
What people don’t understand is how utterly complete that control by government was to Indigenous peoples, in particular, First Nations people. The one thing that is absolutely true was we were not considered equal citizens. And, we’re not even, to this day, considered equal because that whole notion of “wards of the state.” Back in the early days of residential schools, for example, in the 20s and maybe even before that, putting us aside on reserves and making us wards of the state—and that was both political and legal, by the way, “wards of the state,” that describe us—that was easy because the churches ran the reserve and, you know, nobody had cars, and you didn’t have the sophisticated water systems that we had today. Nobody paved their roads or anything like that. So, it was easy: lay this off on the churches and everything like that, Bob’s your uncle, everything is cool, it doesn’t cost us a thing. And, then, all of a sudden, life evolves, you know? And, we then have paved roads, we have automobiles, we have electrical appliances, etcetera, etcetera. Houses need to be built a certain way, and, all of a sudden, it becomes very expensive for the Government of Canada. And, what people don’t understand is Canada assumed that responsibility by itself. When people ask “Why do you pay so much to reserves, and Bands, and First Nations, how come the government pays so much?” It’s because they assumed that jurisdiction and constitutionalized it, and now they’re doing it. Not something we asked them to do. They did that on their own. They took on that responsibility because it was dirt cheap and the churches ran it in the beginning. It is not that way anymore. It is a big, expensive proposition and, you know, they constantly fight about paying for it. And, sorry, but that—you assumed that legal constitutional responsibility—you assumed on your own and you never asked us one second if that was a good one. And, what do we know today? That relationship is just absolutely shattered. It accomplishes nothing except where we are as part of this society. It’s destructive, completely.
Myrna: When you say it’s destructive, I really like that word ‘cause I think it’s the most appropriate word. I have quoted, a few times, Justice Langston, who was a judge on the Alberta Queen’s Bench. I believe he sat in Lethbridge. And, he retired at the end of 2019, but, in one of his last sentencing hearings, he was sentencing Barbara Holmes (R v Holmes, 2018 ABQB 916). She had been convicted of manslaughter. He used those words and he also said “I also recognize that you’re in a system” —as he’s addressing her, he says— “you’re in a system that’s imposed upon you and our view of justice is not the Indigenous view of justice"—
Justice Harry LaForme: Right.
Myrna: —“And that we have engaged in deliberate destruction of your culture and your language”—
Justice Harry LaForme: Right.
Myrna: —"and your spirituality, and your way of living.” I thought, woah, how powerful is this? How often do you ever see a sitting judge make comments like that?
Justice Harry LaForme: And, the nice thing, when you listen to a judge like that, he’s not just parroting words back to the court. But, I mean, he feels this. This is something that that judge obviously feels internally. And, it’s not just reading a history book or anything like that. He sees it and understands where that comes from and what you have to do. The other part of that, too, is we just lost Fred Bartley. He was an Indigenous assistant Crown attorney and he was very, very active in the creation and participation in the what we call Gladue Courts in Toronto and Ontario. We actually only have courts in Toronto and Thunder Bay. And, these courts are all about how to address Indigenous issues in the Gladue decision way back in 1999 (R v Gladue, 1999 CanLII 679 (SCC)), which was there to address the overrepresentation of Indigenous people in the courts. Which, it’s a great decision, I just don’t know that anybody really reads it. But, one of the things that we derived from that decision was that it’s not about a reduction in sentence, or anything like that. It was to say, as that decision does, that imprisonment doesn’t work. And, probably not for anybody, but, especially, it doesn’t work for Indigenous offenders and, then, they talk about why it probably doesn’t and the alienation, etcetera, etcetera. And, so, it talked about finding alternatives to prison. That’s what Gladue is really about. But, everybody reads this as though it were some kind of reduced sentence or get out of jail free card, as the, as a lot of the crowns are, and a lot of judges, want to call it. But it isn’t that. It’s all about alternatives because imprisonment doesn’t work. It does not. And, there’s lots of reasons. Systemic racism within the justice system, which we’ve known about for decades now, but nobody seems to care enough. And, part of the difficulty was, there are no alternatives. We don’t have that alternatives to prison available. And, you know, I keep—and I did at the time—I kept harping on the government. And, we have to develop some pilot projects, if you will, or whatever, that can be put into these communities so that these alternatives will exist. And, a lot of people tried, but we just don’t have them. So, that causes our courts and people like Fred Bartley, who argued this. . . We have to try to be creative and make these principles work in the context of what we’ve got. And, that’s really difficult, if not impossible. But, these judges and these lawyers work at it all the time and we constantly get relatively the same kinds of decisions out of these Gladue Courts, as you were talking about happened in Alberta. Probably not with the same passion—although some do—but it doesn’t really seem to translate into anything and that is very discouraging.
Myrna: It really is. And, your comments get me thinking about whether colonial courts—like, as we see them now—whether they can actually deliver justice for Indigenous people. Here in British Columbia, there is something called First Nations Courts and, lately, the BC Provincial Council has just opened up another one in Williams Lake and promotes it as a new Indigenous court has opened up. So, when you see that language, and I remember the first time I saw that language, I was like “What? What is this?” So excited. And, then, I went to look at it and I was so discouraged and annoyed because what was being presented to me as an Indigenous court was not an Indigenous court, it’s the sentencing court for Indigenous people. If you even want to water it down or distill it some more, it is, really, maybe, a diversion court after you’ve entered a guilty plea.
Justice Harry LaForme: I remember early in my days, I started in this business by the way, in case anybody doesn’t know the background, it was around 1970 and my grandfather was the one that talked me—and my uncle—talked me into taking the executive director’s job of this totally new Indigenous organization, First Nations organization, the Association of Iroquois and Allied Indians, right? Now, they formed—like a lot of organizations across the country did in the late 60s, early 70s—in response to the White Paper policy. So, that’s how I got involved in this. I was the first executive director there. And, one of the studies that we did early on was this whole thing about Indigenous courts and Indigenous justice and whatnot. And, I remember everyone was talking about the Navajo and what they did down in the United States. So, I went down and took a look and made connections with some lawyers down there and we started examining the question and everything. But, when I got there, I was absolutely floored by what I saw. They were certainly Navajo courts, but they looked every bit like any other court you’d find anywhere else in the United States. They had judges. Their laws consisted of laws that were made by state and federal governments that they just sort of picked and choose which ones they wanted and incorporated that into their justice codes or whatever it was. So, what they were doing, they were Indigenous people but enforcing and developing laws that were patterned after the colonial governments that we’re fighting against.
So, one of the things that I’ve always said to people—and, I think, it’s actually worth listening to—is that we don’t want judges that are Indigenous. We want Indigenous judges. And, there’s a difference. You get there and you think you have to conduct yourself a certain way if you’re just a judge that is Indigenous. You watch your other judges, you copy what they do, you’re a slave to precedent, your creativity just abandons you. But, if you’re an Indigenous judge, and I tried desperately to be that, and I went home more often when I was on the bench than I ever did as a lawyer or anywhere else because that’s where I got my grounding. If I needed to civilize myself into the Indigenous traditions and customs of my people, I went back home and I used to walk the grounds. I mentioned to you, I—my favourite place was the cemetery that we have on our reserve. It’s a beautiful place. It’s got these beautiful cedars, huge cedars. There’s solitude. There’s spirits all over the place, you know? And, that’s how I used to do. I used to walk through and then I would come back and get into my trials or into my decisions and I tried to inject that into, as you always talk about, recognizing trauma in decision-making and what not, that’s what I did, you know. I appreciated that. And, that’s how. . . . See, you can write judgements like everybody else, or, you can write judgements and reach a decision that you’re bound by law because we handcuff ourselves with things like precedent and stare decisis.
I often tell people, if you want to read how I think about myself as a judge, read the case that I wrote on the Court of Appeal. I was supported by Justice Sharpe, who is a very liberal and did a lot of work with Indigenous communities while he was the Dean of U of T law school, and then Justice Tulloch, who was our first Black judge on the court. We sat together and heard this dispute and it was about a First Nation, Mohawks of the Bay of Quinte v A Miracle (Tyendinaga Mohawk Council v Brant, 2014 ONCA 565), one of the residents and possession holders of land on the reserve. And, they were in this dispute and they had to rely on the Indian Act—I don’t know whether they had to or not, but they did, they relied on the Indian Act. So, it was competing portions of the Indian Act coming in conflict with each other. And, we heard the appeal and they said, my colleagues—I asked if I could write it—both Justice Sharpe and Justice Tulloch said “sure,” yah know, “go ahead.” And I wrote it. And I wrote about how the Indian Act was this horrific colonial piece of legislation. How, in other words, I wrote a bit of the history of our place in Canada as it evolved through law and constitutional law and was very very critical of all of it. But, at the end, I said, but we have to decide this by this horrible piece of legislation, so I will, and I gave a decision. The issue that I’m talking about is not in the decision, it’s in how you get to the decision and what you say about it. And, if there is ever gonna be a change, that’s the only way it’s going to change because that’s stare decisis, that’s the precedent that the Supreme Court has established for us. So, you gotta work within that, but you can work around it. You can reach that decision a different way. And, I think that’s the real gift that can come to the courts by Indigenous people, by People of Colour, by any racialized group. When they talk about diversity and what it matters, that’s exactly why it matters. You can move these principles and, yeah, you can move them, and they do move incrementally, but that’s better than no movement at all. And, that’s the important thing. It’s how you write these decisions and how you reach these decisions.
I—I wrote a decision one time, a couple of years ago. It is called Kokopenace (R v Kokopenace, 2013 ONCA 389). And that decision is about why it’s so imperative and why it’s a constitutional responsibility to make certain that people in northern communities, we find a way to get them on jury roles so that they can become members of the jury when they’re deciding cases up there because that wasn’t happening. And, I wrote this very, very historically-based rationale for why that was a constitutional requirement. And, both my colleagues on the court agreed with me. They wrote, kind of, separate decisions. And, they basically agreed with that. It went up to the Supreme Court and, in the Supreme Court, the majority—save and except Justice McLachlin and Justice Cromwell, who dissented in a separate judgement—but they disagreed with everything I said. And, they even went so far as to say the rights of Indigenous people and the place of Indigenous people in this country cannot be answered in every piece of legislation, you know. You can’t just take a piece of legislation like the Juries Act and make that into some kind of big social commentary, or anything like that. Which is completely wrong because they had previously said in Gladue you have to take every opportunity as a judge to do that. And, so, be that as it may, they just absolutely trivialized everything about it, except for McLachlin and Cromwell, who wrote this really powerful dissent and said you guys just don’t know what you’re talking about on the majority, you know? You’re just wrong. And, it was kind of nice. But, that’s what we live with. That’s how you make incremental change, I think, because—what I heard afterwards is—all kinds of lawyers were saying—and all and a lot of judges were saying— “ignore that case, it’s a one off, it’s not right, it’s wrong in law.”
Myrna: So, you’ve brought up a couple things that I just really want to talk about. First, I really want to talk about a point you made about how we need Indigenous judges, not judges who are Indigenous. And, something that I have noticed in seeing some appointments is that there are some folks—particularly what kind of like grinds my gears so to speak—is some of these folks who, out of nowhere, represent themselves as Métis for the purposes of hopefully getting appointed, and then you find that those people actually have no connection to community, no community claims them, they have no connection to their culture, to their language, or even to that lived experience. And I think—
Justice Harry LaForme: Yeah.
Myrna: —what you’re getting at, and—maybe I’ll let you speak for yourself—is that, it’s not just bringing people who look different to the bench but it’s their lived experiences, it’s their understanding of what it is to—in this case—to be Indigenous in this—
Justice Harry LaForme: Yep—
Myrna: —country.
Justice Harry LaForme: Yeah. One of the thing that—and I think, probably, many people know my views on what happened with the last round on the appointment of Sheila Martin, who is probably an excellent judge, and will be an excellent judge, which is not my point. My point was, I probably represent the last generation of First Nations people who lived under the real yolk of the Department of Indian Affairs. I lived my life at a time on the reserve when the Indian Agent came in and conducted the band meetings for our Chief and council. I lived at a time when policies were in place that said you had to get a permit to go off the reserve, for example, or, the beverage halls in the local establishments that were just adjacent to the reserve, had signs over the bars that said “No Indians Served Here.” It was a time when there was a complete and utter administration by the department.
We were literally, as you said, were like in refugee camp. And that life, and how that life manifested itself and what that translates into in your decision-making. The Supreme Court is never going to know what that is now. They’re never going to have a judge—I think I was the last generation to experience that, and people my age were. And, they chose not to go there and, they think, well, “there’s always time, there’s always time,” right? You hear that all the time. Especially from people like Kim Campbell, who just made these patronizing statements like “I believe that, one day in the future, we will have an Indigenous judge that will meet this requirement—and speak these two official languages, etcetera” you know? I mean.
Just so condescending. But they don’t understand what we tell them. They don’t understand you’re missing a very important part of history that can inform you on the future of Indigenous relations with this country. You’ve lost that. And why did you lose that? Not because it was important to put an Indigenous person on the court, which you constantly say it is, but because you chose to have a policy that could trump that very, very important issue of putting that Indigenous person there. Did I want to go to the Supreme Court? Not on your life. I wanted to finish out my judicial career where I was. I was quite happy doing that.
I didn’t want to go up to Ottawa. But, should I have, if I was asked? Absolutely. That’s my cultural imperative to do that. But, that’s not what I was angry about. I was angry because they lost a generation of knowledge that they will never get back other than in books. They won’t have the experience of somebody who lived it, who lived it. and felt it, and talked to their grandparents and uncles and aunts about the things that happened under that. That’s where I got my conversations. I understood it. I felt it. You know? But that’s gone now. They’ll never have that experience. And they don’t get it, you know? They just don’t get it that that’s what the important part of it is.
Myrna: Yeah. It’s interesting you bring that up. I was thinking about that this weekend. I was reading an article, I think it was in the Washington Post (“Trudeau says he wants to tackle systemic racism”). I posted it on LinkedIn, anyway—
Justice Harry LaForme: Yeah.
Myrna: —and it was talking about Trudeau’s commitment to diversity. And, all the photos . . . everyone is white. But, it also talks about how, like, what Trudeau says and what he does, like, those things do not align.
Justice Harry LaForme: Mhm.
Myrna: He talks about this commitment to diversity, including inviting in Indigenous people and reflecting Indigenous experiences. Then, you know, they go and they make certain changes, like the one you are referring to, the Supreme Court appointments, that, oh, now you have to speak French. Well, how many Indigenous people are going to speak French? Because, for some, just speaking English is enough of a traumatizing experience for them. To have to speak English and not speak their own language because of Residential School systems and other things and now they’re being told, “if you want to be here, if you want to be invited into this space, then you also have to speak French now too.” And, French-speaking Canadians only make up 12% of the population. And, it really is a disadvantage and works against, like, the further west you go in this country—
Justice Harry LaForme: Yep.
Myrna: —the less likely you’re guna get French-speaking people. And we have all of these brilliant Indigenous lawyers and professors—
Justice Harry LaForme: Yep.
Myrna: —who—
Justice Harry LaForme: Do we ever.
Myrna: —could be a Supreme Court appointment but for this now new requirement that is just another barrier saying “we don’t want you here.” Like, that—that’s how I sum it up.
Justice Harry LaForme: Well, and—and that’s not a bad way to sum it up. And, I guess, maybe it’s because I’m older and I get angrier and crankier as I get older. But, I don’t look at things and look for the good in what people are talking about because I’ve grown to realize that all of this language is just that. It’s just words, you know, and it doesn’t go any deeper than words. That’s a good example of saying the importance of an Indigenous judge on the court in terms of reconciliation or even just plain fairness, it’s almost a constitutional requirement to do that these days, but you can put a barrier up that is nothing more than a policy. When you see that, when you hear that—again, these people that are in charge don’t understand, when they make these condescending comments about “oh, someday an Indigenous judge, a First Nations judge, will know both languages and be brilliant enough to get on the court.” Well, the fact of the matter is, that they just throw a policy in its way—doesn’t it remind you of our past experiences? In other words, isn’t it just another way of saying “Sure! You can occupy these places of authority that we all occupy as Canadians, once you become like us.” Isn’t that what residential schools were about? You’ve gotta become like us, then you can be one of us. And that’s the same thing up there. In order to come up here and be like us, you gotta be like us first or be one of us.
Myrna: Oh my god. It’s so rage-making. The way you call it out is the truth and it angers me to no end. It’s really promoting their assimilation policy and—
Justice Harry LaForme: And, here’s the other part of that, Myrna, and if they knew anything about their own history, they would understand that that’s a barrier because my generation was the one, and I think it’s still the case, that a lot of our children get taught in schools on the reserve. They set the curriculum for those schools, and they did it totally in mine and subsequent generations. They did it totally. Was part of that curriculum to teach us French? Not on your life it wasn’t. So, they put us in this place, of lack of this ability, and then they punish us for it or put a barrier in place that does it. And, I mean, there gets a point where you just have to feel—see how cranky I am? But there does get to be a point when you say, I stopped faking that this is just non-thinking action on their part. I get to the point where it’s deliberate or that they just say things and don’t really care what it is that they say. Look at this whole thing about this is going to be a nation-to-nation relationship. So, one of the first things they do is sit down with Alberta government and talk about how they’re going to drive pipelines through Indigenous territory. Was any Indigenous judge or chiefs sitting at that table when they discussed that? No. That’s how much nation-to-nation means. It’s words! And, that’s where I’ve gotten to in my life. It’s gotten to be, “No, I don’t believe you until you prove it.”
Myrna: It’s bad enough we speak one colonizer’s language. Now, if we want to become Supreme Court judges, we have to speak two.
Justice Harry LaForme: And it goes even beyond that, Myrna, they took our language away from us.
Myrna: Yeah. Yeah, exactly.
Justice Harry LaForme: Add to it.
Myrna: We might be able, now, to get in the door at the ground level so that being provincial court judges, but they put barriers in place to ensure that we cannot move up—
Justice Harry LaForme: Yeah.
Myrna: —and all this discrimination and—
Justice Harry LaForme: Do you know the hard part about that, Myrna—
Myrna: Mhm.
Justice Harry LaForme: —is even if they don’t intend that, that’s what they’re doing.
Myrna: Yep.
Justice Harry LaForme: And they’ve been reminded that that’s what they’re doing and it hasn’t mattered.
Myrna: Yep. Absolutely. And, you know, I think about your comments about wanting Indigenous judges and not judges who are Indigenous. You know, I work with organizations where you have maybe one Indigenous person within an organization, and they are complaining of systemic racism.
Justice Harry LaForme: Yeah.
Myrna: And, it’s really in the form of microaggressions. They’re very, like, covert behaviours. But, at the end of the day, when it shakes down, they’re feeling excluded, they’re feeling disrespected. So, it’s really hard to identify it because it’s just so shady—
Justice Harry LaForme: One of—
Myrna: —and sneaky.
Justice Harry LaForme: Yeah. One of the problems that I faced, when I was appointed to the Trial Court in 1994, I was one of only three judges. One of ‘em was being sworn in with me, so that meant that there was one already, and he was in Québec. And, I was one of three judges at that level of court that were—that were appointed. In 1994. And, then, I was the first Indigenous judge ever to be appointed to an appellate court, any appellate court. And, I later learned that it was in the entire commonwealth that I was the first. So, I stayed there for 15 years.
Here is the downside to that. It is so damn lonely. You have nobody that you can even talk to unless you’re educating them. And, it seemed like every day you’re educating. And, I know that’s part of the job. But, to be there and to feel so alone all the time, or that, when you run into anybody, you have to talk about their life’s experiences, or people like them, their experiences, because there’s no one to talk about my life’s experiences and my beliefs, and what I cherish, and what I hope to accomplish, or any of that. To other people, they’ve got the entire rest of the court to do that with. It’s not just that you’re the first, it’s when you’re the only one for so long that it just wears you down after a while. And, if we’re going to do it, let’s get some company for these people because it is just really lonely when you do it by yourself.
Myrna: Exactly. So, that was one of two points I was going to make from the clients I’ve worked with is that single Indigenous person who is put in this pretty well all white organization who is complaining of racism or discrimination. They cite two very common experiences, one is loneliness because they’re the only one. And, two, is that commitment to “diversity,” and I use air quotes, doesn’t go far enough to actually look at retention. You want these diverse experiences, you want to reflect these lived experiences, it’s not enough to just bring one in and then expect them to become like you. You actually have to examine how you do what you do and what your environment is like and be willing to transform your environment to reflect those new experiences that you are now bringing in, as opposed to holding up assimilation, really, or tokenism, right?
Justice Harry LaForme: Well, I can tell you, the only place that you saw any kind of Indigenous symbolism of my life, and my people’s lives, is if you walked into my chambers. You know. That’s where it was. And, you have to surround yourself with it. You really do. Otherwise, it can be soul-destroying. And, the part that really, I think, gave me this really, really serious question of sincerity on the part of the whole colonial system and, and especially the justice sector, was, I was there 2004. I was appointed. The first. Ever. 2018, I retired. It’s now been almost two years later since I retired. So, this coming October it will be 2 years. And here’s the thing: are you telling me that there was not another Indigenous lawyer anywhere in any part of Canada that couldn’t have been appointed to an appellate court? You tellin’ me there’s not a lawyer or a judge in Alberta that couldn’t be elevated to that position? Or in British Columbia, my god. There’s all kind of brilliant academics and lawyers and people of prominence that would absolutely be diamonds in the rough there, for crying out loud—or not even in the rough, for cryin’—they’re already impressive. But, nobody did it, ya know? So, when people like Justice Lametti say “Oh, we’re doing this, we’re doin”—they’re not. They’re really not. And, I don’t care what they say. They’re not.
Myrna: Yeah.
Justice Harry LaForme: They’re just simply not. Those are words again, Myrna.
Myrna: Yeah. Well, let me ask you two questions. One is, I know that there are Indigenous judges listening to this podcast and some of them are newly appointed, so, what would your advice be—like, how do you get through such a lonely place when you’re the only place in your court where you’re sitting, if you’re sitting in a city centre and you’re the only one there, or maybe there’s another judge there, or there’s two, but they’re way the hell up north where you—
Justice Harry LaForme: Yeah. Yeah.
Myrna: —you can’t really connect with them—what is your advice to them to sustain themselves so they can continue to bring their soul and their heart and their good mind to the important work that they do?
Justice Harry LaForme: Okay. Here’s what I did. Whether it works for everybody, I—I don’t know. But, I think it’ll help. I did a couple of things. First of all, I made it a point to be available to bar associations, for example, to go and to speak to them because one of the things that you find out when you do that is that—and I learned this very early because the Hispanic Bar Association, for example, the Federation of Asian Canadian Lawyers, the Canadian Association of Black Lawyers, CABLE—when I went and addressed their conferences and things like that, I was reminded over and over again that I wasn’t just a face of Indigenous people up there. I was their face too. And, that can be rejuvenating. That can give you a purpose. That can feed your purpose. The second thing I did, and, I suspect, these judges already do this is, I surrounded myself with who I am and where I came from. I burned sweetgrass.
You know. I have my eagle feather prominent. And, in fact, my eagle feather, and everybody knew I had one, when there was an Indigenous person in the trial court on the other side of the building, they knew enough to come and ask me if they could use my eagle feather that Indigenous people could swear an oath on it. And it got used that way. So, that’s the second thing. The most important thing I did, though, and I was able to do this, and that might not be available to others, but, for me, my reserve was an hour and a half away and I used to make it a point that—especially early in my trial judge days—I used to make it a point to go and visit my reserve, as I told you, and I would walk through that cemetery and I would talk to the spirits. And, if other people don’t understand that, I don’t really care. But, you can and you do gain wisdom from that. It forces you to think about the lives that you’re—you think my life was tough, what about my grandpa’s? And, yet, he was a really, really gentle, smart—a hero, to me, anyways—and that’s what this man was to me. And, I think about his life.
And, you know how many times I wish, Myrna, that I was smart enough when I was 20 years old—that I was smart enough to go and talk to him about his life. But, I wasn’t. And, I missed that so much. I missed that opportunity. And, if anybody’s got family, and cousins, and uncles, and aunts in their home territory, go talk to them because you’ll regret it if you don’t later. I regret deeply. There are so many questions I want to ask my grandpa now. You know. I gotta do it and hope he answers me through the hawk that he turned into when his spirit animal—when he left us. But, that’s how you do it. And that’s the way I do it. And, you’ve got to find a way to stay connected to other Indigenous people. I didn’t do that enough and I could have done that better and more, and I should have. But that’s another thing that you have to do.
Oh, I could tell you another one that I did as well. Every time I wrote a decision and it talked about people’s rights and it impacted on the person, I used to substitute Aboriginal Indigenous person for that. I wrote the first decision on equal marriage, the Halpern decision (Halpern v Canada (Attorney General), 2002 CanLII 42749), you know, which, probably, is one of the greatest decisions I ever wrote, because, I think, in many ways, it contributed to changing he world and our attitudes about same-sex marriage and that kind of stuff. But, to me, that wasn’t that hard of a decision to make because, if you put Indigenous in the place of gay, lesbian—I don’t care who, because we’ve all been treated that way—when you put yourself in that position, and you put Indigenous in there, the decision gets a lot easier—it gets a lot easier, because that’s what trauma-informed decision making is about, right?
Myrna: Yeah. Absolutely. It’s funny that you bring that up. I was reading some comments that you made about that Halpern decision that you wrote and you talked about how you brought your Indigenous lived experience—
Justice Harry LaForme: Yep
Myrna: —to your decision-making and how you thought about the parallels that existed in terms of the denials, like, how gay people were denied the right to marriage and how it—it’s not a stretch for Indigenous people to relate—
Justice Harry LaForme: No.
Myrna: to that, given how much denial we have experienced.
Justice Harry LaForme: That’s right.
Myrna: And, so, I thought, [sigh] this is such, like, the living example of how Indigenous lived experiences can benefit the judiciary—
Justice Harry LaForme: Oh, absolutely.
Myrna: —and the decisions that are made and—and the laws that are created and the direction that our lives take.
Justice Harry LaForme: You know who knew that, Myrna, in government? Irwin Cotler. Irwin Cotler, who was the Minister of Justice and called me about my appointment. And, I remember talking to him, and I said—I had to call him Irwin ‘cause he insisted on that—so, anyways, I said, why did you pick me? And he said, Harry, like, who better to represent and decide issues of justice than somebody who has lived through injustice.
Myrna: Woah. That is profound.
Justice Harry LaForme: I know. I know.
Myrna: Profound.
Justice Harry LaForme: And, that was Irwin Cotler, right?
Myrna: Wow.
Justice Harry LaForme: To me, he was the last one that understood what he was doing.
Myrna: That is in—that is so incredibly profound—
Justice Harry LaForme: Well, and that’s—
Myrna: —and farsighted
Justice Harry LaForme: Well, yeah, because, if you think about it, I mean, and that applies to everything. That’s what diversity is all about. That’s what feeds the change, right? I—I mean, who better to know what justice is, and what it looks like, or should look like, than somebody who’s lived through injustice?
Myrna: What can we do, as a profession, Indigenous and non, to help move the needle forward and really embrace diversity in its truest form?
Justice Harry LaForme: Yeah, that’s becoming a harder and harder question isn’t it, because we keep getting these examples of stark racism that I haven’t seen since the 60s or 70s for cryin’ out loud when the American Indian Movement was prominent, and things like that, but, that’s because governments, I think, are emboldening people to think that way and to let their inner demons out, you know? And, their true beliefs. And, it is becoming harder. But, here’s what I would say. In my 25 years on the bench, and my 11 years practicing law—and maybe it was longer, I don’t know—there has been movement. And, that’s the difficult thing to try to understand.
But, we are a long way—a long way—from when I started out and went to law school: where parliament was supreme, Aboriginal rights was not recognized, our own Prime Minister believed it was a myth. Ya know. I often say this: there were four Indigenous lawyers in all of Canada when I started law school. There’s probably a thousand or more, maybe even two thousand, I don’t know how many—what the number is. And that’s progress. There were no books written on Aboriginal law. That’s all changed. Every big law firm in the country, now, has an Indigenous law section to it, or they just miss out on all that work. So, there’s all kinds of jurisprudence. Most of it’s wrong, not wrong in law because that’s what the law says, but it’s wrong in the course that it’s taking us. They, for some reason or other, this country does not understand that you cannot build on this dead tree of colonialism. What I’m learning, ‘cause I helped teach a course at U of T Law school every Tuesday evening, and the students there, if there’s any Indigenous students, there may be one or two.
The rest of them are MBAs or working on Master’s degrees, or—and some of them are for sure law students. In other words, they’re across the board. And, the material that they have to read is like how we interpreted treaties and our attitude about treaties, and how you prove your rights under treaty. They are genuinely offended by it. They get offended by it when they say, “My country? That’s the way they chose to describe this and address this in law? That’s horrible!” These are young people, and not Indigenous people. And they’re finding this just appalling. So, I have to say that’s progress. And, it’s not progress that I wanted to see because I wanted to see a different progress, but that’s the one I have to look at and I have to embrace. And, as far as what we can do, we’ve gotta break down the barriers that prevent us. If we get people that we think should be judges or that they, themselves, want to be judges, we should find a way to support them. We should find a way to mentor them, if necessary. We have to breakdown the barriers, the opportunity to, for example, to be in an interview and get embarrassed by a question about your past. That shouldn’t be. That’s not part of what this is.
I know why they get asked. So, figure out a better way to ask the question if it’s at all relevant. I’ve seen a lot of judges, as have you, Myrna, that are not Indigenous and their conduct in court is appalling. Appalling! And, yet, they keep going. They can be sexist, and then they get disciplined. And then, what is the discipline? “Shame on you, you’re going to have to take a course.” We have a senator that is just a complete and utter shameless racist and denier of residential schools, etc. Has anything happened to her? No. “Go take a course from—oh, you pick, you can pick the person you want to take the course from” and then you can come back and say “Yeah, I learned really valuable lessons from this guy”—who, next thing you know, is getting run out of the province ‘cause he’s a fraud—and there we are. And, nothing happens to her, when we should be kicking her out, telling her “go home.” That’s what we’ve gotta do.
We’ve gotta break down those barriers. It needs to be a career choice. I’m telling you, it needs to. One of these days, maybe we’ll be fortunate enough, Myrna, to have our own systems of justice. We can go back to what was traditional, what worked for us years ago, where it’s about reconciliation, and repairing the family unit, and repairing a person’s place in the community, gaining trust back. That’s the kind of discipline. Maybe, one day, we will get there. We’re not there yet. Our treaties are getting interpreted by colonial courts. Our prisons are getting stuffed to the rafters with our people. How do you address that? Well, the only way I know is to do it in a legal sense, anyways, is to be one of those people that gets to decide and change that policy, and maybe bring some cultural reality to a set of circumstances that nobody else would’ve thought of.
Myrna: I mean, there are so many things that you’re talking about that just make me wanna keep talking to you. What you’ve just spoken about has me thinking about where’s the room for healing, and redemption, and rehabilitation within our systems? And, that is what we need as people who’ve been traumatized—
Justice Harry LaForme: Yes.
Myrna: —by the church and by the state.
Justice Harry LaForme: White judges aren’t going to do that, Myrna because—
Myrna: No.
Justice Harry LaForme: —they don’t understand it. They’ll never be capable. They can do it on an intellectual level but you need more than that—you need more than that. Because, if you feel it internally, then you can become creative. But that’s what you’ve gotta do.
Myrna: The system needs to change. And, so, for all of those judges listening and, hopefully, the chief judges and the people who make decisions, and the politicians, like, this is really the case for why you need Indigenous people to become judges and not people who are Indigenous. Like, there is a strong distinction and they need to become alive to it.
Justice Harry LaForme: Yeah. Even, following on that, you can be as sensitive to these issues all you want. But that’s a learned sensitivity from reading accounts, maybe talking to people. But, unless you’ve lived it, unless you’ve lived it, you really don’t understand it. And that’s what you need. You need the lived experience.
Myrna: Yes, you do. And, I think that’s a good place to end this interview.
Justice Harry LaForme: Okay. Well, Myrna—
Myrna: Thank you Harry.
Justice Harry LaForme: Listen, I’m glad you finally invited me. I’ve been wanting to get on this podcast with you for ages now, so, thank you for finally getting to me.
Myrna: Well, that’s today’s episode everyone. I hope you enjoyed it. I know I did. I think I have to ask Harry back because there’s so much to cover and we’ve barely scratched the surface. My next episode is going to include a conversation with a couple legal educators down at UCLA Law School who created a course on restorative justice and trauma-informed lawyering. I’m pretty excited to share that interview with all of you, so I hope you come back. Let me know what you thought about today’s episode. You can find me on twitter @legaltrauma, of course LinkedIn, and Instagram @thetraumainformedlawyer. Until next time, take care everybody.