How Aboriginal lawyers are fixing the mess Canada made // Cover Story

Jeremiah Raining Bird
Aboriginal people are over-represented in prisons. The justice system flies in the face of their cultures. And the consequences of residential schools are still felt today. Yet Aboriginal lawyers are working to make things better. Meet three of them

By Daniel Fish

On Wednesday December 2nd, 2015

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PROMISE AND THE BIG PROBLEM

Promise Holmes Skinner helps criminals: those convicted of murder, theft and everything in between. But that’s hardly the whole story. Each one is an Aboriginal person. Some suffered at Indian Residential Schools; many others are the children and grandchildren of those survivors, raised by parents who grew up under the hand of abuse. And each one faces prison time. But before a judge decides what sentences to hand down, offenders will have a chance to tell their life stories. That’s because their defence lawyers — or, in some cases, the judge or the prosecutor — has asked Aboriginal Legal Services of Toronto to interview them and document their past.

This is where Holmes Skinner enters the picture. She manages and edits 13 writers, based in cities all over Ontario — such as North Bay, Sudbury and Windsor — who work tirelessly to get these stories on paper. Such accounts are called Gladue reports — so named after a landmark Supreme Court of Canada decision in 1999 — and they help judges consider systemic discrimination before handing down sentences.

“Our job is to educate the court about the injustices Aboriginal peoples have faced for so long,” Holmes Skinner tells me on a chilly fall evening in a small classroom at the University of Toronto. She has just finished teaching a class on Aboriginal peoples and the criminal justice system. (She co-teaches the class with Katherine Hensel, a leading litigator who runs a boutique firm tailored to Aboriginal clients.) Moments ago, the last few students filed out over the creaky, wooden floors. “You should have been here 15 minutes ago,” says the 27-year-old, called to the bar last year, smiling. “I just explained this to the students.”

Promise Holmes Skinner

“When I read about people’s experiences, I want to break down. It breaks my heart all over again.” — Promise Holmes Skinner, Aboriginal Legal Services of Toronto

Holmes Skinner continues patiently. Each report, she says, runs 25 or so pages and can take up to 100 hours to produce. They contain no legal analysis; the writers simply record what they hear. “We quote verbatim as much as possible. It’s up to the judge to decide what is true.”

Yet Holmes Skinner hopes defence lawyers use Gladue reports, which have come into wide use in the past decade, to push for sentences that take past abuse into account and prioritize restorative justice. Quite often, the reports recommend drug-treatment or educational programs as alternatives to prison terms. (The reports also highlight the strengths and accomplishments of each offender.) The over-representation of Aboriginal people in prison, Holmes Skinner points out, is a tragic problem. Indeed, in 1995 Aboriginal people made up 16 percent of the prison population. That number has since risen to 28 percent, while Aboriginal people make up just four percent of the country. By this measure, the country is far from healing; it’s getting sicker. “I can’t focus on that or I’ll feel defeated,” she says. “It’s devastating.”

Holmes Skinner, a descendant of the Cape Croker First Nation, was raised in Guelph by a single mother in the Onward Willow neighbourhood. This part of the city has the highest number of subsidized housing units. “It’s thought of as the worst neighbourhood in town,” says Holmes Skinner’s mother, Shannon Holmes, who works at the Onward Willow Neighbourhood Group. (Holmes herself grew up 10 minutes away in the Brant Avenue region, which, she says, “is seen as the second-worst neighbourhood.”)

Holmes Skinner, in short, grew up in a rough area. Kids would get into fights; they would sell drugs. But beginning in middle school, she noticed how police would target black kids in the neighbourhood, even when they behaved the same as white children. “I could see the discrimination,” she says, nodding firmly. “Plain as day.”

That observation shaped Holmes Skinner’s social conscience. “It always bothered her when kids had trouble with the law and they never seemed to get the help they needed,” says Holmes, who founded Guelph’s first indigenous learning circle last year. “She would just get so upset.” Throughout Holmes Skinner’s teenage years, her mother recalls, she talked about becoming a lawyer.

Then, in grade 12, Holmes Skinner first learned about residential schools in detail. “I was very upset,” she recalls. “But it opened my mind.” At home, she says, such painful periods in history rarely came up. It was a pivotal moment. “I didn’t exactly know what my career would look like, but I wanted to help Aboriginal people in conflict with the law.”

That ambition slowly came to pass. In 2013, Holmes Skinner graduated from law school at the University of Toronto and, with killer grades, secured an articling job at the elite criminal law firm Greenspan Humphrey Lavine. She went on to practise defence law on her own, which she still does part-time. And a year after articling, she joined Aboriginal Legal Services of Toronto.

FALLON’S PAINFUL PAST

Fallon Melander, as an undergrad at Western University, stumbled upon a key to her family history. At this point, she already knew a lot. She knew her grandmother had lived on the reserve of the Wikwemikong First Nation, on Manitoulin Island, before being taken to a residential school. And she knew that her mother, as a young child, was taken from her home and sent into foster care. But then she read about the so-called “Sixties Scoop,” an era marked by an aggressive campaign by the child-welfare system to take Aboriginal children into its custody. In 1959, Aboriginal people made up one percent of children in foster care. Then, over the next decade that number rose to nearly 40 percent. (The number currently sits at almost 50 percent.) Buried somewhere in those statistics was her mother. Melander finally knew, as a young student, that what happened to her family had happened to countless others.

Fallon Melander

“I always did carry a sense of shame growing up, because I was bullied and teased for being Aboriginal.” — Fallon Melander, Legal Aid Ontario

On a brisk fall morning, I visit Melander at her home, a four-bedroom bungalow in Burlington. “I hope you’re OK with dogs,” says the 32-year-old, opening the door. Melander, a lawyer on maternity leave from Legal Aid Ontario, cradles her six-month-old daughter, Madison, in her arms. Her husband, a web designer, is at the office. As her two dogs (one small puggle and one large boxer) bark chaotically, she steers me into the living room.

Melander was born in Oakville, her mother a hairdresser and her father a real estate agent. When Melander was a baby, her mother and grandmother reunited. But the damage had been done: three generations grew up removed from their culture. As a child, Melander largely rejected her identity. “I always did carry a sense of shame growing up, because I was bullied and teased for being Aboriginal,” she says. Her mother, Lisa Spencer, remembers this period, too. “She would say, ‘I don’t want to be Aboriginal.’ And I’d say, ‘But you are. So somewhere in there you need to find some pride in who you are and embrace it.’”

For Melander, this happened, but it took time. And the more she read — about residential schools, intergenerational trauma — the more Aboriginal issues became a point of passion. But learning about the Sixties Scoop was a watershed moment. “I realized what a huge impact this had on our people,” she tells me, as her dogs now sleep quietly on the living-room carpet. “I said to myself, ‘This just can’t happen again. This can’t happen in the future.’”

Trying to heal those historical wounds became a central goal. In fact, it took her to law school. “When I decided to go,” she says, “it was always to work for my people.” And after being called to the bar in 2011, she got her chance. Legal Aid Ontario was looking for a lawyer to quarterback its Aboriginal strategy. Melander had articled at Aboriginal Legal Services of Toronto, but was otherwise merely a first-year lawyer with a deep-seated desire to make a difference. That was enough to earn her the job.

JEREMIAH FINDS HIS WAY

Jeremiah Raining Bird is an outlier. The 31-year-old is an associate at Olthuis Kleer Townshend LLP, which may be the top law firm in the country when it comes to land claims, treaty law and a host of other practice areas that affect Aboriginal peoples. “Many students who apply to us have wanted to do this type of work their whole lives,” says Renée Pelletier, the firm’s managing partner. “But Jeremiah was not that person.”

He had his own reason for going to law school. “I got a degree in political science, which led to me becoming a bartender,” he explains, sitting in the main boardroom at Olthuis Kleer Townshend. He sports a T-shirt, sneakers and a boyish grin. (It’s 11 a.m. and he’s arrived at work after hitting the gym.) “I didn’t want to be a 40-year-old bartender.”

Raining Bird was born in Montana, on the Rocky Boy Indian Reservation, home to 2,500 members of the Chippewa-Cree tribe. His parents split up when he was five, and he moved with his sister and mother, who is white, to Halifax. “I’m more connected to my mom’s side of the family,” says Raining Bird. So when he went to law school, at the University of British Columbia, he had no zeal for Aboriginal law. Nor was he committed to any future; law school was an experiment. “I figured I would go for the first year and, if I didn’t enjoy it, I could get out.”

Jeremiah Raining Bird

“I finally feel like I’m doing something that makes a difference in people’s lives.” — Jeremiah Raining Bird, Olthuis Kleer Townshend LLP

When he arrived at law school, the hyper-competitive culture “sucked me in a bit,” he says. He soon wanted a prime job on Bay Street. And after graduating in 2011, he landed one at Lenczner Slaght Royce Smith Griffin LLP, home to some of the most gifted litigators in the country. He moved to Toronto to article at the firm. But things went poorly. “I was not happy at all,” says Raining Bird. He seldom enjoyed the work (commercial real estate) and felt overwhelmed by the hours the firm expected him to put in (a lot of them). “I knew about halfway through that I was probably going somewhere else.”

This marked a turning point for Raining Bird. He wanted to find a job that, above all, would be fulfilling. That’s when he saw a months-old job posting for a litigator at Olthuis Kleer Townshend. He sent off a resumé. “We had already hired two people for that opening,” recalls Pelletier. “We did not need any new bodies.” But when she saw Raining Bird’s application — with superb grades and experience at a top-tier firm — she thought, “Oh my god, this guy is too good to pass up.” Soon after they met for lunch, Pelletier hired him.

Raining Bird had an intimidating resumé, but Pelletier had an additional reason for hiring him: he is Aboriginal. “Our clients like working with people who are just like them,” says Pelletier, who is of Maliseet ancestry. Indeed, if a potential client doesn’t know she is Aboriginal, Pelletier can sense, in their body language, their scepticism of her. “But the way they change when they find out that I am is remarkable,” she says. “It puts them instantly at ease.”

To earn the trust of clients, the firm doesn’t represent any non-Aboriginal groups. The founding partners set down this edict when they launched the firm 15 years ago. “If we work for a corporation or government it might give clients the impression that our loyalties are divided,” says John Olthuis, a founding partner at the firm, who is white. With land claims, joint venture agreements and treaty law making up the bread and butter of the firm’s practice, its clients are often pitted against resource companies and governments. “We don’t want clients to think we’re just working for whoever will pay us. We’re specifically trying to advance the rights of First Nations.”

Raining Bird, as a junior at the firm, works in a range of areas — from litigation to administrative law — and occasionally on some of the firm’s lengthy land-claim negotiations. (He once chipped in to help Olthuis on his decades-long negotiation between the government of Newfoundland and Labrador and the Innu First Nation.) “I finally feel like I’m doing something that makes a difference in people’s lives,” says Raining Bird.

Now and again, he also gets files of his own. When I ask Raining Bird to name his favourite case, he doesn’t hesitate. The backstory starts in 2008, when an Aboriginal man, Brian Sinclair, died in a Winnipeg hospital after being unattended for 34 hours. He simply had a blocked catheter. Manitoba called an inquest into the death, which finally got underway in 2013, and invited Aboriginal organizations to take part. But there was a catch: the judge overseeing the inquest ruled that no group without a lawyer could attend any hearings or access written transcripts.

One group, the Assembly of Manitoba Chiefs, couldn’t afford a lawyer. So Olthuis Kleer Townshend offered up Raining Bird as pro bono counsel. He flew to Winnipeg. Once on the scene, the tides changed. “As soon as I got down there,” says Raining Bird, “I ended up winning and getting them everything that they wanted.”

Yet the story doesn’t end there. The judge overseeing the inquest wanted to focus solely on hospital wait times, rejecting any calls to look at how the city’s racial demons may have been at play. In the end, the Assembly of Manitoba Chiefs pulled out of the inquest in protest. “Obviously it’s disappointing that the decision was made not to examine the systemic issues facing Native people in the health care system,” says Raining Bird. But his involvement in the case remains a point of pride: he got to work on behalf of Aboriginal communities that needed a lawyer on their side. His experience also demonstrates how vital it is, even if the system is unfair, for Aboriginal communities to have lawyers in their corner. Without Raining Bird, they’d have been totally shut out of the process. “For some reason,” he says, “if you have a law degree, all of the doors open up magically.”

PROMISE FINDS THE BRIGHT SIDE

Reading the testimony of residential school survivors can be excruciating. Yet Promise Holmes Skinner does this almost every day. “In every Gladue report, there is information that is — I would use the word ‘devastating,’” she tells me, in the empty classroom. “And there are some reports that are horrific.” I ask her what stories meet that description. Her pace of speech slows. “I would say this: forms of sexual violence that you can’t even think of, that you can’t even dream of. Even being the most creative and disgusting, you probably couldn’t come up with it.”

The historical record offers some insight into what Holmes Skinner is talking about. Amid 38,000 accounts of abuse, some relate stunning sadism: from children raped brutally and chronically, to children sodomized by a broomstick handle. And that says nothing of the rampant beatings and psychological abuse found throughout survivor testimony. Though Holmes Skinner is well versed in this history, reading Gladue reports never gets easier. “When I read about people’s experiences, I want to break down. It breaks my heart all over again.”

Swamped in such dark material, Holmes Skinner can be thin-skinned when she hears people flippantly dismiss the intergenerational impact of residential schools. “If someone was raised by a parent who only learned conflict management in the form of abuse, and who only learned that their culture was bad, and that they shouldn’t be who they are, how is that not related to their life?” Yet the justice system, it seems, is hardly empathetic to that logic. In fact, when Aboriginal people are convicted of a crime, they are, statistically, more likely to receive a prison sentence than the rest of the population.

This is a stinging indictment of the justice system. Yet there are signs that the legal profession is paying attention. This March, Aboriginal Legal Services of Toronto received nearly $500,000 in funding from Legal Aid Ontario — thanks in part to the lobbying efforts of Fallon Melander — to hire four new Gladue report writers in the province. (This brought the total from nine to 13.) “This is immensely important,” says Christa Big Canoe, legal advocacy director at Aboriginal Legal Services of Toronto. “This is the on-the-ground, front-line service that has a huge impact.” But they still don’t have enough writers on staff to meet the demand. Big Canoe says that would take at least 50 writers. “That might make an actual impact on the over-representation of Aboriginals in the justice system and move us toward reasonable rehabilitation.”

When Holmes Skinner has time, she goes to court to see the fruits of her labour. She looks on as defence lawyers push for fair prison sentences and accommodations on behalf of Aboriginal clients — using her Gladue reports as their ammunition. And Holmes Skinner usually leaves satisfied with the sentences doled out. “I’ve never seen the court dismiss someone’s story after reading a Gladue report,” she says. For her, this is a dim sign of hope: when given the facts, people can learn. “By informing judges and lawyers about the tragedies Aboriginal people are facing, I am providing — not a solution — but some positive step in the right direction.”

FALLON FINDS HER PRIDE

Much of the justice system is antithetical to the worldview of Aboriginal peoples. Many of them, as a result, find it culturally unbearable to take part in the legal process. When Fallon Melander joined Legal Aid Ontario, nearly five years ago, she became the on-staff lawyer who would lead the province-wide Aboriginal justice strategy. And so, it fell to her to attack this problem.

Her first step was to catalogue everything about the law that, broadly speaking, might alienate an Aboriginal client. And she couldn’t do it alone. So Melander teamed up with a young historian — Jami O’Hara, who Legal Aid hired shortly after she earned a master’s degree in Aboriginal history at Lakehead University. The cultural friction, they found, starts with the very function of a lawyer. “For one person to speak on behalf of someone else is, in most Aboriginal cultures, completely foreign,” says O’Hara. So is the court’s reliance on all-powerful truth-deciders: judges and juries. “The whole justice system is culturally strange.”

When I discuss this with Melander at her home, she explains how this state of affairs has serious consequences. When Aboriginal people are charged with a crime, she points out, some would prefer to plead guilty than go to court. “They would rather go to jail, serve their time and be left alone than go through that system,” says Melander, as her teething daughter wails. The fact that a criminal record will severely hamper their chances of getting a job or travelling rarely resonates. “They figure, ‘I’m not going to be able to do any of that anyway. I have no money, so I’m not going to go travelling; I’m not going to go to school.’ They are totally hopeless.”

Melander can’t overhaul the system, but she can help lawyers better understand their clients. And so, along with O’Hara (known at Legal Aid as “the encyclopedia”), Melander travels across the province, meeting with everyone in the Legal Aid network — staff lawyers, community legal clinics, Aboriginal healing centres — to make presentations on these issues. “We wanted to break down barriers and provide a safe space where people could ask questions they think are offensive or ignorant,” says Melander. Only then can lawyers truly empathize with Aboriginal clients.

At Legal Aid Ontario, this kind of outreach work is new. “There was a real switch about eight years ago,” says Nye Thomas, who worked with LAO for the past 15 years, most recently as a director. (He left this fall to lead the Law Commission of Ontario.) “What we hadn’t done until then was look at the law from the perspective of clients,” says Thomas, who also served as Melander’s boss for four years. “We didn’t look at their unique legal needs.” And that includes the needs of Aboriginal peoples. That’s when he created the Aboriginal justice strategy and, in turn, Melander’s position. (She was the second lawyer to fill the role.) And Thomas made a point to hire Aboriginal lawyers who could spearhead the change. “That’s the way it’s got to be,” he says. “It doesn’t work if some guy from head office in Toronto tries to tell people what’s good for Aboriginal peoples. That approach has proven to be spectacularly unsuccessful in the past.”

Before I leave her home, Melander tells me what keeps her going through the hardest, most draining days: her daughter. Madison still sits in her mother’s arms, quietly gnashing her gums against a plastic rattle. Melander hopes her dedication to Aboriginal peoples animates her daughter. “I want my child to grow up being proud of who she is,” she says. “My grandmother was not proud; she was taught that she was bad. For a long time, my mom was not proud of who she was. I was not proud of who I was until much later in life. But I want her to be proud and be strong.”


Courting change

Inside the case that reshaped how the courts sentence Aboriginal people 

Twenty years ago, in British Columbia, Jamie Tanis Gladue stabbed her common-law husband during a fight over alleged infidelity, killing him. Soon after, the young Cree woman pled guilty to manslaughter. The judge sentenced Gladue to three years in prison, with the possibility of day parole after six months.

Her lawyer appealed the sentence under a provision in the Criminal Code, passed in 1996, that compels judges to consider reasonable alternatives to prison for Aboriginal offenders. Such a challenge had never been lodged.

The appeal landed in the Supreme Court. And when the justices issued their ruling, in 1999, Gladue lost. Yet, in the decision, the judges went on to lament that the “drastic over-representation of Aboriginal peoples” in the justice system was a “sad and pressing social problem.” The court told judges that, when sentencing an Aboriginal person, they must consider how systemic discrimination has affected each offender. That call to action gave rise to Gladue reports — court documents that tell the life story of Aboriginal offenders, an essential tool for judges trying to come up with appropriate sentences. Such accounts make up the bedrock of how judges sentence Aboriginal people today.


Power to the people

The law firm that thinks Aboriginal lawyers make the best crusaders for Aboriginal justice

John Olthuis started his career in Aboriginal law 50 years ago when the public knew virtually nothing about the subject. But this young, white lawyer made Aboriginal justice the issue of his life. “My parents always said, ‘You’re here to take care of your neighbours,’” explains Olthuis. “And the rights of Aboriginal peoples had clearly been trampled on.”

For decades, he worked alone. In the 1980s, he won a settlement for the Grassy Narrows First Nation after a paper company contaminated the reserve’s water system with mercury. And in 1987, he helped build the Aboriginal law group at Morris Rose Ledgett LLP. Things were going well — until 2000, when the firm disbanded.

Olthuis made a brassy decision. With two other white lawyers in the firm’s Aboriginal section — Nancy Kleer and Roger Townshend — he launched Olthuis Kleer Townshend LLP. Now 30 lawyers strong, it may be the best-known firm for Aboriginal law. (Its partnership even includes former Ontario premier Bob Rae.) Today, about one-third of its lawyers are Aboriginal. And that’s by design. “Eventually, we’d like to turn over the firm entirely to lawyers of Aboriginal descent,” says Olthuis. “They are the best people to know, deep in their hearts, what the route toward reconciliation should be.”


Winter-2015-cover-smallThis story is from our Winter 2015 issue.

 

 

 


Photography by Christopher Wahl