Caroline Elliott is a North Vancouver-based political commentator. She has a Ph.D in political science from Simon Fraser University. Follow her @NVanCarolineHas Truth and Reconciliation become Truth or Reconciliation? That is the question at the core of a dispute that exploded onto the B.C. political scene over the last few weeks, leading to the firing of one Conservative MLA and two other resignations from caucus. Amid the uproar, it has been easy to lose sight of the crucial issue that started it all — a matter that has chilling implications for the future of open discourse, and for the judiciary responsible for adjudicating our right to free expression.It began when lawyer James Heller took issue with course materials used in the B.C. Law Society’s mandatory Indigenous Intercultural Course. As explained in a column by Michael Higgins, the materials refer to the “discovery of an unmarked burial site containing the bodies of 215 children” at the former Kamloops Residential School.Heller requested an amendment to the materials to say the burial sites had ‘potentially’ been found, to reflect the fact that the presence of 215 bodies has not been confirmed at that site. The amended language would align with the less-definitive phrasing now used by the Tk’emlúps te Secwépemc Nation itself, such as “probable burial sites” and “anomalies” instead of “bodies.”The revised wording would also be consistent with a ruling by B.C.’s first Indigenous Chief Justice, Len Marchand, who determined in a different case that the use of the word “potential” to refer to the unmarked graves was “the very same word Indigenous communities and others have used to describe the results of tests using ground penetrating radar in and around former residential school sites."Heller was nonetheless unsuccessful, and he claims the Law Society’s characterization of his efforts harmed his reputation. The Society had posted a response suggesting Heller’s motion demonstrated the amount of work that remains to be done to “eliminate racism” in the legal profession, and profiling a statement calling his motion “racist” and “genocide denialism.” Conservative MLA Dallas Brodie waded into the story with a post linking to Higgins’ article, stating: “The number of confirmed child burials at the former Kamloops Indian Residential School is zero. Zero. No one should be afraid of the truth. Not lawyers, their governing bodies, or anyone else.” She went on, “As a former defence lawyer. I experienced why facts matter. False or unsubstantiated claims could have put innocent clients of mine behind bars. Can we trust our legal system if lawyers are no longer free to insist upon the facts?”NDP Minister of Indigenous Relations and Reconciliation Christine Boyle (and many others) lost no time in responding, stating: “This is abhorrent behaviour from [Opposition Leader] John Rustad’s team. There is no place in B.C. for residential school denialism.” Brodie’s critics later shared an edited video in which she appears to be attempting (albeit flippantly and in a ridiculing way) to distinguish between the notion of personal, subjective “truths” on the one hand, and the need for the legal profession to be concerned with the empirical, objective truth on the other. Her comments and tone led to accusations that her ridicule was directed at residential school survivors.Everything came to a head last Friday afternoon, when Rustad announced that Brodie was “not welcome to return to our Conservative Party of BC caucus,” having gone “beyond the pale” in the video by “mocking former residential school students giving testimony, including testimony about child sex abuse by pedophiles.” Shortly after, two other Conservative MLAs quit caucus, calling Rustad’s decision “cowardly” and saying the party has “lost its way.” Several other Conservative MLAs expressed their support for Rustad’s move.All of the political drama has distracted from Heller’s original case. It is of fundamental importance because it pertains to the training of B.C.’s lawyers, who are supposed to be concerned with the principles of evidence, and who comprise the pool from which future judges are drawn.This is a critical point given a recent federal NDP bill that sought to criminalize residential school denialism, or more specifically, the act of “condoning, denying, justifying or minimizing the facts about residential schools.” While it only made it to first reading before Parliament was prorogued in January, neither the federal Liberals nor the federal Conservatives ruled out supporting the bill.Under the bill, denialism would be punishable by up to two years in jail. The definition of ‘denialism’ is thus a vital detail. If the respective reactions to Heller’s motion and Brodie’s initial post by the Law Society and senior B.C. government ministers are any indication, the kind of ‘denialism’ contemplated by such a law could very likely include efforts to correct inaccurate statements. Critically, this means that lawyers who have not only been taught factually inaccurate content, but discouraged from countering with evidence to the contrary due to massive social pressure, may later in their careers serve as judges tasked with weighing evidence in cases dealing with the very subject matter in which they have been erroneously educated. This is a problem because our entire judicial system is premised on judges being “able to make decisions free of influence and based solely on fact and law.”We shouldn’t have to choose between truth and reconciliation. If public trust in the process is to be maintained, we have to stop conflating statements of fact with denialism. But, language and tone matter, too. The use of provocative or mocking language when speaking in the context of a sensitive issue is not conducive to thoughtful debate. Instead of opening minds, it closes the door to productive conversation.It is possible to acknowledge real harms wrought by residential schools, while also rightly — and respectfully — insisting on strict adherence to the objective facts as we know them today. The truth ought not to be a casualty of any objective, no matter how noble the cause.Caroline Elliott is a North Vancouver-based political commentator. She has a PhD in political science from Simon Fraser University. Follow her @NVanCaroline.
