Speak the Truth: Can The United States Judges Learn from the Example of Canadian Chief Justice McLachlin?

There are many people in the United States who are uncomfortable with President Trump’s response to the violence in Charlottesville. Leaders from both political parties called upon the President to say something more forceful. Surely, the critics argue, thoughtful leaders should condemn the KKK and neo-Nazis. The problem with racism is ambiguity of language simply does not work. Racism is wrong. There is no grey or nuance. Racism is wrong.

Should a judge speak out about racism in our society or condemn the KKK? There are many reasons why it might not be appropriate for a Virginia judge to remain silent. Some Virginia judge is surely going to preside over litigation about what happened. But, what about judges in the 49 other states? Most will not say anything. Fear of ethical constraints is the most likely reason. So perhaps the United States judges could learn from the example of the Chief Justice of Canada.

Canada committed “cultural genocide” against Indigenous peoples through policies like Indian residential schools, which were created to wipe out the languages and cultures of pre-existing nations, said the country’s top judge in a speech delivered in 2015. Chief Justice Beverly McLachlin said Canada’s treatment of Indigenous peoples in the 19th and early 20th Century was aimed at annihilating their culture and language in a bid to solve John A. Macdonald’s “Indian problem” for good.

“In the buzz-word of the day, assimilation; in the language of the 21st Century, cultural genocide,” said the Chief Justice. “The most glaring blemish on the Canadian historic record relates to our treatment of the First Nations that lived here at the time of colonization.”

McLachlin said “an initial period cooperative inter-reliance grounded in norms of equality and mutual dependence” was supplanted by “the ethos of exclusion and cultural annihilation.”

She also listed some of the tactics Canada used to “solve” the Indian problem.

“Early laws forbade treaty Indians from leaving allocated reservations. Starvation and disease were rampant. Indians were denied the right to vote. Religious and social traditions, like the Potlatch and the Sun Dances, were outlawed. Children were taken from their parents and sent away to residential schools where they were forbidden to speak their native languages, forced to wear white man’s clothing, forced to observe Christian religious practices, and not infrequently subjected to sexual abuse,” said McLachlin.

McLachlin said for Macdonald and other Canadian officials at the time, “‘Indianess’ was not to be tolerated; rather it must be eliminated.”

McLachlin said Prime Minister Stephen Harper’s 2008 apology and the creation of the Truth and Reconciliation Commission, which were both the result of the multi-billion dollar residential school settlement between Ottawa, the churches and survivors, are examples of Canada coming to grips with this dark legacy.

“Yet the legacy of intolerance lives on in the lives of First Nation people and their children—a legacy of too much poverty, too little education and over-representation of Aboriginal people in our courts,” she said. “The lessons from the Canadian experience are replicated where intolerance has been systemically imposed—from Nazi attempts to eliminate Jews, gypsies and homosexuals, to Apartheid of South Africa, to the genocide of Rwanda. Intolerance doesn’t work and imposes enormous and unacceptable costs. Ultimately, the only way forward is the way of tolerance.” 

The Globe and Mail first reported on the speech.

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