The Viens Commission Has Some Bad News – Here’s Why All Lawyers Need to Listen.

On September 30^th, the Public Inquiry Commission on relations between Indigenous Peoples and certain public services in Québec: listening, reconciliation and progress, also known as the Viens Commission, released its report. The Commission was mandated to shed light on the issues that characterize relations between Indigenous people and the providers of certain public services throughout Quebec. I, for one, was not surprised to learn that a Commission with such a mandate delivered a phone book’s worth of calls to action: the full report comes in at a whopping 488 pages, while the summary report, to which I refer below, is still over 100 pages long.

“After 38 weeks of hearings in Val-d’Or, Montreal, Quebec, Uashat mak Mani-Utenam, Mistissini, Kuujjuarapik and Kuujjuaq, and some 1,300 documents filed in evidence,” Commissioner Viens stated in his address on the presentation of the report, “it seems impossible to deny the systemic discrimination experienced by First Nations and Inuit peoples in their relations with the public services investigated.”

During those 38 weeks of hearings throughout the province, the Viens Commission heard some shocking testimony about incidents of hatred and violence: brutality, sexual assault, and “starlight tours” by the Sûreté du Québec (p. 35 of the summary report); incidents of racist violence by staff at correctional facilities (p. 53); Indigenous individuals being forbidden to speak their native tongues on pain of state-backed sanctions (p. 29); and much more. These passages are a stark reminder that racial hatred still affects the lives of the Indigenous people of Quebec in traumatic ways.

But the Commission’s focus was on the more mundane and insidious forms of prejudice and differential treatment that disfigure the relationships between Indigenous people and the service providers of the Quebec government. Waiting rooms, jail cells, and practice court sittings are the theatre in which the real drama takes place. The drama is a tragedy of the ironic kind: a series of misunderstandings and missed opportunities that leads to a terrible result.

Many of the actors in this drama are or could be lawyers. Many of the scenes involve lawyers as secondary characters. Many of us work in the waiting rooms, jail cells, and court rooms surveyed in this Commission, and so it is imperative that we listen to what the Commission heard, too.

Several of the Commission’s messages and calls to action have broad relevance to the profession as a whole – or to all litigators, at least. One finding is the need for services in Indigenous languages and in English, especially “in the area of youth protection and judicial process.” Almost 7% of First Nations and Inuit people living in Quebec speak neither English nor French. Furthermore, 41% of First Nations and Inuit people in Quebec speak English as a second language. This is a call to action that interpolates all lawyers. We are in a position to facilitate and advocate for the use of interpreters within the justice system where they are needed. There should not be any litigants who do not understand the judicial process because of a language barrier.

Another related finding is a need for licensed professionals to serve Indigenous communities in the languages they speak. Call for Action 12, for example, recommends an amendment to the Regulation to authorize the professional orders to make an exception to the application of section 35 of the Charter of the French language. This Regulation allows professional orders – like the Barreau and also the professional order of interpreters – to license professionals without the required knowledge of French. However, the exemption only applies to individuals who live on-reserve or on Category I or Category I-N lands. This residency requirement severely limits professional licensing in some communities, especially in communities where there are already housing shortages. The lack of lawyers, paralegals, interpreters, and other professionals who speak the languages of Quebec’s Indigenous communities has obvious ramifications for access to justice within those communities.

Though less relevant to my practice as a civil litigator, I was offended by the apparently thriving practice of incarcerating people for not being able to pay municipal fines. “In September 2017,” the Commissioner writes, “I asked the Town of Val-d’Or to impose a moratorium on imprisonment for failure to pay fines.” This request suggests that such incarcerations were the norm rather than the exception. The Commission’s Call for Action #46 is to “stop incarcerating people who are vulnerable, homeless or at risk of becoming homeless for non-payment of fines for municipal offences.” So much for the Supreme Court’s statements back in 2003 that, “[d]ebtors’ prison for impoverished people is a Dickensian concept that in civilized countries has largely been abolished” and “[g]enuine inability to pay a fine is not a proper basis for imprisonment” (R. v. Wu, 2003 SCC 73 (CanLII), <http://canlii.ca/t/1g3bg>, paras 2-3).

At the most fundamental level, the Commission’s report calls all of us to action to listen better and to learn more. “Knowledge of the other, of differences and cultures, is everyone’s business, and can be developed through different sources and initiatives,” the Commissioner stated in his address.

The animating purposes of the Commission’s activities were listening and reconciliation. These purposes speak to me as a litigator relatively new to the profession. Lawyers do a lot of talking. We talk in court, we talk to each other, we talk to our clients. The Viens Commission reminds me to make more time to listen in the course of my practice. Not all of us work in criminal justice, youth justice, or health law. Not all of us work with Indigenous clients. But all of us work with people who are affected by similar forces of systemic discrimination. It is our obligation as professionals to listen – and to reflect on and understand what we hear.

The Viens Commission tells us that there is a problem – a big problem. We can be part of the solution.