Sometimes Judges Misjudge


Recently a respected former Manitoba Provincial Court judge, and acquaintance of mine, Judge Brian Giesbrecht, made a serious misstep.  I happen to know Judge Giesbrecht since we were both working as porters in the summer for the Canadian National Railway while we were attending University. We both went to Law School where he was a year ahead of me.

In an article in the Winnipeg Sun last week, Judge Giesbrecht severely criticized what he called a “firestorm” that resulted from the discovery of a mass gravesite where the remains of more than 200 people were discovered  in Kamloops on the school yard of the Indian Residential School. Many of the students there were from the Tk’emlúps te Secwépemc First Nation. Some of the remains were of children as young as 3 years old. According to Judge Giesbrecht , “It’s also not clear that there was even anything sinister about the discovery.

I would ask Judge Giesbrecht by what possible explanation that he could give, would this not be seen as sinister? Kelvin High School in Winnipeg is a school in Winnipeg that has been around for a long time. It was always largely populated by white students. What would happen if a mass gravesite were discovered there that contained the remains of more than 200 white children? I suspect there would be an unholy uproar demanding an explanation. Frankly I think the “firestorm” in Kamloops would be a modest flickering flame in comparison.

Judge Giesbrecht complained that the cost of the taking a look at all the possible grave sites in Canada would be “massively expensive.” Again if the families of the victims were white would it be so expensive? That is what the privileged always say about spending money for others. It is always too expensive. At the Kamloops residential school where this happened, the school authorities had not bothered to send bodies home to their families when children died. It was too expensive. Not only that, they often didn’t bother telling the families what happened. This is not an issue of cost. This is an issue of the privileged who just don’t care! They don’t see the pain of others.

Judge Giesbrecht also said this was just a matter of people willing to accept slanderous conspiracy theories about teachers and priests murdering students and secretly burying hundreds of children. First of all, no one to my knowledge  has suggested murder. People are concerned about neglect, lack of interest, and racial bias, not so much murder. No conspiracy theory is needed to be concerned when more than 200 unmarked graves were found. No conspiracy  theories are needed to raise alarms in such a case. After all how often do we find mass gravesites at white schools?

The belief that indigenous children were badly treated at such schools is not based on a conspiracy theory. It is based on the heroic uncontradicted testimony before the Truth and Reconciliation Commission (the “TRC”) of hundreds of survivors from schools around the country. To suggest this did not happen is nothing short of willful blindness.

As the Truth and Reconciliation Commission  reported, “the number of students who died at Canada’s residential schools is not likely ever to be known in full. The most serious gap in information arises from the incompleteness of the documentary record. Many records have simply been destroyed.” More than 4000 deaths of children from residential schools have been documented, but the real number is believed to be much higher. As Manny Jules, a former chief of the Tk’emlúps te Secwépemc First Nation where this site was found, and a survivor of that school, said on CBC radio, “As soon as the deaths at a school like the one in Kamloops started to rise the schools stop counting.” [

After making an exhaustive review of the available evidence (and not some conspiracy theory) the TRC concluded as follows about conditions at many of these schools:

“the death rates for Aboriginal children in residential schools were far higher than those experienced by members of the general Canadian population… until the 1950s Aboriginal children in residential schools died at a far higher rate than school-aged children in the general population. It is only in the 1950s that the residential school death rates declined to a level comparable to the general school age population. As late as the 1941-45 period, the Named and Unnamed Combined residential school death rate was 4.9 times higher than the general death rate. In the 1960s, even though the residential school death rates were much lower than their historic highs, they were still double those of the general school-aged population.

Judge Giesbrecht ignored all these facts, and then dismissed their suffering this way: “There are many forgotten cemeteries in Canada. It is far more likely that the deaths simply reflected the sad reality of life back then.” Yes undeniably life was hard back then, but why was it so much harder for aboriginal children than white children? That is that is the question that Judge Giesbrecht dodges.

I will continue my analysis of Judge Giesbrecht’ article  in my next post.


2 thoughts on “Sometimes Judges Misjudge

  1. The greatest outrageous part of the Residential schools is that children were taken from their parents and communities summarily.

  2. You make a very important point. What made the Canadians think that they had the right to take children away from their parents without consent? I just don’t want to compare harms as that is very useful. I also don’t want to forget any of the harms for they are all important. After all, they were robbed of their self-esteem, respect for their parents, and failed to learn how to take care of children since they were removed from their parents thus ensuring that these problems would be passed on through the generations. They were taught by example that children should be beaten and bullied. I intend to blog further about this as I think it is so vital.

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