On Feb. 24, IndigiNews published a story about the sentencing of six people who resisted the construction of the Trans Mountain pipeline expansion project (TMX) in Secwepemcúl’ecw.
We recently updated that story after receiving a complaint about our coverage from the B.C. Supreme Court.
Before the court in Tkʼemlúps (Kamloops) on Feb. 21, B.C. Supreme Court Judge Shelley Fitzpatrick stated “there’s no bodies that have been unearthed” at the former Kamloops Indian Residential School (KIRS), leading to a tense exchange between the judge and the lawyer for the defence. IndigiNews initially reported the judge’s statement incompletely, as “there are no bodies.”
Fitzpatrick said this in an apparent attempt to correct defence lawyer Benjamin Isitt, who referred to the “children whose bodies have been unearthed.”
Although the word “unearthed” might be taken figuratively or literally in this context, Isitt corrected himself after the exchange to say that the remains had been “identified through ground-penetrating radar.”
Fitzpatrick apparently felt this description was also in need of clarification, and responded with one word: “Potential.” After that, spectators in the courtroom were in uproar.
The full exchange was obscured on the audio recording of the IndigiNews reporter who witnessed it, because the lawyer and judge spoke over each other after Fitzpatrick said “there’s no bodies.” We became aware of the last part of her quote after a representative of the court sent a portion of the court’s official transcript of the proceeding.
We apologize for omitting a key part of the exchange and publishing a quotation that was potentially misleading. As of March 10, we’ve updated the story.
The transcript of the exchange, as sent to us by the court, is as follows:
[CNSL B. ISITT:] Ms. Bibbings has volunteered in the area of food sovereignty, and resilience work with the Tsleil-Waututh First Nation, and more recently, as previously mentioned, with Sequoia Solution, which she founded, and working with children and families to plant 20,000 trees to date, as well as 215 healing forests, to honour the Kamloops Residential School children whose bodies have been unearthed, or remains – –
THE COURT: well, I don’t think there’s – –
but there’s no bodies that have been unearthed.
CNSL B. ISITT: Remains, remains have been unearthed.
THE COURT: They have been?
CNSL B. ISITT: Sorry, you – – I stand corrected, who have been identified through ground – penetrating radar, thank you.
THE COURT: Potential.
UNIDENTIFIED SPEAKERS: They’ve been there . . . (Indiscernible/overlapping speakers).
THE COURT: Yes, Mr. Isitt?
UNIDENTIFIED SPEAKERS: (Indiscernible).
UNIDENTIFIED SPEAKER: Shame on you.
THE COURT: All right, Ms. Thomas, you can leave, too.
IndigiNews has no problem with updating the story to provide more clarity and context around what happened in that courtroom. We believe the following facts are also relevant to provide context.
The court’s transcript captures some of the outrage that followed Fitzpatrick’s statements. Secwépemc Matriarch April Thomas — who is scheduled to be sentenced on similar charges in early May — shouted the word “racist” and was removed from the courtroom by a sheriff. This was after at least one other person left in outrage. “Well, it was racist. Shame on you,” Thomas said on her way out. “Alright, Ms. Thomas, you can leave, too,” Fitzpatrick replied.
Over the course of the sentencing proceedings, our reporter witnessed that Indigenous spectators and allies were threatened with removal for not rising when Fitzpatrick entered and adjourned during the sentencing. One person was ordered to leave after turning their back to her. An Indigenous man wearing a headdress in the courtroom gallery was not initially allowed entry because of the courtroom’s “no hat” policy. “This is not a hat,” he told the courtroom sheriffs before they escorted him out. The man was eventually permitted to wear the headdress in the courtroom.
One spectator was wearing an IndigiNews shirt with the words “Decolonize the Media” printed across the front and was asked by a sheriff to turn it inside out. According to courtroom rules, shirts with “inappropriate logos” are not allowed.
Is a message about decolonizing the media inappropriate to this institution?
Before Fitzpatrick handed out her sentence to Secwépemc Hereditary Chief Saw-ses — a residential “school” survivor — she acknowledged the Gladue principles, which ask that judges consider an Indigenous person’s unique history and circumstances when determining their sentence. Fitzpatrick, however, said that she finds that Gladue principles “do not necessarily lead to a reduced sentence,” and that “there is no automatic heritage-based discount” before giving him 28 days in jail.
These are some of the facts of what transpired, which help add clarity and context to the exchange between the judge and the lawyer for the defence. These are some of the facts that seemingly led Secwépemc land defenders who were present in court to put out a press release that stated Fitzpatrick denied the finding of children’s remains — going so far as to call her an “openly anti-Indigenous judge.”
So, do the judge’s statements amount to residential “school” denialism, or simply pointing out fact? Is it a respectful way to speak about the death of children? In what other instance would a judge be so flippant about the believed location of children’s bodies? We’ll allow our readers to interpret that for themselves.
We’re taking accountability. But will the court?
At KIRS, located a short drive across the river from the “Kamloops” courthouse, survivors have recalled being punished for practicing their culture and being forced to assimilate to the colonial regime. The atmosphere at these “schools” was known as one of fearful respect: obey us, or else.
This is a pattern that, based on what we’ve witnessed, obviously continues today.
Much of what happened within the courtroom made it clear that the colonial authority is the only authority that is acknowledged in so-called British Columbia.
There’s a factor of Indigenous people being expected to obey, assimilate and become passive observers to their own colonization that is disturbing.
“Fitzpatrick also denied Secwépemc Nation members every opportunity to speak to the existence of Secwépemc territory, law and ceremony,” said a statement from land defenders, reflecting on the years-long proceedings before the judge.
The statement also observed that Fitzpatrick referred to Secwépemc ceremonial sites as “Trans Mountain sites” and that she said the Secwépemc Nation members had intentions to “take the law into their own hands and assert their will by force.”
When IndigiNews contacted the B.C. Supreme Court to try to determine whether Fitzpatrick violated any court conduct for her comments during the sentencing, a spokesperson declined to comment and suggested we may wish to consult a lawyer.
The Canadian Judicial Council (CJC), the federal body that handles complaints made against Supreme Court judges, has outlined Ethical Principles for Judges to follow. But it’s important to note that these principles are not a judicial code of conduct that holds judges to minimum standards. Rather, they are “aspirational” and act as “ethical guidance” that judges are encouraged to follow and practice.
The CJC’s Ethical Principles for Judges state that “Judges are expected to be alert to the history, experience and circumstances of Canada’s Indigenous peoples.” They are responsible for maintaining and enhancing their knowledge of “the history, heritage and laws related to Indigenous peoples.”
Multiple people have told IndigiNews that they plan to file formal complaints to the CJC regarding Fitzpatrick’s comments and conduct in the courtroom throughout the sentencing between Feb. 21 to 24. But can this process lead to any real consequence, if it applies only aspirational guidelines?
The CJC’s procedures for reviewing complaints appear to be highly discretionary, giving members of the council powers to determine the extent to which a complaint will be investigated, if at all.
Calling for action
We’ve taken accountability for the omission that we made, and so we call on the B.C. Supreme Court to take accountability too.
We call on the B.C. Supreme Court to respond in a transparent, respectful, fulsome way to ongoing critiques about the conduct of Shelley Fitzpatrick — who has now jailed several Indigenous people for violating TMX injunctions on unceded lands.
We also call on the B.C. Supreme Court to release not only the small section of the court transcript sent to us — but to release the entire court transcript for the sentencing for free, open, public access.
While they’re at it, they should release the rest of the transcripts for all of Fitzpatrick’s sentencings related to TMX as well — to provide the public “with a clear report,” as per their own words in an email to IndigiNews.
We are in the midst of an age of so-called reconciliation, where many institutions are trying to meet the Truth and Reconciliation Commission’s 94 calls to action, the UN Declaration on the Rights of Indigenous People, and actively respect Indigenous sovereignty. In other words, they’re trying to decolonize.
Meanwhile, the B.C. Supreme Court seems to have fallen behind.
For an institution that doles out punishment as a form of accountability — and demands accountability and respect from others — it could do a better job practicing what it preaches.