First Nations v. John Furlong: “Waiting to be Heard”

Today, November 26, 2015, the National Observer published my article entitled “Waiting to be Heard” (http://bit.ly/21iC9Ly)

Here it is:

On September 18, 2015, Madam Justice Wedge of the B.C. Supreme Court dismissed an action brought by investigative journalist Laura Robinson against John Furlong, CEO of the Vancouver Organizing Committee (VANOC) for the 2010 Olympics.

Furlong declared himself vindicated and, on October 30, Geoff Plant, the former Attorney-General of B.C., wrote in the Globe and Mail that a door had closed on a particularly nasty part of Furlong’s life—nasty in that he had been unfairly vilified by Robinson.

Opinions differ on the judgment, but one thing is clear: The voices of the First Nations alleged victims have never been heard. Yet, though not a single one of these people has testified in court, they have been discredited—both by the judge and in the court of public opinion.

A thumbnail sketch of the chronology is in order.

In September 2009, shortly before the February 2010 Olympics, Robinson received a tip that Furlong had worked as a Catholic missionary somewhere in Northern B.C. when he originally came to Canada. Finding nothing on the Internet about that, she dropped the matter.

In February 2011, while writing a review for his book Patriot Hearts, co-authored by journalist Gary Mason, it struck her that certain information regarding his background, arrival in Canada, and work experience appeared to be missing or did not make sense. Her research revealed that he had come to Canada as a Frontier Apostle missionary, and had taught at a Catholic elementary school in Burns Lake (1969-1970) and, from there, a Catholic high-school in Prince George.

In April 2011, Robinson wrote the review as well as an op-ed for the Danish organization, Play the Game.

After interviewing by phone eight people, Robinson travelled from Ontario to Burns Lake in April 2012. She took statements from eighteen individuals who alleged abuse by Furlong at one or both of the schools.

On September 26, 2012, the Georgia Straight published her article, “John Furlong Biography Omits Secret Past in Burns Lake”—featuring allegations of psychological and physical abuse (only) against Furlong.

On November 27, 2012, Furlong sued Robinson for defamation (Furlong v. Robinson). In his Notice of Civil Claim, Furlong asserted that the First Nations’ allegations of abuse were without merit. In Robinson’s Defence to Civil Claim, she relied upon the statutory declarations sworn to by eight of the former students.

On March 31, 2015, Furlong dropped his lawsuit against Robinson.

Meanwhile, Robinson, having sued Furlong in January 2014 for defaming her (Robinson v. Furlong), pressed forward with her suit. The two-week trial (which I attended) took place in June 2015. (In that second action, Furlong raised, as part of his defence, the disposition of the one criminal complaint and three civil suits brought against him in respect of alleged sexual abuse. Those matters, however, formed no part of Robinson’s Georgia Straight article, the article on which Furlong’s lawsuit was based.)

Among my many concerns with Madam Justice Wedge’s decision is this. Notwithstanding the narrow issue at trial—Did Robinson’s attack on Furlong justify his counter-attack?—the judge remarked at length on the overall unreliability, given the many years that had passed, of the First Nations’ accounts of alleged abuse.

Geoff Plant described the judge’s decision as “careful” and “methodical”; said that it amounts to a “textbook on how not to do investigative journalism.”

However, a central conclusion of the decision was that Robinson, prior to going to Burns Lake for the first time, had “telegraphed her intentions” by causing a notice to be posted “announcing the subject of her investigation—childhood abuse—its location, its timing, and the identity of the alleged abuser.” The judge also accepted the testimony of Dr. John Yuille, the memory expert called by Furlong, who said that, by arriving an hour late in Burns Lake, Robinson gave those who were waiting the chance to “contaminate” each other’s memories.

Memory contamination is a common concern where, for example, multiple victims of sexual assault, usually strangers whose only connection was being victimized in this way, are left together to discuss what happened to them. However, the alleged victims in this case—many of whom are related—lived in close proximity on a reserve for over forty years following the conduct in issue. Can it seriously be argued that being notified ahead of time and being left alone for an hour “contaminated” their memories?

Geoff Plant further wrote that “they (the RCMP) discovered no reliable evidence to support the claims [sic] of abuse.” In fact, the RCMP looked into only one case—the criminal complaint referred to above.

After reading the Supreme Court judgment, I resolved to travel to Burns Lake myself—to hear, first-hand, the stories of the former students. Given the incendiary nature of the sexual abuse allegations, and because they were not part of Robinson’s Georgia Straight article, I chose not to explore that issue in my discussions.

In the near-two dozen interviews I conducted between October 4 and 8, I heard accounts consistent in every respect with those contained in the eight statutory declarations filed in the Furlong and Robinson aborted proceedings.

The stories of abuse I heard brought tears to my eyes.

Stories that, to this day, are deeply etched on the distraught faces of the people telling them.

Without exception, I found each of the First Nations persons with whom I spoke to be thoughtful, reflective, and believable. (I am a lawyer and have practiced for the past twenty-five years as a professional labour arbitrator.)

From their telling, the pain flowed not only from the abuse itself, but also from the fact that, apart from Robinson, no one cared enough to listen (Canadaland’s Jesse Brown has just posted affidavits on his website).

When told about the judgment, they were shocked. How was it possible, they asked, that the judge could reach such a decision without ever hearing from them? No-one in the media asked for their reaction. It felt, to them, as though they did not exist.

Plant wrote that Robinson’s announcement that she would not be appealing the decision was “both graceless and unrepentant.”

On October 19, Robinson announced that, although she had received legal advice supporting an appeal, “Appealing the decision will not accomplish my original goal of sharing the stories of Indigenous people.” What she said was true. When Furlong discontinued, in March 2015, his action against Robinson, he removed the opportunity for her to tell those very stories; to give their version in response to Furlong’s blanket denial.

Was Furlong’s decision to discontinue his action any less “graceless and unrepentant” than Robinson’s decision not to proceed with an appeal?

More significantly, Plant stated that Robinson caused “brutal harm” to “those former students who were victimized by her zealotry.”

After reading the article, I contacted the First Nations people to ask for their comments. Without exception, they said that Robinson was there to “help them talk about their stories;” that, finally, they had “someone who cared enough about us to want to hear our stories.”

Hereditary chief Richard Perry said he appreciated that Robinson was prepared to listen. Hereditary chief Ronnie Alec said that, though his people have always tried to avoid talking about their abuse at the hands of the Oblates, seeing Furlong on TV (before the Olympics) “stirred up bad memories, gave us flashbacks about what he did to us… Laura didn’t feed us information, and she didn’t make us feel worse. She just listened, and we told her the truth.” Cathy Woodgate described her as “caring, willing to listen, and very sensitive.”

Indeed, the members of the Lake Babine Nations were so grateful for Robinson’s efforts that, when she returned to Burns Lake a third time, they congratulated her on her story.

It is obvious that Plant has never spoken to, let alone met, any of Furlong’s former students. If he had wished to speak for the First Nations claimants, he should have talked to them first.

Indeed, anyone wishing to speak in the future on their behalf would be well-advised to do likewise.

Mainstream Media held in Thrall by John Furlong?

It is one thing for Furlong and his PR team to work at rehabilitating his image. It is quite another for the mainstream media to aid and abet that effort.

On October 30, 2015, former BC attorney-general Geoff Plant wrote a Globe and Mail article in praise of Furlong: http://www.theglobeandmail.com/news/british-columbia/john-furlong-has-the-right-to-be-proud-of-his-life-and-work/article27040820/

I sent an article to the Globe, challenging many of Plant’s assertions. I did not receive a response.

When yet another phase in Furlong’s rehabilitation process was being rolled out—-namely, his appearance at yesterday’s Vancouver Board of Trade luncheon, I pitched an article to the National Post regarding the fact that the First Nations alleged victims have never been heard in a court of law.

Almost by return email, the Post said no.

My article is running today in the Vancouver Observer, an independent, online media outlet.

Is it any wonder that the public is turning away from the mainstream media?

Historic Sexual Abuse—Corroboration not needed

The Supreme Court of Canada has said that, notwithstanding the absence of corroboration in a case involving historic abuse, a finding of credibility is still possible: http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/6211/index.do

In that case, the plaintiff FH had been a resident from 1966 to 1974 of the Sechelt Indian Residential School, an institution operated by the Oblates of Mary Immaculate. Though FH claimed to have been sexually assaulted by M, an Oblate Brother, when he was 10, he told no-one about it until 2000, when he confided in his wife.

Despite inconsistencies in his testimony as to the frequency and gravity of the sexual assaults, the trial judge found him to be credible, concluding that he had been anally raped by M on four occasions during the 1968‑69 school year….

A majority of the Court of Appeal overturned that decision on the grounds that the trial judge had failed to consider the serious inconsistencies in FH’s testimony in determining whether the alleged sexual assaults had been proven to the standard of proof that was “commensurate with the allegation….”

In allowing the appeal, the Supreme Court of Canada said, among other things, that, in serious cases such as this one—where there is little other evidence than that of the plaintiff and the defendant, and the alleged events took place long ago—the judge is required to make a decision.

Sexual assault victims need not provide independent corroborating evidence. Such evidence may not be available, especially where the alleged incidents took place decades earlier. Also, incidents of sexual assault normally occur in private. Hence, trial judges may be required to make a decision on the basis of whether they believe the plaintiff or the defendant. As difficult as that may be, they must assess the evidence and make their determination without imposing a legal requirement for corroboration.

CANADA’S “WAR ON CRIME” versus AMERICA’S “RIGHT ON CRIME”

CANADA’S “WAR ON CRIME” versus AMERICA’S “RIGHT ON CRIME”

1. “Punishment”-Motivated Laws

In an omnibus crime bill in 2008, CANADA’s federal government changed how dangerous offenders are classified and sentenced. The amendment removed some of the judge’s discretion and made it easier for courts to designate dangerous offenders after they have been convicted of three or more indictable offences. An indeterminate sentence, which does not give a specific release date, is the most severe of three sentencing options for the court.

[A British Columbia Supreme Court judge recently ruled that the legislation violates the Charter of Rights and Freedoms in that it may capture offenders who are, in fact, not truly dangerous but who are, instead, unwell and who, with treatment, pose a limited risk to the public.”: http://www.theglobeandmail.com/news/british-columbia/ottawa-to-re-evaluate-dysfunctional-crime-law/article24793784/]

In 2011, the Tories removed the “faint hope” clause that allowed lifers to apply to a jury after 15 years for the right to an early parole hearing.

In 2012, our government fast-tracked debate regarding Bill C-10: Safe Streets and Communities Act. Among other things, mandatory minimum sentences were imposed for child sex offences and drug trafficking, and pardons were ended for serious violent and repeat offenders. Why—unless you don’t believe in rehabilitation—end pardons?

The Canadian government recently enacted a law sanctioning consecutive, rather than concurrent sentences. Applying this law an Ontario court imposed an unprecedented minimum 30-year prison term for two counts of 2nd-degree murder: http://bit.ly/1QBPp7K 
In March 2015, our government announced plans to make violent repeat criminals wait longer to achieve “statutory release,” and (Bill C-53) to end the possibility of parole for some convicted killers.

[On May 31, 2015, our Government announced that it would be a “challenge” to pass either of those laws before the Commons close on June 23. The demise of these bills will mean a retreat from, as one law professor stated, “the increasing vengefulness of current criminal justice policy.”]

2. Negative Impact of Changes

Correctional Service of Canada’s watchdog Howard Sapers—his contract recently not renewed by the Feds—has said that, as predicted, that these various pieces of legislation have led to the need for more prisons; the incarceration of people for minor, non-violent offences; and poorer prison conditions including over-crowding, fewer “pro-social programs, and a higher incidence of “administrative” solitary confinement (in reality, isolation of indeterminate duration.)]

In his 2014 Annual Report, Sapers said,

“Use of force interventions, inmate fights and assaults, offender grievances and segregation placements are all trending upward in recent years. Key indicators against which safe and humane custody may be measured show there is more crowding, more disease and more violence in federal institutions.

Prisons that are filled beyond their rated cell capacities are at higher risk of jeopardizing safety and security of the person. Unnatural or preventable deaths in custody (suicides, homicides, overdoses) are perhaps the most visible failing, but too many other lives either are cut short by premature death or are marked by injury.
An increasing proportion of the offender population is spending more of their sentence behind bars before first release…”

My personal experience echoes those sentiments.

When I developed pen-pal and “visitor” relationships with a number of prisoners, CSC treated me like an alien: On the one hand, to every appearance I was engaged in “pro-social” behaviour—behaviour aimed at assisting in the reintegration process. On the other hand, it was clear they believed I had some kind of ulterior motive.

I was once put on notice that I was writing to too many inmates; on another occasion, that I couldn’t be on more than one inmate’s visitor’s list, etc. When I threatened to go public, CSC backed down….

How many other families and loved ones would have the gumption to do likewise?
One small ray of light: Though I assumed CSC would reject my offer to donate my book to every federal correctional institution in Canada, they said that I may. As far as I know, my book is now in every library.

+++

Sadly, our PM keeps beating the same drum: If we don’t lock up offenders and throw away the key, we are complicit in making our society unsafe. In support of that fear-based thinking, he manufactures policy-based evidence instead of promulgating evidence-based policy.

The fact is that crime rates have been falling for a decade; prison spending is increasing by $5 billion annually; and six prison farms, considered by some to be Canada’s most effective rehabilitation programs, where inmates produced food for themselves and other prisons, have been closed. Observers say that this will result in inmates being hardened, instead of healed. http://www.whynotharper.ca/#printablelist]

3. Are the changes making our country safer?

Not according to Vancouver South Liberal candidate Harjit Sajjan, former VPD detective and military officer (Bosnia and Afghanistan):

Based on the insight I gained in the military and in law enforcement, I truly believe that the unique, open and diverse society we have built in Canada is a strength we have in dealing with future threats. By focusing our government’s efforts on fear, suspicion and finger pointing, as has been the case recently, we risk wasting Canada’s greatest strength — its people, and in the process we put our nation’s security at further risk: http://bit.ly/1L50P0R  @theprovince

Motivation behind “War on Crime” initiative

Our PM, by hyper-focusing exclusively on the rights and interests of the “victim”, plays into what Dan Gardner has called the “science and politics of fear.”
In his excellent book, Risk (2008, Virgin), Gardner writes that humanity has never had it so good. Most people around the world are better off and will live longer than their ancestors.

But instead of being relaxed, we are scared that bad things will happen to us: nuclear war, cancer, child abduction.

Our brain anatomy, Gardner says, was fixed millennia ago—such that we are not equipped to process the complexity of modern living, especially where risk is concerned. We hear about a terrorist attack; we see the gruesome consequences on TV and, before we can calculate the probability that we personally will be blown up, our brains have reacted as if we are being charged by a rhino: no time to think! Run!
If you think you don’t believe everything you see on TV, he says, it doesn’t matter. Your Stone Age brain has processed the images and is using them to shape your opinions whether you like it or not.

“It could have been me” is a common response to news of a disaster, although usually the mathematical probability of it actually having been you is infinitesimal. FEAR SELLS.
The only solution, Gardner says, is to think more, think harder—The primitive part of our brains might be open to seduction by alarmist politicians, but, given enough time, the rational part can step in and stop us from going all the way.
Alas, if only re-programming were that easy…

5. Shifting the Narrative: The “Right on Crime” movement

Ironically, even the most right-wing of USA politicians are leaving Canada’s thinking on this subject in the dust.

Republicans turn against “Tough on Crime” policy: http://www.theglobeandmail.com/globe-debate/americans-get-tough-on-tough-on-crime-policy/article24330216/ How ironic: First, America’s Republicans spawn Harper’s “tough on crime” policy; now, they eschew it: http://bit.ly/1FdK5FE  @globeandmail

According to Texas Republican Representative Jerry Madden,

It’s a very expensive thing to build new prisons and, if you build them, I guarantee you they will come. They’ll be filled, OK? Because people will send them there.
Texas and California, among other jurisdictions who had started down the same “punishment” road down which our government is leading us, are now—realizing it cost too much and made their justice system worse—reversing direction.

In an article entitled “The Conservative Case for Reform,” dozens of high-ranking Republicans including Jeb Bush and Newt Gingrich write as follows:

Too often the lens of accountability regarding government services has not focused as much on public safety policies as other areas of government. As such, Corrections spending is now the second fastest growing area of state budgets—trailing only Medicaid.
Conservatives are known for being tough on crime, but we must also be tough on criminal justice spending…. A clear example is our reliance on prisons, which serve a critical role by incapacitating dangerous offenders and career criminals but are not the solution for every type of offender. And in some instances, they have the unintended consequence of hardening nonviolent, low-risk offenders—making them a greater risk to the public than when they entered….

An ideal criminal justice system works to reform amenable offenders who will return to society…

Because incentives affect human behavior, policies for both offenders and the Corrections system must align incentives with our goals of public safety, victim restitution and satisfaction, and cost-effectiveness, thereby moving from a system that grows when it fails to one that rewards results.

Viewed in the light of a system that “rewards results”, what sense does it make to remove the “faint hope” clause? Lock up low-risk offenders? Increase the time virtually every offender must spend behind bars?

From an economic perspective, does it make sense to deny forever the opportunity–not the reality—of parole to those convicted of certain first-degree murder offences? This despite Correctional watchdog Howard Sapers’ statement that 99 per cent of offenders released on day parole or full parole last year did so without reoffending.

Since the abolishment of capital punishment in 1976, the murder rate in Canada has been cut in half. Also:

—Canada has 1115 (first-degree murder) offenders sentenced to life, minimum 25 years. 203 have been paroled;
—Average cost to keep a man in Maximum security is $148,000 v. $35,000 on parole;
—40 years in jail would cost nearly $6 million for one person in Maximum security; $6 billion for 1,000; and
—In recent years, the website of CSC has described those serving life sentences as “The most likely to succeed on parole.”

The authors of “Right on Crime” point to the need to take a principled approach to public safety. As they wrote, “Our security, prosperity, and freedom depend on it.”

Who would have thought that our Republican friends south of the border could offer their neighbours north of the ’49—neighbours historically smug about our supposedly “superior” criminal justice system—such invaluable insights?

As Gerry Ayotte, a wonderful prison chaplain, once said to me, “Let he who has ears hear.” Let’s hope that we Canadians do just that.

Supreme Court of Canada says Ivan Henry can sue for Charter breach

In a unanimous decision, the Supreme Court of Canada held today that a cause of action will lie where the Crown, in breach of its constitutional obligations (i.e., its obligations under the Charter), causes harm to the accused by intentionally withholding information when it knows, or would reasonably be expected to know, that the information is material to the defence and that the failure to disclose will likely impinge on the accused’s ability to make full answer and defence.

While the bar remains high, it is nowhere near as high as the “malicious prosecution” bar—one requiring proof of malice on the part of the prosecutor.

A happy day for Ivan Henry, as the decision will doubtless spur settlement discussions. A happy day for the wrongly convicted community, as the decision makes prosecutors materially more accountable than before.