Jul 03, 2018: LAC SEUL FIRST NATION — The process that Canada followed to compensate Indian Residential School survivors was so flawed that it should be reopened, according to a Law Society of Ontario report, which also calls upon legal professionals to radically improve their competence in dealing with Indigenous clients.
The governing body for Ontario lawyers and paralegals commissioned a panel last year to advise the profession on how to better serve Indigenous people, with a particular focus on residential-school survivors. Ovide Mercredi, a lawyer and former Assembly of First Nations national chief, served as an independent adviser to the review panel, which released its 77-page report on May 24. The law society assembled the panel after it concluded a disciplinary process against Douglas Keshen, a Kenora lawyer who had handled numerous residential-school compensation claims.
Recommendations:
General:
Recommendation 1
The Law Society:
- must make an organizational commitment to establish and maintain a culturally competent regulatory process; and
- should consider establishing a new office to support the work that the Law Society undertakes pursuant to its mandate when that work involves Indigenous communities and to create a culturally safe environment.
Communication and Engagement:
Recommendation 2
Where complainants are members of Indigenous communities:
- information about the Law Society, its regulatory process and the role of complainants must be available and communicated in an understandable and culturally appropriate way; and
- depending upon the stage of the complaint matter at the Law Society, communications should include discussion of the issue of remedy from the complainant’s perspective (using the complainant vs prosecutorial lens), including the concept of restoration and how that intersects with the Law Society’s regulatory mandate.
Recommendation 3
The Law Society must do more to engage with Indigenous people in their community to:
- express the Law Society’s commitment to create a trusting relationship, to enable the Law Society to meet its regulatory mandate in ways that respect the culture of the community;
- explore opportunities to partner and build mutually respectful relationships with individuals, organizations and institutions to help the Law Society advance its commitment, and build trust in the community; and
- explore ways to increase access to justice, including considering the need to develop a cultural liaison with the public.
Specific Professional Regulation Foundations
Recommendation 4
The Professional Regulation Division should:
- be appropriately resourced to ensure timely, efficient and effective operation of regulatory functions;
- build its capacity to develop formal policies and procedures that flow from decisions of the Tribunal (following all levels of appeal) that raise important regulatory policy issues;
- formulate a plan for the investigation of “major cases” to assist in the management of investigations;
- support prosecutors in developing and refining the skills required to manage and prosecute major cases; and
- ensure all staff have available the necessary mental and emotional supports when working with complainants that are survivors of trauma. This may include but not be limited to the Members Assistance Program.
Recommendation 5
The Law Society should:
- take the necessary steps to ensure that anyone who investigates complaints at the Law Society involving Indigenous licensees or complainants, in addition to required investigatory experience and skills, is culturally competent to perform these investigations and has the necessary resources available to engage appropriately with members of the Indigenous communities in this process; and
- explore ways to incorporate principles of Indigenous Legal Systems into
- dispute resolution resources available to Law Society investigators, which may be applied in appropriate cases, and
- prosecutorial and dispute resolution resources available to Law Society prosecutors, which may be applied in appropriate cases.
Recommendation 6
The Professional Regulation Division should create the required permanent internal structures and supports to appropriately manage investigations and prosecutions of licensees who are the subject of complaints from Indigenous people and of Indigenous licensees. These structures and supports should extend to other divisions at the Law Society to the extent that processes related to investigations and/or prosecutions intersect with them.
Recommendation 7
The Law Society Tribunal and the Tribunal Committee should explore, with the assistance of Indigenous experts, how to incorporate Indigenous Law principles within its adjudicative and dispute resolution processes and apply them in the appropriate case.
Recommendation 8
Law Society Tribunal adjudicators should receive ongoing training in the history of Indigenous Law in Canada, Indigenous methods of dispute resolution, Indigenous ceremony and protocols, the Independent Assessment Process and other relevant related topics.
Other Law Society Functions
Recommendation 9 – Practice Supports
The Law Society should ensure that guidance and education is available for lawyers and paralegals who serve Indigenous clients who have experienced trauma arising from the Indian Residential School experience, the Sixties Scoop or the Day Schools settlement to assist in their competent representation of these individuals.