Grief, Protest and Witnessing – Reflections on the Deaths of Colten Boushie and Tina Fontaine

A storm.  That has been what it has felt like the past few weeks.  A storm.   So… three fragmentary tellings of grief, protest and witnessing, each coming from the spot of asking “In the context of the contemporary moment, thinking about Truth and Reconciliation, what’s a law professor to DO?!”

Vignette #1

February 9, 2018, a Friday night, I was at the local public library, giving a talk on the TRC Calls to Action.  From 7pm til 8:30pm, I hung out with people from the community, talking about colonial history, and the impacts of residential schools, discussing specific Calls and asking about concrete steps people might take to change the world.  I was torn between asking what kind of a weirdo i was (seriously?! happily spending my Friday night in a library?!), and being filled with joy at the experience of spending time with other such ‘weirdos’.  I had the chance to listen to and learn from people in the community taking active steps towards reconciliation.  I left feeling empowered and hopeful.

Grieving in Victoria [Photo by Kym Hines]
And then I got home, and read that the jury in Saskatchewan acquitted Gerald Stanley in the killing of Coulten Boushie.

And I broke.

Over 20 years of teaching criminal law.  I should have been prepared.  I have been teaching for years using the Abell, Sheehy and Bakht text on criminal law.  It is without a doubt the most ‘accurate’ text book out there in terms of situating Canadian Criminal Law in a history of colonization, racism and class, with attention to gender.  I have been teaching about the place of criminal law in the displacement and dispossession of indigenous peoples through its outlawing of indigenous systems of governance and legal order (ie through bans on the potlatch or sundance), and through early ‘murder’ trials (and the wrongful execution of the Tsilhqo’tin Chiefs).  Students have learned about the Donald Marshall Inquiry, the Aboriginal Justice Inquiry, the Royal Commission on Indigenous Peoples, about study after study after study confirming systems of racism and colonialism operating in policing, in bail, in trial procedure, in sentencing, in prisons.

photo by Kym Hines

And here it was again.  Still.  The same as ever.  A jury concluded that Gerald Stanley, who shot Colten Boushie in the back of the head as he sat in a car, was not guilty.  My heart cracked open.

Saturday morning, I headed to downtown Victoria, to stand on the streets with others.  I couldn’t think of what else to do.  I just needed to be in a place where I could be around others who might have felt the way I did.  The grief just felt too big to carry alone.  I drove down alone, but stood there with others.  I brought my drum.  I listened to some words.  I listened to some songs.  I looked up to the sky with the rest of the crowd, as we paused to watched the hummingbird that joined us… hovering high over the group for a full minute, as if wondering what had brought us there.

photo by Kym Hines

Others had come prepared with signs.   And as the crowd dispersed, many of them affixed their messages to the courthouse doors.  But I had come empty handed.  Not quite.  I knew my Annotated Criminal Code was still in my car (I had taken it to the TRC talk at the library the night before).

photo by Kym Hines

And so, with my heart exploding in my chest, I ran back to my car to get the Code, and opened it to section 634 (the section enabling “peremptory challenges” – which enables either Crown or Defence, without explanation or justification, to reject from the jury anyone who might look Indigenous).

In a moment of ‘losing my noggin’ (as my dad would have said)  I ripped the page out of my Criminal Code.  I circled section 634,  scrawled “Injustice” across the top of the page, included my name (it felt wrong to have my critique be anonymous) , and added it to the messages taped to the Courthouse Door.


I now had a Criminal Code that was one page lighter.

But my heart didn’t feel similar.

Vignette #2


Life’s a rollercoaster.

On February 21, there is the announcement:  the BC Government is going to provide funding for UVic to offer what will be the first program of its kind in the world, the JD/JID – a joint degree program in Canadian Common Law and Indigenous Legal Orders.  More than a decade of laying the groundwork (indeed, 150 years of laying the groundwork?), and it finally will go ahead.  Euphoria!  Nothing less.

But the next morning, the news reports that the jury in Manitoba acquitted Raymond Cormier in the killing of Tina Fontaine.



Like last time, I hear that people will gather on the weekend in downtown Victoria, and will march.  This time I don’t join.  Instead, I head across town to pre-tape a short interview for CHEK news about both cases.   I speak as a Law Professor/’expert’ about the most recent opinion polls on Justice, speak about the data in what I hope is a rational and descriptive fashion.  The interview ends early enough that the anchor tells me I can probably still make it in time to join the end of the march.  I head out to my car, but don’t drive to rally.  This time, I feel hollow.  I don’t feel like I could bear being at the march.  Instead,  I sit alone in my car for 15 minutes after the interview, gathering the pieces of myself back together, and then drive home.

IMG_20180226_082559.jpgMonday morning, I walk in to school.  Early.  Way too early.  But as I approach, I can see a few people standing around the entry, talking.  I notice that there is ‘grafitti’ on the ground.  Someone says “Do you know anything about this?”  Not recognizing the speaker, and not sure what the “this” means, I look more carefully at the ground, and see, written in chalk,  “25.2% of men in prison are Indigenous, 36.1% are women”.  I say (in the voice of someone delighted to say that they already knew the answer), “Yes!   That is true!  Someone knows their data!”

At this point, looking more closely around me, I realize the person is not asking me about the CONTENT of the particular message, but about the words that are scrawled in different colours of chalk all around the entrance.

IMG_20180226_082627.jpgI realize they are asking me if I know WHO is responsible for the cascade of words marking the entrance to the law school.  Indeed, all three paths have been marked up, so one cannot enter the law school without walking across the words of truth and protest.  I see phrases like “No Justice – No Reconciliation”, “MMIWG”  and the names of Colten Boushie, Tina Fontaine, Cindy Gladue, Neil Stonechild, Helen Betty Osborne, Paul Alphonse, and more.

IMG_20180226_082652.jpgNow I finally get what I am being asked.  WHOSE protest is inscribed on the ground around us?  I tell the person on the sidewalk beside me that I do not know, but that I suspect it might be our students.  Indeed, I have been wondering if any of our faculty had joined in the march on the weekend.  Certainly, I have been carrying a bit of guilt about my own decision to stay home, and have been wondering if the students were there, and if so, if they felt unsupported by us.  I look at the words written around me, and say, “Well, if I were to make a guess, I imagine it might be our students, and that they might be bringing the protest back from the streets to the law school, where it belongs!  Good for them!  I am taking some photos of THIS!”

IMG_20180226_175747.jpgAnd so, I whip out my camera, and filled with a strange sense of joy at the activism (of what I am only guessing might be our [Indigenous?] law students), I start taking photos, focused mostly on trying to get the right angle to capture the feeling of the words around me.  Taking the photos is tricky, because I don’t want to step on the names that are written there.  And so I step carefully, trying to find a path through un-inscribed concrete.

As I open the door to enter the law school, camera in hand, I notice that there also appear to be posters up on the walls just waiting for their photo-moment.  I walk in, excited to talk to someone about this amazing piece of activism, and I am stopped in my tracks.

Stopped cold.

Because now I KNOW who is responsible. Yes.  It is our Indigenous law students.  There they are, putting the finishing touches on their protest, attaching the last few signs to the wall.  But there will be no conversation.

They have covered their mouths with duct tape.  They sit on the stairs in silence.  They offer no words.  They offer their silence.  I am silenced in return.    IMG_20180226_082802

That momentary feeling of joy is punched right out of my lungs to be replaced by a deep ache.  I consider for a moment whether I should sit on the stairs beside them.  I want to sit in solidarity.  But their silent/silenced bodies seem to be too powerful a message.   I ask if I may have permission to take their photo.  I am offered a silent nod in return. I aim and click.   I raise my hands to them, wanting to honour their bravery and their grief.  I walk past them up the stairs to my office, close the door behind me, and weep.

Vignette #3

March 14, 2018.  A strange and powerful mixture.  There is the euphoria about the path opening ahead to do trans-sytemmic education focused on pulling Canadian and Indigenous Legal Orders into engagement in a reciprocal way.  At the same time, there is the ongoing brutality of confronting the institutionalized racism, sexism, and colonialism running through the justice system.  Two weeks later, and students still seem raw.   No surprise.  I am still raw.  I hear story after story of the challenge of finding spaces in which one can catch their breath from what feels like an onslaught of conversation, some of it helpful, much of it not.  Stories of words not spoken, of friendships challenged, of relations ruptured, of new possibilities imagined. How to grapple with grief, protest, and witnessing?

Photograph By CHAD HIPOLITO, The Canadian Press.

The Indigenous Law Students organize a ‘Walkout” to make visible the injustices in the Canadian legal system for Indigenous people. Three hundred students, staff, faculty and community members join in.

Again, the question of whether to march or not, to join or stand apart, to speak or remain silent.   This time I  join. The decision is made easier since the march takes place during an open spot in my schedule.  I know that I would not have cancelled a class if there had been a conflict (though I would have been perfectly happy to have students exercise their choice in either direction).  I don’t think there is a ‘right answer’, or any particular way one can/should/might choose to respond to this particular moment.

On this occasion, I make the choice that I do.  And so again, I find myself in a group, standing with others, another moment to both share and witness the grief of these times and this place. The smell of sage (which they are burning) adds the scent of ceremony, of ritual, of cleansing.  And this time, there is movement.  We walk around the ring road.  And the students seem to take walking quite seriously.  Their energy is real (and a bit ‘healthier’ than mine!).  They walk at a much faster pace than I expect. Indeed, I have to really step up my game to keep up.  But the movement feels good.  And the skies are clear and blue.  The flowers have already begun to appear, and the air feels good in my lungs.   I return to the law school feeling somehow lighter than i felt at the beginning of the march.

And that, of course, is just one day.  When I get home that night, reporting on my day, there are conversations with family.  What does it mean to ‘walk out’?  Or to ‘walk in’?  What does it mean to ‘protest’?  What does it mean to march?   What does it mean to choose NOT to walkout?  NOT to march?  NOT to protest?  Who (if anyone) do I think will be changed by such actions?  Indeed, WHO is the audience for such an action?

Good questions.  I have no answers.  I know I have felt both the desire to stand with others, and the desire to be alone with my grief.  I have sometimes felt it important that my voice be heard, and have at other times felt it was my obligation to be silent.  To stand as a witness.  Or to acknowledge that, as a professor of law, I am complicit.  This, I grieve.  I do know that my grief has been real, and that it has been hard to find a place for it to live, to be expressed, to be seen, to be witnessed.  What is there to do, but take the moments as they come?  To remain in relationship with those around me?  To take those moments to acknowledge that we are entangled in relations that draw on the best and the worst of who we are, of who we wish to be.  We are entangled in relations of power, and thus will feel differently the calls to do what we can to see differently, to hear differently, to walk differently and to build differently.

Keep moving.