David Butt is a Toronto-based criminal lawyer.
Not everything that looks like a crime ends up in a conviction once the courts have spoken. The presumption of innocence and the burden of proving a crime beyond a reasonable doubt are essential safeguards that protect us all, but if something looks like crime, and smells like a crime, it is imperative that it be investigated thoroughly by experienced and relentless criminal justice professionals.
Which is where we find ourselves now, with the discovery of thousands of unmarked graves of Indigenous children on the sites of former residential schools, some of which had grave-markers that were allegedly deliberately bulldozed. That looks and smells like criminal activity, and so these events cry out for serious and sustained professional investigation – and, where warranted, vigorous prosecution.
Such a task will be enormous. Investigations have already found a number of potential crime scenes in multiple provinces with hundreds of potential victims no doubt stretching back decades, and more unmarked gravesites are still waiting to be discovered. But this task is as surmountable as it is essential. In fact, we can readily adapt investigative and prosecutorial models that have already been field-tested.
When gun violence spikes in Toronto, for instance, the mayor, the premier, and sometimes even the prime minister, often somberly gather to announce criminal-justice responses: millions of dollars for a task force, special prosecutors, and crack investigative units of police officers to work across jurisdictions. That model can be adapted and expanded for the present challenge.
A criminal-justice task force assembled to tackle this investigation must have five key attributes. First, it must be resolutely independent from political interference or influence. Legislation establishing the public prosecution service of Canada mandates such independence, and provincially there is a long and stable constitutional tradition of police and prosecutorial independence from provincial political actors. This principle is of superordinate importance given the potential for the trails of evidence to lead to the very same political institutions that would be establishing this task force.
Second, this task force must be built from the ground up with the buy-in of the Indigenous communities subjected to the indignities under investigation. Justice for victims of crime is a non-starter without empathetic, practical and holistic integration of the needs of the community affected.
Third, the task force must involve investigative experts with a wide variety of skill sets, including expertise in forensic pathology and anthropology, in poring through reams of historical documents, and in conducting nuanced interviews. And these investigators should be advised throughout by an embedded team of experienced criminal prosecutors, to ensure that evidence is gathered legally and that cases are carefully built to meet the legal definitions of the crimes under investigation.
Fourth, this task force must have the full panoply of investigative powers currently possessed by Canada’s police agencies. For example, we know that past governments largely contracted out their Indigenous assimilation policies to the religious denominations who ran residential schools. With some exceptions, those denominations have been tragically less than forthcoming with documentary evidence of the roles they played. Investigators could deem it necessary to enter church document repositories without invitation or warning and seize documents using judicially authorized search warrants, and so such powers must be part of the investigative arsenal. Mutual Legal Assistance Treaties – agreements that dictate that any investigative steps that need to be carried out in another country will be done by investigators local to that country – could also be useful in gathering evidence in churches or other offices abroad.
Fifth, the task force should be empowered to lay and prosecute criminal charges wherever the evidence warrants. A mere commission of inquiry issuing recommendations is not good enough. Canada has a long history of such inquiries doing commendable work to illuminate tragic episodes in our history, including mine explosions, tainted water deaths, and other aspects of Canada’s shameful mistreatment of Indigenous peoples. But unfortunately, Canada also has a long history of ignoring far too many of their recommendations and reports.
Assembling such a task force is not a legal challenge; the laws necessary to put one together are already in place. It will be a significant practical challenge, but an achievable one. We already have substantial experience assembling multidisciplinary and multi-jurisdictional task forces to investigate other types of alleged criminal activity, from war crimes, to gangs, to organized crime families.
We have in Canada the resources, the expertise, and the experience needed to seek justice for these disappeared children whose graves have recently been discovered. So the only question is: do we have the basic decency and political courage?
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