In his 22 years as a defence lawyer, Mark Berry has represented a significant number of Indigenous men and women.
So it comes as a bit of a shock to him to be called a racist by his own law society, especially when all he is attempting to do is present the truth — a reasonable objective not unheard of for a lawyer.
The ever-increasingly vogue accusation of “denialism” has also reared its head because Berry and another lawyer, James Heller, had the temerity to try to get the Law Society of British Columbia (LSBC) to insert the word “potentially” — just one word — into a mandatory training document.
But when the issue is unmarked graves in Kamloops — or potentially unmarked graves, as Berry and Heller would have it — then things start to get very ugly, very quickly.
“I’m surprised that my own professional regulator, having said, ‘We welcome any and all input with no qualification,’ has responded to us pointing out the tiniest and the most unassailable of corrections by calling us racist,” said Berry in an interview Wednesday.
Such was the level of vitriol that a comment portal used by lawyers to discuss the topic had to be shut down.
We have now reached the stage where a large body of lawyers are more interested in burnishing their Indigenous bona fides than they are in the truth. And if, in that process of solidarity, they have to tear down and defame Berry and Heller then it appears they are willing to do so.
On Tuesday, the LSBC’s annual general meeting voted on a Berry-Heller resolution to insert the word “potentially” into the training document. The resolution was defeated with 1,683 voting against and 1,499 in favour.
Berry said he was “surprised at the level of misrepresentation, flat-out lying, about the content, the intent and the scope” of the resolution at the meeting and before it.
Lawyers in B.C. have to take the LSBC’s Indigenous Intercultural Course which references the “discovery of an unmarked burial site containing the bodies of 215 children on the former Kamloops Indian Residential School grounds.”
No bodies have been discovered at the site since that assertion was made by the Tkʼemlúps te Secwépemc Nation in 2021. This year, instead of referring to “the remains of 215 children,” the B.C. First Nation merely mentioned the “215 anomalies” discovered by ground penetrating radar.
Since the LSBC course is mandatory, Berry and Heller believed that it should also be accurate and urged the Law Society to insert the word “potentially” before “unmarked burial site.”
It was at this point that Berry and Heller should have removed themselves from the vicinity of any fan-like mechanism.
The B.C. First Nations Justice Council responded with outrage.
“The resolution is distressing, painful, and disrespectful to survivors,” said a statement from the Justice Council headed, “Racist Resolution Proposed by Law Society of British Columbia Members Supports Residential School and Genocide Denialism — Trust and Reconciliation Will Be Broken.”
The LSBC said the resolution highlighted that much still needed to be done to “eliminate racism in our profession.”
The level of vitriol directed at Berry and Heller in their quest to insert a perfectly reasonable word into a mandatory training course to ensure accuracy is, frankly, quite staggering.
And as the two lawyers pointed out, a recent B.C. Court of Appeal case — headed by Leonard Marchand, the Chief Justice of British Columbia and the first Indigenous person to hold that role — found a judge had not been biased when referring to “potential” unmarked burial sites at Kamloops.
The appellant had alleged the use of the word reflected “a dismissive attitude, intolerance and, worse, outright denialism” by the judge, said the court.
But the appeal court pointed out “that word is the very same word Indigenous communities and others have used to describe the results of tests using ground penetrating radar in and around former residential school sites.”
For his part, Berry has defended Indigenous people and knows that the intergenerational trauma caused by residential schools is real. He also believes there are almost certainly unmarked graves throughout Canada.
“Residential schools were universally awful. They are the darkest stain on Canada’s conscience,” said Berry.
He doesn’t discount that bodies may be discovered in the future at Kamloops.
But at this moment, the fact — the fact — is that no bodies have been discovered. Kamloops isn’t a burial site but a potential burial site.
So why don’t facts matter?
Because this isn’t about truth or accuracy. The hatred toward Berry and Heller isn’t that they are right — which they are — but that they are challenging a narrative that in three short years has become sacred.
In May 2021 everything changed. The conscience of a nation wasn’t just pricked it was bludgeoned. As a country we mourned with flags at half staff for those “215 children” lying dead and forgotten in unmarked graves. We hung our heads in shame as the world detailed our wicked and evil history.
But if the narrative isn’t true, if people should even raise the suspicion of it not being true, then the national angst might turn to anger.
And so, better to protect the story at all costs, and truth be damned.
National Post