Bradford W. Morse


Introduction

Canada in the twenty-first century exists as a country enriched by immense human and natural resources. It is a nation filled with majestic beauty beyond compare, populated by talented individuals attracted here from all corners of the globe in recent years and generations past in search of better lives for themselves and their families—all of this occurring with little regard to its illegitimate and immoral beginnings. Canada is also a land of many, many Aboriginal Nations whose sovereign independence was never properly recognized and whose territory was improperly usurped by Crown representatives through force of circumstance—if not force of arms. First Nations, Inuit, and Métis peoples have been colonized, dispossessed of most of their traditional territories, economically marginalized, politically disenfranchised, and administratively oppressed by government officials operating within Canadian law or bureaucratic edict for generations.

As if this disastrous and psychologically devastating history was not enough, the Government of Canada elected to attempt to wipe out all of the Indigenous cultures, languages, religions, stories, histories, laws, governments, extended families, values, and ways of living as human beings. The method chosen was to cut off all prospects for the survival of Indigenous societies; it goes without saying that this included all prospects for the flourishing of these societies. In other words, the method was an attempt to remove all of the children at such an early age to ensure that they would not become fully inculcated within their traditions and to take them far away to be transformed or brainwashed into becoming members of the dominant society. This strategy would ensure that First Nations would simply die out as their older members, who were seen as beyond hope and incapable of change, passed on while the children would grow up disconnected from their homes, families, and lives. Perhaps an even crueler aspect of this plan was that the children were not given substitutional families, where love and nurturing could possibly occur, but were instead institutionalized.

Some will suggest that residential schools were created out of the best of intentions to convey the learning of the European world that was more technologically advanced and was believed to be essential for survival in the nineteenth and twentieth century economies. If that is so, then how does one explain that these children were not taught the prevailing curriculum in the same manner as public schools so as to acquire the skills necessary to succeed economically in the Canadian workforce?

The purpose of this paper, however, is not to explore the history of residential schools or to analyze the reasoning underlying government policies in this regard, especially as there are far more able people to do so. Instead, I hope to achieve a few other objectives. Firstly, I will summarize ever so briefly the gross violation of human rights in Canada meted out through government action to a number of distinct immigrant groups, including their experience in seeking reparations and reconciliation with the society that oppressed them. Secondly, I will examine the importance of genuine apologies for both victims and victimizers. This discussion will consider how the common law legal system can impede the willingness of perpetrators to render apologies for fear of being sued and some legislative initiatives that have sought to overcome that factor. I will then look outside Canada for possible guides to show how members of the dominant society can demonstrate the capacity to seek reconciliation, even where the government may refuse to recognize any need to take action.


Canada’s Experience in Reparations for Non-Aboriginal Canadians

Over three hundred years of active colonization has been extraordinarily destructive to Indigenous governments. Without suggesting any commonality of experience, it is important for all Canadians to realize that the First Nations, Inuit, and Métis peoples are not the only ones to have suffered grave injustices at the hands of Canadian governments. Having some understanding of the experiences encountered by other groups who have sought reparations from and reconciliation with Canadian governments can provide useful ideas for action as well as insights that can encourage creating new relationships.

No government in Canada has crafted an official policy to accept the obligation to provide reparations for past wrongs for group claims or even to establish frameworks for its consideration. Instead, our federal and provincial governments have slowly and grudgingly responded to claims by distinct collectivities (as opposed to claims by individuals even if they shared similar injuries like tainted blood) for reparations on a case-by-case basis with mixed success, as is evident from the following key examples.


Japanese Canadians

Over twenty-two thousand Japanese Canadians were arrested, taken from their homes, separated from their families, and interned in prison camps during World War II. The only “crimes” that had been committed were being of Japanese ancestry and living in Western Canada. These were not real crimes, of course, so they had no access to ordinary courts to protest their innocence and have the appropriateness of this gross violation of human rights assessed by an independent judiciary. The able-bodied men were forced into manual labour work crews building roads and railways and doing agricultural work. The women, children, and elderly were sent to camps in eastern British Columbia. The Canadian government confiscated and sold property belonging to Japanese Canadians at auction at far below market value, while at the same time charging Japanese Canadians for the cost of their internment. When the war ended in 1945, most were forced to move to eastern Canada or face deportation to Japan, a defeated country that many had never known: It was not until 1949 that full citizenship rights of these Japanese Canadians were finally reinstated.

In 1988, the Government of Canada entered into a redress agreement with the National Association of Japanese Canadians (NAJC). The agreement included a formal apology from the federal government and a compensation package estimated at $300 million. Each survivor of internment, dislocation, and loss of property was eligible for a $21,000 tax-free lump sum payment. The government established the Japanese Canadian Redress Secretariat (JCRS) to process applications for individual redress. Near the end of its five-year mandate, the Secretariat had issued 17,948 payments and rejected 586 applications. The compensation package also included a $12 million payment to the Japanese Canadian community via the NAJC to be used for educational, social, and cultural activities. In addition to the apology and financial elements, the settlement contained several non-monetary aspects: one included a process whereby Japanese Canadians, who had been convicted under the War Measures Act or the National Emergency Transitional Powers, could clear their names; and another process whereby Japanese Canadians still living, and their descendants, who had either been expelled from Canada or had their citizenship revoked between 1941 and 1949, could regain their status as Canadian citizens.

A final aspect of the settlement was the creation of a Canadian Race Relations Foundation (CRRF), which was established by the enactment of the Canadian Race Relations Foundations Act.1 This is an important element of the agreement because its effects extend far beyond the Japanese Canadian community to benefit all Canadians. The CRRF board of directors unanimously adopted a policy in 2005 that “acknowledges the right of discriminated communities to seek redress, including reparations, among viable options of recourse and remedy for injustices committed against their groups, including historical injustices.”2 The CRRF is the “only national, legislatively constituted organization with the sole mandate to combat racism in Canada.”3 The CRRF acts as “voices for communities seeking redress and reparations?… for historical injustices?… that underpin the present day continuing discrimination and racism that they face, through successive generations.”4 This does provide both recognition of the entitlement and a potential ally for all discriminated communities in the struggle to seek redress, including reparations.

Despite the CRRF’s mandate to support and promote “the development of effective policies and programs for the elimination of racism and racial discrimination,”5 Canada has extended no official mechanism to receive reparation claims for past wrongs nor fashioned an approach that will eliminate their reoccurrence.


Chinese Head Tax

Thousands of immigrants from China were recruited in the latter part of the nineteenth century to help build the Canadian Pacific Railway across western Canada. In 1885, when construction of the railroad was completed, the federal government introduced a “head tax” whereby a fifty-dollar fee was imposed on all new Chinese immigrants. Five years later it was doubled and, by 1903, it had been raised to five hundred dollars, which was the equivalent of nearly two years’ worth of wages for the average Canadian. From 1885 to 1923, approximately eighty-two thousand Chinese immigrants were forced to pay a head tax to enter Canada.6 In 1923, the Government of Canada enacted The Chinese Immigration Act, 7 which was tantamount to a complete prohibition on immigrants of Chinese origin or descent and lasted until 1947. These measures had tragic and inhumane impacts upon individual Chinese Canadians seeking to unify their families.

On 22 June 2006, Prime Minister Stephen Harper offered a formal apology in the House of Commons to all Chinese Canadians for both the head tax and the former restrictive immigration policy. Although this apology expressly recognized the contributions of Chinese immigrants to the success and development of Canada, it also stressed that the apology’s purpose was to foster reconciliation rather than admitting liability for wrongdoing. The official apology included an express avowal that “Canadian courts have ruled that the head tax, and immigration prohibition, were legally authorized.”8 Two months later, the Canadian Cabinet enacted an Order Respecting the Ex-Gratia Payments to Chinese Head Tax Payers.9 The Order authorizes the Minister of Canadian Heritage to issue voluntary payments of twenty thousand dollars to all living head taxpayers. One can apply until 31 March 2008, unless an eligible applicant can demonstrate that they were unable to submit by the deadline due to circumstances beyond their control. By November 2006, the mandate for compensation was expanded and eligibility was extended to the individuals who were in conjugal relationships with a now-deceased Chinese head taxpayer or a designated beneficiary.10 Like the formal apology, both Orders include provisions that stipulate that payments are not to “be construed as an admission of liability on the part of the Crown.”11 A dozen payments were issued, many of them publicly, between October and December of 2006. As the head tax ended eighty-four years ago, only a handful of direct payers are alive to apply.


Ukrainian Canadians

During the period of 1914 to 1920, approximately eighty thousand individuals, of whom the majority were of Ukrainian ancestry, were registered as enemy aliens. More than five thousand Ukrainian immigrants were interned across Canada while the federal War Measures Act was invoked.12 Internees were forced to labour in steel mills and logging camps and in the development of Banff National Park. Ukrainian Canadians were deprived of their personal property and their right to vote while interned. For decades, representatives of the Ukrainian Canadian community have consistently pressed to have this injustice finally redressed.

A Private Member’s Bill was introduced in 2004 as Bill C-331, the Ukrainian Canadian Restitution Act. The Bill was renamed the Internment of Persons of Ukrainian Origin Recognition Act13 (IPUORA) before it was enacted and received royal assent on 25 November 2005. The IPUORA explicitly compels negotiations to occur by the federal government with the Ukrainian Canadian Congress, the Ukrainian Canadian Civil Liberties Association, and the Ukrainian Canadian Foundation of Taras Shevchenko. Although compensation is not specifically mentioned in the Act, section 5 enables the consideration of “any other measure that promotes the objective described in section 2.1.” The latter section targets achieving “better public understanding of?… the consequences of ethnic, religious or racial intolerance and discrimination; and?… the important role of the Canadian Charter of Rights and Freedoms in the respect and promotion of the values it reflects and the rights and freedoms it guarantees.”

The IPUORA as passed was markedly different than Bill C-331 when it was presented for first reading in the House of Commons. The original Bill contained a requirement to address restitution for property losses incurred by Ukrainian Canadians. These losses were estimated by the Ukrainian Canadian Congress as amounting to $21.6 million to $32.5 million (in 1991 dollars). To date, no compensation or governmental apology has been forthcoming. The Ukrainian Canadian Congress, in conjunction with the Ukrainian Canadian Foundation of Taras Shevchenko and the Ukrainian Canadian Civil Liberties Association, has announced that it is seeking symbolic redress, “significantly less than the contemporary value of what was taken from the internees.” 14 This complaint remains unresolved and the requirements of the Act have yet to be fulfilled.


Doukhobors

From 1953 to 1959, the children of the Sons of Freedom Doukhobors were removed from their homes and placed in residential schools located in New Denver, British Columbia. In 1999, the provincial Ombudsman published a report entitled Righting the Wrong: The Confinement of the Sons of Freedom Doukhobor Children.15 In 2002, a progress report16 was published updating the status of the five recommendations made three years earlier. According to the latter report, the government has not admitted any wrongdoing, although it has attempted to explain its actions. A formal apology has not been offered; however, a letter of regret was issued to former residents and the government began community consultations on methods of achieving reconciliation. In 2005, the government of British Columbia cancelled a plan to create a memorial picnic site when the Doukhobor community rejected the proposal.17

A former resident of the Doukhobor residential school, Phillip Arishenkoff, launched a lawsuit in 2002 against the Government of British Columbia on behalf of a number of Doukhobor children who shared his experience. The claims of sexual misconduct were dismissed on a preliminary motion brought by the provincial government as being not of a sexual nature and therefore insufficient to trigger an exemption from the impact of limitation legislation that rules the action out of time.18 In a second application, claims relying on the equality rights protected by section 15 of the Canadian Charter of Rights and Freedoms19 were determined to be unfounded.20 Other causes of action were subsequently determined to be statute-barred,21 and the entire action was finally dismissed in 2005.22 This half-century old grievance remains unresolved.


Africville

A distinct community of Black Canadians located within Halifax existed from the early 1800s until its demolition in the 1960s. The land that comprised Africville was expropriated by the city and its residents evicted from their homes before they were bulldozed to allow the A. Murray MacKay Bridge connecting Halifax and Dartmouth to be built. Residents were not compensated for the loss of their homes, land, or community. Prior to the demolition, the city had refused to provide sewage, water, or electrical services to Africville. A railway had been built through the community; an infectious disease hospital and a fertilizer plant were constructed in the neighbourhood; and, finally in 1955, a landfill site was opened only three hundred metres from the nearest Africville home. Seaview Park now occupies the land where Africville once stood. In March of 2004, the injustices against the residents of Africville received international attention when the United Nations recommended that the Government of Canada pay reparations to the former residents.

Private Member’s Bill Number 213 entitled An Act to Address the Historic Injustices Committed Against the People of Africville, was introduced in the Nova Scotia Legislature in 2005. The Bill’s intent was to instruct the provincial government to issue a formal public apology. The Bill also required the establishment of a trust fund to be used for historical restoration as well as social and infrastructure development. The Bill never progressed beyond first reading.

Most recently, in February of 2007, Canada reported back to the United Nations Committee on the Elimination of Racial Discrimination by noting “that a feasibility study had been conducted on the reconstruction of Seaview Baptist Church on the former site of Africville and the establishment of an interpretive centre on the history of that community. An interim report had been presented to the former residents for consultation. Work on appropriate recognition of the history of Africville was ongoing.”23 The deep sense of grievance among the former residents and their descendants, as well as the Black community generally, remains outstanding.


The Power of an Apology

There is a very long history of giving legal importance to apologies in the common law legal system. The act of criminal offenders apologizing to victims is often a significant factor in a judge’s fashioning of an appropriate sentence, as it reflects an acceptance of responsibility as well as serves the objective of reintegration into society through public shaming. Civil lawsuits also pay attention to apologies in various circumstances. The law of defamation has always considered the presence of a pre-trial apology as affecting the extent of injury, and therefore the quantum of damages that may be awarded. Achieving an apology from the defendant is often one of the remedies that a plaintiff may request. More recently, the inclusion of an apology has been viewed as a vital element in resolving interpersonal disputes through mediation and other forms of alternative dispute resolution in the civil context as well as in conjunction with circle sentencing in the criminal sphere.

On the other hand, the common law based legal system can also impose unattractive consequences upon the apologizer. An apology that includes an acceptance of being the cause of injuries to others can be regarded as an acknowledgement of legal liability, whether as a confession to a crime or what can constitute a tort. Many insurance contracts contain a clause (known as admission and compromise clauses) that voids coverage whenever the insured admits liability. Similarly, many professional associations will regard issuing an apology for wrongdoing as grounds for investigation and potential discipline. Courts are normally free to consider the terms of any apologies rendered and their legal ramifications.

For these reasons, lawyers frequently advise clients (whether individuals, corporations, or governments) never to apologize or admit liability. Instead, legal advice will suggest that regret be expressed for what has happened (“I am sorry for your loss”) rather than offer a true apology (“I am sorry that I hurt you”). Expressions of regret can be very important and reflect genuine emotion when delivered in the appropriate context (for example, to a friend or colleague on the death of a relative), however, they will utterly fail to carry the moral weight necessary to promote healing when coming from the source of the loss or injury. Seeking reconciliation on some level by the wrongdoer requires an apology to be authentic. It must express regret and sorrow unequivocally, be sincere and delivered in a timely fashion, be voluntary, represent genuine appreciation of the impact of the harm suffered through honest reflection, and admit the specific wrongs or mistakes of the perpetrator. Frequently, a comprehensive and fully effective apology will include a commitment to determining how action will be taken to ensure that the injury or wrong does not reoccur, thereby further impacting the victim or others.

Legislatures in some jurisdictions have been stepping in for over two decades to try to discourage litigation relating to the issuance of an apology. The primary device selected to achieve this objective has been to alleviate the legal risk of tendering an apology. Massachusetts amended its evidence law in 1986 to declare that statements or gestures of regret are inadmissible as evidence of an admission of liability. California and Texas subsequently changed their evidence statutes along the same lines. Twenty-seven more states have done the same since 2001.24

Australia has gone furthest, providing legal coverage in this area on the most widespread basis. All states and territories have amended their legislation concerning the tort of defamation to encourage the issuance of apologies without having such action constitute an admission of liability. For example, Western Australia overhauled its libel and slander laws in 2005 when it enacted the Defamation Act, which contains the following:

20. Effect of apology on liability for defamation
(1) An apology made by or on behalf of a person in connection with any defamatory matter alleged to have been published by the person?—
(a) does not constitute an express or implied admission of fault or liability by the person in connection with that matter; and
(b) is not relevant to the determination of fault or liability in connection with that matter.
(2) Evidence of an apology made by or on behalf of a person in connection with any defamatory matter alleged to have been published by the person is not admissible in any civil proceedings as evidence of the fault or liability of the person in connection with that matter.
(3) Nothing in this section limits the operation of section 38 [which permits measures to mitigate damages].25

Except for the federal government, every Australian jurisdiction has also overhauled its general civil liability legislation in the last five years to deal with this topic. There is no uniform approach to addressing this matter. Queensland and the Northern Territory merely protect expressions of regret from being admissible in court. The legislation in South Australia and Victoria declare that an apology does not constitute a legal admission of fault or liability. Tasmania and Western Australia have gone somewhat further as they cover both the non-admissibility purpose as well as it not being an admission. Their statutes also make clear that the statements made are not even relevant to the determination of liability. All of these statutes are restricted to protecting expressions of regret that do not contain explicit acceptances of fault. The most extensive legislative arrangements are in New South Wales and the Australian Capital Territory where “apology” is defined so as to encompass admissions of fault along with expressions of sympathy and regret.26

British Columbia has been in the vanguard within Canada in attempting to come to grips with the need to apologize for past transgressions by its provincial government. Its attorney general, Colin Gablemann, delivered an apology in 1995 to those students who had been abused in the Jericho Hill School, a residential school for the deaf:

There is no excuse or justification for what happened. The victims bear no responsibility for events over which they had no control. We regret that they were exposed to these terrible experiences; we regret this especially because they were young and vulnerable children. It took great courage on their part to come forward and disclose the abuse they endured.27

Students received a compensation package along with a letter of personal apology from the government for the harm caused. One of the recipients regarded the letter as unhelpful in the healing process since it was a generic one sent to all victims rather than acknowledging the specific injuries he suffered.

An apology may satisfy a complainant because it can aid the victim to forgive, although not to forget, and to move on. Often, public agencies are unwilling to render an apology for past wrongdoing for fear it indicates an acceptance of legal liability. The ombudsman of New South Wales supported legislation that would protect public agencies from legal responsibility for any apologies made in these terms:

This would not be detrimental to the rights or interests of members of the public who have legitimate legal claims against an agency as in practice, without legislation of this kind, an aggrieved person would probably receive no apology—and consequently, no admission of responsibility—at all.

In contrast, the practical consequence of introducing legislation of this kind should be that more public sector officials would be encouraged to say ‘sorry’ and more members of the public are more likely to feel satisfied that their grievance has been taken seriously. An apology shows an agency taking moral, if not legal, responsibility for their actions and the research shows that most people would be satisfied with that.28

Canadian governments have been extremely wary of proffering formal apologies for fear that these statements could be interpreted as an admission of liability in any future litigation that might arise. There has also been a sense on the part of many governmental officials that the mere act of making an apology might itself raise the profile of the issue and trigger a flood of lawsuits. Some federal officials view the Statement of Reconciliation,29 made in January 1998 by the Honourable Jane Stewart, then Minister of Indian and Northern Affairs, as being a major contributor to the avalanche of class-action lawsuits from residential school Survivors and their families, even though it fell well short of being a full apology as a result of strenuous pressure from legal counsel within the Department of Justice.

British Columbia was the first Canadian jurisdiction to introduce a statute that provides a safe harbour for apologizing. In 2006 the Ombudsman for the province issued a special report entitled The Power of an Apology: Removing Legal Barriers. The report declared: “When a person feels mistreated, having someone apologize for what took place often enables the person to forgive, to re-establish the relationship and move forward.”30 British Columbia’s Apology Act became effective on 18 May 2006. The Act defines an “apology” as meaning “an expression of sympathy or regret, a statement that one is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit or imply an admission of fault in connection with the matter to which the words or actions relate.”31 The effect of an apology on liability is set out in section 2 of the Act:

2.(1)(a) does not constitute an express or implied admission of fault or liability by the person in connection with that matter,
(b) does not constitute a confirmation of a cause of action in relation to that matter for the purposes of section 5 of the Limitation Act,
(c) does not, despite any wording to the contrary in any contract of insurance and despite any other enactment, void, impair or otherwise affect any insurance coverage that is available, or that would, but for the apology, be available, to the person in connection with that matter, and
(d) must not be taken into account in any determination of fault or liability in connection with that matter.
(2) Despite any other enactment, evidence of an apology made by or on behalf of a person in connection with any matter is not admissible in any court as evidence of the fault or liability of the person in connection with that matter.

Thus, the legislation is designed more broadly than the Australian precedents that influenced its creation. It is intended to enable individuals to deliver true apologies (rather than only expressions of regret and sympathy) without fear of legal ramifications. It covers all of the New South Wales legislative elements and ensures that insurance coverage is not impacted nor a defence based upon exceeding limitations periods waived by the act of making the apology itself. The actual legal consequences of this new law and whether it achieves the government’s objective are not yet known.

In 2006, Saskatchewan Ombudsman Kevin Fenwick similarly announced that individuals and governments should be able to apologize without fear of legal repercussions. Bill Number 21, which is an amendment to the provincial Evidence Act, is intended to create opportunities for people to make statements or undertake actions of regret, sympathy, and apology without any implied admission of culpability. The Saskatchewan amendment, which became effective on 17 May 2007, is clearly intended to achieve British Columbia’s purpose as it is drafted using almost precisely the same language.32 An apology is defined as “an expression of sympathy or regret, a statement that one is sorry or any other words or acts indicating contrition or commiseration, whether or not the words or acts admit or imply an admission of fault in connection with the event or occurrence to which the words or acts relate.”33 The substantive provisions are virtually identical to the British Columbia statute.


Apologies and Reconciliation

Apologies can be an essential step in efforts toward reconciliation. It may be an important initiative in helping both to heal a damaged relationship and the aggrieved party to heal. Furthermore, an apology can restore a party’s self-respect and dignity, which could be an essential pre-condition to reconciliation. According to Dr. Lazare, an apology is a precursor to parties reconciling and moving on:

Apology is more than an acknowledgement of an offence together with an expression of remorse. It is an ongoing commitment by the offending party to change his or her behaviour. It is a particular way of resolving conflicts other than arguing over who is bigger and better. It is a powerful and constructive form of conflict resolution, embedded, in modified form, in religion and in the judicial system. It is a method of social healing that has grown in importance as our way of living together on our planet undergoes radical change. It is a social act in which the person, group, or nation apologizing has historically been viewed as weak, but more than ever is now regarded as strong. It is a behaviour that requires of both parties attitudes of honesty, generosity, humility, commitment, and courage.34

To the Doukhobor children who had been institutionalized in residential school in the 1950s, the B.C. Attorney General made this statement:

We recognize that as children, you were caught in this conflict through no fault of your own. On behalf of the government of British Columbia, I extend my sincere, complete and deep regret for the pain and suffering you experienced during the prolonged separation from your families. We recognize and regret that you were deprived of the day-to-day contact with your parents and the love and support of your families. We recognize and we regret the anguish that this must have caused. We will continue to offer counselling to former residents and to your relatives—including your siblings, your offspring and your spouses—who wish to access this service.

We hope that this acknowledgment will enable you to work with us toward continued reconciliation and healing.35

For many of the victims, this statement was not a step toward reconciliation as it was merely an expression of “regret” rather than an express “apology.”36 It is evident that the word “apology” is meaningful to many who have been wronged, and if the word is avoided, then the apology seems insincere. To be meaningful, an apology must be both an expression of wrongdoing and an acceptance of responsibility.37

For his wrongful imprisonment and torture in Syria, to which the Canadian government contributed in no small measure, the Honourable Bill Graham, the former federal Minister of Foreign Affairs, offered Maher Arar this apology on 2 June 2005: “Clearly we would have preferred that he be gotten out earlier. And I’m very sorry that he was not, for obvious reasons.”38 Although this was not the expression of apology and empathy that Maher Arar was seeking, he did express gratitude for this first acknowledgement of responsibility by the Canadian government.

In “An Analysis of Formal Apologies by Canadian Churches to First Nations,” Professor Janet Bavelas stated that “In order to achieve the potentially restorative and reconciling functions of apology, we need to reconsider both our assumptions and our practices regarding whether taking responsibility must always lead to increased liability.”39 By not taking responsibility for the abuse, churches assumed that they were reducing the appearance that they were accepting liability; however, Bavelas’ report found that organizations that accepted responsibility reduced their liability costs.40 In the United States, one report finds that thirty per cent of medical malpractice suits could have been resolved with a simple apology by the doctor.41

Often, an organization or corporation will await formal charges or a court decision before an apology is offered to those harmed. For example, after charges were laid against the Red Cross for the tainted blood scandal, it made the following apology:

The Canadian Red Cross Society is deeply sorry for the injury and death caused to those who were infected by blood or blood products it distributed, and for the suffering caused to families and loved ones of those who were harmed. We profoundly regret that the Canadian Red Cross Society did not develop and adopt more quickly measures to reduce the risks of infection, and we accept responsibility through our plea for having distributed harmful products to those who relied upon us for their health.42

An apology does not undo what has been done, but it can significantly advance the healing process through the acknowledgement that a wrong has been committed and responsibility has been taken. An apology should not be avoided for fear of legal liability; in fact, it may reduce litigation. Sometimes hearing “I am sorry” has been a step toward reconciliation for certain racialized groups in Canada and holds great possibility for providing reconciliation for Aboriginal people.

Apologies alone are, however, clearly insufficient in situations where the state has oppressed specific groups. This is even more true in the context of colonization and gross human rights violations. The Co-Chair of Reconciliation Australia, Jackie Huggins, remarked, “reconciliation has always encompassed three things: recognition, justice and healing.”43

To reconcile means to: “1. restore friendly relations between. 2 make or show to be compatible. 3 (reconcile to) make (someone) accept (a disagreeable thing)” from the Latin reconciliare, from conciliare as to ‘bring together.’44 The objective today between Aboriginal peoples and the rest of Canada should be to achieve the first meaning of this word in the above definition and not the latter. It requires developing a shared vision of an interdependent society that acknowledges its past and deals with its horrors frankly and as positively as it can to avoid any reoccurrences. We must undergo a dramatic attitudinal change if we are to reach across cross-cultural differences so as to build positive partnerships for the future.45 As indicated by Jackie Huggins, it also requires achieving justice. This means that there must be significant economic, political, social, and legal changes in our society.

Seeking reconciliation is not an easy road by any means as it is filled with contradictions and paradoxes and as it is such a morally loaded objective that naturally attracts different perspectives. John-Paul Lederach notes:

[R]econciliation can be seen as dealing with three specific paradoxes. First, in an overall sense, reconciliation promotes an encounter between the open expression of the painful past, on the one hand, and the search for the articulation of a long-term, interdependent future, on the other hand. Second, reconciliation provides a place for truth and mercy to meet, where concerns for exposing what has happened and for letting go in favour of renewed relationship are validated and embraced. Third, reconciliation recognises the need to give time and place to both justice and peace, where redressing the wrong is held together with the envisioning of a common, connected future (p.20).46

The challenges are especially applicable when one wishes to reconcile conflicts between groups. These challenges are further compounded when cross-cultural communication issues arise amidst fundamentally different value constructs and world views. When major power imbalances and a history of racial prejudice are added to the soup, it becomes a very difficult liquid to stir indeed.

The word “reconciliation” is also a prominent factor internationally, particularly in the context of the development of thirty “Truth” or “Truth and Reconciliation Commissions” globally over the past twenty-five years. Although there is no consensus about what the term actually includes, or what reaching such a result would require, the International Center for Transitional Justice has developed the following working definition of reconciliation to work toward a better understanding of the ways in which it can be achieved in practice.

  • Reconciliation is something that occurs in the civic or political sphere, rather than at the level of individuals.
  • Legitimate reconciliation must be distinguished from efforts to use reconciliation as a substitute for justice.
  • There cannot be significant inequities in the distribution of the burdens that reconciliation inevitably entails. It cannot involve transferring responsibilities from perpetrators to victims.
  • Reconciliation efforts should not focus unduly on wiping the slate clean. It is not reasonable to seek unqualified closure or a comprehensive ideal of social harmony.
  • Reconciliation cannot be reduced to a state of mind, nor can it expect extraordinary attributes on the part of those being reconciled.47


Institutional Efforts to Promote Reconciliation

Australia has once again taken a leadership role in attempting to foster reconciliation between the descendants of the original Indigenous owners of the continent and islands and the newcomers. The Commonwealth Parliament voted unanimously to pass the Council for Aboriginal Reconciliation Act 1991. The Act’s preamble explains the rationales for, and circumstances surrounding, the legislation in these terms:

Because:
(a) Australia was occupied by Aborigines and Torres Strait Islanders who had settled for thousands of years, before British settlement at Sydney Cove on 26 January 1788; and
 
(b) many Aborigines and Torres Strait Islanders suffered dispossession and dispersal from their traditional lands by the British Crown; and
 
(c) to date, there has been no formal process of reconciliation between Aborigines and Torres Strait Islanders and other Australians; and
 
(d) by the year 2001, the centenary of Federation, it is most desirable that there be such a reconciliation; and
 
(e) as part of the reconciliation process, the Commonwealth will seek an ongoing national commitment from governments at all levels to co-operate and to co-ordinate with the Aboriginal and Torres Strait Islander Commission as appropriate to address progressively Aboriginal disadvantage and aspirations in relation to land, housing, law and justice, cultural heritage, education, employment, health, infrastructure, economic development and any other relevant matters in the decade leading to the centenary of Federation, 2001.

The Act established the twenty-five-member Council for Aboriginal Reconciliation (CAR) to be reflective of both Indigenous and settler societies with a mandate to spark a national effort at reconciliation prior to the centennial of the Australian Constitution and its independence from the United Kingdom. The Council’s goal for the end of its decade-long mandate was for the country to have achieved a vision of being,?“A united Australia which respects this land of ours; values the Aboriginal and Torres Strait Islander heritage; and provides justice and equity for all.”48. Retrieved 12 August 2007 from: http://www.austlii.edu.au/cgi-bin/sinodisp/au/other/IndigLRes/car/1998/5/council.htm?query=A%20united%20Australia%20which%20respects%20this%20land%20of%20ours] The CAR developed its first triennial strategic plan, which was released on 29 May 1992 with the following eight issues defined as being critical to the success of reconciliation:

  • a greater understanding of the importance of land and sea in Aboriginal and Torres Strait Islander societies;
  • better relationships between Aboriginal and Torres Strait Islander peoples and the wider community;
  • recognition that Aboriginal and Torres Strait Islander cultures and heritage are a valued part of the Australian heritage;
  • a sense for all Australians of a shared ownership of our history;
  • a greater awareness of the causes of disadvantage that prevent Aboriginal and Torres Strait Islander peoples from achieving fair and proper standards in health, housing, employment and education;
  • a greater community response to addressing the underlying causes of the unacceptably high levels of custody for Aboriginal and Torres Strait Islander peoples;
  • greater opportunity for Aboriginal and Torres Strait Islander peoples to control their destinies;
  • agreement on whether the process of reconciliation would be advanced by a document or documents of reconciliation.49

Unfortunately, the council could not come close to bringing about the massive change required to meet these lofty targets as it lacked the necessary financial and legislative support from the Commonwealth Government. The presence or absence of political will is always a vital element in achieving social change. Nevertheless, the council’s work had a profound impact upon Australian society before its ten-year sunset clause expired. One of the last activities of the statute-based CAR was to create an ongoing non-governmental organization (NGO) called Reconciliation Australia to continue its work.50 One of the council’s greatest successes was in promoting within Australian governments at all levels, businesses, NGOs, Indigenous organizations, and community organizations the idea of developing their own respective Reconciliation Action Plans (RAPs). The plans are intended to be the vehicle for these interested parties to work directly with Indigenous people in their vicinity to improve relationships for the benefit of all. Previously CAR, and now Reconciliation Australia, helps connect people to each other, offers some guidance, shares the experiences from elsewhere, and promotes the results. The overall purpose of all the RAPs is to close the seventeen-year life expectancy gap between Indigenous and non-Indigenous children through the promotion of education, health, and socio-economic advancement for Aboriginal and Torres Strait Islanders. RAPs have been undertaken by an amazing number of local municipalities, large and small companies, charities, social agencies, and others.

Another striking achievement without federal government support was the creation of a National Sorry Day on 26 May 1998. Over 250,000 people walked across the famous Sydney Harbour Bridge two days later, along with many other marches across the nation, as an expression of regret for past injustices, a public reflection of shame that their governments had engaged in massive forced relocation of Aboriginal children to mission schools, and a desire to achieve reconciliation.51 A further 24,763 people signed “sorry books” throughout Australia by 2002, and that number can increase through an online service.52 In 2005, the National Sorry Day Committee renamed “Sorry Day” as a “National Day of Healing for all Australians” that continues to be marked by marches and public events around the country.

While the national government continues to refuse to acknowledge the continuing effects of the Stolen Generations experience, these measures by civil society, companies, and average Australians demonstrates that there is capacity to help in reconciliation efforts despite governmental intransigence and even outright resistance.


Conclusions

The scars from gross injustices likely run far too deep to hope that achieving complete reconciliation between all of the First Peoples and all the rest of Canadian society is possible within our lifetime. There are many people in this land who have no desire to reconcile, as the hurt and anger is too strong from injuries inflicted in the past. Many non-Aboriginal Canadians have little idea of our history so see no desire to pursue reconciliation.

On the other hand, First Nations, Inuit, and Métis peoples have consistently shown on a collective and individual basis an absolutely amazing level of tolerance, generosity, and willingness to share their territories, their values, and their knowledge with generations of newcomers. As well, there is a desire among a sizeable number of Canadians to rectify historic injustices and to try to forge new, honest partnerships as we chart our future together. We have, therefore, a truly unique opportunity to at least make real progress in such efforts toward achieving genuine reconciliation on a long term-basis.

The year 2017 will mark the 150th anniversary of Confederation and Canada’s birth as a modern nation-state. What better way to possess the moral capacity to celebrate such an occasion than by achieving a genuine reconciliation within our country?



Biography

Bradford W. Morse is a professor of law in the Common Law Section at the University of Ottawa. He describes himself as a non-Aboriginal lawyer who has had the good fortune of working for First Nations and Métis organizations in Canada for over thirty years, as well as for Indigenous peoples in several other countries. He continues to be amazed by the high level of generosity and desire for partnership that is expressed by Indigenous peoples, despite generations of oppression, racism, and gross violations of human rights. In his work for governments, Brad has heard similar goals expressed, along with denials that any problems exist. He believes that reconciliation is achievable under the right conditions:

       My experience leads me to believe that reconciliation is achievable; however, it will require a genuine commitment on the part of non-Aboriginal governments, individuals, and organizations to make heartfelt amends, to rectify historic injustices to the degree possible, and to support true self-determination. Saying sorry is not enough.

Brad’s contribution to this collection—Reconciliation Possible? Reparations Essential—provides a thought-provoking examination of the role of authentic apology in reconciling historical wrongs. Such an apology?“must express regret and sorrow unequivocally, be sincere and delivered in a timely fashion, be voluntary, represent genuine appreciation of the impact of the harm suffered through honest reflection, and admit the specific wrongs or mistakes of the perpetrator.” Included is a summary of Canada’s approach to reparation for group claims by Japanese Canadians, Chinese Canadians, Ukrainian Canadians, Doukhobors, and residents of Africville. The author considers attempts by various governments to remove legal impediments that hinder the official expression of apology. In exploring the relationship between apology and reconciliation, Brad draws upon the Australian experience. He concludes with an appeal to Canada to take advantage of the unique opportunity ahead to work toward achieving genuine reconciliation.


Notes
  1. Canadian Race Relations Foundation Act, S.C. 1991, c. 8.
  2. Canadian Race Relations Foundation (2005). A background paper on the CRRF’s policy on redress & reparations. Retrieved 1 September 2007 from: http://www.crr.ca/Load.do?section=28&subSection=46&type=2
  3. Canadian Race Relations Foundation (2005).
  4. Canadian Race Relations Foundation (2005).
  5. Canadian Race Relations Foundations Act, S.C. 1991, c. 8, s. 4(g).
  6. Hum, Derek (no date). Current Research: Aspects of the Chinese Head Tax (with Barry Ferguson). Retrieved 18 September 2007 from: http://home.cc.umanitoba.ca/~dhum/re_aspects.html
  7. The Chinese Immigration Act, 1923. S.C., c. 38.
  8. Office of the Prime Minister (2006). Address by the Prime Minister on the Chinese Head Tax Redress, 22 June 2006. Ottawa, Ontario. Retrieved 14 August 2007 from: http://www.pm.gc.ca/includes/send_friend_eMail_print.asp?sendFriendEmailFlg=True&URL=/eng/media.asp&id=1220&langFlg=e
  9. Order Respecting Ex-Gratia Payments to Chinese Head-Tax Payers. SI/2006-109.
  10. Order Respecting Ex-Gratia Payments to Persons Who Were in Conjugal Relationships with now Deceased Chinese Head Tax Payers or to Designated Beneficiaries. SI/2006 137.
  11. See Order Respecting Ex-Gratia Payments to Chinese Head-Tax Payers at s. 5 and Order Respecting Ex-Gratia Payments to Persons Who Were in Conjugal Relationships with now Deceased Chinese Head Tax Payers or to Designated Beneficiaries at s. 5.
  12. InfoUkes (no date). Internment of Ukrainians in Canada 1914-1920.Retrieved 18 September 2007 from: http://www.infoukes.com/history/internment/
  13. Internment of Persons of Ukrainian Origin Recognition Act, S.C. 2005, c. 52.
  14. Luciuk, Lubomyr, Andrew Hladushevsky, and Paul Grod (2007). The Ukrainina Canadian Community’s Position on Recognition, Restitution and Reconciliation for Canada’s First National Internment Operations 1914-1920: The Need for an Endowment. Retrieved 1 September 2007 from: http://www.ucc.ca/media_releases/2007-03-13/index.htm
  15. Ombudsman Province of British Columbia (1999). Righting the Wrong: The Confinement of the Sons of Freedom Doukhobor Children, Public Report No.38, April 1999. Retrieved 6 November 2007 from: http://www.ombudsman.bc.ca/reports/Public_Reports/Public%20Report %20No%20-%2038.pdf
  16. Ombudsman Province of British Columbia (2002). Righting the Wrong: A Progress Report. Public Report No. 43, March 2002. Retrieved 6 November 2007 from: http://www.ombudsman.bc.ca/reports/Public_Reports/Public% 20Report%20No%20-%2043.pdf
  17. SLOCANVALLEY.COM (2005). Doukhobor Memorial project in New Denver abandoned. Online news article, 26 February 2005. retrieved 5 September 2007 from: http://www.slocanvalley.com/viewarticle.php?id=44
  18. Arishenkoff v. British Columbia, (2002) B.C.J. No. 659. (QL)
  19. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 (hereinafter Charter).
  20. Arishenkoff v. British Columbia, (2002) B.C.J. No 1689. (QL)
  21. Arishenkoff v. British Columbia,(2004) B.C.J. No 1101. (QL)
  22. Arishenkoff v. British Columbia, (2005) B.C.J. No 2091. (QL)
  23. United Nations (2007). Committee on the Elimination of Racial Discrimination. Summary Record of the 1790th meeting held on 20 February 2007. Retrieved 3 September 2007 from: http://www.unhchr.ch/tbs/doc.nsf/0/0ef703f5d07c4ac1c1257298005515d5/$FILE/G0740576.pdf
  24. Kleefeld, John C. (forthcoming). Thinking Like a Human: British Columbia’s New Apology Act. UBC Law Review 40:8–9 (unpublished version).
  25. Defamation Act 2005 (WA), s. 20.
  26. Vines, Prue (2005). Apologising to Avoid Liability: Cynical Civility or Practical Morality? Sydney Law Review 27:483–506.
  27. As cited in Ombudsman of Province of British Columbia (2006:2). The Power of an Apology: Removing the Legal Barriers, Special Report No.27.
  28. As cited in Ombudsman of Province of British Columbia (2006:9).
  29. Government of Canada (1998). Statement of Reconciliation, January 7, 1998. Retrieved 16 August 2007 from: http://www.ainc-inac.gc.ca/gs/rec_e.html
  30. Ombudsman of Province of British Columbia (2006:1).
  31. Apology Act, S.B.C. 2006, Chapter 19, s.1.
  32. The Evidence Act, S.S. 2006, c.E-11.2, Part II, Division 4, s.23.1.
  33. The Evidence Act, S.S. 2006, c.E-11.2, Part II, Division 4, s.23.1(1).
  34. As cited in Ombudsman of Province of British Columbia (2006:15).
  35. As cited in Ombudsman of Province of British Columbia (2006:3–4) (emphasis added)
  36. Ombudsman of Province of British Columbia (2006:4).
  37. Ombudsman of Province of British Columbia (2006:4).
  38. As cited in Ombudsman of Province of British Columbia (2006:5).
  39. Ombudsman of Province of British Columbia (2006:7).
  40. Ombudsman of Province of British Columbia (2006:7).
  41. Ombudsman of Province of British Columbia (2006:13).
  42. Ombudsman of Province of British Columbia (2006:7).
  43. Huggins, Jackie (2007). Vote lit the way to untapped goodness. The Australian, 23 May 2007. Retrieved 6 November 2007 from: http://www.theaustralian.news.com.au/story/0,20867,21777733-7583,00.html
  44. Compact Oxford English Dictionary. Retrieved 9 September 2007 from:http://www.askoxford.com/concise_oed/orexxconcile?view=uk
  45. Hamber, Brandon and Gráinne Kelly (2004:3–4). A Working Definition of Reconciliation. Retrieved 9 September 2007 from: http://www.brandon hamber.com/publications/aperAWorkingDefinitionofReconciliation.doc
  46. Lederach, John-Paul (1997). Building Peace: Sustainable Reconciliation in Divided Societies. Washington, DC: USIP Press, as cited in Brandon Hamber and Gráinne Kelly (2004:20).
  47. International Center for Transitional Justice (no date). Reconcilitation. Retrieved 8 September 2007 from: http://www.ictj.org/en/tj/784.html
  48. Council for Aboriginal Reconciliation (no date). About the Council for Aboriginal Reconciliation, vision statement [emphasis removed
  49. Council for Aboriginal Reconciliation (no date). Vision Statement. Retrieved 15 July 2007 from: http://www.austlii.edu.au/cgi-bin/sinodisp/au/other/IndigLRes/car/1995/5/6.html?query=.a%20greater%20understanding%20of%20the%20importance%20of%20land%20and%20sea%20in%20Aboriginal%20and%20Torres%20Strait%20Islander%20societies
  50. See Reconciliation website at: http://www.reconciliation.org.au/
  51. See Australian Government Culture and Recreation Portal at: http://www.acn.net.au/articles/sorry/
  52. See Apology Australia website at: http://apology.west.net.au/