On Aboriginal Languages in Canada

Following, is my speech on The Senate Bill on Aboriginal Languages.

Aboriginal Languages of Canada Bill
Second Reading—Debate Continued
On the Order:
Resuming debate on the motion of the Honourable Senator Joyal, P.C., seconded by the Honourable Senator Eggleton, P.C., for the second reading of Bill S-212, An Act
for the advancement of the aboriginal languages of Canada and to recognize and respect aboriginal language rights.

Hon. Murray Sinclair: Honourable senators, I rise to add some comments with regard to Bill S-212, which calls upon the government to take steps to address the status and restoration of Indigenous languages in Canada.

I want to first of all congratulate our colleague Senator Joyal for reintroducing this bill, as he has in the past, and for his comments at the beginning.

I want to begin my remarks by asking you to think of the answer to this question: “Who are you?” It’s not a rhetorical question. It’s a question which asks you to contemplate the fundamental question of your identity and character. To be able to answer that, you need to know where you and your ancestors came from, what you stood for, your personal and collective history, what your influences have been, what your ambitions have been and are, and what your purpose in life is.

It’s not a tough call for most of us because we have been informed and educated about those things within our families and in our institutions since the day we were born. Our answers to those questions and the ambitions they have provided to us, combined with the opportunities and the choices we have faced and made, have led us to this very place.

Yet, while we are all senators, that is not who we are. It is what we do.

We are all unique from each other, but we are confident of one thing, though, that we each know who we are. We are strong in our sense of self. We have an identity we believe in and which we know will sustain us throughout all of our challenges. We are what and who we want to be.

Language and culture are keys to personal identity. Personal identity is key to a sense of self-worth, and spiritual and mental wellness hinge on one’s sense of self-worth.
Everyone wants to feel worthy and to belong to something valid. Education is the key by which we make our society and our membership within it seem valid.

Identity also gives one a sense of being valued and worthy if one’s language and culture are considered valuable and worthy. If the language you speak and the culture you follow are denigrated or otherwise portrayed as unworthy of respect from your neighbours, disrespect is reciprocated and tension between you is inevitable.

That has significant implications for Indigenous and non-Indigenous people in Canada. From the time of Confederation until the end of the 20th century, a period of about 125 years, Canada did all that it could to eliminate Aboriginal cultures and Aboriginal languages. Through the use of law approved and passed by our senatorial ancestors, among others, cultural practices were outlawed and access to justice was denied to anyone who wanted to do anything about it.

Undoubtedly, residential schools were the single most significant attack on Indigenous languages and cultures. One hundred and fifty thousand children were forcibly removed from their families under threat of prosecution for those parents who resisted and were placed in institutions for the sole purpose of indoctrinating them into Canadian society.

Prime Minister Sir John A. Macdonald not only believed that Aboriginal people who practised their culture and languages were savages but that they needed to have their cultures and languages stripped away. In 1883, in Parliament, he stated:

“When the school is on the reserve, the child lives with its parents, who are savages, and though he may learn to read and write, his habits and training and mode of thought are Indian. He is simple a savage who can read and write.

It has been strongly impressed upon myself, as head of the Department, that Indian children should be withdrawn as much as possible from the parental influence, and the only way to do that would be to put them in central training industrial schools where they will acquire the habits and modes of thought of white men.”

He made this statement at a time when federal government representatives had already entered into treaties with First Nations leaders and would continue to enter into other treaties within which promises were made by the government, among other things, to build schools on reserves, such as the provision you find in Treaty 1. That treaty says:

“And further, Her Majesty agrees to maintain a school on each reserve hereby made whenever the Indians of the reserve should desire it.

It would be fair to say that the federal government representatives were less than forthright and even deceptive in their dealings with First Nation leaders on the issue of schools and education during those treaty negotiations.

In a study of the impact of residential schools, the Assembly of First Nations noted in 1994 that:

. . . language is necessary to define and maintain a world view. For this reason, some First Nation elders to this day will say that knowing or learning the native language is basic to any deep understanding of a First Nation way of life, to being a First Nation person. For them, a First Nation world is quite simply not possible without its own language. For them, the impact of residential school silencing their language is equivalent to a residential school silencing their world.

The Royal Commission on Aboriginal Peoples in its report in 1996 similarly noted the connection between Aboriginal languages and what it called a “distinctive world view, rooted in the stories of ancestors and the environment.” The Royal Commission added that Aboriginal languages are a “tangible emblem of group identity” that can provide “the individual a sense of security and continuity with the past. . . . maintenance of the language and group identity has both a social—emotional and a spiritual purpose.”

Residential schools were a systematic, government—sponsored attempt to destroy Aboriginal cultures and languages and to assimilate Aboriginal peoples so that they no longer existed as distinct peoples.  This included forcibly removing children from their families and placing them in residential schools designed primarily if not solely to eliminate their racial identity. Such an act can easily be called cultural genocide and likely also fell within the definition of genocide found in Article 2(e) of the United Nations Convention on Genocide.

English and, to a far lesser degree, French were the only languages permitted to be used in those schools. Students were physically punished, often severely, for speaking their own languages.

Rights to culture and language and the need for remedies for their loss have been recognized now in international law. They are specifically acknowledged in the United Nations Declaration on the Rights of Indigenous Peoples, which acknowledged the critical state of Aboriginal languages generally.

Article 8.1 of the Declaration recognizes that:

Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.

Article 8.2 provides that:

States shall provide effective mechanisms for prevention of and redress for . . . Any form of forced assimilation or integration.

The Declaration also includes specific recognition of the right to revitalize and transmit Aboriginal languages in Article 13.1, which recognizes that:

Indigenous peoples have the right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures, and to designate and retain their own names for communities, places and persons.

We see further similar provisions in Articles 14.1, 14.3 and 16.

The attempt to assimilate students by denying them access to and respect for their languages and cultures often meant that the students became estranged from their families, from their communities and even from themselves. Some survivors refused to teach their own children their Aboriginal languages and cultures because of the negative stigma that had come to be associated with them during their school years.

My grandmother, for example, who raised me and my siblings from the time that I was an infant, could speak Ojibway and Cree, as well as French and English. She taught all of those languages to me as a young boy, but she insisted that we only speak English once I started school. I always wondered why she did that and came to some understanding when one survivor told us during our hearings of the Truth and Reconciliation Commission that he had had a similar experience. When he asked his mother why she had never taught him the language, she told him simply, “Because I wanted to save your life.”

In the Catholic school where she had been raised, she was taught that if she continued to practise her culture and to speak her language, she would end up in Purgatory or in Hell, places of eternal damnation. She simply wanted her children to have a chance at eternal life in Heaven, so she refused to teach them their language.

This, I believe, was my deeply Catholic grandmother’s motivation as well.

But whatever the cause or motivation, the lack of transmission of language has contributed significantly to the fragile state of Aboriginal languages and culture in Canada today.

Many of the almost 90 surviving Aboriginal languages in Canada are under serious threat of extinction. In the 2011 Census, only 14.5 per cent of the Aboriginal population of Canada reported that their first language learned was an Aboriginal language.

In the previous 2006 Census, 18 per cent of those who identified as Aboriginal reported an Aboriginal language as their first language learned.

A decade earlier, in the 1996 Census, the figure was 26 per cent.

This indicates a drop in language use and transmission of nearly 50 per cent in the 15 years since the last residential schools were closed.

There are, however, variations among the Aboriginal populations: 63.7 per cent of Inuit speak their language compared to 22.4 per cent of First Nations people and only 2.5 per cent of Metis people.

Some languages are close to extinction because they have only a few remaining speakers at the great-grandparent generation. UNESCO says that 36 per cent of Canada’s Aboriginal languages are critically endangered in the sense that they are only used by the great-grandparent generation.

It says that an additional 18 per cent are severely endangered in the sense that they are used only by the grandparent generation, and 16 per cent are definitely endangered in the sense that they are used by the parental and the two previous generations combined. The remaining languages are all vulnerable.

If the preservation of Aboriginal languages does not become a priority both for governments and for Aboriginal communities, then what the residential schools failed to accomplish will come about through a process of systematic neglect.

In interpreting Aboriginal and treaty rights under section 35(1) of the Constitution Act, 1982, the Supreme Court of Canada has stressed the relation of those rights to the preservation of distinct Aboriginal cultures. The preservation of Aboriginal languages is essential to identity and, given its past treatment, it is clear that Aboriginal people’s right to speak their own languages must be recognized as a legal right in Canada.

In the report of the Truth and Reconciliation Commission, various calls to action were put forward to establish that point.

Call to Action 13, for example, reads:

We call upon the federal government to acknowledge that Aboriginal rights include Aboriginal language rights.

At a time when government funding is most needed to protect Aboriginal languages and culture, Canada has not upheld commitments it previously made to fund such programs.
In 2002, the federal government under Prime Minister Chretien promised that $160 million would be set aside for the creation of a centre for Aboriginal languages and culture and a national Aboriginal language strategy. But in 2006, the Harper government retreated from that commitment, pledging instead to spend only the $5 million per year in permanent funding for the Aboriginal Languages Initiative (ALI), which had been started in 1998.

The ALI is a program of government—administered heritage subsidies. It is not based on the notion of a respectful nation—to—nation relationship between Canada and Aboriginal peoples. Nor does it provide Aboriginal people with the opportunity to make decisions for themselves about how to allocate scarce resources and how to administer programs.

Other than ALI, the only other significant programs for language preservation are the Canada Territorial Language Accords, with a $4.1 million budget, which support territorial government—directed Aboriginal language services, and which support as well community projects in Nunavut and the Northwest Territories.

In Yukon, language revitalization and preservation projects there are supported through transfer agreements, with 10 of the 11 self-governing Yukon First Nations becoming eligible.

The combined total annual federal budget for those Aboriginal languages programs in Canada, therefore, is $9.1 million when those are factored in.

Compare that to the official languages program for English and French in Canada which has in recent years been allotted funding as follows: in 2012-13, $353.3 million; in 2013-14, $348.2 million; in 2014-15, $348.2 million.

The commitment to French language retention and services is commendable, and I do not want to be taken as criticizing the amount or suggesting it be reduced. Rather I point out for comparison that the resources committed to Aboriginal language programs are far less than what has been committed to French, even in areas where French speakers number less than Aboriginal language speakers. For example, the federal government provides support to the small minority of francophones in Nunavut in the amount of approximately $4,000 per individual annually. In contrast, the funding to support Inuit language initiatives in Nunavut is estimated at $44 per Inuk per year.

In the report of the TRC, we put forward a call to action dealing with the need for legislation. We also saw the need for an official with authority to promote Aboriginal languages and to monitor and report upon federal government funding support.
In addition to promoting the use of Aboriginal languages, that official, we felt, would also educate non-Aboriginal Canadians about the richness and value of Aboriginal languages and how strengthening those languages can enhance Canada’s international reputation.

As I said at the outset, cultural and language revival are keys for Aboriginal youth in their search for identity, and it is a legitimate cause of complaint for survivors of residential schools and other forms of cultural suppression. Cultural and language revival are a binding force for the Aboriginal community. However, while there is a significant role for government to play in that revival, in the final analysis cultural and language revival are the responsibility of the communities that want them.

There is no getting away from the very simple fact that if you want your culture, you must live it; if you want your language, you must speak it.

I have some concerns about this bill, though I support it. In this respect I am not convinced it goes far enough. I don’t think it goes as far as it could or should.

I am nonetheless prepared to support the bill going on to committee in order to see if the committee members will support amendments to the bill, which I intend to propose, that I believe will make the bill stronger and consistent both with the TRC’s calls to action as well as the principles espoused in the United Nations Declaration on the Rights of Indigenous Peoples.

I encourage all of you to show Canada, as well as the Indigenous peoples in Canada living with the legacy of residential schools, that the Senate of Canada as an institution is prepared to support this bill as an act of reconciliation.

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Tribute to Judge Bob Kopstein (Originally written in March 2014).

(Originally written in March 2014).

This Sunday morning, I got up early in order to attend a morning funeral service at a local synagogue for a dear friend, Judge Robert Kopstein who passed away on Friday from lung cancer.

Bob was my assigned mentor when I was appointed a judge of the Provincial Court in 1988, and he had been retired for ten years or more. He and I became close friends and I often visited him and his wife Jean. Gazheek liked the fact that they had a swimming pool.

Bob liked to visit, and he could discuss any subject. He loved movies and he and Jean would regularly spend a week attending the Toronto International Film Festival, sometimes taking in three or four movies a day.

He also loved discussing what was going on in the news. While he always warned me against getting involved in political matters, he encouraged me to never stop participating in current events, because as judges, he would say, we have a responsibility to understand what’s going on around us and to educate the public in a non-partisan manner, about government, the law and the courts.

He was a fierce and independent thinker. He once asked me what my traditional name meant and we discussed how names influence us. Bob’s Hebrew name meant “Lion”, and he admitted that he always felt strongly about people trying to use the law or the courts for an unjust purpose. He once acquitted a woman charged with communicating for the purpose of prostitution, pointing out that prostitution itself was not illegal in Canada, and therefore it was unreasonable and illogical and unfair to charge and convict women for communicating about doing something that was not illegal. Higher, and differently thinking, courts, disagreed and overturned his decision. He still thought he was right.

He was the first colleague to admit to me that his education about the history of this country was lacking any proper information about Canada’s Indigenous people. He peppered me with questions for years about something he had read or heard about Indigenous people or issues, or about something he had seen in a movie, to see if it was historically accurate or fair.

He actually read the AJI Report in its entirety. I know, because he would come into my office with his well marked copy and ask me to explain what I meant on page 756 or why we didn’t recommend one thing or another. But he was never overbearing or rude. He was always kind and respectful and eager to learn. He remained that way until he became ill.

At a certain point in one’s life, you enter what I call the swamp years, when the water around you starts to deepen, and the ground beneath you begins to shift, and the earth becomes invisible and each step represents an unknown risk. You can become afraid to move, but you cannot stand still. Too much remains to be done. You cannot leave a life unfinished. Those who are wise, refocus on the things that are important and finish them.

In his latter years, Bob put everything else in his life aside and concentrated on his family and taking care of Jean. He became her eyes when she started to lose her sight, and the one she leaned on as she walked. He shared his thoughts and wisdom and love and time with his children and grandchildren. He knew what his legacy would be and he shaped it into the best he could. He loved to sing. He taught his children to love song too. I hope they will sing songs of him. He deserves it. He was a good human. God would be proud of him.

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On the Tragedy in Orlando

Following is the text of a statement I gave in the Senate about the shooting deaths of 49 people in a Bar in Orlando Florida on June 12, 2016:

Honourable Senators, shortly after midnight on Saturday night, our openly gay daughter sat and laughed with us, as my wife and I and her sisters sang her “Happy Birthday,” – badly I might add, as all families do, but with huge amounts of love. She turned 33 on Sunday, June 12.

At almost the same moment, an American filled with hate for lesbians, gays, bisexuals, transgendered, queer and two-spirit people carried his legally purchased machine gun and pistol into a bar in Orlando, Florida, and started killing everyone he could.

Eventually, over a period of three hours, he hunted down all those he could find in the bar and killed 49 young men and women, whose only reason for being targeted was that they were celebrating Pride month and were openly gay.

Much has been made of the shooter’s connection to Islamic terrorism and his ability to purchase, own and carry guns, despite his history of mental disturbance and violence. American politicians and others will line up in one camp or the other to denounce those who they say caused this to happen, whether close at hand or remote. The number of political footballs this event presents for such use is significant. You need only look at the headlines today to get a flavour of that.

But yesterday and today, I thought only of the 49 mothers and fathers whose hearts are broken and whose lives have been torn asunder, and I think every day of the fact that I could have been, and could yet be, one of them. I think of the dozens of brothers and sisters born into the victims’ families, whose anger and tears may never end, and I think of the fact that my other children couldhave been, and could yet be, among them as well.

Society’s dislike and disrespect for those who are gay and transgendered has been a part of Western thinking for many generations. The recent and growing enhancement and recognition of their right to be who they are, and their right to public protection of those rights, does not sit well with far too many people, the shooter in this case being representative of that.

When my daughter spoke to us as a young teenager of her recognition of who she was, we stood beside her and gave her every assurance of our love and of her right to be open about what she was – a strong, free and gay woman.

What my wife and I could not bring ourselves to discuss with her, or between ourselves, at that moment, was that her openness about being gay enhanced her risk of danger. She was already living a life of enhanced danger just by being female. That danger was increased by the fact that she was at higher at-risk because she was an Indigenous woman. Yet we were immensely proud of her for her accomplishments and her honesty, and we loved her. Our love for her overcame every fear we had.

We told her our truth – that among Indigenous people, being a two-spirit was traditionally a position of respect and honour. Spiritual ceremonies we told her, are enhanced if done by or with two-spirit people present, for it is believed that they embody the strengths and spirits of both man and woman and bring a special healing power and medicine to such events.

She has brought great respect to our family. She grew to be a star athlete and competed on National Championship teams in Softball. She was invited to try out for Canada’s National Team, but because the try-out camp fell at a time that conflicted with our annual traditional Spring Ceremonies, she declined. She was offered a full scholarship to attend and play for an elite American Division 1 University softball team -in Florida, not far from the site of this tragedy – but declined that too when she concluded it was too far away from family. Family and traditional ceremonies were about who she was. Softball was what she did. She studied Infomatics – the science of computer coding – and has volunteered many hours teaching it to classes of young women to encourage them to get into the male dominated field, telling them that the first computer coders were, in fact, women. She has met and surpassed the primary test I set for all my children – make this a better world. 

We are said to be blessed by having her as a daughter because she is two-spirit, and we believe that to be so. We adopted another two-spirit daughter into our family as well, whose partner just gave birth to our newest grandson. He will be raised by two-spirit parents.

As parents of two-spirits, we want to protect our children from the bullying, the offensive comments, the disparaging remarks and the physical and verbal abuses that every member of the LGBTQ2S experiences. We have learned to shield them and to heal them when our shields prove insufficient.

What we fear the most is that someone will murder them just for being gay. The belief that such an event could occur would be enough for many to discourage their children from coming out, and it would also discourage the children themselves. Yet, that would be wrong. You cause great damage to yourself, when you spend so much time and energy hiding part of yourself from the outside world. Such secrets have a way of feeding small fears and making them big ones.

So in our moment of silence today, I thought of the parents. 

We as a society have all lost something as a civilized people in this act of mass murder, but they have lost more than we can ever know.

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Our Legacy

God’s head was not turned
when our people were created.
His eyes were not closed.
Nor his thoughts far away
on a task of more import.
His mind was not distracted,
Nor his heart locked away
in a dark, uncaring place,
unaware of our existence.
For God was our Creator too.

With gentle hands and loving heart,
from four parts of Creation,
he moulded our ancient ones.
He placed his loving words
inside their hearts and minds
He breathed his guiding spirit
into the center of their soul,
and in so doing,
made Anishinaabe whole.

He showed us his existence
and inspired us to voice and sing
our love and praise for him
and for all of Creation he had made,
as well as for the life he had bestowed.
A life and land which he had always clearly meant
to be forever ours
to use and to protect
for all of our time here on this earth

We loved our Gitche Manitou
and believed that he felt only love for us.
Deep within the center of our souls,
we lived and breathed that thought
Because our faith was strong.
We truly knew what we were meant to know.
For our right to be
was told in our Creation story
and all such teachings always held us true.

And then those others came
and with their twisted thoughts and words and tongues
declared that all his work with us was false
and that our sense of Him was wrong.
They made us deeply sick with growing doubt
as, slowly, harshly,
like a rising tide
they drowned or drove away our spirit
piece by piece,
child by child,
so that when we woke one dark and lonely day
we found
our spirit and our faith had shrivelled
and were gone.

And when we cried in pain
They said it was a sign our god was weak
and that it was a sign their god was strong
and that we should fall down upon our knees
and pray with them
and somehow that would save us
from that evil place
where dwelt our Gitche Manitou
a place we once had deeply called our own.

They did not know
that it was in their doubt
where dwelt the source of illness
that infected all they touched
in this part
of our Manitou’s creation.

They took us off our spirit road
And tried to make us walk inside their shoes
but when we looked behind
We could not see
The point from which our journey had begun
And when we looked ahead,
we could not hear
the voices of our mothers calling out
Nor see the light of fires
Showing our way home
We were confused and felt like we were lost

And so
Our spirits ran away and hid
in places dark and safe
So they would be protected
strong and pure
Ready to embrace and be embraced
When it was time.

Our minds and bodies,
left behind,
sometimes filled the void
with other spirit teachings
And in those foreign words
some solace found
Yet many could not, would not,
And so, emptied of their love of life
they staggered through existence
falling, rising, falling,
sometimes lying still
waiting for it all to end

And when the law of man
at last declared this wrong
and asking for forgiveness
offered words and beads
designed to cure our broken lives,
they still did not believe
such things alone could not repair,
They still cannot believe
our healing starts from deep within the soul
Where the spirit placed there by Creator sits

They do not understand
That our spreading sickness
lies within the fact
we had and have no way
to fight the racist’s sin
and when we are inflicted
we can no longer sing our healing songs
for all our healing voices have been stilled
and some forever gone

But now that we are finally freed
Of heavy chains of aging pain
many go in hungry search
of spirits so long hidden, almost lost
And there is great rejoicing
in connections strongly made.

But sadly some have found
their spirits have been locked away,
so well and and for so long
that they can not be found.

Mizana Gheezhik

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I was not born to die

I was not born to die.
Like everyone else, I will 
But I was not born to die.
I was born…to live.
I was given life for a reason.
…..to do something with it.
I know I have a purpose.
And it is not just to die.
It is to do something with this life
Before I die.
Just like you.

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CMS First Senate Speech

Speech in the Senate of Canada
by the Honourable Senator Murray Sinclair
on Bill C-14 (Medical Assistance in Dying)
delivered on June 2, 2016

Honourable senators, I couldn’t help but have a feeling of déjà vu here as I was listening to the debate this afternoon — not because I’m standing for the second time today, but because I left a job in which I had to sit and listen to lawyers argue over constitutionality all day. All we have been doing all afternoon is arguing constitutionality. Therefore, I think I will make some comments about that.

I wanted to add my voice to the other senators who are speaking about this particular bill on medical assistance on dying. I have a number of comments I want to make about the provisions of the bill, and I also want to talk about the constitutionality question.

I want to begin by noting for the record that, as you all know, I have been a senator here now for exactly two months, having been summoned to this chamber on April 2 of this year. I am told — and I can certainly see from not only the level of the debate and nature of the debate but also from the bill itself and from the public comments that we have all observed — that this bill is one that is going to define this country for some time to come. It certainly represents an opportunity for Parliament, including this chamber, to make a bold statement about the character of this country and about who we are, about our sense of compassion, about our courage as human beings, about our kindness to each other and about our respect for life and for each other.

Yesterday, as I sat in this chamber listening to the questions that were asked of the ministers involved — along with the several comments that many of you sly, veteran senators tagged on to your questions — I felt a significant degree of pride in this place and in all of you.

In this place, I heard hard questions being asked and answered. I heard references to mothers, fathers and the impact that this proposed law might or might not have for them and for others in like circumstances. I observed your intelligence and heard and felt your passion about this bill, and I certainly felt your humanity.

While I heard the occasional partisan jab, such comments were usually spoken as gentle jabs toward each other and not as a means to score empty points. Perhaps, as was mentioned, the presence of cameras broadcasting the proceedings yesterday brought about an added air of civility and positive behaviour and all of that which has been mentioned on Twitter and Facebook.

That may, in fact, speak to the need to reconsider allowing them into this chamber. But it certainly did show that this chamber can be a strong, passionate, dignified place of wise and careful deliberation. I therefore wanted to extend to you my personal congratulations for showing this country what this place really stands for and to thank you for making me feel proud to stand among you.

That brings me to a consideration of how I believe we ought to proceed and how I am going to proceed in my assessment of this bill and other legislation that comes before us.

I begin with this thought: Based upon my experience and the way that I have been raised, I am going to believe and treat this place, the Senate of Canada, as though it is the place of “Canada’s Council of Elders.” Among my people, elders are treated with great respect, for it is recognized that their experience and life achievements have given them the right to be seen as wise people, and the responsibility to behave as such.

Elders are the ones consulted about the communities or the individual’s most significant problems, and their advice is sought to help those who have the ultimate responsibility to make the final decisions about their lives.

Elders do not become or take up the cause of one side or the other in a dispute, but work to help others overcome their differences.

Elders are the ones to whom young leaders come with their proposed plan or a problem and are asked what do you think of this. They listen, discuss and advise. Ultimately, they recognize that the ultimate decision rests on those whose actions must be taken or problem must be solved to accept the elder’s advice or not, for it is they who must live with the consequences of their decision.

As I said, I see many similarities with this place. We must not forget that we are not elected. We are not accountable to the citizens of this country for our actions in the same way as those who are elected. Like judges, we are appointed. Like judges, we are entrusted with plenary powers which, if we exercise too often, too easily, or inappropriately, we run the risk of bringing disrepute to this place, and we do not want that.

We hold office until the age of 75, which means that we are expected to bring the wisdom of our life experiences to bear on those issues that come before us.

When legislation is forwarded to us for consideration, we have an obligation to proceed carefully, in full recognition that it is here before us because 337 men and women elected by the people of this country to govern them have given it every consideration and that the majority of them, who have been selected to administer the government of this country, have proposed and passed the bill in order to meet their governmental objectives.

In other words, the people elected to govern have exercised their right to govern in this way. We must not interfere easily with that right.

None of us should believe that we are here as opponents or proponents of the government in power. We are here to consider, to discuss, to bring our collective wisdom to bear and to decide what to advise those who govern about what we think. We are entrusted to ensure that regional interests are properly considered, that the citizenship and legal rights of minorities are protected, that there is an overall fairness to each law and that the proposed law is clear, concise and constitutional. We do not have to agree with the law. If it is properly passed and meets the test of Senate consideration, we must allow it to proceed, in my view.

With the greatest of respect to those who think otherwise, we were not appointed to govern. We were appointed primarily to review and to advise, but with an inherent power to prevent government abuses.

I was a judge in this country for 28 years and I can assure you that there were times I applied a law which I did not personally agree with because that was required of the office I held. That is also true here.

During our time here, we have an obligation to show Canadians that they expect this place to abide by those two important principles. We will allow and we will assist the government to govern and we will protect the rights of those whose minority positions are threatened by majority rule. We must abide by the proverb that when two foxes and a chicken are voting on what to have for dinner we will stand up for the chicken.

Bill C-14, as has been mentioned many times here and elsewhere, is unique legislation. It essentially allows a person to have another person help them to die. The prohibition against assisting someone to commit suicide is one of long-standing basis in Canadian and English law. Life is sacred to us and we, as a nation, believe that should be continued as such. People should not have it taken away from them, even at their own hand.

It has been illegal in this country to attempt to end your own life since our first Criminal Code. That amendment occurred not too long ago within the lifetime of all of us here. Committing suicide as an act in and of itself could not be rendered an offence since of course if you were successful in committing suicide you were dead and beyond the reach of the law, at least the law of humans.

But often committing suicide had legal ramifications for those left behind. It was part of the common law of England for example for members of a suicide to be legally punished. Their property could be forfeited, they could be ejected from their lands, they could be excommunicated, and burial of suicide victims or family members in a community or church-run cemetery could be denied.

We have come a long way from this, but it is to be noted that it is still common practice in our law in this country, and elsewhere, for us to allow insurance companies and pension companies to deny benefits to the families of suicide victims.

Suicide was not easily condoned in any nation, and we do not want a society to think that suicide is always an option. We certainly do not want others encouraging others to end their lives. Those prohibitions continue in our law.

As a matter of principle, we still believe that life ought to be sacred. Therefore, when we are asked to consider a bill which undermines that principle, we must proceed cautiously. Our obligation as senators is to ensure that this law protects the weak, the impressionable and the vulnerable from themselves if necessary but certainly from others.

We must ensure that as a matter of principle taking one’s life is not undertaken easily. We must not open the door too wide or try to imagine every possible scenario where one might want to die and facilitate, in law, such potential wishes or scenarios. We must proceed cautiously and we should proceed incrementally.

We must also recognize that the limiting factor here is that the federal government is limited to dealing with the criminal law and public health aspects of this.

I would like to consider the issue that has been raised here throughout the day, and that has to with the constitutionality issue. Some in this chamber have suggested that the bill fails and may be unconstitutional because it fails to uphold the principles set out in the Carter decision.

We should not be surprised that there are disagreements over issues of legality and interpretation. Lawyers are notorious for being able to dance on the head of a legal pin. But we must take those concerns seriously here for that is our obligation.

I would point out though, as would many of my former judge colleagues, that half of all lawyers who appear in our courtroom are wrong. Most seem to suggest that the bill fails because it recognizes a constitutional right in a manner that is less than what Carter said. They suggested that it is only the four principles set out by the court in paragraph 127 of that decision that can be enacted and that anything less is unconstitutional. Those principles have already been enunciated to you here today. The allegation that the law is unconstitutional arises, as I understand it, because of the addition of the words “natural death that is reasonably foreseeable” as well. I agree that those words are not found in Carter. I do not agree however that renders the bill unconstitutional.

I have presided as a judge over many cases involving laws enacted after constitutional invalidation where the government enacted something less than what the Supreme Court of Canada has stated. O’Connor applications, referenced by Senator Baker here today, are the best example of that. Hundreds of such applications are heard by judges every year.

Judges of course are all familiar with the Supreme Court’s holding in Mills again referenced by Senator Baker here today where the Supreme Court of Canada rejected an argument that the legislation following an earlier invalidation must comply totally with its earlier decision. It does not. It must comply with the Charter, and in my opinion, in this case it does.

As Thomas McMorrow in an on-line article noted:

The Court in Carter noted: “It is for Parliament and the provincial legislatures to respond, should they so choose, by enacting legislation consistent with the constitutional parameters set out in these reasons.”

Those words have been referenced here many times.

Importantly the Court stressed that “complex regulatory regimes are better created by Parliament than by the courts.” Moreover, why would the Court be willing to twice extend Parliament’s deadline to tailor a new law, if Carter imposed a legislative straitjacket?”

In her testimony before the standing committee Diane Pothier testified that in her opinion the proposed bill was constitutional. As we heard in the house yesterday, the government considers that it is constitutional. It has considered the issue of limiting the right to medical assistance in dying very carefully. They have reviewed the public willingness to support this bill. They conclude that Canadians want the right to medical assistance in dying limited to those cases where a person’s natural death is reasonably foreseeable.

They have done what appears to me to be an appropriate Charter analysis. In doing their work in enacting a bill, every government has a responsibility as does this Senate, to take a look at section 1 of the Charter and ask ourselves whether the law complies with it.

That section says:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The Charter itself recognizes the right of governments to legislate for less than what the Charter contains in its provisions.

If there is a constitutional challenge to this bill then the government would likely, in my view, be able to sustain a strong argument that the requirement that the applicant had to be able to show that natural death is reasonably foreseeable would be sustainable.

Therefore, while I understand all of the arguments that have been put forward here today on the constitutionality question, I, with respect, disagree with them. I suggest that the bill does not have to comply with Carter, but the bill does have to comply with the Charter and, in my view, the government has acted appropriately to do so.

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If I but could…

If I but could
I would reach back 
into your youth
and stop the movement 
of the brutish hand 
that hurt and left the scar
that lingers in you still.

If I but could 
I’d cover you 
with shield of steel
to keep from you 
the pain so real
or wrap you in a cloak 
of earthen hues

If I but could
I’d give you all 
that you would need
Id give you happiness and beads
and health and joy
and love 
for all your friends and family 
and I would grant you love of child 
in arms of other mothers or in yours. 
If I but only could.
But all that I can do I fear 
is listen to your words of tears 
with heavy heart
and weigh them hard 
against apologies 
that never have been spoken or been thought
and know that even if they had 
they could not overcome the bad 
for sometimes 
words can never, ever, ever 
be enough
But nonetheless I promise you 
that I will always care for you 
and daily grant you life renewed
And tell the world
that what you have revealed to me is true.
and I will sing your song each day 
And tell the world in every way 
That I think 
you’re the strongest 
most resilient 
I have ever known.

Mizhana Geezhik
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