After walking 635 kilometres from the northern community of Air Ronge to Regina, Tristen Durocher set up a teepee in Wascana Park the beginning August and embarked on a 44-day fast, representing the 44 MLAs who voted down a suicide prevention bill.
In short order, the province made an application to remove Durocher and the Walking With Our Angels camp, as there is a bylaw that prohibits camping there.
On Friday, Court of Queen’s Bench Justice Graeme Mitchell dismissed the request on the grounds the bylaw infringed on Durocher’s charter rights as an Indigenous man and on Sunday, as Durocher reached the end of his planned stay, the judge made a surprise visit to the site during the closing ceremony.
“I think it’s the starting point,” said Indigenous Bar Association (IBA) president Drew Lafond, a Regina-based corporate lawyer and member of the Muskeg Lake Cree Nation in Saskatchewan.
“The willingness of the judiciary to reach out and to engage… and really giving meaningful weight to their perspective is, I think, something the courts have been tasked with for quite some time.”
Potential allegations of bias
The judge, who accepted a Métis sash from a supporter while there, told the Regina Leader-Post he wanted to see the site and declined additional comment to Global News.
Where the IBA, which strives to advance Indigenous interests in the legal system, is expressing cautious optimism in regards to relationship-building, an experienced defence lawyer is warning Mitchell’s attendance at the demonstration could expose the court to potential allegations of bias.
Michael Spratt says it’s unusual for a judge to have contact with one of the parties that either could end up before them or already has.
While issues of reconciliation are important and judges are trained to put their personal views aside before making decisions, Spratt said Mitchell’s presence at the camp could serve as grounds for an appeal by the province.
“These actions, although potentially not inappropriate, may leave the court open to allegations of bias or an appearance of bias,” the Ottawa-based lawyer told the Canadian Press on Monday.
The province, which has 30 days from the date of the judgement to make an appeal, said it is reviewing it and will consider doing so.
Working toward reconciliation
In his decision, Mitchell wrote Durocher’s fast “represents an admittedly small and personal attempt to encourage all of us to move a little further along in our national journey” toward reconciliation.
He also gave the provincial commission operating the Regina grounds six months to craft new bylaws, because the current ones don’t allow for “constitutionally protected political and spiritual expression.”
University of Regina professor emeritus John Whyte, a former dean of the Queen’s University faculty of law and an expert of constitutional law, said it is difficult to know the precedent value of Mitchell’s decision at this stage, but that Mitchell did not taint his judgement capacity by visiting the camp.
“He represented that the public judicial system that he’s a part of is there to do justice to all people and, in a sense, take into account of the context of all people,” Whyte said on Monday.
“I think it was, in a way, a wonderful thing to do to make a connection between two regimes of ordering. I think it maybe helps establish that Indigenous people can have faith in parts of the political structure, governmental structure, that they find themselves in.”
Going back to the message
Lafond, who also visited the camp for himself, said “there was nothing egregious” about the camp or the behaviour of the people associated with it.
“I think that’s something the judiciary recognized in this case,” he said. “And as a result, it’ll be a tactic, or it’ll be certainly a way for Indigenous peoples to have their voices heard going forward where the processes of engagement and mutual recognition break down.
“The unfortunate way in which this dispute unfolded, I think, speaks volumes about how out of touch the provincial government is with the way the legal and political landscape, in Saskatchewan and in the rest of Canada, is unfolding.”
While Durocher may be gone from the grounds, Lafond urges people not to lose sight of what Durocher set out to do.
“What was key about that camp was the message that was trying to be delivered,” he said. “Suicide impacts real people. The people who are committing suicide are mothers, daughters, sons, brothers, extended relatives of people all over the north.
“It’s something that has to be addressed immediately.”
– With files from Global’s Daniella Ponticelli and The Canadian Press