Healing the Bishop
Sexual Violence, Consent, and the Legal Erasure of Colonial History in R. v. O’Connor
Bishop May Avoid Trial
A Roman Catholic bishop might be able to avoid a new trial on sex charges, a top B.C. justice official says. Ernie Quantz, the chief prosecutor in the Attorney-General’s office, said Wednesday that Bishop Hubert O’Connor and two women complainants are considering an alternative aboriginal healing process. Mr. Quantz told CBC Radio that the Crown may deem it in the public interest not to proceed with the case if the healing process is used. Bishop O’Connor, 71, was the highest Roman Catholic official in Canada ever convicted of a sex crime when he was found guilty in 1996. He was sentenced to 21/2 years in prison, but was released on $1,000 bail when he appealed after serving six months. He was cleared of indecent assault by the B.C. Court of Appeal in March [The Globe and Mail, 1998].1
During the summer of 1998, Hubert O’Connor, a white Catholic bishop and former Indian residential school principal, participated in what a local magazine termed “a centuries-old native ceremony”: an indigenous healing circle.2 Seven years earlier, O’Connor had been indicted on criminal charges for sexual offences he had allegedly committed in the 1960s while principal of the Cariboo Indian Residential School in Williams Lake, British Columbia. Six charges, ranging from rape to indecent assault, were brought on behalf of five indigenous women, all of whom were O’Connor’s former students and/or employees. While O’Connor acknowledged having sexual relations with these women, and admitted to fathering a child with one of them, he denied having committed any illegal acts, maintaining that these relationships had been consensual.
In 1996, after two trials and multiple appeals, O’Connor was convicted in a Vancouver provincial court on two of the counts: rape and indecent assault. Yet two years later, in 1998, the British Columbia Court of Appeal (BCCA) overturned these convictions, citing errors by the trial judge, and ordered another trial for only the rape charge [R. v. O’Connor (24 March 1998), Vancouver CA022299 (BCCA); hereafter R. v. O’Connor].
Faced with another trial, O’Connor’s defense attorney proposed the healing circle “to try and bring resolution without going any further in the court process.”3 The Crown, under the auspices of the province’s attorneygeneral, accepted the proposal, in part because the last remaining complainant, Marilyn Belleau, and other members of her community agreed to it, and in part because it was unclear whether or not O’Connor would be convicted in a third trial.4 Organizers also presented the circle as an instance of indigenous restorative justice that would foster an intersection between the cultural traditions of indigenous peoples and mainstream criminal processes. Further, in the context of widespread allegations of rampant physical, sexual, and emotional abuse at church-run Indian residential schools across the province, and of a burgeoning number of lawsuits against participating churches, the circle was presented as an example of “the possibility of healing between individuals and between B.C.’s natives and the Catholic Church.”5 As a result, the first government-sanctioned indigenous healing circle in the province of British Columbia was for Bishop O’Connor.
The province’s decision to convene a healing circle for a white bishop accused of sexually assaulting indigenous women infuriated many and provoked a national outcry. Yet the furor focused almost exclusively on the healing circle itself (specifically on the inappropriateness of such a sanction for a white bishop) with virtually no discussion of how or why the BCCA overturned O’Connor’s convictions in the first place. In both public and legal discourse, the courts and the healing circle were consistently treated as separate spheres, and there was a troubling lack of attention paid to how they were connected to each other. The courts were constructed as normative legal spaces while the healing circle was presented as an “alternative” sphere charged, in large part, with the task of addressing the inadequacies of the former.
In this chapter, I shift the discussion of indigenous justice from the United States to Canada and specifically engage some of its gendered dimensions. I look beyond the outrage at the participation of a white bishop accused of sexually assaulting indigenous women in a healing circle. Instead, I examine the production of indigeneity in the realm of Canadian law. I challenge the tacit presumption that the courts and the healing circle are discrete and make explicit some of the ways in which these spheres are structurally and discursively interconnected in order to discuss how idioms of indigeneity are functioning in postcolonial courts. By examining both the healing circle and the BCCA’s decision to overturn O’Connor’s conviction in R. v. O’Connor, I argue that the culturalist discourse surrounding O’Connor’s circle elides the very thing it is supposed to address: namely, the ongoing effects of colonization on indigenous peoples, and on indigenous women in particular. In this configuration of legal spaces, the healing circle is posited as the cultural space of de-colonization, thus enabling the mainstream courts to ignore the legacies of colonial history that created the very conditions that brought O’Connor into prolonged contact with the plaintiffs.
HEALING THE BISHOP: INDIGENEITY AND LEGAL “ALTERNATIVES”
Aboriginal perspectives on justice are different. That difference is a reflection of distinctive Aboriginal world views and in particular a holistic understanding of peoples’ relationships and responsibilities to each other and to their material and spiritual world [Royal Commission on Aboriginal Peoples 1996].
As the nation stretches out its hands to ancient Aboriginal laws (as long as they are not “repugnant”), indigenous subjects are called on to perform an authentic difference in exchange for the good feelings of the nation and the reparative legislation of the state. But this call does not simply produce good theater, rather it inspires impossible desires: to be this impossible object and to transport its ancient prenational meanings and practices to the present in whatever language and moral framework prevails at the time of enunciation [Povinelli 2002a:6; emphasis in original].
In this section, I discuss the emergence of indigenous forms of justice in postcolonial Canada, and place O’Connor’s healing circle, and his case more generally, within a particular “time of enunciation”—a time when discourses of culture and difference are the prevailing language and moral framework for indigenous peoples in settler Canada. By demonstrating how the healing circle is constituted as an “indigenous,” and thus explicitly culturalized space (Razack 1998), I show how this focus elides a range of factors important for understanding R v. O’Connor in broader perspective.
Because official discourses marked the healing circle as a distinctly “indigenous” space, the reductive culturalist discourse of indigenous tradition and healing was left virtually unchallenged in mainstream discourse. Such reified notions of indigeneity are common in the Canadian public sphere. Especially problematic, however, was that the circle itself was the only space wherein the complainants were recognized in any sense as indigenous legal subjects.
The healing circle was a seven-hour, private ceremony, led by complainants’ spokesperson, Charlene Belleau (also Marilyn Belleau’s sister-in-law), and then-assistant deputy attorney-general for BC, Ernie Quantz. Its stated purpose was to allow the victim and the perpetrator as well as their families and communities to come together to reach an understanding in an attempt to begin a process of healing and reconciliation. The healing circle was seen as an example of restorative justice—such a process is supposed to allow the victim to confront her perpetrator without interruption, something arguably not possible within the confines of conventional courts. Charlene Belleau asserted the benefits of such a process: “In a circle, there is no hierarchy; everyone is equal.”6
There are no public transcripts from the healing circle, only published newspaper reports based mainly on post-ceremony interviews as well as O’Connor’s formal public apology. Reporter Barbara McLintock describes the healing circle in the following way:
In the Hubert O’Connor case, the circle was divided into three parts. In the first and smallest circle, victim Marilyn Belleau confronted O’Connor with her feelings about the wrong he had done, and O’Connor apologized. A total of 38 people participated in the next phase, in which members of the victim’s family and native elders also talked about the pain they’d suffered, not just from O’Connor’s actions but also from the residential-school system. O’Connor then had a chance to reply and apologized to them. In the final phase, more community members joined the circle to hear formal, written apologies from O’Connor and from Bishop Jerry [sic] Wiesner on behalf of the Roman Catholic Church. The circle then closed with native songs, drumming and prayers.7
According to press accounts, the main participants found the circle a gratifying experience. Complainant Marilyn Belleau expressed both her satisfaction with the process and her weariness at “being victimized by the courts”: “I chose to participate in this healing circle to empower myself. I was able to confront him [O’Connor] with the hurts and pains he has caused me. I have had to live with this pain for over 30 years.”8
O’Connor did not speak to the press, but rather communicated through his attorney. Defense lawyer Chris Consadine said the bishop “found [the circle] very, very difficult,” but felt more at peace afterwards.9 Only O’Connor’s formal written apology, in which he apologized for his “breach as a priest” and his “unacceptable behavior,” was made public. His apology enraged many, especially because he admitted to no criminal behavior; instead, he spoke rather euphemistically about the harm he had caused and his hope that there would “be a healing of the rifts between our communities.”10
Some of the most trenchant critiques focused on the case’s ethical aspects and its potential for setting dangerous legal precedents, especially in cases involving violence against women. Proponents of the use of restorative justice initiatives in indigenous communities throughout the province were concerned about the negative publicity and its possible impact on nascent initiatives.
The Crown’s decision not to further pursue O’Connor in the courts and to allow him to participate in the healing circle was controversial. Many felt that O’Connor, as a white priest, was an inappropriate candidate for a culturally-specific indigenous healing circle, and that his alleged violations were far too serious for such an option. Women’s groups in particular argued that the decision exemplified the province’s ongoing lack of concern for violence against women, especially indigenous women. They argued that O’Connor had not been suitably punished for his violation of Belleau and the other women. While feminist critics were careful to point out that they supported Belleau’s and the other complainants’ decision to participate in the healing circle, they nevertheless maintained that it was an inappropriate sanction for O’Connor, and that it set a dangerous precedent for future cases involving violence against women.11
RESTORATIVE JUSTICE IN CANADA
The 1990s were an especially fruitful time for restorative justice initiatives both in indigenous communities throughout the world and in other non-indigenous contexts including state-sponsored experiments such as Alternative Dispute Resolution (ADR), Family Group Conferencing (FGC), and mediation.12 Critiques of both the philosophy and practice of mainstream legal systems were appearing with greater frequency not only in academic spheres, but also in the Canadian public. Additionally, a number of high profile public inquiries into Canada’s criminal justice system presented damning evidence that indigenous peoples were disproportionately targeted at all levels of the system (Manitoba 1991a; Manitoba 1991b; Royal Commission on Aboriginal Peoples 1996). Particularly relevant for indigenous communities were the high rates of incarceration and victimization experienced both by men and women in those communities. As the now famous Report of the Manitoba Justice Inquiry asserted in its introduction:
The justice system has failed Manitoba’s Aboriginal people on a massive scale. It has been insensitive and inaccessible, and has arrested and imprisoned Aboriginal people in grossly disproportionate numbers. Aboriginal people who are arrested are more likely than non-Aboriginal people to be denied bail, spend more time in pre-trial detention and spend less time with their lawyers, and, if convicted, are more likely to be incarcerated.
It is not merely that the justice system has failed Aboriginal people; justice also has been denied to them. For more than a century the rights of Aboriginal people have been ignored and eroded. The result of this denial has been injustice of the most profound kind. Poverty and powerlessness have been the Canadian legacy to a people who once governed their own affairs in full self-sufficiency (Manitoba 1991a; Manitoba 1991b).
Such reports made a very clear link between the devastation wrought by colonization and the present conditions of indigenous peoples. Justice was thus identified by both indigenous groups and governmental institutions as an arena for a kind of de-colonization, a space of “self-sufficiency” not only for the implementation of practical solutions to the specific injustices endured by indigenous peoples within the criminal justice system, but also for the revitalization of indigenous epistemologies and cultural practices (e.g., Green 1998; Warry 1998). Thus, within this context, concepts of restorative justice were especially current because they offered both a compelling moral critique of the institutions of settler society and an opportunity for indigenous peoples to gain greater powers of self-determination. Throughout the 1990s, federal and provincial governments were especially interested in supporting (both philosophically and, in a limited way, fiscally) certain kinds of “culturally-specific” justice initiatives, and many groups invested their energies and resources into delimiting and defining the nature of “traditional” indigenous justice.13
During the time of O’Connor’s circle, there was increased interest in using formal restorative justice approaches in sexual assault and domestic violence cases, in part because mainstream approaches were considered to be culturally biased and largely ineffectual (Bellerose 1993; Carbonatto 1995; Murray 1998; O’Donnell 1995; Strang and Braithwaite 2002). Gender violence in indigenous communities in Canada and the US is widespread, a fact many attribute to the violence of colonialism and the resulting denigration of women’s status (Fiske 1991; McGillivray and Comaskey 1999; Monture-OKanee 1992; Nahanee 1993; Smith 2005; Stevenson 1999).14 Yet critiques from indigenous feminist-activists and others questioned whether or not such practices are appropriate for victims of gender violence (Aboriginal Women’s Action Network 2001; Balfour 2008; Cameron 2006; Coker 2006; Crnkovich 1995, 1996).15
In 1996, the Royal Commission on Aboriginal Peoples (RCAP) released an influential report on Aboriginal justice, entitled Bridging the Cultural Divide. The comprehensive report, several hundred pages long, reviews “the historical and contemporary record of Aboriginal people’s experience in the criminal justice system to secure a better understanding of what lies behind their over-representation there” (Royal Commission on Aboriginal Peoples 1996:xi). Like the Manitoba Justice Inquiry, RCAP affirmed what many indigenous peoples had been consistently asserting for years—that it is impossible to understand the contemporary situations faced by them without making an explicit link to the impact of colonization: “In large measure these problems are themselves the product of historical processes of dispossession and cultural oppression” (ibid.). Yet, despite this initial contextualization, the RCAP report goes on to assert the following in its final recommendations:
The Canadian criminal justice system has failed the Aboriginal peoples of Canada—First Nations, Inuit and Métis people, on-reserve and off-reserve, urban and rural—in all territorial and governmental jurisdictions. The principal reason for this crushing failure is the fundamentally different world views of Aboriginal and non-Aboriginal people with respect to such elemental issues as the substantive content of justice and the process of achieving justice (Royal Commission on Aboriginal Peoples 1996:309; my emphasis).
Although the report presents a structural understanding of how colonialism has shaped criminal justice institutions and practices in relation to indigenous peoples, the “crushing failure” of these institutions and practices is nevertheless primarily defined as a cultural problem, the result of “fundamentally different world views.” This conception was reproduced in the context of the healing circle and is thus essential to understanding how indigeneity was produced in this case.
RCAP’s explanation appeals to a particular ideal of indigeneity without recognizing the reductive nature of “the fundamentally different world views of Aboriginal and non-Aboriginal people.” It also shapes the discourse in such a way as to limit critique. Because this conception of indigeneity is defined primarily in terms of culture, critiques of cases like O’Connor’s tend to focus narrowly on cultural concerns while missing the larger forces that structured the situation in the first place and allowed O’Connor’s convictions to be overturned.
Bridging the Cultural Divide, while presenting a reasoned critique of colonialism, nevertheless defines its legacy as a problem of cultural insensitivity rather than an ongoing phenomenon with real symbolic and material stakes.16 In other words, indigenous peoples are forced to articulate their critiques and their desires through a discourse of culture and difference, the prevailing “language and moral framework” in late twentieth century settler Canada. The problem is not only that this language and moral framework is limiting—all discourses, to some extent, are—but also that it serves to elide the very processes that produce it in the first place. In other words, indigenous culture and difference are represented as something outside of the difficult conditions of postcolonial Canada rather than as a construct produced in the context of these very conditions (Povinelli 2002a).