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Opinion: Ethnic fraud and the court systems

The whole point of a Gladue report is to consider the life experience of Indigenous offenders but that raises the question of ethnic fraud. 
Nathan Legault

Last fall, I wrote two pieces on Buffy Sainte-Marie and the allegations of ethnic fraud leveled against her.  It easily generated the most feedback I have received from any of my pieces in the Citizen.

But I think the best comment I received was from my mother who asked, “What now?”  The short answer is nothing. 

Buffy is retired, and while some of her awards and recognitions were, or might have been, premised on her being First Nations, strictly speaking her career was not.  Oh, it added to her image, but the same can be said about both Johnny Cash and Cher, who at various points in their careers made similar claims. 

And the same is true for Joseph Boyden, Carrier Bourassa, and Mary Ellen Turpel-Lafond.  Heck, Joseph Boyden is still writing and putting on workshops after being “cancelled;” a surprisingly common outcome of being “cancelled” for those who are not snowflakes and/or perpetually grieved.

A recent court case, however, highlights how ethnic fraud can have clear legal implications. In it, former Baptist associate pastor Nathan Allen Joseph Legault of Prince Rupert was convicted of making and possessing child pornography.  His sentence, was lenient, especially considering that he used his role as a pastor to interact with two girls in his church. 

Given the numerous examples of sexual abuse within churches in Canada and around the world, it is somewhat surprising that one of the justifications for this lenient sentence was the support he had from “his wife, parents, siblings, other church members, friends, and members of his former church,” but that is a conversation for another day.

As part of his trial, Pastor Legault requested a Gladue report be produced.  Named after the Supreme Court case R. v. Gladue in 1999, these reports are meant to help judges follow Section 718.2(e) of Criminal Code which states they must consider “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or the community… with particular attention to the circumstances of Aboriginal offenders.” 

The spirit of the law is restorative justice and rehabilitation and given the ongoing debate over whether our justice should be based on punishment or rehabilitation, it should come as no surprise that Gladue reports are controversial.  It should be remembered, though, that both perspectives intend to reduce recidivism.

It should also be remembered the whole point of a Gladue report is to consider the life experience of Indigenous offenders.  That raises the question of ethnic fraud.  You see, as the judge pointed out, Mr. Legault only recently self-identified as Métis and then as part of an organization – the Painted Feather Woodland Métis – that many people consider to be fraudulent.

The judge in this case did not rule on that matter, but it does highlight an aspect of Indigenous identity that many people are not aware of.  Indian status is determined by the Indian Act and based on descent.  Band membership, which was divorced from Indian status in 1985, is determined by the First Nation in question. 

Strictly speaking, neither the Inuit not the Métis have status or band membership.  The closest thing the Inuit have is enrollment under an Inuit land claims agreement, aka a treaty. 

As for the Métis there is Métis membership or citizenship in a Métis organization or government.  It might sound similar to band membership, except there many Métis organizations and/or governments in Canada at the moment and they not only have different definitions of what it means to be Métis, but also clearly disagree over who is and is not Métis. 

This province alone has two Métis organizations: Métis Nation BC and the BC Métis Federation, and mirroring this on a national level the two largest Métis organizations are the Métis National Council (MNC) and Manitoba Métis Federation (MMF).  The MNC and MMF cannot entirely agree on who is Métis, but they both agree that organizations like the Painted Feather Woodland Métis, colloquially known as the eastern Métis, are not. 

Indeed, the accusation is sometimes made that these organizations provide Métis membership to anyone willing to pay them money.  A situation that is complicated when you recognize that, unlike a Indian status card, which if genuine is always a piece of government identification, Métis membership cards are not and only fall into that category if the Métis organization issuing them is a Métis government.

So we are left with a situation in which an already controversial part of the Criminal Code -- Gladue reports -- is combined with the controversy of who is and who is not Indigenous. 

The end result is a court ruling in which the judge not only comes out and says he is disagrees with a plea deal, but feels “compelled by Canadian law to endorse it,” but also warns of a coming tsunami of ethnic fraud related to the perceived benefit of saying you are Indigenous in the criminal justice system. 

I understand why plea deals and Gladue reports exist, but clearly something is broken in the justice system if we are handing out conditional sentences to those making child pornography.

Daniel Sims is a member of the Tsay Keh Dene First Nation and a professor in the First Nations Studies program at the University of Northern B.C.