Some People Are "Special"

But never accountable:

First Nations schools operated by Indigenous Services Minister Mandy Gull-Masty’s department have failed an audit for the second time in five years. Records show the federal system spends 29 percent more per capita than the national average yet has the highest dropout rate in Canada: “There has not been measurable improvement over time.”

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Cabinet should adopt as a principle the validity of “Indigenous laws,” says a Canadian Human Rights Commission report. “Indigenous ways of life and Indigenous laws are not seen as valid as Canadian law,” wrote the Commission.

 

Alright! Stone Age law!

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So, nothing has changed:

But even this unusually restrained Canadian judge has a track record of embracing identity politics in law, including levying a mandatory pronoun policy on Manitoba lawyers and seeking to make Canada a “tri-jural” system in which Indigenous practices are treated as co-equal with Canadian civil and criminal law.

In 2021, Joyal made Manitoba one of the first provinces requiring lawyers to employ pronouns while introducing themselves or a client to a court.

“At the beginning of any in-person or virtual proceeding when parties or counsel are introducing themselves, their client, a witness, or another person, they should provide the judge or justice with each person’s name, title (e.g. ‘Mr./Ms./Mx./Counsel Jones’) and the correct pronouns to be used in the proceeding,” reads a 2021 order signed by Joyal.

The order further states that if a lawyer refuses to specify the pronouns of themselves or a client, “they will be prompted by the court clerk to provide this information.”

In Joyal’s submitted questionnaire to the body tasked with reviewing new Supreme Court justices, he cited this measure as proof of his “considerable” efforts to “promote gender equality and a broader diversity of peoples in our justice system and in our courts.”

“Under my leadership and that of the other Manitoba chiefs, we were amongst the first courts to formalize a gender inclusive pronoun policy for all court proceedings and practice,” he wrote.

But it’s on the issue of Indigenous reconciliation where Joyal has been explicit in the view that the Canadian court system should accord special treatment to Indigenous people, and “make space” for Indigenous legal norms to overrule Canadian ones.

Starting in 2019, Joyal oversaw the introduction of Indigenous cultural practices into Manitoba courtrooms, including Métis jig dances and smudging, the burning of herbs to create a purifying smoke.

In a podcast interview last year with the Canadian Bar Association, Joyal acknowledged this as an “asymmetrical” policy, as no other Manitoba litigants had special dispensation to perform cultural rituals in the courtroom.

But he justified their continuance as “unique and special and deserving of an asymmetrical approach when it comes to Indigenous law and traditions.”

In that same interview, Joyal said Canadian courts must “make space for Indigenous law and legal orders,” and not let “liberal neutrality” get in the way.

 “If we are moving, as I believe we are and should, to a tri-jural system, it’s not fair, and it’s not rational to try to compare so literally and so symmetrically the arguments about liberal neutrality with respect to what we owe our Indigenous community,” he said.

In a 2024 speech, Joyal told a meeting of First Nations leaders at Manitoba’s Building Safer Communities conference that courts were not acknowledging the “lived realities” of Indigenous people, and called for their powers to be increasingly devolved to First Nations communities.

“Many would argue the courts are not using the discretionary powers to apply a greater sensibility and understanding of the lived realities of Indigenous Manitobans, and I think that is a fair statement,” he said.

In that same speech, Joyal would outline the province’s outsized rates of Indigenous incarceration, framing them not as a downstream effect of higher criminality, but as the result of system failure and a lack of trust between First Nations people and the legal system.

“The solutions really lie with a greater assumption of control and jurisdiction in your communities,” he said, while urging courts to incorporate a “greater appreciation and use of Indigenous legal orders, legal practices in communities, and legal knowledge.”

 

Are there legal orders to stop murders?

Asking for a friend.