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Judge Harry LaForme

Racism haunts Canada's first aboriginal appellate judge

'You never get rid of that feeling,' says new member of Ontario Court of Appeal

Justice Harry LaForme

As a rookie lawyer, Harry LaForme was often drawn to the window of his 67th-floor office in a powerhouse Bay Street firm, an impossibly lofty aerie for one of the first aboriginal lawyers in the country.

On a clear day, the young lawyer could make out the distant reserve where he had grown up, sleeping on straw in a converted granary with no power or running water.

"I thought I was going to be a big corporate-commercial lawyer and make tons of money," Mr. Justice LaForme recalled yesterday, shortly after being appointed to the Ontario Court of Appeal, the first aboriginal appellate judge in Canadian history.

But something felt very wrong. "The more I looked, the more I realized that I wasn't doing what I needed to do," he said. "I needed to establish an aboriginal law practice."

Judge LaForme quit the corporate firm in 1980. He opened a practice to service the dispossessed group into which he had been born on Oct. 31, 1946. Twenty-five years later, he is determined to bring his painful awareness of racism into a justice system that still has a long way to go.

"People will be shocked if there is another incident like Oka," Judge LaForme said, referring to a standoff in 1990 when Mohawk Warriors shot and killed a police officer.

"But you speak to aboriginal people across the country, and they will tell you that there will be," he said.

Aboriginal people are imprisoned far too often, Judge LaForme said, and incidents such as the lonely 1990 death of Saskatchewan native Neil Stonechild -- thought to have been abandoned by police on a frigid night -- highlight the racism that still exists in Canadian society.

"When I see these kind of examples, I hurt for a long time," he said. "I just wonder how people look at me personally. How do they look at my son and my daughters? It is so sinister, and the worst kind of racism, the kind you can't see and you can't tell is there. It reminds me that it is still there."

A member of the Mississaugas of New Credit First Nation, Judge LaForme said that sentencing practices reveal persistent misunderstandings of aboriginal history. "We have a deeply, deeply entrenched history of punishing in certain ways, and it doesn't always work."

Judge LaForme's father was a labourer who took any work he could get, whether it was berry-picking, hunting or trapping, to provide for his wife and their three sons and two daughters. He eventually got a job at General Motors in Buffalo, N.Y. The family spent years commuting: weekends on the reserve and weekdays in a Buffalo slum.

Judge LaForme was increasingly drawn to the growing aboriginal movement. "I was a very, very angry person until my early 20s," he said.

"I was angry about being an Indian. I thought it was very unfair. It was like I had been dealt some pretty nasty cards. When you are a child, you think there must be something wrong with you if people constantly pick on you for being what you are."

It gradually dawned on him that aboriginals needed solid role models who could influence a legal system that was to become a battleground for land claims, aboriginal self-government and equal rights.

Entering Osgoode Hall law school at 27, he felt that he didn't belong, a feeling that persisted in practice. "It was like you weren't a real lawyer," Judge LaForme said. "You had to convince even your own aboriginal clients that you were a real lawyer.

"After all those years of being told you are a second-class citizen, you never get rid of that feeling of inadequacy. I've never gotten over it. Even in court, you feel that you are the stupidest person in the courtroom."

And in the Court of Appeal? "I will still have to fight those feelings," Judge LaForme said. "I've accepted that this will always be the case."

Judge LaForme said he is apprehensive about speaking out on aboriginal issues because judges must remain above the fray, yet he felt compelled to do so.

"I was reluctant to talk to you [in this interview], but my wife said: 'If this is such an important cause, how can you say nothing about it?' " he said. "People have to understand where we are as a society."

Madam Justice Jean MacFarland of Ontario Superior Court was also named to the Court of Appeal. Federal Justice Minister Irwin Cotler called Judge LaForme's appointment a historic event."

"It was a big one for me," Mr. Cotler said in an interview. "This is the new Canada, and the legal system and the judiciary have to reflect this new Canada. Reconciliation, redress, respect: These things the aboriginal people can see in this appointment."

Judge LaForme agreed. "We were the first people of this country, but we have never occupied these places. These are important moments in the history of Canada.

"Aboriginal people have to ultimately be recognized for their rightful place in Canada. Some day, I hope an aboriginal person will be prime minister. Some day, I hope an aboriginal person will be a premier of a province."

Harry LaForme (LLB '77) Appointed to Ontario Court of Appeal

2 appeal court judges appointed;
Harry LaForme is first aboriginal appointee Jean MacFarland also goes to appellate bench

Harry LaForme thought a good way to represent the interests and concerns of First Nations people was to go to law school. Thirty years later, he's making history as the first aboriginal person appointed to a Canadian appellate court.

LaForme, who broke new ground by ruling in favour of legalizing same-sex marriage in 2002, and Justice Jean MacFarland, who has made headlines with powerful rulings in cases involving sexism and violence against women, notably the 1998 "Jane Doe" decision, were appointed to the Ontario Court of Appeal yesterday by Justice Minister Irwin Cotler.

"It's awesome," LaForme said last night.

He said his first impression from a telephone conversation with Cotler is how "truly" the justice minister believes in ensuring the judiciary reflects Canadian society and, in particular, that there is an aboriginal presence on the country's highest courts.

"I always believed that time would come," he said in an interview. "I just didn't know it would be me."

Both judges fill vacancies left by Justices Rosalie Abella and Louise Charron, who were recently appointed to the Supreme Court of Canada.

LaForme is a former Ontario Indian Commissioner and chief commissioner of the federal Indian Land Claims Commission. He is also a member of the Mississaugas of New Credit First Nation, which surrendered 630 square kilometres of what is now Toronto in 1787 and is negotiating a land claim with the federal government.

His early years were spent on a reserve in Hagersville, where his father, Maurice, and grandfather Sylvester, known as "Big Pat," were chiefs. LaForme's older brother, Bryan, holds that position today.

When they were teenagers, Bryan LaForme said, their father couldn't find work so the brothers, along with their parents and three other siblings, moved to Buffalo, where young Harry, who "loves" basketball, "took a bunch of Indian kids off the street and won a championship with them." He also went to technical school and became an engineer.

Years later, he thought he'd try Osgoode Hall law school.

"He'd seen all the injustice that was taking place with First Nations people across the country and he felt he could play a role in helping with that - not in the sense that he was going to cure all the ills of our society, but that he could have an impact in some way, shape or form and also make sure they had a fair shake in the judicial system," said the elder LaForme.

In 1994, LaForme was appointed to the Ontario Court, general division.

Justice LaForme's wife, Janice, said her husband "loved" being a trial judge. "And I wonder a little bit if he's going to miss that life," she said. "He loves the social interaction and, as much as a judge is able to, he really enjoys contact with lawyers. He loves juries - the dynamics of a jury trial."

At the same time, he will go to the appeal court with "a tremendous feeling of responsibility; sort of 'in awe' of what he's taken on."

Cotler has made clear he wants an aboriginal person on the Supreme Court of Canada. If a First Nations lawyer from another province is not appointed, LaForme will be seen as a front-runner the next time an Ontario seat on the court opens up. The next Ontario judge scheduled to retire is Justice Ian Binnie in 2014.

Two years ago, LaForme was a member of a Divisional Court panel that found denying same-sex couples the right to marry violated their equality rights. The court split on the issue of remedy, with LaForme taking the boldest approach, reformulating the common law definition of marriage. A year later, the Ontario Court of Appeal thought that was precisely the right thing to do and legalized gay and lesbian marriage province-wide.

Hours after that decision, when the first same-sex marriage was performed in the University Ave. courthouse, LaForme slipped quietly into the back of the room to watch.

Justices LaForme and MacFarland were both born in 1946 - he on Halloween; she on Remembrance Day, in Kingston. Her appointment brings to seven the number of women on the 23-member appeal court.

In her 17 years as a trial judge, MacFarland had many controversial and colourful cases. In 1998, she found Toronto police negligent in failing to warn women about a balcony rapist in a downtown neighbourhood.

Police had a "stereotypical" belief the plaintiff, "Jane Doe," would become hysterical and scare off the attacker, she said.

Earlier this year, she threw out a $55 million libel suit brought against the heirs of Lucy Maud Montgomery by Sullivan Entertainment, producer of two television movies based on Anne of Green Gables.

In 1993, she presided at an inquiry into the conduct of "kissing judge" Walter Hryciuk.

One of her last duties as a trial judge will be deciding whether African Lion Safari is to blame for injuries suffered by an exotic dancer and her boyfriend when a tiger jumped into their car at the game park in 1996.

One of LaForme's last will be sentencing Douglas Brown, a former teacher at Upper Canada College, who was convicted of nine counts of indecently assaulting students 30 years ago.

Cotler also announced two appointments yesterday to the Superior Court of Justice. John McMahon, a former Toronto crown attorney who was involved with the wrongful prosecution of Robert Batovich, replaces MacFarland. Alison Harvison Young, dean of law at Queen's University, replaces LaForme.

Harry LaForme
You Be The Judge

For all of Justice Harry LaForme's legal controversy he holds a deep respect for Canadian law. "I think it's one of the best in the world," he says.

LaForme [LLB '77] was appointed to Ontario's Superior Court in 1994, and is one of only three aboriginal, federally-appointed judges in Canada.

"I was a very fortunate guy," says the 53-year-old LaForme. When he entered Osgoode to pursue a legal degree in the late '70s, there were very few aboriginal students in universities. Only five aboriginal lawyers existed across the nation. Courses on native rights were almost non-existent. Today, there are bookshelves of literature on aboriginal rights, and many law firms specializing in aboriginal rights and issues.

Growing up in Buffalo, New York, away from his Ontario reserve because of his father's work, the Mississaugas of New Credit member still remembers the ridicule and racism directed towards native peoples. And it wasn't until coaching his little brother's basketball team - made up of inner city aboriginal youths - that he found a way to focus his anger. "The kids were so resilient to the ridicule because they had each other ... they were proud of who they were."

Before being named a judge, LaForme was sitting in a different courtroom. From 1992 to 1994 he served as chief commissioner on the Federal Indian Claims Commission, overseeing Canada-wide land disputes. The position came on the heels of a controversial report he supervised and edited on federal land claims policy which accused Ottawa of being unjust for its arbitrary power over the fate of aboriginal land.

LaForme has told reporters he is "a red man dispensing white man's justice." That justice shows its face in unlikely places. He shocked the courtroom last May by exempting a Toronto man dying of AIDS from criminal charges for using marijuana as medical treatment. The year before, he chose not to declare a violent bank robber - with nearly 200 convictions - a dangerous offender, avoiding an indefinite prison sentence for the man.

Oh dear. The Real women will not be happy with this appointment.
--webmaster Sheila Steele

Push for aboriginal judge could land pro gay "marriage" judge on Supreme Court

OTTAWA -- The Ottawa Citizen reports today that the Canadian Bar Association's (CBA) aboriginal law section is encouraging Prime Minister Paul Martin to appoint at least one native Canadian to fill one of the openings on the Supreme Court left by the June retirement of Justice Frank Iacobucci and the resignation of Justice Louise Arbour to become the United Nation's human rights commissioner. This push could result in Ontario judge Harry LaForme, author of the Ontario Superior Court's 2003 same-sex "marriage" decision, being promoted to the top court in the country.

The CBA notes that the First Nations are one of three "founding partners" in Canada but the only one that by custom does not have guaranteed representation on the Supreme Court. English and French Canadians are assumed to have certain places reserved for them on the Supreme Court. Jeffrey Harris, a Winnipeg lawyer who chairs the aboriginal law section of the CBA said "Ultimately we hope that aboriginal people are represented on the court, whether it's one, two, or three."

Critics say that setting aside positions based on race would create a precedent in which other minority groups will demand representation. A paper prepared by the CBA claims that aboriginals are distinct because of the need to recognize laws and customs as "living laws."

Justice Harry LaForme

Earlier this year, Ontario's largest aboriginal group, the Association of Iroquois and Allied Indians wrote to the prime minister, urging him to appoint Justice Harry LaForme to Canada's top court. Ottawa Citizen reporter Janice Tibbets said that among LaForme's "credentials" is his "authoring the first ruling in the country that allowed gay marriage." After the decision, REAL Women exposed the fact that the homosexualist website displayed photographs of Justice LaForme at an Ontario Law Society event celebrating the judicial redefining of marriage to include homosexuals. He is seen in one photograph in the arms of Kevin Bourrassa and Joe Varnell, the litigants who brought the case before the courts in the first place.

Toronto Liberal MP Derek Lee, chairman of the Commons justice committee in the previous Parliament, told the Citizen that appointments to the Supreme Court should be made according to the competence of a particular individual and not one's ethnicity, but didn't comment specifically about any potential candidates for the Supreme Court.