When Richard Mirastywas three months old, he was rescued from foster care by his maternal grandparents, and was raised from the age of three by his maternal grandmother, Rose. Growing up in Green Lake, Saskatchewan, Mirasty recalls solely speaking Cree at home. He only began speaking English when he attended Catholic school at age six. His family hauled and cut their own wood, maintained their own garden, and picked berries that Rose would preserve and can. Mirasty remembers that his uncles and maternal grandfather would supply the family with fish and wild meat.
This was very different from the experiences of Indigenous children who were forcibly removed from their homes and sent to residential schools. Children who attended these schools were forbidden from speaking their own language, unable to practise their own cultures and faced physical, sexual, mental and spiritual abuse. Communities were left without their youth and some were jailed for practising traditional ceremonies, forcing many people to assimilate to European ways or take their practices underground. With residential schools operating until the late 1990s, the effects of the schools and colonization efforts are still felt today, creating systems where Indigenous peoples are grossly overrepresented and historically marginalized. While Indigenous people account for three per cent of the Canadian population, Indigenous adults account for 28 per cent of people in federal correctional services, 26 per cent in provincial and territorial correctional services. Indigenous children represent 7.7 per cent of the Canadian population, yet they account for 52.2 per cent of children in foster care – a shocking reality that comes from decades of displacing Indigenous children from their homes.
The realities of colonization, policies of assimilation and the legacy of the Indian Residential School System are detailed in The Truth and Reconciliation Commission’s (TRC) final report, released in 2015. The TRC created 94 Calls to Action, which call upon various institutions to begin addressing these systemic disparities experienced by Indigenous people.
Mirasty’s experience practising criminal and child welfare law throughout northern Alberta – 11 as a sole practitioner – has made him aware of the importance of the Calls to Action, particularly 30 and 38, which call for a reduction in the number of Indigenous peoples incarcerated. Mirasty, however, remains skeptical that this will be achieved in the near future or within his lifetime. “Mainstream society is just not ready to accept or acknowledge the historical wrongs,” Mirasty says. “The level of bias and animosity on social media during the [Colten] Boushie shooting and subsequent trial and acquittal [of Gerald Stanley] shocks even a guy like me, who’s been around the block a few times.”
Prior to becoming a lawyer, with a BA from the University of Alberta and an LLB from the University of Ottawa, Mirasty spent years working with various Aboriginal organizations and government departments at both federal and provincial levels. He attributes his determination to become a lawyer to his grandmother, who taught him to never give up hope, to persevere and to never forget his Cree roots.
“I told my grandmother, when I was 12, I was going to be a lawyer even though I probably did not have any idea what a lawyer did,” Mirasty says. “We lived in a village where there were no lawyers. In university, I studied sociology and criminology and became interested in criminal justice and ‘resilience theory’ – specifically, how some individuals can survive and adapt from life’s circumstances and use the adversity as a learning experience and thrive. Resilience literature shows that resilient people generally have one or more people who are there to provide support.” Mirasty had the support and encouragement of many, and explains he learned how to be a helper from his grandmother. He took her teachings into his legal practice, helping out fellow Indigenous people within the criminal justice and child welfare systems. The accomplishment he’s most proud of is being a Cree interpreter in Victor Buffalo v. Her Majesty the Queen – a landmark case that awarded the Samson Cree oil and gas revenues that had previously been held by the federal government (though, according to Mirasty, this was a small victory compared to what they were trying to achieve). “My grandmother was very prophetic when she told me to never forget my Cree language, [that] I would be proud of it and someday I would use it to help people.”
In 1999, the Supreme Court of Canada (SCC) released R. v. Gladue, which called for efforts to be made by sentencing courts to address the over-incarceration of Indigenous people by taking into account systemic and historical factors that may have contributed to the accused becoming involved with the criminal justice system – poverty, addictions, violence, residential schools and the child welfare system. With little change, the SCC in 2012 saw fit to revisit the issue of over-incarceration of Indigenous peoples in R. v. Ipeelee. Six years later, the numbers are even higher.
“I am in court every day – either in criminal court or child welfare court – and the ‘proof is in the pudding,'” Mirasty says. “Look on the dockets and you will see 85 to 90 per cent of accused are Indigenous. Indigenous peoples and the court systems are an industry that keeps thousands employed – social workers, clerks, sheriffs, correctional officers, police, judges, crown prosecutors and, dare I say, defence lawyers. Without this situation I would be doing something else for a living.”
In Mirasty’s view, the default position from certain Crowns in the system seems to be “jail, jail and more jail.”
“Jail should be reserved for the most dangerous offenders, but our system incarcerates a large percentage of Indigenous people for administration of justice offences, such as breaching probation or failing to comply with conditions of release on a bail order or recognizance. Many Indigenous peoples, for a variety of reasons, are facing poverty, addictions, mental health issues and homelessness. These types of charges seem to be ‘low hanging fruit’ for police. Indigenous people are randomly checked by police at higher rates and often have warrants for failing to attend court, failing to report to their bail supervisor, or failing to abstain from alcohol. The cycle starts all over: Arrested, remanded in custody, they serve their time and are back out on the street. Same revolving door I’ve seen since I was a kid in the ’70s.”
On July 1, 2017 – “Canada’s 150 year celebration of colonialism,” Mirasty says – he started a 45-day suspension issued by the Law Society of Alberta (LSA) for not complying with a Saskatchewan court order to turn over the accounts of painter Allen Sapp. Mirasty believes his relationship to the late Sapp and his wife, Margaret, was misunderstood. Even though they were not related by blood, Mirasty had long regarded them as his family and spent four years away from his legal practice to help Sapp with ongoing family and financial issues. The LSA, however, saw this as Mirasty serving as his lawyer, lacking the cultural understanding that “within the Indigenous community we are all connected in some way,” Mirasty says. During his suspension,
Mirasty says he was asked to turn over his files, computers and personal cell phone. “I understand that on principle the LSA had to make an example out of me, but was it necessary to take me out of circulation?” Mirasty wonders if he would have been treated the same way had he been working for a large law firm with wealthy clients.
“Rule of law is a hallmark of any legal system and there must be adherence to that rule of law. On the other hand, I’m an Indigenous person and I have been shaped by my life experiences and observations which causes conflicts within me that I need to reconcile. Under ‘rule of law’ the government created residential schools.”
Ultimately, Mirasty thinks that he and the LSA have both learned from the experience. In reinstating Mirasty immediately after, the LSA cited “the quality of his service to his community at large, as well as to the aboriginal community.”
“I have developed an ongoing dialogue with LSA staff,” Mirasty says. “There are other Indigenous lawyers out there – you cannot treat all of us the same way, we come from different experiences. I on the other hand must follow the rules of the regulator. If I’m going to continue to make a difference I must play by their rules otherwise I’m no good for anyone.”
There have been many inquiries with similar recommendations to the TRC – Manitoba Aboriginal Justice Inquiry, Alberta Task Force on Aboriginal Justice, Royal Commission on Aboriginal Peoples (RCAP), and countless Law Reform Commission studies – all resulting in no appreciable changes. Mirasty is hopeful, however, that there may be some changes brought about with the passing into law of Bill C-75 – an act to amend the Criminal Code and Youth Criminal Justice Act – specifically in areas of reducing “administration of justice” offences and improving the bail system.
“What optimism I have stems from the fact that we are a resilient people. There is more activism in Indigenous communities these days. Young people are more involved and aware with the use of social media,” Mirasty says. “However, we must have more Indigenous lawyers in the trenches of criminal and child welfare courts. There are so few of us. You walk into any courtroom and you see non-Indigenous in the positions of judges, clerks, Crown prosecutors, defence lawyers and sheriffs. You look to the accused and it’s Indigenous people or people of colour. On the CCTV screen connected to the Edmonton Remand Centre, eight out of 10 people that appear on the screen are Indigenous. It’s disheartening but the fight must go on.” He says that the recent appointment of Alberta’s third Indigenous provincial court judge, Karen Crowshoe, is a “very proud moment,” but thinks there still needs to be more Indigenous representation in provincial and superior courts – and beyond. Mirasty was only the first Indigenous person to serve as a board member for Edmonton Economic Development Corporation and the Workers’ Compensation Board of Alberta.
For Indigenous people wanting to enter the legal profession and go to law school, Mirasty shares the wisdom of his grandmother –Ahkahmeymoh, meaning “to persevere” – and a quote from Chief Dan George of the Tsleil-Waututh Nation in British Columbia from 1967:
“I shall grab the instruments of the white man’s success, his education, his skills … I shall see our young braves and our chiefs sitting in the houses of law and government, ruling and being ruled by the knowledge and freedoms of our great land.”
To engage the Calls to Action, Mirasty says to “make an effort to truly learn Canada’s history – through the lenses of Indigenous peoples if you can. Speak up when you see an injustice. Teach your children understanding and empathy. Imagine for a moment seeing the Indian agent and the priest, accompanied by the RCMP, at your doorstep arriving to remove your young children by force of ‘rule of law,’ and to be taken hundreds if not thousands of miles away to a residential school – not to be seen by you for at least another 10 months. How would a six year old feel being taken from his mom and dad’s arms?”