A coalition of Canadian lawyers has written to the International Criminal Court (the “ICC”) in the Hague, Netherlands to demand the ICC’s support investigating the discovery of 215 children’s bodies buried near a former residential school in Kamloops, BC.

The correspondence to the ICC specifically seeks the appointment of a prosecutor to investigate “crimes against humanity” which include murder, extermination, and other heinous acts that fall within the jurisdiction of the ICC.

Brendan Miller, the lead counsel in this coalition, spoke of the need for swift action to investigate what happened and for a full disclosure of all evidence obtained. “The recent unearthing of amass unmarked grave of 215 Aboriginal children who were under the forced care of the Government of Canada and the Vatican has deeply shocked Canadians. That such unmarked graves existed was brought to Canadians’ attention by Hon. Murray Sinclair as part of the Truth and Reconciliation Commission (TRC) process, and this horrifying discovery at the Kamloops Indian Residential School in British Columbia clarifies exactly what Sinclair was pointing to in the TRC. It has taken this event to shame people into action; the time for gestures is over.”

Mr. Miller further commented on the reaction in Canadian society over this gruesome discovery. “We don’t know the names of these children; they were intended to be erased. Across the country, Canadians are asking, “How is it that we are unaware of these mass graves, and the facts behind the death of this number of Indigenous children while in the care of federal government and religious authorities?” As would be the case anywhere in the world, this mass grave, and the deaths and general treatment of those children while in care of the federal government and the Vatican, is evidence of crimes against humanity. To that end, a formal complaint has been filed with Mr. Karim Khan, Q.C., Chief Prosecutor of the International Criminal Court, by a broad coalition of Canadian lawyers.”

Indigenous peoples of Canada, and all Canadians, need assurance that the agents, employees and actors of the federal government and the Vatican be compelled to disclose all documents, information and knowledge within their possession and do whatever it takes to unearth the facts. In the TRC report (in Calls to Action numbered 71-76), the Government of Canada and the Vatican were specifically called upon to assist in getting to the truth of these deaths of Aboriginal children in care at residential schools. Thus far, neither the federal government nor the Vatican has taken the actions required to respond to these expectations. Given what we now know, Canadians want every action to be taken to glean information from every available source and unearth the truth.

Donna Kennedy-Glans Q.C., one of the lawyers behind this request to the International Criminal Court, says the time for gestures is over: “Many Canadians listened to the concerns of Aboriginal peoples, as reported in the TRC and otherwise. It is not enough to listen; by our actions, and as treaty partners, we must demonstrate solidarity. In this spirit, we invite lawyers across Canada to endorse this application to the Chief Prosecutor of the International Criminal Court. An obligation not felt is not an obligation.”

Jennifer Shaften, Q.C., commented that “We know that children are among the most vulnerable members of any society. The abuse of one child is abhorrent; the abuse of so many is a tragedy; we will be judged by our response. Canadians need to react and then act.”

Jonathan Denis, Q.C., in support of the initiative stated that “It is often said that justice must not only be done, but also must be seen to be done. There is a need for an independent investigation, with a view to the public's confidence in in the justice system”.

Background

At one time, the Kamloops Indian Residential School in British Columbia was the largest residential school in Canada; the school’s doors were only shuttered in 1978. In total, 139 residential schools operated in Canada between the late 19th century and 1996. While the TRC reported that the recorded number of children who died in residential schools in Canada was approximately 41,000, many believe the number to be much higher.

The International Criminal Court has the mandate and capacity to provide independent oversight in situations like this, including the ability to compel actions. Regrettably, the discovery of amass unmarked grave of this magnitude, and the questions swirling about who knew and failed to disclose, make the case for independent oversight compelling and necessary. The Government of Canada is a party to the Rome Statute of the International Criminal Court, and is bound by the Crimes Against Humanity and War Crimes Act. The crimes against humanity contemplated in this complaint to the Chief Prosecutor of the International Criminal Court happened on Canadian soil; although the Vatican is not a party to the Rome Statute, the International Criminal Court has jurisdiction.

The submission has been authored by the following people:

  • Brendan Miller, LL.M. is special counsel at Foster LLP. He has an expertise in constitutional law and is the lead counsel in this initiative.
  • Donna Kennedy-Glans is a former energy executive, founder of a non-profit now working on First Nations reserves in Alberta, and a writer. She served as an MLA from 2012-2015 and in the Alberta cabinet at this time and was appointed to the Queen’s Counsel of Alberta in 2014.
  • Jonathan Denis, Q.C. is a partner at Guardian Law Group LLP. He previously served as an MLA from 2008 to 2015 and during this time in five cabinet roles, most notably as Minister of Justice and Solicitor General. He was appointed to the Queen’s Counsel of Alberta in 2010.
  • Jennifer Shaften, Q.C. is the Managing Partner at Foster LLP. She is an accomplished advocate for children’s rights and has presented at the World Congress on the Rights of Children. Jennifer was appointed to the Queen’s Counsel of Alberta in 2020.

Other members of the Bar throughout Canada are welcome to add their names to the coalition of Canadian lawyers seeking the ICC investigation.

For further information, please contact:

Brendan Miller: 403-261-8471

Donna Kennedy-Glans, Q.C.: 403-852-3570

Jonathan Denis, Q.C.: 403-457-7778 (c/o Kate Love)

Jennifer Shaften, Q.C.: 403 261-8477