Appointment to Indigenous inquiry of retired judge who granted 1989 abortion injunction raises red flag

In 1989, four years into his career on the bench, Quebec Superior Court Justice Jacques Viens told 21-year-old Chantal Daigle that having a baby with her ex-fiancé, a man she considered violent, wouldn't have any impact on her health.

The resulting injunction, quickly quashed by the Supreme Court, is prompting concern from some women's groups about Premier Phillipe Couillard's appointment of the now-retired judge to preside over Quebec's inquiry into systemic racism against Indigenous people.

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Viviane Michel, the president of the Quebec Native Women's Association, said she worries about the commission's "neutrality."

"I can't take a position about abortion, but I can about violence against women," said Michel. "We don't tolerate it. So, knowing this old ruling exists, can the commission stay neutral when it looks at the systemic discrimination Indigenous women face?"

The words Viens used in his 1989 ruling raised a red flag for Joyce Arthur,  the executive director of the Abortion Rights Coalition of Canada. 

Arthur said she hopes Jacques Viens's attitude has changed and that he wouldn't make a similar decision today concerning a woman in an abusive relationship.

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"He kind of trivialized it, reducing it to quarrels, arguments and insults when there was actual physical violence and abuse going on," said Arthur in an interview with CBC last week.

"I would hope whoever decided to appoint him to this commission raised some questions around that issue," said Arthur. "If not, that is a serious shortcoming."

Long-awaited public inquiry

In December 2016, Couillard responded to pressure, following months of calls for an independent inquiry to analyze allegations of sexual abuse and mistreatment of First Nations women in Val d'Or, Que.

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Couillard appointed Viens to head the inquiry, giving him a wide mandate: it will look at the relationship between Aboriginal people and the provincial government's services, including health and social services, youth protection, corrections, policing and legal services.

At the time of the announcement, Justice Minister Stéphanie Vallée said the Amos native's decades of experience as a Superior Court judge in the Abitibi and in Quebec's Inuit territory of Nunavik gave him the necessary credibility to lead the inquiry.

Vallée also said Viens had "tremendous expertise on several aspects of the Indigenous reality."

Head of Abitibi Bar defends Viens

Rouyn-Noranda lawyer Marc Lemay, the head of the Abitibi Bar Association, is a friend of Viens's and has pleaded before him in various cases over the years. He said it was early in Viens's career when he ruled in the Daigle vs. Tremblay case, and he is no longer the same judge.

"I have no concerns that Honourable Justice Viens in his new position as president of a very important commission, which will be held under the watchful eye of Quebec and Canadian media, that he will be able to listen," said Lemay.

"He is one of the most sensitive judges when it comes to Indigenous women."

Lemay also said the decision Viens made in 1989 would not be the same one he'd make today.

First Nations leaders consulted

Ghislain Picard, Quebec regional chief of the Assembly of First Nations, and Matthew Coon Come, Grand Chief of the Grand Council of the Crees, were involved in discussions preceding the announcements of the inquiry and who would lead it.

Picard said they were consulted "to some extent," and the decision had to be made quickly to get the inquiry off the ground.

"We wanted to get this underway. We had a discussion of a candidate to lead the inquiry. That was one of the last things considered," Picard told CBC.

He said there were few potential candidates, that Viens had worked in the Abitibi and in Inuit communities and that he was available.

Picard said he was unaware of Viens's ruling in the Daigle vs. Tremblay case.

Viens, Vallée and the minister responsible for Indigenous affairs, Geoff Kelley, all declined to comment.