The future is known; it's the past that keeps changing

There’s an interesting resolution to be voted on at the Law Society of British Columbia’s AGM in October. It proposes that the benchers be directed to appoint a committee of Indigenous and nonindigenous persons to consider a replacement for the statue of Sir Matthew Begbie, which statute was removed from the entrance to the law society’s building in Vancouver in 2017 shortly after a bencher meeting that called for it to be taken down.

It was decided by the benchers that the statue of Begbie was a barrier to reconciliation with Indigenous peoples, and arguably it was.

However, the removal of the statue, and Begbie’s reputation, remains a contentious issue among many B.C. lawyers who believe Begbie has become a convenient victim of revisionist history.

Begbie’s name is widely known in B.C. The law school building at the University of Victoria was originally named after him, though renamed in 2000 after the school’s founding dean and his wife. There are streets named after Begbie in Victoria and New Westminster. But the City of New Westminster removed its statue of Begbie in 2019, calling it a “symbol of the colonial era and a grave injustice.”

Once revered, Begbie is now reviled. He has become an historical pariah and a symbol of colonial oppression predominantly because he was the presiding judge in the trial of six Tsilhqot’in warriors in 1865, five of whom were found guilty of murder and sentenced to death.

Not every lawyer in B.C. shares that negative view of Begbie.

The proponents of the resolution that will go before the B.C. law society are widely respected in the B.C. legal community. The mover is Thomas Berger QC, OC, a former judge of the Supreme Court of British Columbia, a former leader of the B.C. NDP, and the commissioner of the Mackenzie Valley Pipeline Inquiry created in 1974 to investigate the social, environmental and economic impacts of a gas pipeline to run through largely Indigenous lands in Yukon and the Mackenzie River Valley. He appeared as counsel for the plaintiffs in the 1973 Calder case, where the place of Aboriginal title in Canadian law was first recognized, and he has often acted as counsel for First Nations and other Indigenous peoples.

The seconder is Hamar Foster, professor emeritus of the University of Victoria law school and a legal historian who specializes in Indigenous/non-Indigenous relations in British Columbia. His publications include articles and edited collections on Aboriginal title and Indigenous rights in B.C., including the Calder case, the B.C. treaty process and the Nisga’a Treaty, as well as on B.C.’s legal history. In 2019 the Canadian Historical Association, in recognition of his contributions to B.C. history, awarded him a Clio Prize for lifetime achievement.

The resolution was also supported by former chief justice of British Columbia Lance Finch, who died in August.

So, who was Judge Begbie and why does he keep popping up when all his statues keep coming down?

Sir Matthew Begbie was born in 1819 (while Napoleon still lived) and died in 1894 after serving as B.C.’s first chief justice. As an official in B.C.’s colonial government he required American miners to take out Crown mining permits, thereby asserting British sovereignty and possibly preventing B.C. from being assimilated into the United States. As a judge, he brought English common law and the rule of law to B.C., and in decisions that predated the charter of rights by a century he tried to protect B.C.’s Chinese community from racist politicians and settlers who regularly attempted to deny them their rights.

Begbie apparently spoke and understood many words in indigenous languages, permitted oaths to be sworn on sacred objects, and, in the face of mandatory death sentences, urged the colonial executive of the day to commute the death sentences of Aboriginals who all-white juries had convicted. Although Begbie was sworn to apply British law and told jurors in serious cases that they had to follow that law, he allowed evidence of Indigenous laws to go before juries and, when he could, he took those laws into account on sentencing.

Although he is often referred to as the hanging judge, he recommended clemency or remained neutral in almost half of the capital cases he presided over that involved Indigenous defendants. He recommended that First Nations chiefs retain their customary jurisdiction over minor offences. He rendered the law banning the potlatch unenforceable. And he intervened in the prosecution process on occasion to have charges reduced, so as to avoid mandatory penalties and make more flexible sentences possible.

So, for a 19th-century colonial judge, Begbie was way ahead of his time.

Despite all this, Begbie’s involvement in the hanging of five Tsilhqot'in warriors in 1865 has caused many to judge him far more critically; particularly First Nations members, who see him as a symbol of colonial exploitation. They say the warriors were defending their land in 1864 when 19 colonists (road builders, traders and settlers) were murdered in four separate attacks. When a meeting was arranged to discuss the matter, the warriors were arrested, found guilty by a jury and sentenced to hang.

But Begbie didn't find them guilty. A jury did. Begbie’s job was to pronounce the mandatory sentence for murder in those days. As a proponent of the Rule of Law, he followed the law, which is what judges do every day, even today. We might not agree with the laws of 1865, but Begbie didn't live in our world. As they say, the past is like a foreign country. They did things differently there.

But when do alternative perceptions of history take the place of what the written record shows? Although I don't have any particular attachment to the United Kingdom and its former colonial empire I do have an attachment to history and the importance of getting it right, even when those facts are inconvenient to a particular narrative.

Begbie was not an antebellum slave owner or a Confederate general. He was a judge who applied the law. In my view, B.C.’s early colonial history and Begbie’s role in it should not be reinterpreted or rewritten to judge and demonize him based on today’s moral standards. If we do, then do we have to judge other historical figures in the same contemporary light? Should we remove tributes to the women in the “Persons Case” because some of them were anti-Semites and advocated sterilization of the mentally and physically defective? Should we ban Stephen Leacock's books in our schools and libraries because he was a sexist and a racist? Hypothetically, do the B.C. benchers of 2050 remove the plaque that commemorates B.C. lawyers who died in the first and second world wars because it has been discovered that three of the fallen soldiers may have been white supremacists or anti-Semites?

As they used to say in the old Soviet Union: “The future is known. It’s the past that keeps changing.”

I do understand the symbolism of the Begbie statue, particularly at the law society. And I’m not suggesting that the statue be restored to its former place at the entrance to the law society building; that ship has sailed.

But the man who brought the rule of law to B.C., helped prevent us from joining the United States, and defended Indigenous and Chinese rights more than a century before the Charter of Rights and Freedoms and Section 35 of the Constitution Act came into being does not deserve to be treated as a racist or an embarrassing historical pariah.