Healing the Bishop: Consent and the Legal Erasure of Colonial History (Long Version for Law & Humanities Junior Scholar Workshop 2006)

During the summer of 1998, Hubert O’Connor, a white Catholic bishop and former Indian residential school principal in British Columbia, participated in what a local magazine termed “a centuries-old native ceremony”: an indigenous healing circle. In 1991, O’Connor was indicted on criminal charges for sexual offences he had allegedly committed some thirty years earlier against five indigenous women, all of whom were his former students and/or employees. While O’Connor acknowledged having sexual relations with these women, he denied having committed any illegal acts, maintaining that these relationships had been consensual. While the trial court originally convicted O’Connor of rape and indecent assault, the provincial Court of Appeal asserted that the trial court had not adequately resolved the issue of consent in O’Connor’s criminal trial, and that it was thus left with no choice but to overturn both convictions and order a new trial for the rape charge alone. In order to avoid another lengthy trial, the provincial government instead convened an “indigenous healing circle” for Bishop O’Connor and the complainants. In this paper, I argue that legal discourse in R v. O’Connor erases colonial history, an erasure that rests on particular notions of temporality and subjectivity—revealed in the construction of the legal case as an issue of consent. I examine both the healing circle and the Appeal Court’s decision to overturn O’Connor’s conviction and argue that the culturalist discourse surrounding O’Connor’s circle elides the very thing it is supposed to address: namely, the ongoing effects of colonization on indigenous peoples, and on indigenous women in particular. In this configuration of legal spaces, the healing circle is posited as the cultural space of decolonization, thus enabling the mainstream courts to ignore the legacies of colonial history that create the very conditions that bring O’Connor into prolonged contact with the plaintiffs. I ask how the court’s construction of consent, and more specifically the consensual agent, is dependent on the erasure of indigeneity. This position stands in sharp contrast to the space of the healing circle that depends on the complainants’ indigeneity in order to exist.