Kathryn Marshall Featured In National Post
‘I’ve never seen an organization fight this hard to contest jurisdiction,’ lawyer Kathryn Marshall says
A hearing, carried out Tuesday in a St. John’s courtroom by Newfoundland Supreme Court Justice Peter Browne, centered around allegations made by Cherry Smiley, who alleges she was sexually assaulted in 2018 by Stephen Kakfwi — former Northwest Territories premier and her assigned foundation mentor.
Initially filed in B.C. court in May 2021, the foundation has yet to file a statement of defence, but has filed numerous motions requesting dismissals and requests the case be moved to a different venue.
“They’ve been trying to move this case to Montreal for years — I’ve never seen an organization fight this hard to contest jurisdiction,” Smiley’s lawyer Kathryn Marshall said in an interview.
“It might very well end her case and they know that — that’s as big part of why I think they’re doing what they’re doing, and I think it’s disgusting.”
Foundation counsel had previously argued the case be dismissed as a Vancouver court had no authority to rule on a matter that took place in Newfoundland — particularly one concerning a Quebec-based organization.
A motion then filed by foundation lawyers dismissed Newfoundland as an inconvenient venue, as they and most of their officals are based in Quebec.
Stark differences between Quebec’s legal system and the rest of Canada would mean Smiley would need to find herself new counsel, incurring further costs and delays, Marshall said.
“The fact that it’s quite difficult for a common law Anglophone lawyer to dip her toes in Quebec is a point that can’t be overlooked,” she said.
Smiley was in her second year of PhD studies at Montreal’s Concordia University at the time, and was a Trudeau Foundation scholar. Scholars chosen by the foundation are eligible for a $225,000 scholarship over three years, according to Smiley’s statement of claim.
In June 2018, Smiley attended a Trudeau Foundation conference in St. John’s, where she first met Kakfwi — her mentor assigned by the foundation. Smiley, herself Indigenous, was conducting research for her doctorate on male-perpetuated violence against First Nations women.
Her statement of claim alleges a number of disturbing details, including invitations made over dinner to visit Kakfwi at his home in Yellowknife.
After a cab ride back to their hotel, Smiley said Kakfwi “moved his body extremely close,” grabbing and squeezing her upper arm close to her breasts.
“He proceeded to hold onto her upper arm for an extended period, rubbing and massaging it,” the statement read.
He allegedly grabbed her again during the conference’s concluding dinner. He repeated his request she visit him in Yellowknife, claiming she could “stay in his spare bedroom.”
As Smiley required a reference letter to continue as a Trudeau Foundation scholar, the interaction left her intimidated and frightened.
Kakfwi’s statement of defence asserts there was nothing intimidating or sexual about their interaction, saying he made the same offer to visit him in Yellowknife to a male scholar he was also mentoring.
He also denies rubbing or massaging her arm.
Over the past two years of hearings and motions, both Smiley and Kakfwi agree the foundation seemed more interested in pushing non-disclosure agreements than investigating her complaints.
Smiley claims she promptly told former foundation president Pascale Fournier about the allegations, asking that she be assigned a female mentor.
She alleges she had a follow-up phone call with then-foundation president Morris Rosenberg, where he allegedly accused her of “blowing things out of proportion,” demanding to know if Kakfwi’s touching was a “familiar squeeze,” a “sexual squeeze” or a caress.
“It was clear that Mr. Rosenberg did not believe her, and the plaintiff was extremely uncomfortable and distressed during this offensive conversation,” the statement of claim alleges. “She felt disbelieved and under attack.”
Smiley claims Trudeau Foundation board members pressured her to sign a non-disclosure agreement, telling her it would be “bad for her” if the allegations were made public.
“Like Mr. Rosenberg, they attempted to minimize the sexual harassment, telling her that it was a ‘cultural misunderstanding,’” read the statement of claim. “They told her ‘you don’t want an investigation.’”
None of the allegations have been proven in court.
Kakfwi was removed from the foundation’s mentorship program.
The Trudeau Foundation did not respond to emails by the National Post about the matter, but a statement issued last June disputes Smiley’s version of events, and declined to comment further.
In St. John’s, Justice Browne said the potential for delays are a consideration, but not a matter that would derail the entire process. “I don’t think it’s an inconsequential factor,” Marshall said.
Having to restart the process from scratch with a new lawyer, Marshall said, would re-traumatize Smiley.
“Even if she could find a lawyer who will take this case, especially one she could afford, it would be re-traumatizing for her, and I think these are considerations that need to be made in this particular case, because of the uniqueness of the situation,” Marshall said.
Describing this as a complicated case, Marshall told the National Post that dragging this case out sends a poor message to victims of sexual violence.
“If you take on the system, you could end up being subjected to tactics like the Trudeau Foundation — years of delay, bleeding her financially dry” she said.
“She was their scholar, they promoted her — she’s still on their website. She’s a survivor of childhood trauma, she does research about aboriginal women and sexual violence.
“They just want to silence her.”
Justice Browne reserved his decision.