Canada's legal system hates indigenous women

Canada’s legal system hates indigenous women Canada’s legal system hates indigenous women By Thomas L McMahon1 May 2017 “To be an Indian is to be a man, with all a man’s needs and abilities”2 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. Introduction The law says indigenous women have inferior status The law says indigenous women have inferior property rights The law says indigenous women have inferior rights when their marriages end The law says if you leave your reserve you lose your vote and your right to be elected How the Canadian legal system harms indigenous women in connection with their education Indigenous and non-indigenous governments and legal systems fail to speak out about and protect indigenous women and children from violence The law discriminates against indigenous mothers and children Reproductive rights of indigenous women: privacy, dignity, liberty and security of the person under attack Criminalization of addictions, drug use and sex work Conclusion 1. Introduction It is (long past) time for an Inquiry into Murdered and Missing Indigenous Women (MMIW). The Inquiry will look into many matters, including a list of the murdered and missing indigenous women, and a description of what has happened to each one of them. The Inquiry will examine the many reports from past commissions and reports by Native Women’s Association of Canada, Amnesty International, and others. Furthermore, the Inquiry will look into police practices and ask questions like: do the police take reports of murdered and missing indigenous women seriously, and do they investigate these cases promptly and fully? Hopefully, the Inquiry will tell us about the lives of the murdered and missing indigenous women and look into: how many of them were brought into the foster care system as children; how many of them were victims of crime (at any point during their lives); how many of them had their children taken away from them; how many of them were forced to leave their home communities, for birth, for education, for health reasons, for safety, for income? How many of them attended a residential school? How many of them completed high school? How many of them were suffering from addictions or mental illness? How many of them had been incarcerated? How many of them were sex workers at some point in their lives? The MMIW Inquiry has a lot of work to do. Everyone will talk about the horrifying rates at which indigenous women are victims of violence, 3 about their poverty, lack of education, lack of employment and inadequate housing. But when those topics are discussed, will they be just another “oh, those poor people”? Will it be just 1 Former Executive Secretary, Manitoba Aboriginal Justice Inquiry; former Department of Justice Canada lawyer; former General Counsel, Truth and Reconciliation Commission of Canada 2 The first sentence in Canada, Indian and Northern Affairs. Statement of the Government of Canada on Indian Policy. Ottawa: Department of Indian and Northern Affairs, 1969 http://epe.lac-bac.gc.ca/100/200/301/inac-ainc/indian_policy-e/cp1969_e.pdf 3 See a summary of statistics at Mary Eberts, “Victoria’s Secret: How to make a population of prey,” in Indivisible: Indigenous Human Rights, Joyce Green ed. (Fernwood Publishing, 2014) - 1 -– May 2017 Canada’s legal system hates indigenous women another “well, that’s colonialism for you (but that’s ancient history now)”? The precarious lives of indigenous women is almost like some mysterious force of nature that has no specific causes and no specific remedies. Will we conclude “self-government and a commitment to the United Nations Declaration on the Rights of Indigenous People will solve everything”? Or will the MMIW Inquiry examine the very specific, past and current laws and court decisions that force indigenous women into precarious lives? The purpose of this paper is to discuss how the Canadian legal system has treated and continues to treat indigenous women. My point is that the MMIW Inquiry, the Canadian public, and the persons involved in Canada’s legal system (including students), need to understand that the safety and protection of indigenous women goes far beyond police responses and investigations. My point is that the Canadian legal system as a whole: the law-makers and their laws, the lawyers and the judges, the police and the jailers, have all demonstrated a raw hatred for indigenous women for longer than Canada has existed. That hatred continues today. I do not believe that the Canadian legal system can discriminate against indigenous women for 160 years and call it something less than hate, but other observers can call it by whatever name they think fits. Canada and Canadians need to have a clear understanding of the different ways that we have always told, and continue to tell, indigenous women that their lives are less important and less valuable than anyone else’s lives in Canada. My purpose is to outline (relatively briefly) the different ways this is true, and to bring these points up to date to October 2016. I expect the MMIW Inquiry will fill in with greater detail some of the points I raise here. In the end, through the various mechanisms that Canadian law has manifested its hatred for indigenous women, indigenous women have been cast out of their homes, families, cultures, schools and the workforce, and into the most precarious living conditions that exist in Canada. In these precarious conditions, criminal assaults, murders, and deaths (by trauma and addiction) are waiting for them. And even in those circumstances, Canadian law relentlessly seeks to outlaw and punish them. Canadian law has told everyone for 160 years and still continuing today that the lives of indigenous women matter less than other lives. By everyone, I mean indigenous women and their children, the male partners of those women, indigenous leadership, police, judges, lawyers and Parliamentarians. Anyone in a position to respect, protect or comfort indigenous women has been told, in law, that indigenous women are inferior. Canadian law created a perfect storm that put indigenous women at the bottom of Canadian society. The law ensured indigenous women would have inadequate education, almost no protection from violence and sexual abuse, dramatically inadequate housing (even when compared to indigenous men),4 and few reproductive rights. The law removed their children from them and removed them from their homes, communities and culture. The law forced indigenous women and girls to suffer abuses in multiple locations, to live without protection, status or dignity, to live without their children, and forced them to live in the most dangerous places, living circumstances and with the most dangerous people in Canada. For those indigenous women who developed mental illness, drug addictions or turned to prostitution, the law is there to drive them ever further away from a safe life. 4 Native Women’s Association of Canada Background Document on Aboriginal Women and Housing for the Canada-Aboriginal Peoples Roundtable Sectoral Follow-up Session on Housing (Native Women’s Association of Canada, 2004) - 2 -– May 2017 Canada’s legal system hates indigenous women The law that decides who is an Indian and who has “Indian status,” the Indian Act, discriminates against indigenous women. This discrimination began before confederation and continues in 2018. The law expressly tells everyone that indigenous women are inferior to everyone. In the eyes of the law, they, or their children or their grandchildren, are not indigenous people. They are labeled and condemned to inferior status. In an important sense, they are state-less people within Canada. The Royal Commission on the Status of Women reported in 1970 and urged Parliament to remove this discrimination.5 In 1974, the Supreme Court said that the great and civilized world of the common law and Parliament’s statutes such as the Canadian Bill of Rights offered indigenous women no protection against this discrimination.6 In 2009, the Supreme Court of Canada said it would not even hear an appeal about this discrimination. In 2017, the Government of Canada promises that in 2018 it will remove the remaining discrimination about Indian status. We shall see. For now, every Canadian who has ever lived has lived under a legal regime that discriminated against and denigrated the status of indigenous women. The laws of property on reserve have ensured for more than a century that indigenous women have the fewest property and marital rights of anyone in Canada. The indigenous women know it, the male partners and communities’ leaders know it, the courts and Parliament and the police know it. The Supreme Court of Canada, post-Charter, said that the consequences of this discrimination to indigenous women are not relevant to legal analysis of whether this discrimination and victimization by law is constitutional. The Government of Canada finally amended the Indian Act to address some of these issues in 2014.7 Those amendments will only be useful if indigenous women have meaningful access to the courts and if their indigenous leaders will deal with reserve housing in a way that protects and honours indigenous women. It is too soon to know how this will turn out, but history does not leave much reason for hope. The lack of health care services regularly forces indigenous women to leave their homes and communities in order to give birth to their children in a lonely, foreign, frightening setting. From childbirth on, indigenous women are forced to leave their homes and communities. In various ways, by law and by policy, their birth and reproductive health options are extremely limited. The laws of education ensured that indigenous girls received the lowest quality education in Canada. This inadequate education not only forces them out of their homes and communities, it renders them unable to pursue the career paths that are available to the majority of Canadians. In turn, their options for employment are limited. The laws of sexual assault and evidence have systematically been against women and children for most of Canada’s history. In the only criminal case involving residential schools to reach the Supreme Court of Canada, the Supreme Court ruled in 1995 that Bishop O’Connor, accused of sexually assaulting four young women at Williams Lake Residential School, had a right to apply to see the medical and counselling records that third parties held about them (records that the 5 Royal Commission on the Status of Women, Report, Ottawa: Information Canada, 1970 especially at ch. 3 (re: northern indigenous women) and 6 para. 54-59 re: need to remove discrimination from the Indian Act; http://epe.lac-bac.gc.ca/100/200/301/pco-bcp/commissions-ef/bird1970-eng/bird1970-part2-eng.pdf 6 Government of Canada, Canadian Bill of Rights, Justice Laws Website, accessed on September 26, 2016, http://laws-lois.justice.gc.ca/eng/acts/c-12.3/ 7 Government of Canada, “An act to amend and consolidate the laws respecting Indians,” Statutes of Canada, 2014, c.38, accessed September 27, 2016, https://www.aadnc-aandc.gc.ca/DAM/DAM-INTERHQ/STAGING/texte-text/1876c18_1100100010253_eng.pdf - 3 -– May 2017 Canada’s legal system hates indigenous women prosecution did not have and had not seen). In 1998, the B.C. Court of Appeal ordered a third trial for O’Connor, but ruled that at the third trial, the court would have to deal with the law of consent as it existed at the time of the alleged assaults. In other words, the authority and power of the Bishop over the young women could not be invoked as a rebuttal to the Bishop’s argument that the young women consented to his sexual relations with them. The authority of the Bishop as Bishop, employer and head of the residential school where the young women worked (and had previously been students) was irrelevant. It was at this point that the prosecution of the Bishop stopped. No third trial was held under these conditions. 8 The lack of importance and consideration the legal system offers to indigenous women is best demonstrated by the handling of the murder of Helen Betty Osborne in 1971 by four young men. The police delayed the investigation into the murder of Helen Betty Osborne, followed by the eventual prosecution in 1986 against two of the four, with the conviction of only one of the four in 1987, and he was released on parole ten years later. This told indigenous women and everyone else in Canada, all they needed to know about how much priority and attention the legal system gives to indigenous women.9 Until very recently, the law prohibited indigenous women from using the Bill of Rights and the Canadian Human Rights Act to obtain remedies for the discriminations they face on reserve, under the Indian Act and in the child welfare system. The rest of Canadian society had access to non-discrimination laws decades before that. The laws relating to drugs began with deeply racist origins against Chinese immigrants but have now entrapped increasing numbers of indigenous persons. Mandatory jail terms for having an addiction further entrap people with addictions. Furthermore, indigenous women who suffer from addictions have child and family service agencies come and take their children away from them. At the same time, the federal government discriminates against indigenous women and their children by under-funding child and family services for them. Indigenous women suffer extreme violence over and over again, and the legal system and their own indigenous leaders do not provide adequate protection for them. Instead, the women are forced to leave their homes and communities, and frequently leave their children, in order to seek out some bare measure of physical safety. The laws relating to prostitution have always sought to punish women, many or most of whom are already so traumatized, under-educated, poor, and without family and community supports, that they feel they have no other choice for a source of income. The laws relating to prostitution put them into the most dangerous places imaginable, with the most dangerous Canadians preying upon them, far away from social agencies and legal protection. It is my belief that too many Canadians, including Parliamentarians, judges, lawyers and police officers, have no full understanding of how Canadian laws have always, including today, sent a message loud and clear that the lives of indigenous women matter less. Their lives matter less not 8 For a full description of the various O’Connor court proceedings, see Thomas L. McMahon, “Indian Residential Schools Were a Crime and Canada's Criminal Justice System Could Not Have Cared Less: The IRS Criminal Court Cases” (January 26, 2017). Available at SSRN: https://ssrn.com/abstract=2906518 9 For more information on the Helen Betty Osborne murder and investigation see A.C. Hamilton, and C.M. Sinclair, “The Death of Helen Betty Osborne,” Report of the Aboriginal Justice Inquiry of Manitoba Volume 2, (1991: Manitoba Queen’s Printer), accessed on September 27, 2016, http://www.ajic.mb.ca/volumell/chapter1.html - 4 -– May 2017 Canada’s legal system hates indigenous women simply as some kind of systemic sexism and racism, not simply as a by-product of mistaken but well-intentioned policies of the past, or poverty, or the pre-Charter of Rights legal system, but as a matter of laws that continue today. The discrimination in the Indian Act has to stop now; the discrimination by unequal funding for education and child welfare needs to stop now; the discrimination by loss of Indian status and insecure housing rights needs to stop now. The violations of life, liberty and security of the person against reproductive choices and against those who engage in drug use and prostitution, needs to stop now. Indigenous women should be entitled to: protection against violence and sexual abuse; they should have access to good education; they are entitled to adequately funded child and family services; there should be protection and safety provided for those with addictions and those who engage in prostitution. These ideas need to replace the old and ongoing discriminations. It is time for the law to stop denigrating and endangering indigenous women. The purpose of this article is to provide a brief sketch of how Canadian law tells everyone that the lives of indigenous women matter less than other lives. We force them into the most dangerous places, including their work and living conditions in Canada. We force them to interact on a regular basis with the most dangerous people in Canada. We do this with our laws. In addition, it is my belief that too many Canadians believe that since the Canadian Charter of Rights and Freedoms was enacted, that any discrimination against indigenous women in law are from a by-gone era, and the problem today is merely that the consequence of that by-gone era which will sort itself out now that we have cleaned up our laws. 10 I have been shocked and dismayed at how the Charter has failed to stop discrimination in law against indigenous women. I believed that the Charter was enacted to protect the most vulnerable among us. No one in Canada is more vulnerable than indigenous women. Has the Charter protected them from discrimination, has it protected their freedoms, has it promoted their equality, has it protected their security of the person? The answer must be no. Why has the Charter failed to do its job? I expect the Inquiry into Murdered and Missing Indigenous Women (MMIW) will discuss these issues in detail in its final report. The fight to eliminate discrimination against indigenous women in Indian status has been ongoing for an extremely long time. The fight is older than confederation. The fight is still going on today. 2. The law says indigenous women have inferior status When the fur trade and early European settlement in Canada began, it was typically by European men without European women present. Naturally, those men met and settled with indigenous women in various forms of relationships including marriage by indigenous customs or simply what we would call common-law marriages today, and including children and what we would recognize as nuclear families. Inter-marriages between indigenous nations were always important for establishing peaceful relations between communities, fostering trade and creating a variety of helpful kinship relationships. Relations by marriage would be expected to trade fairly and to provide hospitality and in times of need, sustenance. All of this was part of the marriages between indigenous women and the newcomer Europeans. In addition, indigenous wives would prepare food and clothing, 10 Government of Canada, Canadian Charter of Rights and Freedoms, Justice Law Websites, accessed on September 27, 2016, http://laws-lois.justice.gc.ca/eng/const/page-15.html - 5 -– May 2017 Canada’s legal system hates indigenous women teach traders methods of survival in the wild, act as links with the local indigenous communities and sometimes save the European male’s life through intercession with indigenous communities as translator or intermediary. Most unions involved traditional indigenous ceremonies and customs. Most dissolved when the European man was transferred or left the country. The indigenous woman and children would be re-absorbed back into her home community with little difficulty and often with enhanced prestige. However, increasingly through the 19th century, the English tried to distance themselves from marriage with indigenous women; first by rejecting First Nations women for Metis and then for European born white English women. Traditionally, indigenous women played a prominent role in the consensual decision-making process of their communities. Their opinions, wisdom, consent and their roles within their communities mattered and needed to be listened to. 11 Indigenous women and men lived in equality—having separate but distinct roles that were respected each for their diversity and contribution to their society. Politics often followed matrilineal lines of descent. Community membership was decided by heredity, matrimony, patrimony and clan-systems. And each community would have their own traditions surrounding residency, adoption and marriage. Self-identification and gender-neutral kinship ties were the basis of citizenship. … The government was attempting to enfranchise Indian women in order to reduce Indian populations. The fact that women and their children suffered was of no concern to the government, and continued to be a non-issue for the government over the course of generations of Indians to come. 12 Emmanuel Kant wrote in 1764: Among all savages there are none by whom the feminine sex is held in greater actual regard than by those of Canada. In this they surpass perhaps even our civilized part of the world. It is not as if they paid the women humble respects; those would be mere compliments. No, they actually exercise authority. They assemble and deliberate upon the most important regulations of the nation, even upon the question of war or peace. They thereupon send their deputies to the men’s council and generally it is their voice that determines the decision. 13 Indigenous women had more rights and freedoms than Christian women. There were of course variations between different indigenous groups and communities but in general indigenous women in Canada were not the property of men. They were not considered to be wards and incompetents. They had freedom to choose their husbands and freedom to end their marriages. Divorce and sex outside of marriage did not have the stigma found in Christianity. Children belonged to the mother, not the father. Women could own property. Women had a role in the governance of the community. Marriage between communities and between races was common. 11 Eric Hanson, “Marginalization of Aboriginal Women: A Brief History of the Marginalization of Aboriginal Women in Canada,” University of British Columbia, accessed on September 27, 2016, http://indigenousfoundations.arts.ubc.ca/home/community-politics/marginalization-of-aboriginalwomen.html 12 Katrina Harry, “The Indian Act and Aboriginal Women’s Empowerment: What front line workers need to know,” in Battered Women’s Support Services, January 2009, accessed September 14, 2016, http://www.bwss.org/wp-content/uploads/2010/06/theindianactaboriginalwomensempowerment.pdf at pp. 6-7 and 19 13 Race and the Enlightenment: A Reader, Emmanuel Chukwudi Eze ed., (Blackwell Publishing, 1997) at p. 57 - 6 -– May 2017 Canada’s legal system hates indigenous women Women had important roles in ceremonial matters and their own recognized spiritual roles. Indigenous people themselves would decide who was and was not considered to be part of their community. All of this was considered to be “uncivilized” behaviour. All of this threatened the English common law and Christian beliefs. English law was all about declaring the man had all the power: as fathers, husbands and heads of household. A man’s home is his castle. In eighteenth-century England marriage led to the suspension of the wife’s legal personality. A wife lost her status as a feme sole, whose legal status was almost identical to that of a male, and became a feme covert, unable to contract, make a will, run a business, control property she may have owned prior to marriage, or take legal action in her own name in the common law courts. Her personal property (goods and chattels), with the exception of her paraphernalia (jewels and clothes appropriate to her station in life), became the husband’s absolutely on marriage. She retained title to any realty she owned, but the husband alone was legally empowered to administer it and receive any profits from it during their joint lives. In neither case was the husband obliged to account the wife for his administration. In return the husband was obliged to support his wife and the children of the marriage, although the level of support he provided was not justiciable; he also became liable for the torts of the wife and for her premarital debts. If a wife survived her husband, her independent legal personality revived and she recovered control of her own property. A widow’s economic situation could be perilous, however; she was not an heir of her husband and aside from any testamentary provision he may have made for her, was entitled only to her dower right, being a life interest in one-third of his realty. A husband, by contrast, was entitled to a life estate in all the realty left by his late wife, known as an estate by the curtesy, provided a child had been born alive of the marriage. … Divorce was very rare, obtainable only by an Act of Parliament beginning in the late seventeenth century. Available for only one cause (adultery), it was also biased against women: men could petition for divorce on the basis of adultery alone, women only if their husband’s adultery was aggravated by another offence such as bigamy or incest. … the father was the guardian of the child ‘by nature,’ while the mother was entitled to ‘no power but only reverence and respect’. … The illegitimate child, meanwhile, was filius nullius, the child of no one, with no rights of maintenance or succession vis-à-vis either parent. 14 Of course, women could not vote, could not testify against their husbands and the law did not even allow the possibility that a husband could rape his wife. Throughout eastern Canada it was clear that some women could and did become chiefs, that there was matrilineal descent, women had rights to certain houses and fields, were full participants in the economic life of the community through field-tending, harvesting, gathering, clothes-making, food preparation, they controlled the products of their labour and they had considerable choice in the selection of a husband.15 14 Philip Gerard, Jim Phillips and R. Blake Brown, A History of Law in Canada: Volume One, Beginnings to 1866, (Osgoode Society for Canadian Legal History, 2018) at pp. 349-350 15 Kirkpatrick Sale, The Conquest of Paradise: Christopher Columbus and the Columbian Legacy, (Papermac, 1992) at p. 300 - 7 -– May 2017 Canada’s legal system hates indigenous women English law hated women generally. Finding indigenous laws where women had more rights than under English law was intolerable. As early as 1683, the Hudson’s Bay Company London Committee, which directed the HBC’s affairs, prohibited relationships between HBC employees and indigenous women. However, HBC officials in Canada, including governors and chief factors, were among the first to enter into marriages with indigenous women. By 1739, the London Committee reluctantly accepted reality. By contrast, the Northwest Company (NWC) “actively encouraged unions between its employees and Aboriginal women, recognizing the value of such unions in securing trade ties and acculturating traders to Aboriginal language and customs”. 16 However, in 1806 the NWC changed its policy to prohibit inter-marriage between traders and pure-blood indigenous women. The HBC adopted a similar policy in 1811. After the NWC and HBC merged under the HBC name in 1821, restrictions became more severe. The HBC introduced marriage contracts in 1824, which pushed the concept of marriage further towards the English, Christian, Victorian idea of marriage. The merger of the two companies into a monopoly further reduced the ability of indigenous nations, and indigenous women, to negotiate and play a more meaningful role in deciding their own futures. By the mid-1830s, the HBC modified its marriage contracts to require Christian church sanction. As white women from England began arriving, their status was at the apex and indigenous women’s status suffered. HBC Governor Simpson set the example for everyone: he took a series of indigenous women whom he quickly discarded and abandoned his mixed-blood wife in favour of marrying his British cousin, Frances Simpson. The pattern was set: indigenous women were to be used by English men as sex objects of low status (Victorian morality was fine with this) until the English men could marry an appropriate, virginal white woman. Indigenous women were quickly stereotyped as prostitutes and their independent control of their own sexuality, and public participation in their nations’ affairs, were taken as signs of savage immorality. They did not know their place. Intensification of beliefs in racial superiority, male control and English law all came together to afflict indigenous women. “Proper Victorian marriage was equated with civilization, and the fundamental purpose of Victorian marriage was ‘to control human (and especially female) sexuality, so that there might be ‘certainty of parentage’.” 17 The Indian Act would fix all of that. A male-dominated system would be imposed. Women would become property of their husbands, children the property of the father. Women’s rights to live in a community would be determined by the rights of the husband. Only men had a role to play in community governance. The Indian Agent would become the judge of women’s character and theenforcer of morality and sexual norms.18 Even the right to be recognized as an “Indian” 16 Jay Nelson, “ ‘A strange revolution in the Manners of the Country’: Aboriginal-Settler Intermarriage in Nineteenth Century British Columbia,” which is chapter one in Regulating lives : historical essays on the state, society, the individual, and the law, edited by John McLaren, Robert Menzies, and Dorothy E. Chunn (UBC Press, 2002), quote at p. 26 17 Nelson (2002), quote at p. 42 18 See http://www.thecanadianencyclopedia.ca/en/article/history-of-marriage-and-divorce/ ; Peggy Blair, “Rights Of Aboriginal Women On- And Off-Reserve,” 2005, The Scow Institute, http://scowarchive.libraries.coop/library/documents/RPRightsofWomen.pdf (accessed October 14, 2016); Ann McGrath and Winona Stevenson “Gender, Race, and Policy: Aboriginal Women and the State in Canada and Australia,” Labour/Le Travail, 38 (Fall 1996)/Labour History, 71 (November 1996), 37-53 www.lltjournal.ca/index.php/llt/article/download/5046/5915 (accessed October 14, 2016) ; Erin Hanson, “Marginalization of Aboriginal women: A Brief History of the Marginalization of Aboriginal Women in Canada,” http://indigenousfoundations.arts.ubc.ca/home/community-politics/marginalization-of-aboriginalwomen.html (accessed October 14, 2016) - 8 -– May 2017 Canada’s legal system hates indigenous women depended on the husband/father. To be an Indian meant being a male, or someone related to a male Indian. Imposing a patrilineal system on indigenous nations, some of whom had a matrilineal system, disrupted social and political traditions and functions in indigenous nations. Soon, indigenous women who married white men would be excluded from their home families, communities, land base and traditional roles and political rights. Meanwhile, indigenous men who married white women gained power and status. In 1850, the Legislative Assembly of the Province of Canada passed two pieces of legislation concerning Indian lands in Upper Canada (Ontario) and Lower Canada (Quebec). The Act for Lower Canada, Act for the better protection of the Lands and Property of Indians in Lower Canada, 19 had the first legislative definition of Indian persons. They were defined as people of Indian blood who were reputed to belong to a particular body or group of Indians who were interested in certain lands. The definition included those who intermarried and resided amongst them and those who were adopted in infancy. Individuals could trace their Indian ancestry through either parent. … The initial defining of Indian status in the 1850 Lower Canada statute would prove to be the most inclusive and least exclusive of all future legislative attempts at identifying and defining “Indians”. One year after the Lower Canada legislation defined the term “Indian” the definition was amended to exclude nonIndian men married to Indian women; non-Indian women legally married to an Indian man were considered “Indians” in the meaning of the act. 20 These definitions were used to decide who could live on Indian land and have their property protected from seizure, taxation and trespass. … their long-term effect was mostly to separate Indian women and children from their reserve communities. … Since the inception of Indian legislation the Crown assumed legislative authority for determining who would be recognized as an Indian and thus be entitled to benefits conferred by treaty, by statute, and by departmental policy and practice. The way that membership provisions were written into the Indian Act [see below] reflected underlying assumptions that persisted from the early 19th century: the Indian population would and should disappear as a distinct group, family status was properly determined through the male line, and all rights and obligations flowing from treaties or legislated by the Crown could only be claimed by those meeting Indian Act membership criteria.21 In 1857, the British colony of the Province of Canada enacted The Gradual Civilization Act.22 The principles of the law were simple: indigenous peoples were not civilized, but the Europeans were; indigenous peoples could not be accepted into Canadian political and economic life until they were civilized and indigenous peoples were only capable of “gradual” civilization. The Government of Canada would decide who is and who is not an Indian. The Act set out criteria that would recognize some indigenous individuals – males – who would be capable of being 19 Statutes of Canada 1850, c. 42 (13-14 Vict.) An Act to repeal in part and to amend an Act, intituled, An Act for the better protection of the Lands and Property of the Indians of Lower Canada, Statutes of Canada 1851, c. 59 (14-15 Vict.) 21 Joan Holmes, “The Original Intentions of the Indian Act,” prepared for a conference held in Ottawa by the Pacific Business and Law Institute, April 17-18, 2002, http://www.joanholmes.ca/Indian%20Act %20Paper%20Final.pdf 22 Canada, Parliament, “An Act to Encourage the Gradual Civilization of Indian Tribes in this Province, and to Amend the Laws Relating to Indians,” 5th Parliament of the Province of Canada, accessed on September 27, 2016, http://caid.ca/GraCivAct1857.pdf 20 - 9 -– May 2017 Canada’s legal system hates indigenous women recognized as civilized. The law would “enfranchise” the men who were over 21 who met those criteria. The prize for becoming enfranchised would be to have any legal rights flowing from being indigenous stripped away without compensation, and in fact, having their Indian status removed completely. And this would also happen to the wives and children of these newly civilized non-Indians, whether the wives and children wanted to lose their status or not. 23 Only by having their rights stripped away could indigenous people be treated as “equals” to other British subjects. The 1869 Gradual Enfranchisement Act24 went further: women who married non-Indians would lose their Indian status, and furthermore, women who married an Indian man outside her own tribe would lose her band status and join his, which meant if their marriage failed, she and her children could not return home. Men who enfranchised could be given a life estate in an allotment of reserve lands.25 Indigenous women could lose their status by marrying a non-status man, by being married to a status Indian who became “enfranchised” or through her own enfranchisement (Enfranchisement could be either voluntary or involuntary). A woman who lost status upon marriage could not live on or visit the reserve, inherit reserve property or participate in the political and cultural life of the reserve. She could not be buried on her reserve. Her children were similarly excluded. Even after widowhood or divorce, she could only regain status by marrying a status Indian man. 26 The 1876 Indian Act provided that annuities payable to indigenous persons could be stopped in the case of an indigenous women with no children who deserted her husband to live immorally with another man. An amendment in 1880 made it an offence for anyone who was the actual or apparent keeper of any house to allow an indigenous woman to remain there knowing that she would or was likely to prostitute herself. In 1884, the Act was amended again to extend culpability to ‘any Indian man or woman who keeps, frequents or is found in a disorderly house, tent or wigwam used for such a purpose’ (e.g. such as prostitution). 27 The Act was amended again in 1887 to make it an offence directly onto the indigenous woman who prostituted herself. Prostitution laws were widely used in the late nineteenth century. Indeed, legal historian Constance Backhouse notes that possible prostitution offences constituted the majority of women’s recorded crimes. Much of the enforcement of these laws was directed at those society deemed undesirable, a category which was always based on race, ethnic origin or class. Prostitution laws were weaponized to arrest and imprison Black and Indigenous women, 23 Amazingly, the issue of enfranchisement is still alive through the descendants of “enfranchised” persons, even though the enfranchisement provisions in the Indian Act were repealed in 1951. Recent cases provide a detailed history of the pernicious practice of “enfranchisement”: Larkman v. Attorney General of Canada, 2015 CanLII 39815 (SCC) http://canlii.ca/t/gk216; Larkman v. Canada (Attorney General), 2014 FCA 299 (CanLII) http://canlii.ca/t/gfqn5 ; Canada (Attorney General) v. Larkman, 2012 FCA 204 (CanLII) http://canlii.ca/t/frxkv ; LeCaine v Registrar of Indian and Northern Affairs Canada, 2015 SKCA 42 (CanLII) http://canlii.ca/t/ghdps ; Andrews et al. v. Indian and Northern Affairs Canada, 2013 CHRT 21 (CanLII) http://canlii.ca/t/g0sgg ; Etches v. Canada (Indian and Northern Affairs), 2009 ONCA 182 (CanLII) http://canlii.ca/t/22nht 24 In fact, the 1869 Indian Act defined the word “person” to mean anyone other than an Indian. S. 12, https://www.aadnc-aandc.gc.ca/DAM/DAM-INTER-HQ/STAGING/texte-text/ 1876c18_1100100010253_eng.pdf 25 An Act for the Gradual Enfranchisement of Indians, the Better Management of Indian Affairs, and to Extend the Provisions of the Act, 31st Victoria, Chapter 42, S.C. 1869, c. 6, s. 13 26 Eberts (2014) at p. 152 27 Nelson (2002), quote at p. 45 - 10 -– May 2017 Canada’s legal system hates indigenous women along with poor and working-class Irish women, who were, at the time, considered less ideal settlers than other white Europeans. … Across the country, Black women were arrested and incarcerated for purported prostitution offences at vastly disproportionate rates. … The wording of the laws, in fact, appears to criminalize women’s independent movement and sexuality as much as their possible occupation. Prostitution laws, at one point, allowed for the arrest of ‘all common prostitutes or night-walkers wandering in fields, public streets or highway and not giving a satisfactory account of themselves’. Maintained in some form or other for over a century afterward, this law encapsulated not only the selling of sexual services but women’s presence in public space more largely. 28 Could any law force women into more dangerous environments than prostitution laws? While there were a small number of court decisions concerning whether descendants or widows of inter-marriages had any rights to property, an important case was in 1886 (the year after the Riel rebellion) by the name of Jones v. Fraser, of the Quebec Court of Queen’s Bench.29 The case refused to find a valid marriage because the marriage in question was not a Christian marriage under English law. In 1878, the Supreme Court of the Northwest Territories made a similar finding,30 and again a court in British Columbia in 1890 came to the same view: an indigenous widow received nothing while her white husband’s estate went to the province. 31 The various laws that lead to a loss of status are designed and intended to reduce the number of “status” Indians in Canada, to reduce the financial responsibilities of the federal government towards Indians, and to make it easier for non-indigenous people to acquire and use traditional indigenous lands. The loss of Indian status due to marrying-out meant that an indigenous woman would lose:      the right to hold or inherit property on reserves shares in band funds, health benefits and educational grants, band membership (upon marriage and divorce) access to band housing participation in self-government or governance-related measures such as development of band membership codes, access to programs and resources controlled by band council governments on reserve (housing, band-run social programs) matrimonial property on reserve The importance of this loss becomes significant when the benefits administered by the band are taken away from the indigenous women and their children. The Government of Canada provides funding to First Nations bands for various programs: housing, infrastructure, schools and other community-based services. The kinds of supports that many people living on reserve may expect to have access to are: 28 Robyn Maynard, Policing Black Lives: state violence in Canada from slavery to the present (Fernwood Publishing, 2017) at p. 46 (citations omitted) 29 Jones v. Fraser (1886), 12 Q.L.R. 327 (Que. Q.B.). In 1867, Connolly v. Woolrich and Johnson et al. (1867) 11 L.C. Jur. 197, a Quebec court upheld a marriage according to Cree customs. With Jones v. Fraser and subsequent cases, this precedent would not stand. 30 Re Sheran (1899), 4 Terr. L.R. 83 (NWTSC) 31 Smith v Young, Canada Law Journal 34 (1898); 581 (Reports and Notes of Cases); for all of these cases, and more, see Nelson (2002) at pp. 47-49 - 11 -– May 2017 Canada’s legal system hates indigenous women          social assistance patient transportation (to cover the cost of travel to doctor’s appointment, and treatment facilities) children’s oral health (a dental program for children 0-6 years) alcohol and drug counselling and referral home care aide workers (for elders and others recently discharged from hospitals) home maker services (for those unable to help themselves and in need help cleaning their homes) maternal child care (for pre- and post-natal mothers) post-secondary education financial support non-insure health benefits (a very limited extended medical coverage program) 32 These services are administered almost exclusively by bands, and many First Nations have their own policies in place. Even when a woman lost her band membership because she married a status Indian man and was automatically transferred to his band, or she lost her status through any of the methods listed above, but regained it following Bill C-31 (the 1985 amendment to the Indian Act that partially ended the discrimination against Indian women who “married out”), she could still be denied band membership which would also result in loss of all of the benefits listed above. The Indian Act outlawed indigenous self-government and replaced it with the chief and council system that Parliament imposed on indigenous communities. The local Indian agent chaired the meetings of the chief and council, and had the power to remove the chief and council from office. Indigenous women were denied any vote in the new system and were stripped of any formal involvement in their community’s governing process. Canadian law destroyed their status, dignity and traditional roles in the community.33 32 The descriptions of what an indigenous woman stands to lose when they lose status and band membership are in: Katrina Harry, “The Indian Act and Aboriginal Women’s Empowerment: What front line workers need to know,” in Battered Women’s Support Services, January 2009, accessed September 14, 2016, http://www.bwss.org/wp-content/uploads/2010/06/theindianactaboriginalwomensempowerment.pdf 33 See A.C. Hamilton, and C.M. Sinclair, “ A Historical Overview,” in The Justice System and Aboriginal People: Report of the Aboriginal Justice Inquiry of Manitoba Volume 1, (1991: Manitoba Queen’s Printer), accessed on September 27, 2016. http://www.ajic.mb.ca/volumel/chapter3.html. See Douglas Sanders, “Indian Women: A Brief History of their Roles and Rights21 McGill Law Journal 656,(1975), accessed on September 27, 2016, http://www.lawjournal.mcgill.ca/userfiles/other/869650-sanders.pdf . See Elizabeth Jordan, “Residual Sex Discrimination in the Indian Act: Constitutional Remedies,” Journal of Law and Social Policy vol. 11, (1995): 213, accessed on September 27, 2016 http://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1101&context=jlsp. See Judith F. Sayers and Kelly A. MacDonald Jo-Anne Fiske, Melonie Newell and Evelyn George Wendy Cornet, First Nations Women, Governance and the Indian Act: A Collection of Policy Research Reports, Ottawa: Status of Women Canada (November 2001), accessed on September 27, 2016, http://fngovernance.org/resources_docs/First_Nation_Women__Governance.pdf .See Shelagh Day “153 years of sex discrimination is enough: Latest legislative remedy does not end discrimination against aboriginal women,”, Toronto Star January 10, 2011, accessed on September 27, 2016, https://www.thestar.com/opinion/editorialopinion/2011/01/10/153_years_of_sex_discrimination_is_enough .html; see Royal Commission on Aboriginal Peoples, Final Report, ch. 2 The Family in vol. 3 Gathering Strength, accessed on September 27, 2016. http://www.collectionscanada.gc.ca/webarchives/20071124125546/http://www.ainc-inac.gc.ca/ch/rcap/sg/ sim2_e.html; and ch. 2 “Women’s Perspectives in vol. 4 Perspectives and Realities, accessed on September - 12 -– May 2017 Canada’s legal system hates indigenous women In 1951, the Indian Act was amended to provide for the loss of Indian status at 21 years of age for anyone whose mother and grandmother had both acquired status marrying a status male. This became known as the double-mother rule.34 In this way, the “double-mother” rule was kind of a reverse to the “marrying out” rule. In both contexts, the result would be strip Indian status from children. In the 1960s, indigenous women became active in organizing and advocating for the end to the discrimination. One of the first and most effective in these efforts was Mary Two-Axe Earley. 35 The advocacy of Mary Two-Axe Earley and others led the Royal Commission on the Status of Women in 1970 to recommend removal of the discrimination in the Indian Act.36 In 1974, the Supreme Court of Canada ruled in Attorney General of Canada v. Lavell; Isaac v. Bédard that the Canadian Bill of Rights offered no remedy for the discrimination in the Indian Act that removed status from indigenous women who married non-status men. 37 Lavell was born Jeannette Vivian Corbiere, a member of the Wikwemikong Band and she was registered in the Indian Register. She subsequently married a non-Indian and as a result her name was deleted from the Register, meaning she was no longer an Indian, in the eyes of the law and Canada. She appealed this removal of status. (She subsequently became President of the Native Women’s Association of Canada and founded the Ontario Native Women’s Association of Canada, among other career highlights.) Bédard was born of Indian parents on the Six Nations Indian Reserve and married a non-Indian. After separating from her husband, she returned to the reserve to live on a property held by her mother by a Certificate of Possession that was bequeathed to her by her mother’s will that had been approved by the Council of the Six Nations and by the Minister. When Bédard returned to the Reserve with her children in 1970 to occupy her mother’s house, the Council passed a series of resolutions giving her permission to reside on the Reserve for a period of six months during which time she was to dispose of the property. The Council extended this permission for a further eight months, after which any further requests for her continued residence would be denied. In accordance with these resolutions this respondent conveyed her interest in the property in question to her brother who was a registered member of the Six Nations Band, and to whom a Certificate of Possession of the property was granted on March 15, 1971 by the Minister. Her brother permitted Bédard and her infant children to continue occupying the premises without rent, but the Band Council passed a further resolution on September 15, 1971, by which it was resolved that the Brant District Supervisor would serve a notice on Bedard’s brother, forcing 27, 2016, http://www.collectionscanada.gc.ca/webarchives/20071124130410/http://www.ainc-inac.gc.ca/ ch/rcap/sg/sjm2_e.html; see Wendy Cornet and Allison Lendor, “Discussion Paper: Matrimonial Real Property on Reserve,” Cornet Consulting and Mediation, for the Department of Indian Affairs and Northern Development Canada, (2002), accessed on September 27, 2016, https://www.aadnc-aandc.gc.ca/DAM/DAM-INTER-HQ/STAGING/texte-text/ discp_1100100032572_eng.pdf 34 Eberts (2014) at 152 35 “Mary Two-Axe Earley: Crusader for Equal Rights for Aboriginal Women,” Wayne Brown, Electoral Insight, Elections Canada, November 2003 http://www.elections.ca/content.aspx?section=res&dir=eim/issue9&document=p10&lang=e (abridged version in Windspeaker, http://www.ammsa.com/content/mary-two-axe-earley-footprints) 36 Royal Commission on the Status of Women, Report, Ottawa: Information Canada, 1970 especially at ch. 3 (re: northern indigenous women) and 6 para. 54-59 re: need to remove discrimination from the Indian Act; http://epe.lac-bac.gc.ca/100/200/301/pco-bcp/commissions-ef/bird1970-eng/bird1970-part2-eng.pdf 37 Attorney General of Canada v. Lavell, 1973 CanLII 175 (SCC), http://canlii.ca/t/1xv15 - 13 -– May 2017 Canada’s legal system hates indigenous women Bédard and her children to leave the Reserve. The writ instituting this action was issued on September 14, 1971, more than a year after the brother had obtained his Certificate of Possession. No notice was served on Bédard herself. Both Lavell and Bédard were successful in the Federal Court of Appeal. Canada appealed. If the Supreme Court upheld the Federal Court of Appeal decision, or refused to hear the case, then indigenous women would have gained equality in 1974. Instead, the Supreme Court struck down the Federal Court of Appeal decision. Ritchie J., for the majority, stated “the phrase ‘equality before the law’ is to be construed in light of the law existing in Canada at that time” (i.e.: in 1960, when the Bill of Rights was enacted). In other words, ‘equality before the law’ meant the right to be treated the same as anyone else would be treated when the discriminatory law went to court. It did not require or even allow the law itself to be struck down for being discriminatory. If the law said that Indian women who married out lost status, that law would be applied “equally” to everyone, such as Indian and non-Indian men and women. The Supreme Court had no concern for how its decision negatively affected indigenous women (the only people affected by the law), and seemed to have little to no concern for equality or the Bill of Rights. Canadians indirectly benefitted from this decision because it proved once and for all that a constitutionally entrenched Charter of Rights and Freedoms was required to strike down laws in Canada. (We forget too easily how hard many provincial governments in Canada fought against a Charter of Rights and Freedoms, in large part to preserve the ability of the majority of Canadians to choose and enact whatever discriminatory laws pleased them.) 38 But would the enactment of the Charter end discrimination of status against indigenous women and their children? The fact is, until 2022, there was still sex discrimination in the Indian Act and everyone who pays attention to the question knows it. Despite the recommendations of the Royal Commission on the Status of Women, the activism of so many indigenous women, the clear unfairness of the status rules and the obvious inadequacy of the Canadian Bill of Rights, Parliament did not amend the Indian Act to remove the discrimination. Just the opposite, in 1977 it enacted the Canadian Human Rights Act and expressly included a provision that no complaints could be brought under the Human Rights Act in relation to discrimination under the Indian Act.39 Starting in July 1980, Indian Affairs offered bands the option of being exempt from the doublemother rule and also from the marrying-out rule. Being exempt from the double-mother rule would protect Indian status for the children of Indian men who had married a non-Indian. Being exempt from the marrying-out rule would protect Indian status for the children of Indian women who had married a non-Indian. By July 1984, 54 percent of bands had opted for exemption from the double-mother rule, but only 18 percent had opted for exemption from the marrying-out rule. “These were choices of a male leadership cadre in Indian bands that was becoming comfortable with the role of Victorian patriarch.”40 In fact, the double-mother rule was only used between 1972 and 1985, and with all of the exemptions, the rule only affected two thousand individuals. 41 38 “Majority” meaning the approximately 40% or so of Canadians who voted for winning candidates in Canada’s antiquated first past the post electoral system 39 Eberts (2014) at p. 154 40 Eberts (2014) at p. 152 41 Gwen Brodsky, “McIvor v. Canada: legislated patriarchy meets Aboriginal women’s equality rights,” in Indivisible: Indigenous Human Rights, Joyce Green ed. (Fernwood Publishing, 2014) at p. 108 - 14 -– May 2017 Canada’s legal system hates indigenous women Sandra Lovelace,42 another indigenous woman who lost her status by marrying a non-Indian, took her case before the UN Human Rights Committee, which, in 1981, found Canada in breach of the International Covenant on Civil and Political Rights.43 In 1982, Canada adopted our constitutional Charter of Rights and Freedoms. In 1985, Parliament amended the Indian Act through Bill C-31, which finally revised Indian status to address part, but only part, of the gender discrimination of the Indian Act.44 Under Bill C-31, women who married non-Indians and their children regained or were given Indian status, but the women’s grandchildren did not, yet the grandchildren of Indian men and non-Indian women did. This is sometimes referred to as the “second generation cut-off” 45 or a “two parent” rule or “the cousins problem” – the grandchildren of an Indian brother and sister (those grandchildren would be cousins) would have different rights to be recognized as Indian. It is called the second-generation cut-off or two-parent rule because the second generation of children with only one status parent lose all entitlement to status. Once status is lost, it cannot be regained. 46 Yes, Bill C-31 reinstated status for many women, but it left their children with an inferior Indian status compared to the children of Indian men who had married non-Indian wives. The difference in status is on the face of Bill C-31 and the Indian Act.47 We might have thought and hoped that discrimination against women in the Indian Act would finally be over when the Charter came into force, but that did not happen. “To this day, the women registered under s. 6(1)(c) of the 1985 Act are known as ‘Bill C-31 women,’ which has connotations of inferiority and illegitimacy.48 Under Bill C-31, the children of Indian men who had married non-Indian wives were deemed to have two Indian parents, but the children of Indian women who lost their status by marrying out, their children were deemed to have one Indian parent. The second generation cut-off would come much more quickly for their children. In 1985, Sharon McIvor was a law student. Both McIvor’s grandmothers were Indians, but her grandfathers were not. Thus, both of her grandmothers had lost Indian status. McIvor applied to be registered as a status Indian along with her children. Sixteen months after her first letter, McIvor received a reply from the government. She could be registered as a status Indian, but her children could not. On May 29, 1987, McIvor wrote another letter asking that the decision be reviewed. It took 21 months for a response. In February 1989, she was told that the initial decision had been upheld. McIvor launched her court challenge later in 1989. 49 Her constitutional 42 In 2005, Lovelace became the first indigenous woman appointed to the Canadian Senate Sandra Lovelace v. Canada, Communication No. R.6/24, U.N. Doc. Supp. No. 40 (A/36/40) at 166 (1981) http://hrlibrary.umn.edu/undocs/session36/6-24.htm ; Sandra Lovelace v. Canada, Communication No. 24/1977: Canada 30/07/81, UN Doc. CCPR/C/13/D/24/1977, https://www.escr-net.org/caselaw/2010/sandra-lovelace-v-canada-communication-no-241977-canada300781-un-doc-ccprc13d241977 44 The Government of Canada, “The Indian Register,” in Indigenous and Northern Affairs, accessed on September 27, 2016, https://www.aadnc-aandc.gc.ca/eng/1100100032475/1100100032476 45 Eberts (2014) at p. 155 46 Brodsky (2014) at p. 108 47 A good and visual explanation can be found here: “Got Status? Indian Status in Canada, sort of explained, “by âpihtawikosisân at http://apihtawikosisan.com/2011/12/got-status-indian-status-in-canadasort-of-explained/ (accessed October 17, 2016) 48 Brodsky (2014) at p. 108 49 “The long, hard road of Sharon McIvor,” The Vancouver Sun, November 9, 2007, accessed on September 14, 2016, http://www.rapereliefshelter.bc.ca/long-hard-road-sharon-mcivor-vancouver-sunnovember-9-2007 43 - 15 -– May 2017 Canada’s legal system hates indigenous women challenge was commenced in 1994.50 The Aboriginal Justice Inquiry said in 1991 about the effect of Bill C-31: Not only does the Indian Act maintain improper and probably illegal forms of sexual discrimination, but it also threatens the long-term survival of Indians. The current regime has a de facto form of a ‘one-quarter blood’ rule. As shown in the previous example, intermarriage between registered Indians and others over two successive generations results in descendants who are not entitled at law to be status Indians. This may threaten the very existence of First Nations in the not too distant future, especially small communities who have considerable interaction with neighbouring Metis or non-Aboriginal communities. 51 In 2004, Indigenous and Northern Affairs Canada (INAC) hired a statistician, Stewart Clatworthy. He wrote a report, “Reassessing the Population Impacts of Bill C-31.” 52 In it he examined how the status classification would affect future generation of Indians, and determined that by 2049, less than half of children born to a status Indian parent will be status Indian, and that by 2124, no more children will be born eligible for Indian status. 53 Notice that the study came 13 years after the Aboriginal Justice Inquiry warned of exactly this demographic/status threat. The effective response to ensuring that Indian status continues indefinitely still has not yet been proposed or enacted into law. Getting rid of Indians has always been Canada’s policy. It is not an accident that indigenous women, as mothers, lost their rights under the Indian Act, lost their children through residential schools, the “sixties scoop,” mass incarceration and apprehension of children through child and family services that were discriminatory. The Government of Canada has argued that it had no responsibility for Inuit or Metis or non-status or off-reserve “Indians.” Using loss of status through “marrying out” or other games played with the definition of an Indian is simply part of legal regime trying to eliminate Indians as identifiable groups with specific rights. Deputy Superintendent of Indian Affairs Duncan Campbell Scott said to Parliament in 1920 “Our objective is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic, and there is no Indian questions, and no Indian Department, and that is the whole object of the Bill”.54 In fact, the preamble to the 1857 Gradual Civilization Act stated that the purpose of that law was the gradual removal of all legal distinctions between indigenous peoples and non-indigenous Canadians. In other words, eliminating all indigenous rights. 55 Eberts writes: 50 Brodsky (2014) at p. 109 A.C. Hamilton, and C.M. Sinclair, The Justice System and Aboriginal Peoplech. 5 “Aboriginal and Treaty Rights,” accessed on September 27, 2016, http://www.ajic.mb.ca/volumel/chapter5.html#42 52 Steward Clatworthy, “Reassessing the Population Impacts of Bill C-31,” Ottawa: Minister of Public Works and Services Canada, (2004), accessed on September 27, 2016, http://publications.gc.ca/collections/ Collection/R2-363-2004E.pdf 53 Quoted from Katrina Harry’s, “The Indian Act and Aboriginal Women’s Empowerment,”, citing “Regarding-assessing the Population Impacts of Bill C-31 (Minister of Public Works and Government Services Canada, 2004),” as cited by Rosalie Wilson in “The Colonial Concubine: Canadian Federal Policy on Indian Status and the First Nations Women,” December 2006, Faculty of Law 54 Eberts (2014) at p. 148 55 Brodsky (2014) at pp. 103-104 51 - 16 -– May 2017 Canada’s legal system hates indigenous women A narrow definition of “Indian” furthers Canada’s own land ambitions in several ways: the fewer Indians it recognizes, the less land must be allocated as researches in the first place; and the more people who are excluded from bands, the more quickly the Indian population will shrink. The faster the bands shrink and ultimately disappear, the more quickly the land may be taken by Canada. Beneficiary programs for Indians, such as education and health care, will also cost the federal government less to the extent that the numbers of Indians is reduced.56 Discriminating against indigenous women, separating them from their children and communities, and limiting the ability of indigenous women to pass their Indian status to their children is part of how Canada gets rids of its indigenous peoples and their trouble-some indigenous rights. My very small connection to the Sharon McIvor case I was the Executive Secretary of the Manitoba Aboriginal Justice Inquiry from 1988-1991. After the Inquiry ended, I joined the Department of Justice in Ottawa. Shortly after leaving the Aboriginal Justice Inquiry and before I joined the Justice Canada Human Rights Law Section, I worked in a different part of Justice Canada, 57 where my office was located directly beside Justice Canada’s Aboriginal Law Section. This gave me the opportunity to discuss some indigenous law issues with lawyers in the Aboriginal Law Section. In 1984 and 1990, the Supreme Court of Canada tried to clarify the nature of indigenous rights in Canada by saying that the Crown owed a fiduciary duty to protect the interests of indigenous peoples and that indigenous rights were unique in law (the Latin term being “sui generis”).58 I recall being shocked at how Justice Canada’s Aboriginal Law Section approached its duties as a fiduciary to indigenous peoples. I learned that the words “fiduciary duty” and “sui generis” are nothing more than invitations to lawyers to argue every conceivable limit to both of these terms. In general, Justice Canada’s default position in any case is to deny that the Government of Canada is a fiduciary in whatever factual context is before the court. Just imagine if the Government of Canada, as a fiduciary, was required to disclose to indigenous peoples what Justice Canada’s legal opinions were about their fiduciary beneficiaries! Some fiduciary! 59 In 2002, the Supreme Court of Canada wrote, in a judgment authored by Justice Ian Binnie, who previously had been Associate Deputy Minister of the Department of Justice Canada: not all obligations existing between the parties to a fiduciary relationship are themselves fiduciary in nature … and that this principle applies to the relationship between the Crown and aboriginal peoples. It is necessary, then, to focus on the particular obligation or interest that is the subject matter of the particular dispute and whether or not the Crown had assumed discretionary control in relation thereto sufficient to ground a fiduciary obligation. … The content of the Crown’s fiduciary duty towards aboriginal peoples varies with the nature and importance of the interest sought to be protected. 60 56 Eberts (2014) at p. 148 A very small unit called “management of the law,” – where none of us, including our director, had any idea what we were supposed to be doing; the unit was disbanded in fairly short order 58 Guerin v. The Queen, [1984] 2 SCR 335; R. v. Sparrow, [1990] 1 SCR 1075 59 See Samson Indian Nation and Band v. Canada, 1997 CanLII 6368 (FCA), http://canlii.ca/t/4mzj ; see also Ministry of Attorney General, Re, 2002 CanLII 42486 (BC IPC), http://canlii.ca/t/1gddc 60 See Wewaykum Indian Band v. Canada, 2002 SCC 79 (CanLII) http://canlii.ca/t/1fwx2 at para. 81 and 57 - 17 -– May 2017 Canada’s legal system hates indigenous women The above language virtually requires Justice Canada lawyers to argue against fiduciary duties in any context, and let the courts decide whether, when and how any fiduciary duty will apply to a given context. Although the courts has moved the vocabulary along from “personal and usufructuary” 61 to “fiduciary”, “sui generis,”62 and now to “honour of the Crown”63 it is not clear to me that these “modern” terms are any clearer or more helpful to indigenous peoples than the vocabulary used in 1888. In the mid-1990s, I joined the Department’s Human Rights Law Section, which is a section of lawyers who specialize in human rights and who give their specialized advice to other lawyers in the Department. One day I was given the McIvor file. I noticed that the very first page on the file was the page from the Aboriginal Justice Inquiry report identifying the ongoing discrimination. I thought my job was to provide my own independent legal opinion on the matter. The Department of Justice has a statutory obligation to “see that the administration of public affairs is in accordance with law.”64 I began by reviewing the arguments that Justice Canada (at Indian Affairs Legal Services and the civil litigation lawyers) had been using to that point, then I did my own research, drafted and consulted colleagues within the Human Rights Section. I came to the conclusion that yes, the Indian Act continued to discriminate against women. One of my colleagues became alarmed at my draft and reported me to the boss of the Section. My draft turned out to be what we called a “career limiting move.” I was informed that I did not understand my job. My job was to invent arguments to defend the legislation, whether I thought it was discriminatory or not. The standard that I was told to meet was to ensure that the arguments were not so absurd that they would embarrass the Department. It was then that it became clear to me: the job of a Justice Canada lawyer is to defend every decision or action of the Government (no matter how many years had passed since the government’s wrongful act occurred, no matter how faint the possibility of being legally correct). In so doing, the role of the Justice Canada lawyer is to make arguments that reduce and limit the scope of human rights in Canada (including, of course, indigenous rights) – because that is how you defend the government’s actions. You can never admit that the government has unlawfully limited rights, so the alternative is to argue that the rights claimed are either non-existent or much narrower than the plaintiff believes. In addition, a good Justice Canada lawyer will use all of Justice Canada’s huge resources to play the adversarial game, invoking every procedural barrier conceivable and generally to make it difficult, slow and expensive for plaintiffs to come to court or to make their arguments. The first arguments are always that the plaintiff has no right to be in court. The second argument is that the court has no right to hear the case. Third, if the court has a right to hear the case, the court’s 86 61 The way the courts described indigenous rights in Canada in the infamous 1888 Treaty 3 case St. Catherines Milling v. The Queen, [1888] UKPC 70, [1888] 14 AC 46, which governed Canadian law for more than 80 years 62 See Guerin v. The Queen, [1984] 2 SCR 335 and more recent cases 63 See Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 (CanLII), http://canlii.ca/t/1j4tq, particularly at para. 17 and following; and subsequent cases 64 Paragraph 4(a), Department of Justice Act http://canlii.ca/t/hzpw . In fact, lawyers in the Human Rights Law Section do get to give honest opinions, but only in the early days of a policy discussion. Of course, our clients get to ignore our advice. Once there is a policy decision, legislation or a statement of claim, the job turns into defend the government no matter what. - 18 -– May 2017 Canada’s legal system hates indigenous women power is limited to showing deference to the administrative decision-maker and ruling only whether the decision-maker was reasonable, not whether the decision-maker was correct. Argue that the burden of proof is on the plaintiff, even if it is Canada that has all of the documentary evidence.65 If the court decides against the government, then Justice Canada lawyers interpret the decision as narrowly as possible and argue for as much delay in implementing the decision as possible. The message was clear: this was my professional duty; this was how to get ahead in the Department; this was what it meant to be a human rights lawyer at the Department of Justice; this was how to act as a fiduciary for indigenous peoples; this was how to uphold the honour of the Crown. As it turns out, the honour of the Crown is a pretty low bar to meet. No law society in Canada has ever told Justice Canada lawyers they are professionally and ethically required to meet a higher standard, and neither have the courts. 66 In 2012, a Justice Canada lawyer went to court to seek court direction on how to comply with his legal duties. Justice Canada is required to examine proposed legislation and regulations, and to report to the House of Commons of any inconsistencies with the Canadian Bill of Rights and the Canadian Charter of Rights and Freedoms. Furthermore, Justice Canada is obliged, to review regulations to ensure they do not “trespass unduly on existing rights and freedoms and is not, in any case, inconsistent with the purposes and provisions of the Canadian Bill of Rights” and advise the regulation-making authority accordingly. In the end, the case comes down to what standard of legal advice is binding on Justice Canada lawyers? Justice Canada argued, and the trial judge agreed, that any “credible” (or “faint possibility of legality”) argument that proposed legislation or regulations might survive a court challenge is enough that no report needs to be given to Parliament. Edgar Schmidt, the Justice lawyer who brought the case, argued that the standard should be whether the proposed legislation or regulation “more likely than not” offends the Charter or Bill of Rights. In 2016, the Federal Court Trial Judge, Simon Noel, agreed that Justice Canada only had to find some “credible” argument to say that a law is consistent with Charter or Bill of Rights. Noel had served 15 years as legal counsel to Canada’s Security Intelligence Review Committee before being named as a judge. 67 The case is now under appeal. The British Columbia Civil Liberties Association and the Canadian Civil Liberties Association have asked the court to be intervenors on the appeal. In my view, it is always possible to concoct some faint-hope-of-legality argument; it is impossible to say with 100% certainty how a judge might rule, especially if they previously served as Associate Deputy Minister of Justice Canada or legal counsel for the Security Intelligence Review Committee, or some similar position before they became judges, or simply have no understanding or sensitivity to the position of indigenous women or other minorities. When considering whether there is a credible argument that a court might agree that any given law is consistent with the Charter, what kind of judge is a Justice Canada lawyer supposed to 65 It is a disturbing reality of the common law adversarial system that the Government’s default position is almost always to be in an adversarial relationship with its citizens who are seeking justice, and a government lawyer’s success is frequently viewed as being able to defeat the citizens. 66 So much for Justice Canada’s respect for fiduciary duty, honour of the Crown and the Charter. As for international human rights documents, they are merely sniffed at. They are not binding in Canadian law and Justice Canada regularly ignores them and routinely tells the courts to ignore them too. 67 Schmidt v. Canada (Attorney General), 2016 FC 269 (CanLII), http://canlii.ca/t/gnlgn . For more information about the case, see www.charterdefence.ca. For a detailed discussion of the Schmidt case, see Thomas McMahon, “J’accuse: Justice Canada Minimizes Human Rights Every Single Day” (March 12, 2021). Available at SSRN: https://ssrn.com/abstract=3802927 or http://dx.doi.org/10.2139/ssrn.3802927 - 19 -– May 2017 Canada’s legal system hates indigenous women anticipate would decide what is a credible argument? A judge with a career serving the Government like numerous judges on courts all over Canada? Or perhaps a judge like Judge Robin Camp who: scolded a 19-year-old Cree woman for not preventing her own rape: “Why couldn’t you just keep your knees together?” he asked her during a sexual assault trial in Alberta. The woman had been attacked in a bathroom at a house party by an older man nearly twice her size. Camp has since been suspended from his current role as a federal court justice and is presently facing a public inquiry by the Canadian Judicial Council to determine whether he should be removed from his position permanently. Among his other troubling statements from the trial: “She hasn’t explained why she allowed the sex to happen if she didn’t want it.” He wondered aloud why the woman didn’t just fend off her attacker and repeatedly called her “the accused.”68 Maybe Justice lawyers should anticipate other judges who are ignorant or biased. 69 Frank Addario, Camp’s lawyer, blamed Canada’s legal system for his client’s ignorance and biased behaviour. Addario cited 21 other judges who demonstrated bigotry or antipathy. If they can keep their jobs, Addario argued, why should Camp lose his? Maybe Justice lawyers should anticipate judges like Robert Graesser: Last year, an Alberta jury found Bradley Barton not guilty of the murder of Cindy Gladue, who had bled to death in a bathtub from an 11-centimetre injury to her vagina. During Barton’s trial, Judge Robert Graesser allowed lawyers to refer to Gladue as “the Native woman,” and “the Native girl” (she was 36). Gladue, who was a sex worker, had spent two nights with Barton, and Graesser instructed the jury that Gladue’s consent to sex on the first night “could be used to support a finding of honest but mistaken belief in consent” on the second night. But the most macabre and dehumanizing aspect of the trial was that Graesser permitted pathologists to bring Gladue’s preserved pelvis into the court and project live images of her wounded vagina to the jury. It was the first time a Canadian judge has allowed human tissue to be brought into court as evidence. Concerns about Graesser’s conduct have led to an appeal.70 Or a judge like Ted Malone in Saskatchewan in the killing of a Saulteaux woman Pamela George by two university students, Kummerfield and Ternowesky. The students had cruised the streets of Regina looking for a prostitute and after several rejections, Ternowesky hid in the trunk. Kummerfield persuaded George to get in the car. The next morning a motorist found George’s battered body facedown in a ditch near the airport. She died from a blow from a blunt instrument. The prosecutor argued it was first degree murder because the defendants had sexually assaulted and forcibly confined George. The judge called the killing cruel, cowardly and despicable, but the 68 Rachel Giese, “Why the Robin Camp hearing is about more than one judge’s sexist comments: The Alberta justice has apologized and sworn to change, but judicial bias against women is a much larger problem than one judge and his terrible choice of words,” Chatelaine, Sep 14, 2016 http://www.chatelaine.com/living/the-robin-camp-hearing-about-more-than-judges-sexist-comments/ 69 See for example “Groups across Nova Scotia call for ‘drunks can consent’ judge to be removed,” CBC News, March 3, 2017, http://www.cbc.ca/news/canada/nova-scotia/judge-lenehan-sexual-assault-calls-forremoval-1.4008810. The judge appears to believe that the Crown has to prove non-consent by an unconscious woman before a conviction for sexual assault can result. 70 Giese (2016) - 20 -– May 2017 Canada’s legal system hates indigenous women judge told the jury to remember that the victim was a prostitute and the students were drunk. The jury returned a verdict of manslaughter and Malone sentenced the students to only six and a half years in prison.71 Perhaps a Justice Canada should anticipate a judge like former B.C. Chief Justice Allan McEachern, whose ruling in Delgamuukw72 was later over-turned by the Supreme Court of Canada.73 McEachern emphasized how primitive he found the indigenous societies in the case before him, how nasty, brutish and short their lives were, how unreliable their oral histories were, how limited their rights were, how their territorial rights existed only at the pleasure of the Crown and could be extinguished by implication.74 Maybe a Justice lawyer should anticipate a Chief Justice of the Supreme Court of Canada who confuses the source of legal rights (existence and occupation of the land since time immemorial) with the content of the legal rights. Apparently the right to self-government and to choose and change economic patterns are not integral parts of indigenous cultures. Apparently the content of indigenous rights is whatever practice they can prove they engaged in before the white man arrived. Justice lawyers should anticipate Canadian courts that continue to rely on U.S. jurisprudence that uphold the rights of Europeans to simply declare their sovereignty over the land and over the indigenous peoples. 75 Maybe Justice lawyers need to anticipate Canadian courts that routinely cite a U.S. decision from 1823, Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543 (1823), as good law in Canada. At least the Canadian judges have the discretion never to quote the key phrase in Johnson v. M’Intosh: “[c]onquest gives a title which the courts of the conqueror cannot deny”. 76 As noted above and discussed in more detail below, the Supreme Court of Canada rejected the idea that the Canadian Bill of Rights could invalidate the discriminatory Indian Act “marrying out” provision. The Supreme Court of Canada rejected the idea that provincial division of assets laws should protect women on reserves. The Supreme Court of Canada ordered an incredibly invasive disclosure of the victims’ records to Bishop O’Connor. The B.C. Court of Appeal overturned Bishop O’Connor’s conviction of assaulting young indigenous women who were employees at the residential school he was in charge of, because his position as employer and Bishop should not be taken into account when considering the question of consent to sexual relations. The Chief Adjudicator of the Independent Assessment Process refused to provide 71 Lesley Erickson, Westward Bound: Sex, Violence, The Law, and the Making of a Settler Society (UBC Press, 2011) at pp. 1-2 72 Delgamuukw v. British Columbia, 1991 CanLII 2372 (BC SC) http://canlii.ca/t/1g2kh 73 Delgamuukw v. British Columbia, 1997 CanLII 302 (SCC) http://canlii.ca/t/1fqz8 74 B. Douglas Cox “The Gitksan-Wet’suwet’en as ‘primitive’ peoples incapable of holding proprietary interests: Chief Justice McEachern’s underlying premise in Delgamuukw,” Dalhousie Journal of Legal Studies vol. 1 (Spring 1992): 141-160, accessed on September 27, 2016 https://ojs.library.dal.ca/djls/article/ viewFile/4468/3986 75 R. v. Van der Peet, 1996 CanLII 216 (SCC) http://canlii.ca/t/1fr8r at para.’s 44-91. In contrast, see L’Heureux-Dube’s excellent dissenting judgment, esp. para. 113: “the notion of aboriginal rights must be open to fluctuation, change and evolution, not only from one native group to another, but also over time.” and 154: “an approach based on a dichotomy between aboriginal and non-aboriginal practices, traditions and customs literally amounts to defining aboriginal culture and aboriginal rights as that which is left over after features of non-aboriginal cultures have been taken away. Such a strict construction of constitutionally protected aboriginal rights flies in the face of the generous, large and liberal interpretation of s. 35(1) of the Constitution Act, 1982.” 76 R. v. Van der Peet, 1996 CanLII 216 (SCC) http://canlii.ca/t/1fr8r citing Johnson v. M’Intosh at para. 36 - 21 -– May 2017 Canada’s legal system hates indigenous women compensation to employees of residential schools who also resided at the residential school, despite the plain language of the Indian Residential Schools Settlement Agreement, (The case that went to court on this issue involved a young indigenous woman; discussed in more detail below.)77 What is a credible argument when the question is the rights of indigenous peoples? It seems our courts are capable of almost any ruling. One thing is certain: no Justice Canada lawyer ever asked him or herself: how would a female indigenous judge view a proposed law or regulation? Asking a Justice Canada lawyer to wonder if a female indigenous judge would find an argument to be credible is ridiculous. It is not credible to imagine a female indigenous person as a judge on the Supreme Court of Canada or a Court of Appeal, let alone a deciding voice on such matters. When it comes to indigenous women, the Canadian legal and judicial standards are so phenomenally low that it is impossible to imagine any context where a Justice Canada lawyer could say: it is certain that your legislative proposal or your administration of public affairs is inconsistent with the Charter. The “faint-hope-of-legality” standard or “any credible argument” or “you never know what some judge might say” standard, means that Justice Canada will never report to Parliament that any law or regulation infringes the Charter. By applying such a low standard, the Government and the courts have de facto repealed these statutory provisions without ever saying so in court, without saying so to Parliament, and without doing the legally correct thing of putting forth a Bill in Parliament to repeal the provisions and having our elected representatives vote on the matter. (Of course our law societies and their codes of ethics have no relevance to the standards applied by Justice Canada lawyers.) In the meantime, the government of Canada is facing more than 45,000 lawsuits as of August 2016, with a potential liability in the hundreds of billions of dollars (not counting the costs of Canada’s lawyers and the courts’ time, let alone the costs to the plaintiffs), and has created a cabinet committee to track the lawsuits and more importantly, to try to understand why there are so many Canadians taking their government to court.78 Could it be that this avalanche of lawsuits has something to do with Canada’s incredibly low standards in assessing whether legislation and regulations comply with the Charter, and in assessing in which cases Canada will fight legitimate claims? These low standards are, in effect, a massive subsidy to all of Canada’s lawyers (including Department of Justice lawyers). The low standards are obviously a threat to the life, liberty, security, equality and dignity of indigenous women. Thus, my brief time working on Sharon McIvor’s file ended with my failure to understand and apply Justice Canada’s low standards. McIvor’s case in court and ongoing discrimination Sharon McIvor’s case about the ongoing sex discrimination on Indian status was not heard until October 2006, 17 years after she filed it. On October 16, 2006, the day McIvor’s case finally went to court, the government suddenly found a reason to recognize her son, Jacob Grismer, as a status Indian. 77 Fontaine et al. v. Canada (Attorney General) et al., 2014 MBQB 200 (CanLII), http://canlii.ca/t/gf1td Murray Brewster, “45,000 legal claims pending against federal government,”, · CBC News, August 26, 2016, accessed on September 27, 2016, http://www.cbc.ca/news/politics/litigation-committee-leblanclawsuits-1.3736480 78 - 22 -– May 2017 Canada’s legal system hates indigenous women In 2007, McIvor won her case from Madam Justice Carol Ross of the B.C. Supreme Court. Because the government had used every tactic possible to delay the case getting into court for 17 years, Justice Ross refused Canada’s request to have two years to find a remedy. Ross wrote that the Indian Act implies that: [286] … registration as an Indian reinforces a sense of identity, cultural heritage, and belonging. A key element of this sense of identity, heritage, and belonging is the ability to pass this heritage to one’s children. The evidence of the plaintiffs is that the inability to be registered with full s. 6(1)(a) status because of the sex of one’s parents or grandparents is insulting and hurtful and implies that one’s female ancestors are deficient or less Indian than their male contemporaries. The implication is that one’s lineage is inferior. The implication for an Indian woman is that she is inferior, less worthy of recognition. [287] It is my conclusion that the current registration provisions have been a blow to the dignity of the plaintiffs. Moreover, they would be so to any reasonable person situated in the plaintiffs’ position.79 In 2009, the B.C. Court of Appeal substantially narrowed the decision and gave Canada time to choose how to remedy the situation.80 The Court of Appeal said the trial judge erred in trying to remedy all of the discrimination that occurred before 1985. The Court of Appeal said the trial judge erred in making an immediate order to remedy the discrimination. The trial judge said that the number of years that had passed without the discrimination being remedied required an immediate remedy. The Court of Appeal said that the number of years that had passed was reason for ever more delay. Justice Canada was being rewarded for its delay tactics. 81 Later in 2009, the Supreme Court of Canada refused to even hear McIvor’s appeal. 82 Low standards and long delays had won the day again for Justice Canada. In 2010, Canada enacted a new amendment to the Indian Act (Bill C-3) that left much of the sex discrimination in the status registration provisions in place. In brief, Bill C-3 continues to relegate Aboriginal women like Sharon McIvor, to whom status was restored under the 1985 Indian Act, to an inferior category of status based on sex. It is also continues the legislated exclusion of some Aboriginal people from status based on sex, because they are the female illegitimate children of a male Indian; because their status grandmother married a non-status man; or because they are the grandchildren of a status woman who parented in a common-law relationship with a non-status man. 83 Why should there continue to be distinctions based on gender? McIvor brought a petition to the United Nations Human Rights Committee in 2010 alleging that the ongoing sex discrimination violates the International Covenant on Civil and Political Rights and seeking the full elimination 79 McIvor v. The Registrar, Indian and Northern Affairs Canada, 2007 BCSC 827 (CanLII), http://canlii.ca/t/1rr84 80 McIvor v. Canada (Registrar of Indian and Northern Affairs), 2009 BCCA 153 (CanLII), http://canlii.ca/ t/230zn 81 McIvor v. Canada (Registrar of Indian and Northern Affairs), 2009 BCCA 153 (CanLII), http://canlii.ca/t/230zn at para. 152 and 157 82 Sharon Donna McIvor and Charles Jacob Grismer v. Registrar, Indian and Northern Affairs Canada and Attorney General of Canada, 2009 CanLII 61383 (SCC) http://canlii.ca/t/26h7t 83 Brodsky (2014) at p. 102 - 23 -– May 2017 Canada’s legal system hates indigenous women of all sex discrimination from the Indian Act.84 McIvor is asking that full status for Aboriginal women and their descendants born before April 17, 1985, on the same basis as full status is granted to Indian men and their descendants born before April 17, 1985, as well as challenging all other gender discrimination still in the Indian Act.85 Back in 2008, Canada finally repealed the section in the Canadian Human Rights Act that declared the protections in the Canadian Human Rights Act did not apply to discriminations under the Indian Act. Could this be a way to stop discrimination concerning Indian status? In 2013, a case came before the Canadian Human Rights Tribunal, which ruled that denying status was not a prohibited discrimination under the Canadian Human Rights Act, because granting and not granting status is not the same as providing a “service”. 86 Indigenous women were losers again. The idea that denial of status is not a denial of service seems Kafkaesque to me. It is as if there were a store that offered many services, but only those permitted to open the door are allowed the services. The law says that refusing to allow them to go through the door is different from refusing them the services.87 In 2015, the Superior Court of Quebec ruled in Descheneaux v. Canada88 that Canada’s new amendments to the Indian Act still violated equality rights on the basis of sex but gave Canada until February 3, 2017 to allow Canada to make the necessary changes. Madam Justice Chantal Masse stated: [239] When Parliament chooses not to consider the broader implications of judicial decisions by limiting their scope to the bare minimum, a certain abdication of legislative power in favour of the judiciary will likely take place. In such cases, it appears that the holders of legislative power prefer to wait for the courts to rule on a case-by-case basis before acting, and for their judgments to gradually force statutory amendments to finally bring them in line with the Constitution. From the perspective of Canadian citizens, all of whom are potential litigants, the failure to perform this legislative duty and the abdication of power that may result are obviously not desirable. [243] Parliament should not interpret this judgment as strictly as it did the BCCA’s judgment in McIvor. If it wishes to fully play its role instead of giving free reign to legal disputes, it must act differently this time, while also quickly making sufficiently significant corrections to remedy the discrimination identified in this case. 89 It would almost be amusing if the discrimination were not affecting real people. Canada does not seem capable of finding ways that do NOT discriminate against indigenous women. The Harper Conservatives appealed the Descheneaux decision, but the Trudeau Liberals abandoned the appeal. Nonetheless, the issue continues to be in the courts in at least two other cases decided in 84 For the various documents relating to McIvor’s UN petition, go to http://povertyandhumanrights.org/wpcontent/uploads/2011/08/McIvorApplicantsPetition1.pdf 85 Brodsky (2014) at p. 103 86 Matson et al v Indian and Northern Affairs Canada, 2013 CHRD 13; Andrews et al v Indian and Northern Affairs Canada, 2013 CHRT 21; 2015 FC 398 87 Finally the person seeking access to the law asks: “how is that in these many years no one except me has requested entry?” The gatekeeper says, “Here no one else can gain entry, since this entrance was assigned only to you. I’m going now to close it.” https://en.wikipedia.org/wiki/Before_the_Law 88 Descheneaux c. Canada (Procureur Général), 2015 QCCS 3555 (CanLII), http://canlii.ca/t/glzhm 89 Descheneaux c. Canada (Procureur Général), 2015 QCCS 3555 (CanLII), http://canlii.ca/t/glzhm - 24 -– May 2017 Canada’s legal system hates indigenous women 2016.90 Canada has now asked the UN Human Rights Committee to suspend consideration of McIvor’s petition to give the government time to “consult” on changes to the Indian Act. According to McIvor’s statement on June 22, 2016 about this: When Bill C-3 was being considered in Parliament, the Liberal Party was in Opposition and it introduced an amendment to Bill C-3, which – if the Harper government had accepted it – would have had the effect of removing all the sex discrimination from the Indian Act. But now, five years later, when the Liberals are in power, and they have both the obligation and the means to remove the discrimination, they are asking for further delay and further consultation. 91 In July 2016, Canada announced its intention to comply with Descheneaux and once and for all end sex discrimination in the Indian Act. The Native Women’s Association of Canada issued a press release about this on July 28, 2016: The Government of Canada announced that they will have a two-staged approach in response to the Superior Court of Quebec decision in the case of Descheneaux et al., v. Canada. A complete overhaul by the Government will be in direct contrast to the individualized, piecemeal approaches that have been done since the 1960’s and has required Indigenous women to go to court, and sacrifice their private life in order to achieve justice and fairness. We take this opportunity to acknowledge and recognize the women who pursued individual court cases including Sharon McIvor, Jeanette Corbiere Lavell, and Yvonne Bédard and the many women behind Bill C-31 The two-part process, as described by the Government of Canada, is to be “in full partnership with Indigenous peoples to first eliminate all known sex-based discrimination in the Indian Act.” The Government’s plan in the coming weeks is to launch a formal engagement for legislative amendments to the Indian registration provisions under the Indian Act which will respond to the specific facts in the Descheneaux decision. These changes must be in place by February 3, 2017. At that time the Government will also try to address “all other known sexbased discrimination in registration under the Act.” The second phase is described by the federal government as a “collaborative process to examine the broader and systemic issues related to Indian registration and membership not covered in stage one.” NWAC is particularly looking forward to addressing not only the systemic issues but the impact those issues have had on Indigenous women including our personal sense of identity; the lack of belonging and recognition by some communities when women want to return to their community; the undermining of Indigenous women’s governance roles and the connection to the violence we see in our families when women and men do not maintain their balanced governance roles. As a National Indigenous Women’s Organization that has spent ten years being undermined, 90 Sarrazin c. Canada (Procureur général), 2016 QCCS 2458 (CanLII), http://canlii.ca/t/grwm4 and Children’s Aid Society of Halton Region v. M.M., 2016 ONCJ 323 (CanLII) http://canlii.ca/t/grxgz . See also Gehl v Attorney-General of Canada, 2015 ONSC 3481 (CanLII) http://canlii.ca/t/gjctm and Matson et al. v. Indian and Northern Affairs Canada, 2013 CHRT 13 (CanLII) http://canlii.ca/t/fz6t7 91 http://fafia-afai.org/wp-content/uploads/2016/06/2016Statement-of-Sharon-McIvor-Engfinal.pdf (accessed October 6, 2016) - 25 -– May 2017 Canada’s legal system hates indigenous women ignored and having our funding cut by 60% by the federal government, NWAC is in a process of actively rebuilding our capacity to substantively respond and coordinate a national response within short timelines. Our current rebuilding status needs to be factored into engagement processes at this time and should not be used as a way to undermine our participation in these key discussions and decisions. We would ask in the spirit of that relationship they consider our noted concerns and, also, lift the Government’s opposition to Sharon McIvor’s petition at the UN Human Rights Committee which seeks full 6(1)(a) status for herself and her son. 92 Indigenous women cannot take anything for granted. McIvor filed her case in 1985, won it in 2007, lost most of it in 2009 but still forced the government to amend the Indian Act in 2010 to address the ongoing discrimination. Parliament’s amendments in 2010 were still discriminatory, resulting in more court cases and the 2015 decision in Descheneaux. Maybe, Parliament will finally and fully eliminate discrimination against the status of indigenous women and their children in 2017. Maybe finally the “long, hard road of Sharon McIvor” will reach its end. 93 But no, Canada failed to remove sex discrimination in the Indian Act yet again, following Justice Canada advice to take the narrowest approach possible. The new Trudeau government introduced Bill S-3 in October 2016. Dr. Pam Palmeter, among others, explained the various problems and ongoing discrimination that Bill S-3 does not remedy. Palmeter told the Senate Standing Committee studying the Bill: There was nothing in the UN decision in Lovelace preventing Canada from eliminating all gender discrimination in the Bill C-31 amendments to the Indian Act in 1985 – it simply chose not to. Again, there was nothing in the trial or Court of Appeal decisions in McIvor which prevented Canada from addressing all gender discrimination in 2010 with Bill chose not to do so. At any time, the federal government could make a policy decision to do what is right, but each time they chose against Indigenous women and our descendants. Here we are again, with yet another case in Descheneaux, where the Court specifically encouraged Canada to make broader amendments to address gender discrimination and it is choosing not to. Contrary to earlier testimony from INAC and DOJ officials that Bill S-3 addresses all known gender discrimination and goes beyond the court ruling, Minister Bennett confirmed that it only addresses what she refers to as “simple” gender discrimination and they crafted Bill S-3 to be in line with their view of the Court decision. This is despite Canada’s submissions to the UN and Minister Bennett’s public commitment to eliminate all known gender discrimination.94 Anyone who cares about discrimination against indigenous women needs to read Pam Palmeter’s submission to the Senate. The Minister of Indigenous Affairs stated she was embarrassed by the 92 The Native Women’s Association of Canada, “NWAC Applauds the Long-Awaited Elimination of Sex Discrimination in Indian Act Initiated By Government,” July 28, 2016, Ottawa, Ontario, accessed on September 27, 2016, https://nwac.ca/2016/07/press-release-nwac-applauds-canadas-long-awaitedelimination-of-sex-discrimination-in-indian-act/ 93 “The long, hard road of Sharon McIvor,” The Vancouver Sun, November 9, 2007, accessed on September 14, 2016, http://www.rapereliefshelter.bc.ca/long-hard-road-sharon-mcivor-vancouver-sunnovember-9-2007 94 http://www.pampalmater.com/wp-content/uploads/2016/12/Presentation-to-Parliamentary-StandingCommittee-on-Indigenous-and-Northern-Affairs-Dec-5-2016.pdf . See also the other submissions: https://openparliament.ca/bills/42-1/S-3/ - 26 -– May 2017 Canada’s legal system hates indigenous women lack of appropriate consultation by her own department on this matter. 95 The Senate Standing Committee told Canada to withdraw the Bill and start again. 96 The Trudeau government is now launching a major celebration of 150 years of Canada’s creation. Could we not finally end discrimination against indigenous women before July 1, 2017? What is wrong with us? To say that we need a “time” extension is unbelievable. All of the issues of sex discrimination in the Indian Act have been front and centre since, charitably, the 1960s. I am so ashamed to be a Canadian and a feminist and a former Justice Canada lawyer. All of the Justice Canada lawyers who worked to prevent the discrimination from being fully addressed will have received their excellent salaries and “performance pay” bonuses over the years and most will now be enjoying a well-funded retirement. They will reminisce fondly about being human rights lawyers at Justice Canada, as will the judges who heard the cases since 1985. And still the Charter has failed to protect indigenous women from discrimination. Meanwhile, McIvor’s children were excluded from traditional hunting, gathering and fishing, and from traditional marriage, funeral and healing ceremonies. They were not allowed to live on reserve land or go to Indian schools and they did not qualify for health and dental benefits or free postsecondary education.97 On October 25, 2016, McIvor, the Native Women’s Association of Canada and many others 98 appeared at the United Nations in Geneva, Switzerland before the 65th Session of the Committee on the Elimination of Discrimination against Women99 to explain the various ways that Canada continues to discriminate against women, with a particular focus on indigenous women. 100 On the very same day, the Government of Canada introduced a Bill into the Senate to begin the process of removing gender discrimination in the Indian Act and to address the Descheneaux case (and indirectly the McIvor case). 95 “Bennett embarrassed at handling of legislation designed to change Indian Act,” APTN National News, December 1, 2016, http://aptn.ca/news/2016/12/01/bennett-embarrassed-at-handling-oflegislation-designed-to-change-indian-act/ 96 “Senate committee tells minister to halt sex-based amendments to Indian Act after ‘inadequate consultation’,” APTN National News, December 13, 2016, http://aptn.ca/news/2016/12/13/senatecommittee-tells-minister-to-halt-sex-based-amendments-to-indian-act-after-inadequate-consultation/ 97 “Senate committee tells minister to halt sex-based amendments to Indian Act after ‘inadequate consultation’,” APTN National News, December 13, 2016, http://aptn.ca/news/2016/12/13/senatecommittee-tells-minister-to-halt-sex-based-amendments-to-indian-act-after-inadequate-consultation/ 98 Aboriginal Legal Services, Amnesty International, Barabara Schlifer Clinic, BC CEDAW Group, Canada Without Poverty, Canadian Association of Elizabeth Fry Societies, Canadian Feminist Alliance for International Action, Chair in Indigenous Governance, Dr. Pam Palmater, Coalition of Child Care Advocates of BC, Indigenous Women Against the Sex Industry, MiningWatch Canada, Native Women’s Association of Canada, OXFAM, West Coast LEAF 99 The Committee is established pursuant to the Convention on the Elimination of All Forms of Discrimination against Women (1979). http://www.un.org/womenwatch/daw/cedaw/ . The Convention is the only human rights treaty which affirms the reproductive rights of women and targets culture and tradition as influential forces shaping gender roles and family relations. It affirms women's rights to acquire, change or retain their nationality and the nationality of their children. States parties also agree to take appropriate measures against all forms of traffic in women and exploitation of women. Countries that have ratified or acceded to the Convention are legally bound to put its provisions into practice. They are also committed to submit national reports at least every four years on their compliance with the Convention. 100 See their joint press release at http://fafia-afai.org/en/1739/ - 27 -– May 2017 Canada’s legal system hates indigenous women The Native Women’s Association of Canada welcomed the Bill, noting it is not a full solution: The following are three sex-based inequities within the Indian Act that the Government had identified so far, to be included in the legislative amendments in response to the Descheneaux decision:  Cousins Issue: Address the differential treatment of first cousins whose grandmother lost status due to marriage with a non-Indian, when that marriage occurred before April 17, 1985  Siblings Issue: Address the differential treatment of women who were born out of wedlock of Indian fathers between September 4, 1951 and April 17, 1985  Issue of Omitted Minors: Address the differential treatment of minor children, compared to their adult or married siblings, who were born of Indian parents or of an Indian mother, but lost entitlement to Indian Status because their mother married a non-Indian after their birth, and between September 4, 1951 and April 17, 1985 NWAC looks forward to seeing the aforementioned sex-based inequities remedied effectively, as well as other misogynist laws that have been discriminating against Indigenous women and girls for centuries. Dr. Lynn Gehl (2013) identified one such legislative issue, namely the unknown or unstated paternity policy. This policy causes Indigenous children to be robbed of inclusion in their home communities due to the Government’s inherent assumption that lack of a father’s signature on a birth certificate translates to the father being a non-status Indian. Even worse, the unknown or unstated paternity policy applies to Indigenous mothers whose children were conceived through the violent acts of sexual assault, incest, rape or prostitution, which only adds further insult to injury by depriving her children of the socio-economic and cultural benefits of status Indian-ship and First Nations citizenship. Once the legislative amendments are passed in February 2017, we look forward to working with the Government to ensure full engagement by Indigenous communities when we collectively begin examining the broader issues relating to Indian status provisions and First Nations citizenship, as part of Stage II of this initiative. Moving beyond the issues identified by the Descheneaux case decision requires extensive consultations with Indigenous peoples across Canada in order to achieve culturally and regionally diverse perspectives. 101 The court cases and legislative delays continue. The Matson and Andrews case (see footnotes 18, 75 and 79) will be heard by the Supreme Court of Canada in 2018. The Government of Canada has promised legislation to remove the effects of discrimination against women in the Indian Act going back as far as 1951. The Government of Canada has promised consultations to see what it should do about discrimination earlier than 1951.102 The Government introduced a new Bill C-38 101 https://nwac.ca/2016/10/press-release-nwac-commends-the-government-for-introducing-legislation-thatbegins-the-process-of-ending-sex-discrimination-in-the-indian-act/ 102 Katharine Brack, “Final Report for the Native Women’s Association of Canada on International Law and Bill S-3: An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général), April 8, 2022 https://nwac.ca/assets-knowledge-centre/Appendix-H-The-Indian-Act-and-International-Law.pdf - 28 -– May 2017 Canada’s legal system hates indigenous women in 2023 to try to end the discrimination, but yet again, this seems to fall short and in 2024 it is still not law.103 3. The law says indigenous women have inferior property rights The Indian Act 1876 created a system of “location tickets” followed in 1951 by “certificates of possession” (CPs) of land on reserves. [L]awful possession of individual tracts of land was only recognized if the Governor-inCouncil granted a location ticket. Land held under a location ticket gave the individual Indian lawful possession of the land, an exemption from taxes/legal seizure, limited the transferability to non-Indians, and allowed for the ticket to pass to a heir(s) upon death (Hall et al. 1988, 481). … A CP is the evidence of an individual band member’s lawful possession of an individual tract of reserve land. In order for an individual Indian to acquire a CP the band council must allot the land to the applicant and the Minister of Indian Affairs must approve the allotment. Only band members can hold a CP. Although the CP holder gains similar property rights to an offreserve resident, there are several important differences. The ability to transfer possession, the legality of wills, the right to an equitable division of property after divorce, the power to lease, and the ability to use property as equity are different from off-reserve practices. As well, Indian private property rights are subject to the exclusive power of Parliament, and to the discretionary will of the Minister of Indian Affairs. 104 103 Shari Narine, “Proposed legislation to amend the Indian Act continues discrimination it’s designed to end, say MPs,” October 30, 2023 https://windspeaker.com/news/windspeaker-news/proposed-legislationamend-indian-act-continues-discrimination-its-designed 104 Christopher Alcantara, “Individual property rights on Canadian Indian reserves: the historical emergence and jurisprudence of certificates of possession,” Canadian Journal of Native Studies vol. 23, no.2 (2003): 391, 393, and 401, accessed on September 24, 2016 http://www3.brandonu.ca/library/cjns/23.2/cjnsv23no2_pg391-424.pdf “According to the Department of Indian Affairs, approximately 10,059 Location Tickets (the predecessor of the CP) and 145,000 CPs have been issued to individuals on 301 reserves since 1888 (Guest and Gros-Louis 2001, Payne 2002),” found in Christopher Alcantra’s “Individual Property Rights on Canadian Indian Reserves: The Historical Emergence and Jurisprudence of Certificates of Possession,” The Canadian Journal of Native Studies XXIII, 2 (2003):393, accessed on September 27, 2016, http://www3.brandonu.ca/cjns/23.2/cjnsv23no2_pg391-424.pdf Many First Nations do not use CPs, or combine them with customary or informal mechanisms. Douglas Sanders estimated in 1988 that half of First Nations in Canada do not use the Certificate of Possession system at all: Douglas Sanders, “The Present System of Land Ownership,” a paper presented to the First Nations’ Land Ownership Conference, September 29-30, 1988 at the Justice Institute of British Columbia. This was quoted in Marilyn Poitras’ “Family law relating to First Nations clients,” Saskatchewan Family Law Bar Admission Course, (2004): 4 accessed on September 27, 2016, http://redengine.lawsociety.sk.ca/inmagicgenie/documentfolder/CPLED200607FamilyFirst.pdf Mary-Ellen Turpel Lafond later became the first Treaty Indian appointed as a provincial court judge in Saskatchewan. She was appointed in 2006 as British Columbia’s first Representative of Children and Youth, a position she continues to hold at the time of writing. - 29 -– May 2017 Canada’s legal system hates indigenous women Remember that the Indian Act ensured that only men could vote and only men could be chief or councillors. The bias towards granting location tickets and certificates of possession to male Indians is obvious. Mary Ellen Turpel wrote: the situation on Indian reserves is such that the certificates of possession are invariably issued to male band members so an appeal to the Department of Indian Affairs or the band council would be equally futile in most, if not all, cases. The practice of issuing certificates to men is a carry-over from the late nineteenth century practice of issuing location tickets to males, an extension of Anglo-European patriarchal notions of land holding and succession. 105 The Indian Act placed severe limitations on the ability of Indians to make wills and have the terms of their wills enforced, and even more limitations on the ability of widows to inherit property of their husbands. Wendy Moss and Elaine Gardner-O’Toole summarize the history of this discrimination: Prior to 1876, Indian legislation provided that enfranchised Indians could assign property by will but said nothing about the devolution of property of unenfranchised Indians. … Since there was still no provision allowing unenfranchised Indians to will their property, Indians had no say in how their property would be inherited. The Indian Act, 1880 had a similar but more detailed provision, section 20, which also gave the Superintendent-General the power at any time to remove a widow from the administration and charge of reserve land (held under location ticket) and of any goods held by her on behalf of her minor children. The Superintendent-General was essentially an executor with extraordinary powers to remove at will any guardian (including the widow) of the children of a deceased Indian. There were no provisions for the separate devolution of property of Indian women. In 1884, a similar provision was enacted that also allowed an Indian holding reserve land under a location ticket to will the parcel and other property to family members or relatives. A number of restrictions were placed on this right, including requirements for band consent to the will and for no bequest to be made to any relative further removed than a second cousin. New restrictions were placed on the right of a widow to inherit by intestacy from her husband and to administer his estate on behalf of the children. In either case, the widow had to be “a woman of good moral character” and living with her husband at the date of his death. In 1894, section 20 was again amended by An Act to Further Amend ‘The Indian Act.’ Band consent was no longer required for a will to be valid but consent of the SuperintendentGeneral was necessary for disposal of any interest in reserve land. In the case of an Indian male dying intestate, his widow, to be entitled to inherit property or to manage it on behalf of the children, need no longer have been living with him at the date of his death. The Act specified, however, that the Superintendent-General would be the sole and final judge as to the moral character of the widow. Changes were made to the division of property and for the first time the Act provided that the property of a married Indian woman would devolve in the same way as that of a man. In 1906, the Indian Act for the first time dealt with the disposal of the property of unmarried 105 Mary Ellen Turpel “Critical Perspectives on Family Law: Race, Gender, Class,” Canadian Journal of Family Law 10, (1991):17 – 40, para. 32, accessed on September 27, 2016, http://www.iidh.ed.cr/comunidades/diversidades/docs/div_enlinea/critical%20perspectives.htm - 30 -– May 2017 Canada’s legal system hates indigenous women Indian women: ‘the property of any unmarried Indian woman who dies intestate shall descend in the same manner as if she had been male.’ Later amendments, in 1914 and 1924, gave the Superintendent-General power to appoint administrators for the estate of any deceased or insane Indian, and removed the ‘good moral character’ requirement, though only in the case of an Indian dying intestate with no issue. The ‘good moral character’ condition was reinstated in 1927: Upon the death of an Indian intestate his property of all kinds, real and personal, movable and immovable, including any recognized interest he may have in land in a reserve, shall descend as follows: • One-third of the inheritance shall devolve upon his widow, if she is a woman of good moral character, and the remainder upon his children, if all are living, or, if any who are dead have died without issue; • If there is no widow, or if the widow is not of good moral character, the whole inheritance shall devolve upon his children in equal shares, if all are living, or if any who are dead have died without issue. .... The 1951 Indian Act reworked the language of the provisions dealing with descent of property, removed the ‘good moral character’ requirements but kept in the Minister very broad powers over the administration of wills and estates. 106 What has been, and what continues to be the effect of the above discrimination? Are indigenous women still suffering from inferior property rights today? Do indigenous governments have a bias towards men when issuing certificates of possession today? Does the law of possession and property on reserve have a disproportionate impact on forcing indigenous women from their homes and communities? I hope the MMIW Inquiry will discuss these questions. 4. The law says indigenous women have inferior rights when their marriages end “… consequences for spouses … is not relevant …” – Supreme Court of Canada107 In addition to discriminatory provisions relating to wills and estates, under the Indian Act there was no equal division of property upon marriage breakdown that is recognized. If a male partner owned on-reserved property, or a certificate of possession of the marital home, there was no protection for the wife if the male partner forced the woman to leave, or simply wanted to sell marital property without the wife’s permission. There was no requirement to compensate the other partner or share the money from the sale. The most valuable property an indigenous couple has is often on the reserve. Men usually hold possession of the property, including the family home. Women and children are often forced to find somewhere else to live. Most reserves are suffering from a serious housing shortage, so women who are forced out of the family home often have to leave their reserve. Rules about who 106 Wendy Moss, “Aboriginal People: History of Discriminatory Laws,” (November 1987), updated and revised by Elaine Gardner-O’Toole (1991), accessed on September 27, 2016, http://publications.gc.ca/Collection-R/LoPBdP/BP/bp175-e.htm 107 Derrickson v. Derrickson, 1986 CanLII 56 (SCC), http://canlii.ca/t/1ftsn, para. 81 - 31 -– May 2017 Canada’s legal system hates indigenous women holds land on reserve can be complicated, so it can be difficult to enforce possession. The lack of protection is particularly dangerous for women wanting to leave abusive relationships. Further, many women on reserves also face obstacles such as lack of social and health services, geographic isolation, language barriers, and lack of access to education which makes enforcing their rights more difficult. There is limited access to legal information, courts, lawyers, protection, or police officers to help women enforce their legal rights. The lack of protections in the Indian Act, until extremely recently, was in stark contrast to the protections that the law offers to non-indigenous women in Canada. (Although it must be said that Canadian law treated nonindigenous women very roughly in marital division issues until progress in that area began to be made in the 1970s.) Canadian courts have confirmed that any provincial law that tries to extend fairness to women when a marriage breaks down has no effect in any case where the Indian Act applies.108 The key issue is whether the provincial law governing marital break-up applies to Indians. Section 88 of the Indian Act states that all laws of general application in force in any province apply to Indians in the province, “except to the extent that such laws are inconsistent with” the Indian Act. Notably, the legal issue is not whether the provincial law would keep indigenous women and children safer; for whatever reason, the Supreme Court in 1986 did not mention whether the Indian Act’s failure to provide housing rights and marital division of assets violated the life, liberty and security of indigenous women under the Charter. The Supreme Court did not choose to say that there was a void in the Indian Act that would be filled by the provincial laws until Parliament chose to enact its own scheme to govern marital break-up on reserves. The court found that the provincial law on the break-up of a marriage was in conflict with the Indian Act provisions concerning possession of land on reserves and as a result the provincial laws had no application on reserve. The consequence for the spouse being evicted from their home was irrelevant to this analysis. The true failure belongs to Parliament and the Government of Canada for failing to address marital break-ups in the Indian Act, leaving indigenous women incredibly vulnerable to severe and immediate economic deprivation, eviction, loss of security of the person, loss of cultural attachment and loss of family. Of course, if the courts had ruled that the provincial law applied, that might have forced Parliament to do its duty and to legislate marital division within the Indian Act or at least given indigenous women the protection of provincial laws on marital break-up. Compare how the courts ruled that provincial laws of general application relating to marital break-up do not apply on reserve, to the provincial laws of forced sterilization. Alberta’s Sexual Sterilization Act was in effect from 1928 to 1972, and B.C.’s Sexual Sterilization Act was in effect from 1933 to 1973. Both before there was any provision in the Indian Act for the application of provincial laws of general application (enacted in 1951), and afterwards, the Department of Indian Affairs knew about, and permitted sterilization of indigenous persons (mostly women) under the provincial sterilization laws in British Columbia and Alberta. The federal government went further, defining in the Indian Act a “mentally incompetent” Indian is anyone defined by provincial law as being mentally incompetent, and therefore their property could be taken from them and given to the federal or provincial government, depending on whether the person lived on reserve or not.109 So no, provincial marital break-up laws do not 108 Derrickson v. Derrickson, 1986 CanLII 56 (SCC), http://canlii.ca/t/1ftsn, Paul v. Paul, 1986 CanLII 57 (SCC), http://canlii.ca/t/1ftsq 109 Karen Stote, An Act of Genocide: Colonialism and the Sterilization of Aboriginal Women (Fernwood Publishing, 2015) at pp. 48-50 - 32 -– May 2017 Canada’s legal system hates indigenous women apply on reserve, but yes, provincial laws on sterilization were applied on reserve and against Indian women. Although the Supreme Court ruled against equal division of marital assets for women on reserve, the court said that if a wife applied, a judge would have the discretion to order some measure of compensation in lieu of equal division of assets, especially in relation to the family home on reserve. To which I say: good luck with that. When all other women in Canada have actual rights under law, women on reserves were given a hollow right (considering the barriers to actually making court applications) to beg a court for a discretionary mercy ruling (followed by the challenges in having that ruling respected by the divorced male). Further, if the male spouse with a certificate of possession has no income or assets other than the certificate of possession, the right to apply for a discretionary judgment is completely illusory. It has been suggested that provincial laws concerning victims of domestic violence also do not apply on reserves. 110 Turpel wrote about the 1986 Supreme Court of Canada decisions in Derrickson and Paul. On the question of the protection of indigenous women, the court was silent. Or worse than silent. Justice Chouinard, writing for the entire Supreme Court in Derrickson, said that he was not “unmindful of the ensuing consequences for spouses” but “whether such laws are wise or unwise … is not relevant to their constitutional validity.”111 Turpel continued: 38 The decisions in Derrickson and Paul sanction a situation which is completely opposite to that of the customs of many tribes. There are no obligations on aboriginal men now recognized at law to provide shelter for women, children or elders. Indeed, customary law has no place in matrimonial property disputes as Canadian law will not recognize it - it is the federal or provincial government which exercises jurisdiction over Indians upon marriage breakdown. The impact of this oppression of aboriginal custom on communities cannot be underestimated. When men no longer have to fulfil their responsibilities to women, children and elders, the social control network of the community disintegrates and respect for social responsibilities is lost. 44 … [T]he situation aboriginal women are left with after Derrickson and Paul, especially Paul, is one in which no law protects them. Given the magnitude of the problem of family violence in aboriginal communities, this is barbaric. The failure of the court to explicitly recognize the violence in the Paul case reveals a callous and willful blindness. 45 As a consequence of Derrickson and Paul, aboriginal women who are abused will have to seek shelter off the reserve, usually in a non-aboriginal run shelters for battered women, frequently at considerable distances away from the reserve. More likely, an aboriginal woman’s economic situation would prohibit a move to a shelter and she may simply be trapped in an abusive situation with dim hopes for improvement. In situations where the marriage breaks down, the inability of a spouse (most frequently woman) to gain access to the matrimonial home is an aggreviously unjust one. An order for compensation is no redress. Indian reserves do not have cash economies and compensation awards would be nominal, if even enforceable. Moreover, where compensation was awarded in lieu of division, the task of obtaining another house on the reserve is a cumbersome endeavour. Housing lists on an Indian reserves are heavily backlogged and women will be forced to live in the already crowded homes of relatives, or more likely off the reserve, until housing can be obtained. 110 Poitras (2004) at p. 6, fn. 14 Derrickson v. Derrickson, 1986 CanLII 56 (SCC), http://canlii.ca/t/1ftsn, para. 81 111 - 33 -– May 2017 Canada’s legal system hates indigenous women 46 As noted above, the lack of recourse for protection of an aboriginal woman’s interest in the matrimonial home may mean the loss of an entitlement to live in the community. When aboriginal women and children are forced to leave the reserve, with the hopes of returning only if and when housing becomes available, or violence subsides, they leave behind more than simply shelter or an asset. They leave behind their culture, language and family. Life in an urban centre is not the same as living on a reserve. It is difficult to maintain your language, educate your children, not to mention battle racism in attempts to secure housing and employment. The reserve represents the home of your people. It is a distinct cultural and linguistic community which cannot be found elsewhere. 51 There have been no initiatives taken since these decisions in 1986 to remedy the violence aboriginal women endure. How can this be explained? …112 Turpel emphasized that a home on a reserve is much different for indigenous women because it is tightly connected with their ancestral history, language, culture and familial relations. It is frequently the only place where their children can learn their traditions, language and attachment to that particular land. Forcing women to leave their indigenous homes should not be underestimated; it is not simply a question of the financial value of the property! It is not analogous to non-indigenous Canadians who freely choose to move from one town to another to seek greater advantages.113 Further, because housing on reserves is so limited, assigning the house to one spouse can easily mean the other spouse must leave the community. In addition, because houses on reserves are not part of an open, market-based economy, it is impossible to determine an appropriate and fair financial value for a house, and thus inherently difficult to decide how much the spouse who keeps the house should pay the other spouse. 114 MacTaggart noted that in the Paul case, upon the second separation of Mr. and Mrs. Paul, the court gave Mrs. Paul an order under the B.C. Family Relations Act for interim exclusion occupation of the home, for her and their three children. This was over-turned by the B.C. Court of Appeal and the Supreme Court of Canada also held that the B.C. Family Relations Act had no application. The Supreme Court did not pay any attention to the domestic violence suffered by Mrs. Paul.115 The Manitoba Aboriginal Justice Inquiry reported on the marital property issue in 1991, and recommended that Parliament act urgently to rectify the situation. 116 The Parliament of Canada finally passed the Family Homes on Reserves and Matrimonial Rights 112 Mary Ellen Turpel, “Critical Perspectives on Family Law: Race, Gender, Class,” Canadian Journal of Family Law 10 (1991): 17 – 40, accessed on September 27, 2016, http://www.iidh.ed.cr/comunidades/diversidades/docs/div_enlinea/critical%20perspectives.htm 113 Mary Ellen Turpel, “Critical Perspectives on Family Law: Race, Gender, Class,” Canadian Journal of Family Law 10 (1991): 17 – 40, para. 36 114 Stacey L. MacTaggart , "Lessons From History: e Recent Applicability of Matrimonial Property and Human Rights Legislation on Reserve Lands in Canada", (2016) 6:2 online: UWO J Leg Stud 3 h p://ir.lib.uwo.ca/uwojls/vol6/iss2/3 (accessed October 6, 2016), pp. 18-20; see Tyendinaga Mohawk Council v Brant, 2014 ONCA 565, and Hepworth v Hepworth, 2012 NSCA 11 115 Stacey L. MacTaggart , “Lessons From History: e Recent Applicability of Matrimonial Property and Human Rights Legislation on Reserve Lands in Canada,” (2016) 6:2 online: UWO J Leg Stud 3 h p://ir.lib.uwo.ca/uwojls/vol6/iss2/3 (accessed October 6, 2016) 116 A.C. Hamilton, and C.M. Sinclair, The Justice System and Aboriginal People,” ch. 13, “Aboriginal Women,” accessed on September 27, 2016, http://www.ajic.mb.ca/volumel/chapter13.html - 34 -– May 2017 Canada’s legal system hates indigenous women or Interests Act with the full provisions of the Act not coming into force until the end of 2014, 28 years after the Supreme Court of Canada and Parliament condemned indigenous women to a lack of protection and inability to stay in their homes and in their cultures. 117 The new Act has been criticized because there is so little access to the justice system on reserves, especially for abused women, that the Act by itself will not protect the women or help them stay in their homes. For a woman trying to leave an abusive situation, any delay or barrier in accessing supports may increase her risk of family violence or force her to leave the reserve. 118 Further, section 89 of the Indian Act exempts First Nations members’ property from a number of enforcement mechanisms, which can limit the ability of some spouses to enforce orders for spousal or child support or for division of assets. As long as the ex-spouse who owes money or other personal property keeps that property on reserve, the non-Indian ex-spouse cannot enforce an order against those assets. As with the consequences of Derrickson and Paul, courts may compensate the spouse with property off-reserve, but remain powerless to effect an actual division of on-reserve property where one spouse is not a member of a First Nation. 119 Below is how Luke’s Place120 describes the legal ordeal of enforcing family support orders on reserve in 2016: Are family court orders enforceable on First Nation reserves? Answer: Having provincial family court orders enforced on First Nation reserves is not simple. This is because First Nations fall under federal jurisdiction, according to the terms of the Indian Act of 1985. As a result, provincial court orders of any kind are not automatically enforceable. With respect to family law, this includes custody and access orders obtained under the Children’s Law Reform Act, child and spousal support orders, restraining orders and orders for exclusive possession of the matrimonial home, as well as orders for the division of matrimonial property. The Chief and Council of each First Nation have the authority to decide which laws and orders can be enforced on their territory. Some have made the decision that family court orders will be enforced by the band police; others have made the decision they can be enforced by the O.P.P. or RCMP, and still others have decided they will not allow enforcement of any provincial family court orders. The enforcement of support orders is especially complicated. As you already know, the Family Responsibility Office (FRO) has statutory authority to use a variety of methods to collect child support, including garnishment of wages and bank accounts, seizure and sale of 117 Government of Canada, “Family Homes on Reserves and Matrimonial Rights or Interests Act,” Justice Laws Website, accessed on September 27, 2016, http://laws-lois.justice.gc.ca/eng/acts/F-1.2/ 118 See “Understanding Matrimonial Property Rights on Reserves,” Ontario Women’s Justice Network, updated December 2014, accessed on September 27, 2016, http://owjn.org/owjn_2009/component/content/article/58-aboriginal-law/355-matrimonial-property-rightsreserves 119 Poitras (2004) at p. 8 120 Luke’s Place is a registered charitable organization serving abused women in Durham Region of Ontario, while providing information and specialized training throughout the province, nationally and internationally, see http://lukesplace.ca/ - 35 -– May 2017 Canada’s legal system hates indigenous women property, suspension of driving and other licenses and so on. Where both the payer and recipient are Status Indians, FRO is able to use any of its statutory powers to enforce a support order. Status Indians are federally registered members of a band or First Nation. The rules regulating who is and is not a Status Indian are complex and go beyond the scope of this FAQ. Suffice it to say for our purposes that there are many Indigenous women who are not Status Indians, and this has an impact on many issues, including the enforcement of family court support orders. This is because, when the payer is a Status Indian and the recipient is not, the ability of FRO to enforce a support order is limited by the Indian Act, which does not permit FRO to take any enforcement action against property or income that is located on reserve. In other words, if the payer works on his First Nation, that income cannot be garnished to satisfy a child support order if the recipient is not a Status Indian. The same is true with respect to the seizure and sale of on-reserve property. FRO can garnish any wages earned off-reserve and can seize and sell off-reserve property and can suspend the payer’s driver’s license. This places Indigenous women who are not Status Indians and their children in a very vulnerable position that can leave them living in poverty even when they have an otherwise enforceable support order from family court. If you are working with an Aboriginal woman who is seeking enforcement of family court orders, you should gather information about whether she and/or her former partner are Status Indians, where her former partner is employed (on or off reserve), where any property he may own is situated and what the policy of the relevant First Nation is with respect to enforcement of family court orders.121 How could anyone, particularly someone in the middle of a marital break-up, and too often a victim of violence, inadequate housing, poverty and other conditions, navigate the above legal mechanisms? How could they obtain access to a lawyer, how could they obtain a peace officer to enforce any court order? Meanwhile, the Supreme Court of Canada seems to have changed its mind about when provincial laws will apply. Writing for a unanimous court in Tsilhqot’in Nation v. British Columbia, Chief Justice Beverley McLachlin wrote at para. 151 that when it comes to lands held by Aboriginal title, “Provincial laws of general application, including the Forest Act, should apply unless they are unreasonable, impose a hardship or deny the title holders their preferred means of exercising their rights, and such restrictions cannot be justified pursuant to the justification framework outlined above.” So, just to be clear, provincial laws that could protect indigenous women in a marital separation have no application, but provincial laws that could allow the province to give lands under Aboriginal title to forest companies do apply (so long as the province consults the affected Aboriginal group).122 If this reasoning had been applied to Derrickson and Paul, indigenous 121 accessed September 16, 2016, http://lukesplace.ca/resources/are-family-court-orders-enforceable-onfirst-nation-reserves/ . See also the Frequently Asked Questions about the Matrimonial Real Property Emergency Protection Orders Regulations at the Department of Aboriginal Affairs and Northern Development web site: https://www.aadnc-aandc.gc.ca/eng/1397240912241/1397241087240 122 Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 (CanLII), http://canlii.ca/t/g7mt9 - 36 -– May 2017 Canada’s legal system hates indigenous women women could have been protected by provincial legislation regulating marital separations all these years.123 The result of inferior status, inferior property rights and inferior marital separation rights hit indigenous women immediately with indigenous housing rights. The Centre for Equality Rights in Accommodation issued a report in 2002 that included a series of recommendations concerning indigenous women and housing. These recommendations included: The right to adequate housing should be recognized by the federal government as an Aboriginal treaty right, arising from the Federal government’s fiduciary responsibility with respect to Aboriginal peoples. To this end, the federal government has an obligation to clarify with treaty nations a modern understanding of existing treaty terms as they apply to housing. Governments also have an obligation to ensure that Aboriginal women, men and children have adequate shelter, and short and long term means to provide for their own housing needs. … Federal and provincial/territorial governments as well as band councils responsible for housing must respond to the specific housing and income issues experienced by Aboriginal women living on and off reserves. This would include: earmarking funds for the construction of new units specifically for Aboriginal women on and off-reserve that are culturally appropriate and that accommodate families of different sizes; ensuring that all Aboriginal women have sufficient funds (perhaps through a portable shelter allowance financed by the Federal government) to access existing and new housing stock on and off reserve; and allocating existing housing stock in a non-discriminatory fashion, prioritizing those in need. Victims of family violence must consistently be given priority access to public housing. 124 Inferior, inadequate and non-existing housing leads to danger in many forms, which leads to too many missing and murdered indigenous women. 5. Leave your reserve or lose your status and you lose your vote and your right to be elected From its first enactment in 1876 until 1951, the Indian Act prohibited indigenous women from voting in band elections or holding office in their communities 125 and all indigenous peoples faced various prohibitions on voting in provincial and federal elections until the last of the prohibitions was removed in 1960. So being denied the right to vote was for the first 85 years of Canada’s existence part of what it meant to be an indigenous woman. Indigenous women (and their children) have frequently been forced to leave their homes and communities, whether because they have married a non-Indian or a non-Band member, to escape violence, as a consequence of divorce and no access to the matrimonial home or for other reasons. The Indian Act denied the right to vote or to be a candidate for band council to anyone who was not ordinarily resident on the reserves. Once more, indigenous women felt the brunt of the law 123 Stacey L. MacTaggart, “Lessons From History: The Recent Applicability of Matrimonial Property and Human Rights Legislation on Reserve Lands in Canada,” (2016) 6:2 online: UWO J Leg Stud 3 http://ir.lib.uwo.ca/uwojls/vol6/iss2/3 (accessed October 6, 2016) at pp. 7-8 124 Women and Housing in Canada: Barriers to Equality, Toronto: Centre for Equality Rights in Accommodation, 2002 http://www.equalityrights.org/cera/docs/barriers.htm (accessed October 6, 2016) 125 http://indigenousfoundations.arts.ubc.ca/home/community-politics/marginalization-of-aboriginalwomen.html - 37 -– May 2017 Canada’s legal system hates indigenous women that would deny them a role in their community affairs. The inferior status the law has given to indigenous women’s connection to their community was well known by everyone in the community. The “ordinarily resident” provision of the Indian Act was not struck down until 1999.126 However, there have been numerous court cases since then and the questions about the rights of nonresidents to vote, to run for band council or to run for chief are not yet fully answered. 127 In other words, the various laws and lack of protection for indigenous women which has forced them to leave their communities continues to leave them with reduced status when it comes to various democratic rights in their home community. This impact continues today. 6. How the Canadian legal system harms indigenous women in connection with their education and the abuses they suffer there Shortly after enacting the Gradual Civilization Act and Indian Act and its various discriminatory provisions against indigenous women, Canada implemented its residential schools policy. The residential schools policy was supported with various statutes and regulations and supported with contracts between Canada and the churches and appropriation statutes from Parliament approving of residential schools and funding those schools. A century of multiple different forms of abuse occurred at the schools before the Canadian legal system was willing to address even a few of the different types of abuses in the 1990s. When it did see fit to allow residential school cases into court, the Canadian legal system seemed to be almost solely concerned with child sexual abuse. Discriminatory funding for the schools themselves was never an issue. Removing children from their parents, homes and communities was not considered to be a wrong, under the legal system. Discriminatory education – systematic, relentless, sub-standard education – was not anything the legal system cared about. Children being used as farm and school labourers, education being focused on learning Christianity, children running away from schools, dying in the schools due to contagious diseases exacerbated by crowded dormitories, poorly constructed buildings, poor health care and mal-nourishment was not something that concerned the legal system. The residential school system was a century long pattern of ripping children from their homes and sending these highly vulnerable children into extremely dangerous, foreign, sub-standard living conditions, and exposed to extremely dangerous predators. Separating boys from girls, separating siblings from each other, providing gender-specific roles, these were all part and parcel of the civilization Canada would inflict on the children. There is no doubt that the message for all to see was that the lives of indigenous children mattered less than other lives and the Canadian legal 126 Corbiere v. Canada (Minister of Indian and Northern Affairs), 1999 CanLII 687 (SCC) http://canlii.ca/t/1fqhc 127 The court noted at para. 24 that there are several decisions in which Corbiere has been cited for the proposition that barring band members who reside off-reserve from voting in band elections is inherently discriminatory: see, e.g., Thompson v. Leq’á:mel First Nation Council, 2007 FC 707 (CanLII) at para. 17, 333 F.T.R. 17; Cockerill v. Fort McMurray First Nation No. 468, 2010 FC 337 (CanLII) at para. 33, 363 F.T.R. 213; Joseph v. Dzawada’enuxw (Tsawataineux) First Nation Band Council, 2013 FC 974 (CanLII) at paras. 43-48, 57-58, 439 F.T.R. 226. The court continued: “[25] However, these cases … do not accord with the Supreme Court’s more recent jurisprudence on section 15 of the Charter. In Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30 (CanLII) at paras. 20-21, 34, [2015] 2 S.C.R. 548 [Kahkewistahaw], the Supreme Court determined that claimants who allege their rights under section 15 of the Charter have been violated must provide a sufficient evidentiary basis to establish a prima facie case that the impugned action or law is discriminatory in its effects. While the evidentiary burden for section 15 claims need not be onerous, it does require “more than a web of instinct” (Kahkewistahaw at para. 34).” - 38 -– May 2017 Canada’s legal system hates indigenous women system would not be there to protect the children. No Canadian should believe they know what happened in the residential schools until they actually pick up a copy of the Truth and Reconciliation Commission’s Final Report, Canada’s Residential Schools: The History, parts 1 and 2.128 The History is volume 1 of the Commission’s overall final report. Just because someone might have read the TRC’s calls to action or Executive Summary, or might know something about the sexual and physical abuses at the schools, they still do not understand the full scope of what happened in the schools. The Manitoba Aboriginal Justice Inquiry, Royal Commission on Aboriginal Peoples, and books on residential schools by John Milloy and J.R. Miller do not come close to providing the range and depth of information found in the TRC report. Simply reading the table of contents from the history volume will better inform any Canadian of all the different types of abuses that occurred in the schools. With respect to the education of boys and girls, the TRC stated: “As described more fully in other parts of this report, the boys and girls received very different training. The girls were to be Christian homemakers and mothers; the boys, trades workers and farmers. … Boys were also provided with greater recreational opportunities than were the girls.” 129 … By the 1920s, Indian Affairs had called on the federal Department of Justice officials to provide a definition for Protestant and Catholic children. According to the officials, a Protestant child was ‘one born of Protestant parents or one whose father or widowed mother has decided to have him or her educated in a Protestant school or a school conducted under Protestant auspices.’ Catholic parents were similarly defined. From 1922 onwards, the Indian Affairs policy was that it would not place the child of a Catholic father in a Protestant school without an affidavit from the father, and neither would it place the child of a Protestant father in a Catholic school.130 Notice the discrimination against mothers. It is the father’s religion that counted. In 1892, Adelaide Trottier, a 13 year old former student of the Qu’Appelle Industrial School, compained that a ‘half-breed,’ Pierre Bourassa had raped her while she was walking home from a church service. Trottier was working in Regina as part of the “outing” system, to send Indian Residential Schools to work in the community instead of being educated at school. In 1891, the head of the Qu’Appelle school sent more than 20 girls into service as maids, nannies and household assistants. Payments were made directly to the school, which retained the majority of the wages. At the trial, the jury convicted Bourassa but asked for mercy for the accused which the judge granted. However, the judge lectured Bourassa: “The schools like the Industrial School, where she had been for the purposes of elevating these girls and putting them in a position where 128 Truth and Reconciliation Commission’s Final Report, volume 1, Canada’s Residential Schools: The History, Part One, Origins to1939,” and “The History, Part Two, 1939 to 2000” (2015) accessed on September 27, 2016, http://nctr.ca/assets/reports/Final%20Reports/Volume_1_History_Part_1_English_Web.pdf and http://nctr.ca/assets/reports/Final%20Reports/Volume_1_History_Part_2_English_ Web.pdf 129 Truth and Reconciliation Commission’s Final Report, volume 1, Canada’s Residential Schools: The History”, part 1, Origins to 1939, ch. 28, “Separating the sexes, arranging marriages, establishing colonies: 1867-1939” (2015) at p. 647 130 Truth and Reconciliation Commission’s Final Report, volume 1, Canada’s Residential Schools: The History”, part 1, Origins to 1939, ch. 28, “Separating the sexes, arranging marriages, establishing colonies: 1867-1939” (2015) at p. 631 - 39 -– May 2017 Canada’s legal system hates indigenous women they would become perfectly civilized and of removing any distinction between, as we may say, their colour and that of whites …” Instead of a life sentence, the judge sentenced Bourassa to five years and twenty strokes of the cat-o’-nine-tails. The Regina newspaper the Leader did not mention Trottier’s connection to the school.131 Further, the TRC reviewed the statistics of the Independent Assessment Process for compensating former students. The TRC concluded, among other things, that abuse was widespread throughout the residential school system; a significant percentage of the abuse were of a serious nature with potentially life-long impacts; male and female students were abused at equal rates; male students were compensated at the most serious and damaging category of abuse at a greater rate than female students.132 The first civil court case involving Indian residential schools concerned indigenous girls. In 1914, 13 year old Ruth Miller was punished for running away from the school called the Mohawk Institute. The court awarded $100 to her father because she had been placed in a cell at the school, 3 feet by 6 feet, with no light, no bed, no chair and remained there for three days, getting bread and water on Sunday. Her hair was cut off on Monday. She ran away again and was whipped 13 times on her back with a birch. The court awarded $300 to the father for the physical punishment.133 It appears that the first criminal convictions relating to abuse within residential schools were convictions of indigenous women.134 In 1939, two female students were charged with assaulting a third girl at the Mount Elgin school so badly that she was confined to bed for a week. The girls pleaded guilty and each received a two-year suspended sentence. 135 In 1945, a female student at the Grayson, Saskatchewan school tried to slip out of the school to meet some boys. For punishment, her hair was cut. The girl’s parents came to the school to remove their daughter and her two sisters. An altercation arose between the mother and one of the supervisors. The mother was convicted of assault and fined $1 plus $4.50 in costs; the father was convicted under the Indian Act provisions regarding truancy and fined $1 plus $4.75 in costs. 136 So the second criminal conviction relating to residential schools also involved a school girl, but this time it was her mother who was criminally convicted. See how Canada’s legal system treats indigenous women? 131 Erickson (2011) at pp. 51-52 Truth and Reconciliation Commission’s Final Report, volume 1, Canada’s Residential Schools: The History, Part Two, 1939 to 2000,” 411 (2015) http://nctr.ca/assets/reports/Final%20Reports/Volume_1_History_Part_2_English_Web.pdf 133 Truth and Reconciliation Commission’s Final Report, volume 1, Canada’s Residential Schools: The History, Part One, Origins to 1939,” 537-539 (2015) http://nctr.ca/assets/reports/Final%20Reports/Volume_1_History_Part_1_English_Web.pdf 134 For a complete summary of the criminal cases involving Indian residential schools, see McMahon, Thomas L., Indian Residential Schools Were a Crime and Canada's Criminal Justice System Could Not Have Cared Less: The IRS Criminal Court Cases (January 26, 2017). Available at SSRN: https://ssrn.com/abstract=2906518 135 Truth and Reconciliation Commission’s Final Report, volume 1, Canada’s Residential Schools: The History, Part One, Origins to 1939,” (2015) at p. 574 http://nctr.ca/assets/reports/Final%20Reports/Volume_1_History_Part_1_English_Web.pdf 136 Truth and Reconciliation Commission’s Final Report, volume 1, Canada’s Residential Schools: The History, Part Two, 1939 to 2000,” (2015) at p. 374 http://nctr.ca/assets/reports/Final%20Reports/Volume_1_History_Part_2_English_Web.pdf 132 - 40 -– May 2017 Canada’s legal system hates indigenous women Residential schools were not the only way that education put indigenous girls and women in harm’s way. In 1969, at the age of 17, Helen Betty Osborne left her community so she could continue her education and try to become a teacher. She went to a residential school 29 kilometres from The Pas, Manitoba for two years. She then moved into The Pas to complete her high school there. She lived with a family arranged by the Department of Indian Affairs. One night in November 1971, she was abducted by four young men, assaulted and brutally murdered. Murder charges against two of the four were laid in October 1986, and there was a single conviction in 1987. The Manitoba Aboriginal Justice Inquiry reports on the many different ways that racism was involved in Osborne being in The Pas at all; the racism of the four involved in her murder; the racism that pervaded The Pas; the racism that occurred in various aspects of the investigation, including the silence of those who had some knowledge of who committed the murders; the mistakes made in the prosecution of the case and the racism inherent in jury composition. The Manitoba Aboriginal Justice Inquiry concluded: “There is one fundamental fact: her murder was a racist and sexist act. Betty Osborne would be alive today had she not been an Aboriginal woman. … Those who abducted her showed a total lack of regard for her person or her rights as an individual.”137 With so many details and injustices to address in its report, it is not altogether surprising that the Inquiry did not comment on the sentence passed on the one person who was convicted: Dwayne Archie Johnston, who was given a right to parole after serving only ten years of his “life” sentence, and in fact, he was granted parole as soon as he was eligible. 138 Helen Betty Osborne’s brother Kelvin John Osborne was a gay man who went by the name of Rose. He was murdered in 2008. The judge said that the case should be singled out for its “gruesome brutality.” The judge sentenced Rose’s murderer, Morris Richard McConnell, to life with eligibility for parole in ten years. The prosecution did not believe the killing should be classified as a hate crime but instead one where McConnell’s sexual confusion and self-loathing led him to react in anger at being propositioned.139 It is my hope that the MMIW Inquiry will study the sentences that are given to persons who abduct and murder indigenous women and will report on whether targeting indigenous women because of their perceived powerlessness and unimportance to society should be considered a hate crime. Perhaps the MMIW Inquiry might also have something to say about whether there is discrimination in the sentencing of offenders where the victim is an indigenous woman. The only residential schools criminal case to reach the Supreme Court of Canada was R. v. O’Connor, decided in 1995.140 In this case, Bishop O’Connor argued that charges against him for sexual assault of four young women at the Williams Lake Residential School in British Columbia should be dismissed and if not, that he should have extremely broad access to therapeutic counseling and medical records of the young women. 137 A.C. Hamilton, and C.M. Sinclair, The Justice System and Aboriginal People, “Volume 2: The Death of Helen Betty Osborne,” ch. 5 “The Community,” p. 52, accessed on September 27, 2016, http://www.ajic.mb.ca/volumell/chapter5.html and ch. 10 “Conclusions,” p. 98, http://www.ajic.mb.ca/volumell/chapter10.html 138 See also: Len Kruzenga, “Justice denied continues to haunt,” Windspeaker vol. 16, issue 11, (1999), accessed on August 31, 2016, http://www.ammsa.com/node/22019 139 James Turner, “Osborne killer gets life sentence,” CBC News, October 19, 2010, accessed on August 15, 2016. http://www.cbc.ca/beta/news/canada/manitoba/osborne-killer-gets-life-sentence-1.939552 140 R. v. O’Connor, 1995 CanLII 51 (SCC), http://canlii.ca/t/1frdh - 41 -– May 2017 Canada’s legal system hates indigenous women I have written a fuller re-counting of the various court decisions and orders in the O’Connor case in a separate paper on residential school criminal court cases. 141 However, for the purposes of the present article, I will highlight only a few of the key court decisions. The original complaint came forward in 1989. It took nine years and approximately 20 separate court hearings and rulings from approximately 20 different non-Aboriginal judges. Even though the Bishop was convicted of one rape and one sexual assault of two different women (and acquitted of similar accusations against two other young women), the end result was that a third trial was ordered by the B.C. Court of Appeal. The Court of Appeal ordered that the third trial be held on the basis that a new judge had to ignore the residential school context and imagine that a priest’s, principal’s and employer’s authority over students and junior employees was not relevant to consent to sexual relations during the residential school years, even though the law has since changed to say that exercise of authority can and does vitiate “consent.” 142 Further, by this point, the courts had upheld the Bishop’s right to see any records in the Crown’s possession about the alleged victims, including their medical and counseling records, and the Bishop’s right to apply to see any such records held by third parties. The case went to the Supreme Court after the trial judge ordered the charges to be dismissed because of non-disclosure and late disclosure of records from the Crown to the Bishop. The B.C. Court of Appeal held that dropping the charges was not appropriate but did order a new trial. The Bishop appealed to the Supreme Court of Canada to have the charges dismissed and if not, ordering more disclosure of medical and counseling records of the alleged victims to the Bishop, including such records held by third parties and not in the Crown’s possession, so that he could use these to attack the credibility of the alleged victims. The Supreme Court’s nine judges wrote 5 separate reasons for decision. The fact that this case occurred in a “native” residential school was mentioned only once, with absolutely no importance given to that context. Only one judgment even discussed the constitutional value of equality, and that was entirely as a question of the equality of women without any mention of the fact the women in this case were indigenous and that indigenous women face special discriminatory barriers in law and in life. In short, the entire Supreme Court utterly ignored the indigenous and residential school contexts of this case. The Supreme Court of Canada decided that if the complainant’s personal records or third-party records were in the possession of the Crown, they had to be disclosed to the defense. The court held that there was no need to balance the rights of the complainant to privacy and equality against the accused’s rights to a fair trial and to make “full answer and defense” because the Crown had possession of the records. Fairness required that any records that the Crown had access to, had to be made available to the defense. (The dissenting judges noted that the question of disclosure of records in the Crown’s possession were not even a question in this case, and so why did the majority of judges discuss it at length?) The court went on to consider whether the Bishop could also have third party-records disclosed (or made available) to him that the Crown did not have it its possession. The court decided that it was the Bishop’s right to ask to see these third-party records. But, because the privacy and 141 Thomas L. McMahon, “Indian Residential Schools Were a Crime and Canada's Criminal Justice System Could Not Have Cared Less: The IRS Criminal Court Cases” (January 26, 2017). Available at SSRN: https://ssrn.com/abstract=2906518 142 R. v. O’Connor, 1998 CanLII 14987 (BCCA) - 42 -– May 2017 Canada’s legal system hates indigenous women equality rights of the alleged victims were affected by the disclosure of third-party records that were not in the Crown’s possession, the court created a two-stage test to determine whether it should order a third-party to give the records to the Bishop. At the first stage of the test, the accused must bring a written application that is accompanied by an affidavit (sworn statement). The application must outline the specific ways that the third party information will be of use to the defense. “Relevant,” at this first stage, means that the records will likely help the accused defend against the charges against them. The third party, for example a doctor, counsellor or therapist, and the alleged victim, must be given notice that the accused is making this application. They can appear and argue against disclosure if they choose to. If the accused convinces the court that the records are likely to help him defend against the charges, then the court moves to the second stage of the test. At the second stage of the test, if the judge finds that the records are likely to be helpful to the defense, the judge then reviews the actual records to make a final decision whether there is a reasonable possibility that the information in the records will help the court decide something that is in issue at the trial or will help the court determine whether a witness is able to testify. A judge would need to consider how important the records are to allow the accused to have a fair chance to challenge the evidence against him, how much the records can prove important facts, how likely it is that the records would be used to push discredited and discriminatory ideas about sexual assault victims, and the extent to which the disclosure of the records would harm the complainant’s dignity, privacy or security of the person. The two female judges of the Supreme Court of Canada dissented on this issue. Madame Justice L’Heureux-Dube wrote the lead dissenting judgment (hers was the only judgment to even mention residential school and equality). It should always be remembered that Canada has never had a majority of women as Supreme Court justices (and the Supreme Court has never had even one indigenous justice, let alone an indigenous woman). The dissenting judges emphasized the need to protect the integrity of the trial by not allowing accused persons to gain access to information that was irrelevant or that could be used to encourage courts to rely on myths about sexual assault and stereotypes about women. L’HeureuxDube’s judgment strongly emphasizes the equality of women who are the overwhelming majority of sexual assault victims and thus the ones with the most to lose in terms of privacy. She also noted how discriminatory myths and preconceptions are applied against women in sexual assault cases. There are so many things that might appear in medical or counseling records. A victim might seek psychiatric counseling and even been diagnosed with some kind of condition that needs treatment; a victim’s records might disclose that they are a sex worker or have an active sex life or simply have a sexually transmitted disease or have had an abortion in the past; a victim’s records might reveal alcohol or drug use or additions. They might show that the victim was slow to tell others about the sexual assault. None of these prove that a specific sexual assault did not occur, but all of these might be twisted to put the victim’s behavior on trial and essentially, to punish her for having sought medical and psychological help. 143 Further, Justice L’Heureux-Dubé stated that therapy records are not generally good evidence. She 143 For a recent case about “third party records” in a sexual assault context, see R. v. Quesnelle, 2014 SCC 46 (CanLII), http://canlii.ca/t/g7xds ; this case provides citations and discussion of other important “third party” cases including R. v. O’Connor - 43 -– May 2017 Canada’s legal system hates indigenous women emphasized that the focus of therapy is to help the victim and not to gather facts or evidence. Notes taken during a therapy session are likely to emphasize impressions and feelings and not hard facts and are therefore unlikely to be helpful in a criminal trial. L’Heureux-Dube stated that disclosure of third party records had “disproportionately invasive consequences for women, particularly those with disabilities, and children.”144 Notice that she did not mention the disproportionately invasive consequences for indigenous women specifically, who were the alleged victims in the case before her. The Ontario Women’s Justice Network makes it clear: First Nations women, Métis women, women with disabilities, criminalized women and women with lower incomes are particularly likely to have personal and third-party records that can be used against them because of the over-involvement of the state in the lives of these women.145 The simple fact is that being poor, and especially being indigenous and poor, results in a massive, life-long invasion of privacy from every “helping” agency the state can throw at a person. Being a poor, indigenous woman, subjected to numerous forms of discrimination, results in hard times, dangerous places and people, and severe stresses and trauma. A poor indigenous person is so much more likely to have extensive “third party records” and records in the Crown’s possession than anyone else.146 I was working in the Department of Justice’s Human Rights Law Section when the Supreme Court’s decision in O’Connor was released. One of the duties of the Section is to write a briefing note telling other lawyers in the Department of Justice (and our bosses) about new Supreme Court of Canada human rights cases. Before writing a briefing note, we met as a small group and discuss the new case among ourselves. As I recall, there was no discussion of the residential school or indigenous aspect of the case. We discussed O’Connor as a case involving women as sexual assault victims generally. We were full of sympathy for sexual assault victims but also alert to the importance of fairness to accused persons. The specific context of indigenous women and residential schools was removed from view. I guess this is what they mean when they say justice is blind. Women and feminist groups were very dissatisfied with the court’s response to O’Connor. As a result, the federal government passed Bill C-46 in 1997, which became ss. 278.1 to 278.9 of the Criminal Code. Bill C-46 was quickly challenged and in 1999 the Supreme Court of Canada (SCC) had another opportunity to weigh in on the third party records debate. In R. v. Mills,147 the court decided that the new legislation (ss. 278.1 to 278.9 of the Criminal Code) was constitutional. The court agreed with Parliament’s approach to protecting the privacy and equality of women when accused persons sought to use their third party and personal records as evidence in sexual assault trials. 144 My emphasis. R. v. O’Connor, 1995 CanLII 51 (SCC), http://canlii.ca/t/1frdh , para. 121 “Evolution of the law about ‘third party records’,” posted 2008, updated May 2016, http://owjn.org/owjn_2009/legal-information/criminal-law/269-sexual-assault--can-the-accused-get-mypersonal-records-and-my-third-party-records 146 The Supreme Court of Canada gives a passing acknowledgement of this fact in R. v. Mills, 1999 CanLII 637 (SCC) http://canlii.ca/t/1fqkl at para. 92 147 R. v. Mills, 1999 CanLII 637 (SCC) http://canlii.ca/t/1fqkl 145 - 44 -– May 2017 Canada’s legal system hates indigenous women After dragging residential school survivors through a decade of adversarialism in the courts, and exposing indigenous women to the “justice” of the R. v. O’Connor case and other residential school cases, Canada finally launched an Alternative Dispute Resolution (ADR) process to deal with residential school claims in 2003. There were many, many problems with the ADR process.148 One of the problems was that it discriminated against women who had attended residential schools as girls. Kathleen Mahoney wrote about the ADR process: “Sex-specific harms only applicable to women, such as pregnancy, forced adoption, or abortions caused by sexual abuse, were not eligible for compensation.”149 The ADR was ultimately replaced by the Common Experience Payment program (CEP) and Independent Assessment Process (IAP) under the Indian Residential Schools Settlement Agreement (IRSSA). The Settlement Agreement ended approximately 12,000 residential school court cases. The IRSSA came into effect in 2007. The Settlement Agreement only occurred because of the indigenous plaintiffs. One of the most remarkable of these was Nora Bernard. She was one of the first to pursue the issue as a matter for the courts, one of the first to claim that the courts should award compensation for the loss of family, language and culture and thus to every IRS student regardless of whether they suffered physical or sexual abuse. She was one of the first to pursue a class action. Nora Bernard should be recognized as a Canadian hero. Born in 1933, Bernard was delivered by her grandmother on the Millbrook First Nation. She married a non-indigenous man when she was 16 or 17. Therefore, she lost her Indian status and was ousted from her First Nation. During her marriage, Bernard was a victim of domestic violence. According to Bernard’s sister Linda Maloney, Bernard had a difficult time with losing her status and being evicted from her First Nation. “She lived 37 feet from where she was born and raised on the reserve, but she didn’t belong. From her house, she could see the sign for the reserve, but she was no longer a member.” It took Bernard 47 years to be reinstated, her membership being accepted in 2006, after the Indian Residential Schools Settlement Agreement had been achieved. Bernard was a founding member of the Native Council of Nova Scotia, and the Residential School Survivors Association. As director of the survivors’ group, she began meeting with fellow Shubenacadie survivors to discuss their experiences and try to reconcile the injustice they felt. Several lawyers refused to represent her until she convinced Halifax lawyer John McKiggan to take her case. In 1995, they filed a class action lawsuit. McKiggan credited the determined Bernard for single-handedly making the settlement happen. “After we filed our lawsuit, a number of other students from other schools filed similar class actions. Those class actions eventually merged into one national class action suit.”150 Bernard received part of her residential school compensation in November 2007. She was brutally murdered by her grandson on Dec. 27, 2007. He said he started taking drugs when he was 11 years old and had been sexually abused as a teen-ager. Court heard that on the night she died, Bernard gave her grandson $20, but when he returned three hours later looking for more cash, she 148 The Assembly of First Nations produced a comprehensive report released in November 2004, the “Assembly of First Nations Report on Canada’s Dispute Resolution Plan to Compensate for Abuses in Indian Residential Schools,” accessed on September 27, 2016, http://epub.sub.uni-hamburg.de/epub/volltexte/2009/2889/pdf/Indian_Residential_Schools_Report.pdf 149 See Kathleen Mahoney, “The Settlement Process: a personal reflection,” University of Toronto Law Journal vol. 64, no.4, (2014):505, at pp. 510-511 150 Dianne Meili, “Nora Bernard – Footprints,” Windspeaker, accessed August 31, 2016, http://www.ammsa.com/content/nora-bernard-footprints - 45 -– May 2017 Canada’s legal system hates indigenous women refused. (He had already consumed $500 worth of crack cocaine, OxyContin and Valium before going to Bernard’s house.) The prosecution said that the drug-induced state prevented him from forming the intent to commit murder. The maximum penalty for manslaughter is 20 years, but such a severe sentence has been rarely imposed in Canada. Although he had a lengthy criminal record, this was his first conviction for a serious violent offence. Bernard’s sister Linda Maloney said: “A councilor had put in for a house for her on the reserve and she was looking forward to that. Things were looking up for her and then she was taken away from us.”151 Even after being one of the persons most responsible for the largest class action in Canadian history, with compensation going to approximately 100,000 residential school survivors, Bernard was still not able to overcome the discrimination caused by her “marrying out” when she was a teen-ager. The Indian Residential Schools Settlement Agreement provided for an Independent Assessment Process (IAP) and I have written elsewhere on numerous issues that have arisen under the IAP, including the thousands of residential school claimants who were abused by their own lawyers during the IAP process and the desire of the IAP itself to destroy the IAP records. 152 The main reason I raise the IAP in the present context is to compare what happened in the R. v. O’Connor case with what happened in a recent IAP court case: in both cases, the abuses that went to court were filed by young indigenous women who had moved from being students at their residential school to becoming employees at their residential school. As we saw in R. v. O’Connor, the last court decision in the case was the B.C. Court of Appeal over-turning Bishop O’Connor’s conviction and ordering a third trial with the very specific instruction that at the third trial, the court would not be allowed to invoke the power and authority of the Bishop as an argument for questioning the alleged consent of young women to having had sex with the Bishop. The third trial never happened. So that is one residential school case involving young indigenous female employees. In the IAP context, another case involved a young indigenous woman who had moved from being a student to being an employee at the same residential school, and who was abused by an adult employee of the residential school. Even though the IRSSA expressly provided for compensation for persons who resided at a residential school, the IAP Chief Adjudicator, and the Government of Canada, took the positions that (a) employees were not entitled to compensation even if they resided at the school; and (b) the court had no right to review that decision. The court did review the decision and held that the plain meaning of the Settlement Agreement had to be complied with. An employee who resided at the school and was abused was entitled to compensation under the Settlement Agreement.153 How many young indigenous women became employees and were abused while they were employees at residential schools – whether they resided there or not? We will probably never know. I hope the MMIW Inquiry will quickly and formally contact the IAP Oversight Committee and 151 Dianne Meili, “Nora Bernard – Footprints,” Windspeaker, accessed August 31, 2016, http://www.ammsa.com/content/nora-bernard-footprints, and ,” Michael Macdonald, “Man who killed grandmother gets 15 years January 23, 2009, Toronto Star, accessed August 31, 2016, https://www.thestar.com/news/canada/2009/01/23/man_who_killed_grandmother_gets_15_years.html 152 Thomas L McMahon, “The Final Abuse of Indian Residential School Children: Deleting Their Names, Erasing Their Voices and Destroying Their Records after They Have Died and without Their Consent,” Social Science Research Network, (2017) http://ssrn.com/abstract=2812298 153 Fontaine et al. v. Canada (Attorney General) et al., 2014 MBQB 200 (CanLII), http://canlii.ca/t/gf1td - 46 -– May 2017 Canada’s legal system hates indigenous women expressly ask for information about how women were treated in residential schools. The IAP has the most complete set of records that exist. The MMIW Inquiry should ask for the following nonidentifying information, identifying numbers for boys (men) and girls (women) separately, so that comparisons can be made: 1. How many former students filed IAP complaints alleging abuse suffered at residential schools? 2. How many of the compensation claims were denied on the basis that the residential school child was abused “off premises”? How many claims were denied on the basis that the claimant was an “employee”?154 How many claims were denied on the basis that the touching was not done for a sexual purpose?155 How many claims were denied on the basis that the school had ceased being a residential school, or that Canada was not jointly responsible for the residential school, or that the school in question was not a “residential” school?156 How were these various claims divided between male and female claimants? 3. What number and percentage of IAP claims fell into the different categories of acts proven that are set out in Schedule D of the Settlement Agreement? 4. What number and percentage of claims fell into the different categories of levels of harm that are part of the IAP process and listed in Schedule D? 5. What was the average payment within each category of “acts proven” and each “level of harm”? 6. What number and percentage of claims were attributable to each Indian Residential School? 7. What number and percentage of claims were attributable to each of the churches that administered residential schools (i.e.: how many claims arose from Catholic, Anglican, United Church and Presbyterian (and other denominations) schools)? 8. What number and percentage of claims occurred at different ages (in other words, were some ages of children more vulnerable to abuse than other ages)? 9. What number and percentage of claims occurred in different calendar years (in other words, was abuse more prevalent in one historical time period or was it more or less constant throughout the history of the residential schools)? 10. What number and percentage of claims were student-on-student abuse and what number and percentage were staff-on-student abuse? 11. How many unique individuals were alleged to have committed abuse (in other words, within the entire IAP claims, presumably many students made allegations against the same perpetrator, so that there would be many fewer alleged unique perpetrators than claims)? What proportion of perpetrators were male and female? 12. What was the number of claims alleged against each of the alleged perpetrators (without identifying the alleged perpetrators)? 13. What number and percentage of claims were for physical abuse only and what number and percentage included sexual abuse? What number and percentage were for sexual abuse only? 14. What categories of negative impacts arose (addiction, imprisonment, incomplete education, damages to loss of earnings, apprehension of children by child welfare authorities, etc.) and what percentage of IAP claims reported each of those categories? 15. How many claimants died before their IAP decision was made or before their compensation was received? 154 see fn 39 and accompanying text see fn 37 and 38 156 see for one example the case cited at fn 65 155 - 47 -– May 2017 Canada’s legal system hates indigenous women Of course, as we saw with Helen Betty Osborne, it is not just residential schools where education puts indigenous women in harm’s way. Between 2000 and 2011, seven indigenous youth (one female) died in Thunder Bay in unexplained circumstances. They had all left their home communities to attend high school in Thunder Bay. Ontario’s chief coroner had initially called an inquest into Reggie Bushie’s death. Like some of the others, he was found drowned in the McIntyre River in 2007. However, the process ground to a halt in 2008 due in part to a legal challenge related to the lack of aboriginal people on coroner’s juries that went all the way to the Supreme Court of Canada. This resulted in an investigation and report by former Supreme Court Justice Frank Iacobucci.157 Just like Manitoba’s Aboriginal Justice Inquiry found in 1991, 158 jury composition and selection involves serious flaws that result in far too few indigenous persons being on juries. The Ontario Coroner later convened an inquest into the seven deaths, and the jury reported with its recommendations in 2016. There had been a similar inquest into the death of Selena Sakanee who died in 1997. Many of the problems and recommendations remain the same. 159 The MMIW Inquiry should closely review the report on the deaths of Helen Betty Osborne and Selena Sakanee. What has changed since 1971 when Osborne was murdered, since 1986 when only two of Osborne’s four assailants were charged, one convicted and that one given the minimum period without being eligible for parole, since 1991 when the Manitoba Aboriginal Justice Inquiry reported, since 1997 and the inquest into Sakanee’s death? What has stayed the same? So where are we in 2016? We have ended residential schools; we have compensated almost everyone who attended a residential school. We did not compensate their children. We are still sending large numbers of indigenous children out of their homes and communities to obtain some degree of high school education. Further, for those indigenous children who continue to live on reserve while going to school, they receive at least 30% less funding per student as children under provincial jurisdiction.160 This applies to boys and girls. However, the impact of unequal status in law, unequal access to housing on reserve, more than a century (and ongoing) of inadequate and unequal education, horrific treatment of sexual and physical assault victims under law and silence by society at large and indigenous male leadership in their communities, discriminatory funding for child and family services, all combine to force too many indigenous women and children out of their homes and into extremely dangerous places and conditions. Currently, government officials inform their ministers that not only are First Nations schools under-funded, but that individually run, band-operated schools don't have proper curriculum development, teacher training, testing and quality assurance and the larger support structures — 157 Frank Iacobucci, First Nations Representation on Ontario Juries, 2013, accessed on September 27, 2016, https://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/iacobucci/ First_Nations_Representation_Ontario_Juries.html 158 A.C. Hamilton, and C.M. Sinclair, The Justice System and Aboriginal People,” “Volume 1: The Justice System and Aboriginal People,” ch. 9 “Juries,” accessed on September 27, 2016, http://www.ajic.mb.ca/volumel/chapter9.html 159 “First Nations student deaths inquest: 5 recommendations we’ve heard before,” CBC News, July 1, 2016, accessed August 15, 2016, http://www.cbc.ca/news/canada/thunder-bay/selena-sakanee-inquestrepeat-1.3660371 160 Jody Porter, “First Nations students get 30 per cent less funding than other children, economist says,” CBC News, March 14, 2016, accessed August 15, 2016, http://www.cbc.ca/news/canada/thunder-bay/firstnations-education-funding-gap-1.3487822 - 48 -– May 2017 Canada’s legal system hates indigenous women like a school board, elected trustees or an education ministry — that make schools work.161 What will it take for our law-makers (both indigenous and non-indigenous) to make education a priority and a positive environment for indigenous children? 7. Indigenous and non-indigenous governments and legal system fail to speak out about and protect indigenous women and children from violence Amnesty International reports that If you are an Indigenous woman or girl in Canada—whether you live on reserve or in an urban area, regardless of your age or socio-economic status—the simple fact that you are an Indigenous woman or girl means that you are at least 3 times more likely to experience violence, and at least 6 times more likely to be murdered than any other woman or girl in Canada.162 David Suzuki writes “On any given day, thousands of First Nations, Inuit and Métis women and children are living in emergency shelters to escape abuse (though on-reserve shelters remain woefully underfunded).”163 The Canadian legal system has always treated women poorly as victims of crime. Before 1988, many offenses only covered vaginal intercourse and did not encompass the many different types of sexual molestation, such as touching or fondling. Invitation was not an offense. Women who had some previous (consensual) sexual experiences were not considered “of chaste character” and were not protected. A victim’s sexual reputation could be used to discredit the victim. Despite the enactment of “rape shield” laws to reduce the ways that past sexual history could be brought up in court, even in 2016 past sexual behavior is used to argue “consent” (see Gladue below) and in general, women continue to feel that their behavior before or after a sexual assault is what is on trial, rather than the specifics of the assault itself. The offense had to be prosecuted within a year of the offense. Many victims take many years to gather up the courage to report their victimization. Lenient sentences connected with sexual offenses against children did not reflect the reality of the damage that these crimes did to the victims. For example, for the crime of incest, there was no minimum punishment, or for the crime of sexual exploitation, an offender may only be required to serve a prison sentence of 45 days. The testimony of children about being abused used to be insufficient to obtain a conviction, some other form of corroborating evidence was required by law, and was generally not available. The Tackling Violent Crime Act, enacted in 2008, raised the legal age of consent for sexual activity in Canada from fourteen to sixteen, the first time it had been raised since 1892. 164 However, the age of consent for sexual activity that exploits a young person is eighteen. A clause in the age exemption allows youth aged fourteen to sixteen to consent to sexual activity with a partner within five years of age. An accused cannot use the defense of consent if that person is in 161 “First Nations education a cash-strapped 'non-system,' bureaucrats tell minister,” CBC News, John Paul Tasker, October 5, 2016 http://www.cbc.ca/beta/news/politics/first-nations-education-non-system1.3759818 (accessed October 6, 2016) 162 http://www.amnesty.ca/our-work/campaigns/no-more-stolen-sisters/human-rights-crisis 163 “We All Need To Confront The Crisis Of Violence Against Indigenous Women,” David Suzuki, Huffington Post, October 5, 2016 http://www.huffingtonpost.ca/david-suzuki/violence-against-indigenouswomen-and-girls_b_12340928.html (accessed October 6, 2016) 164 Government of Canada, “Tackling Violent Crime Act,” Justice Law Website, accessed on September 27, 2016, http://laws-lois.justice.gc.ca/eng/annualstatutes/2008_6/page-1.html - 49 -– May 2017 Canada’s legal system hates indigenous women a position of trust or authority over the child under the age of eighteen. It is not a defense to this crime for the accused to say that he did not know the child’s age; the accused must have taken all reasonable steps to ascertain the correct age. For children who are legally able to consent to sexual activities, the accused is required to have taken reasonable steps to ascertain the victim’s consent. Consent cannot be assumed based on the victim’s silence. 165 As will be seen in the Gladue case below, getting courts (let alone drunken young men) to apply a full understanding of consent is still a challenge in 2016. It is important to remember that sexual abuse laws are not limited to the criminal law but also apply to civil lawsuits where the victim sues for damages. These lawsuits can also seek compensation from employers under the concept of vicarious liability. The plain fact is that the law is highly muddled on when the courts will choose to apply vicarious liability, and there are enormous challenges for any victim to be successful in a civil lawsuit, and indigenous plaintiffs have more barriers to overcome than other victims. 166 Despite the improvements in Canadian law generally, domestic and sexual violence is epidemic and the Canadian legal system simply fails to protect the victims or hold their abusers accountable. This problem includes the courts and is not limited to inadequate responses or follow-up by police. According to Statistics Canada, in the year 2009, women reported 472,000 sexual assaults and men reported 204,000. Subsequently, from 2009 to 2010, 4,092 sexual assault cases went to trial. Of that number, only 1,751 cases received a guilty verdict. In these numbers, we can see that only 0.6 per cent of sexual assault reports moved forward to trial, and only 0.2 per cent of reported sexual assaults arrived at a guilty verdict in court. Considering a large number of sexual assaults go unreported, these conviction rates are incredibly disheartening for women considering whether to report. 167 A recent case again highlights that the Canadian legal system hates indigenous women. A man, Bradley Barton, hired an indigenous woman, Cindy Gladue, for two nights of “rough sex.” She died due to the injuries she suffered. Barton said she consented. A medical examiner testified that an 11-centimetre cut to the woman’s vaginal wall had been caused by a sharp object. Gladue’s vagina had been preserved and was brought to court as an exhibit. The jury acquitted Barton. During arguments at the Alberta Court of Appeal, one of the appeal court judges noted that the law says people are not allowed to consent to being harmed, but the judge told the jury that the prosecution had to prove that Barton intended to harm Gladue. One of the appeal court judges asked how a jury is supposed to make sense of being told that the law does not recognize 165 http://www.victimsofviolence.on.ca/research-library/child-sexual-abuse/ See my paper: Thomas L. McMahon, “The Horrors of Canada’s Tort Law System: The Indian Residential School Civil Cases” (June 9, 2017). Available at SSRN: https://ssrn.com/abstract=2983995 See also: “Civil Liability for Sexual Assault in Aboriginal Residential Schools: The Baker Did It,” Bruce Feldthusen, available at the Social Science Research Network web site 166 http://ssrn.com/abstract=2431786 167 Katy MacKinnon, “Sexual assault victims fight a losing battle,” CBC News, September 11, 2016, accessed on September 27, 2016, http://www.cbc.ca/beta/news/canada/manitoba/sexual-assault-victims-fight-a-losing-battle-1.3756465 - 50 -– May 2017 Canada’s legal system hates indigenous women “consent” to be physically harmed yet they were being told by the judge that Barton would only be guilty if he intended to harm Gladue. The judge pointed out previous decisions have thrown out consent as a defense in cases of voluntary fist-fights. “Is a prostitute not entitled to the same degree of protection as two guys fighting on the street?” she asked. 168 The Women’s Legal Education and Action Fund, and the Institute for the Advancement of Aboriginal Women intervened in the case and criticized the way the trial was conducted. They said that the judge should not have allowed evidence of Gladue’s sexual history because it was irrelevant to the question of consent in the specific circumstances of this case and that the judge failed to tell the jury that consent to sex is not consent any conceivable form degree of force. They also showed that during the trial, Gladue was consistently dehumanized and stereotyped as being “native” and a “girl” (she was 36 years old) and a prostitute, created a risk that this would invite the jury to bring into play biased beliefs and myths about indigenous women and prostitutes. The prosecution, defense and witnesses all used these terms. The factum cites Madame Justice L’Heureux-Dube in R. v. Ewanchuk,169 that violence against women is as much a matter of equality as it is about dignity and human rights. The factum states that this is particularly so for indigenous women who “are often viewed as less valuable, devoid of sexual autonomy and dignity.”170 The factum cites important recent Supreme Court decisions that acknowledge the widespread racial bias against indigenous people in the criminal justice system and the myths and stereotypes about sexual assault complainants. Further, the factum protests the dehumanization of Gladue (by using her vagina as an exhibit in court) as a failure by the court to see Gladue as a rights-bearing person who was entitled to be treated with dignity. Former Justice, Chief Commissioner and now Senator, Murray Sinclair, wrote on his Facebook page on September 7, 2016: I have presided over trials where physical injuries have been displayed to the jury through photos or drawings without the heart or brain or other organ being brought into the courtroom. I can think of no good reason to remove the victim’s damaged vagina initially, and no good reason to enter it as an exhibit. I had a colleague who presided over a trial in which a man’s scrotum and penis were deliberately cut off by another as an act of revenge for having an affair with the accused’s wife. No one suggested those organs had to be displayed to the court in order to secure a conviction or a tougher sentence. Cindy Gladue was entitled to be regarded and treated by the court with the utmost of respect. She was more than a victim and much more than a piece of flesh in a bag on a courtroom table. 171 It is not only in criminal trials that the Canadian legal system has failed to protect or respect indigenous women. There are other ways that Canadian laws can make more progress. In 2016, Manitoba enacted its Domestic Violence and Stalking Act.172 Part of the Act allows people in abusive situations to take time off from work — including five paid days — to seek 168 Bob Weber, “Appeal court reviewing trucker’s acquittal in indigenous woman’s death,” The Canadian Press, September 6, 2016, accessed on September 27, 2016, http://www.citynews.ca/2016/09/06/rallyplanned-at-appeal-of-truckers-acquittal-in-aboriginal-womans-death/ 169 R. v. Ewanchuk, 1999 CanLII 711 (SCC) http://canlii.ca/t/1fqpm 170 http://www.leaf.ca/wp-content/uploads/2016/05/2016-05-02-final-LEAF-IAAW-factum-R-v-BartonABCA.pdf 171 Sinc Murr Facebook page, accessed on September 27, 2016, https://www.facebook.com/MurrSinc? fref=ts - 51 -– May 2017 Canada’s legal system hates indigenous women medical attention, find a safe place to live, attend court hearings or get other services that can be hard to access outside working hours. The law allows up to 10 days of leave per year without penalty, including five days of paid leave. The 10 days can be used in a row, or as needed throughout the year, for things like doctor’s appointments, court dates or to make police reports, according to the province. The government says victims of domestic violence would also be entitled to a period of leave of up to 17 weeks so they can, for example, move into a new home or take time to recover from a violent relationship. Mary Daoust of Minwaashin Lodge, which runs a 21-bed shelter in Ottawa for indigenous women and children fleeing abuse, says the ability to take time off work is vital because many victims will stay in dangerous situations out of fear they cannot afford to leave. However, the law does not change the reality that a breach of a protection order rarely results in significant consequences for the abuser. The Manitoba law does not apply to federally regulated workplaces and may or may not apply to workplaces on reserves. Instead, Prime Minister Justin Trudeau gave Labour Minister MaryAnn Mihychuk a mandate to amend the Canada Labour Code to give employees the right to formally request flexible work arrangements.173 In Ontario, a new amendment to the Residential Tenancies Act allows tenants to terminate their lease commitments in 28 days if they are fleeing domestic or sexual violence. 174 This is an important step, but does not provide a place to flee to. Further, as pointed out by the Aboriginal Justice Inquiry, why is it the victim who always has to flee? Why isn’t the abuser removed? Of course, it is necessary to address the indigenous leadership as well. It is not merely the colonialist and sexist non-indigenous legal system that bears responsibility for the situation of indigenous women. I have long thought that some passages from the Aboriginal Justice Inquiry (AJI) report have not received the attention they deserve. The AJI cited a 1987 report of the Child Advocacy Project, “A New Justice for Indian Children,” which states: The social cost of child sexual abuse is higher than we can imagine. These child victims continue to be victimized throughout their lives. The burden of this victimization is preventing many Indian children from becoming the healthy, functioning adults they might otherwise be. The failure of the social, medical, and legal systems to provide a safe environment for the normal development of these children perpetuates the existence of future generations of victims. It is time to break the cycle of victimization. It is time to break the long standing pattern of non-action on reserve-based child sexual abuse. Quite simply, it is 172 Manitoba Laws, The Domestic Violence and Stalking Act, accessed on September 27, 2016, http://web2.gov.mb.ca/laws/statutes/ccsm/d093e.php 173 “Ottawa studying leave for domestic violence victims in Manitoba, Ontario,” CBC News, August 30, 2016, accesed August 31, 2016, http://www.cbc.ca/news/canada/manitoba/ottawa-studying-leave-fordomestic-violence-1.3741876.“Domestic violence victims in Manitoba to get time off work with pay,” CBC News, November 25, 2015, accessed August 31, 2016, http://www.cbc.ca/news/canada/manitoba/domestic-violence-victim-benefit-manitoba-1.3336751.Erin Brohman, “Domestic violence victims say Manitoba’s new laws don’t go far enough,” CBC News, May 18, 2016, accessed September 27, 2016, http://www.cbc.ca/news/canada/manitoba/domestic-violencemanitoba-legislation-1.3587028 174 Shanifa Nasser, “Fleeing faster: New Ontario provision allows domestic and sexual abuse victims to break rentals early,” CBC News, September 14, 2016, accessed on September 27, 2016, http://www.cbc.ca/ beta/news/canada/toronto/fleeing-faster-new-ontario-provision-allows-domestic-and-sexual-abuse-victimsto-break-rentals-early-1.3760958 - 52 -– May 2017 Canada’s legal system hates indigenous women time for a new justice for Indian children.175 The Aboriginal Justice Inquiry noted that in the case of domestic violence, particularly on reserves, the tendency of police and the justice system was to leave the male abuser in the home and recommend that the victims seek shelter somewhere else. The Commissioners wrote that they were told numerous times during their hearings that women who wish to escape an abusive home must leave the reserve community and go to the town or city. The Indigenous Women’s Collective, and a joint presentation by the Native Women’s Transition Centre, the Women’s Post Treatment Centre, the North End Women’s Centre and Ma Mawi Chi Itata Family Violence Program focused on the question of the abuse which exists in Aboriginal communities. They wished to expose the level of sexual abuse and to end the silence that is leaving women and children unprotected. … The Thompson Crisis Centre stated that, generally, women are abused at least 20 times before seeking help. A March 1991 study by the Manitoba Association of Women and the Law found that the statistics of a 1980 federal study, Wife Battering in Canada: A Vicious Circle, still held: women endure anywhere from 11 to 39 episodes of abuse before seeking help, and then they seek help more often from a shelter than from police. The Manitoba government Family Disputes Services branch says that abuse occurs at least 35 times before any outside assistance is sought. There are currently no statistics that indicate the number of complaints which result in a charge being laid. In 1983, before the current charging policy was established, only 9% resulted in arrest. According to the 1991 report of the Manitoba Association of Women and the Law, some improvements have been made since 1983. Nevertheless, over 30% of domestic assault charges are stayed at some stage before trial. The percentage of those sentenced has increased from 48% in 1983 to 64% in 1986. However, only 7% of those sentenced in 1987 were sentenced to a term in jail. While we agree that certain cases need to be prosecuted to the full extent of the law, it does not appear that that avenue has been very effective to date. Aboriginal women surveyed by the Indigenous Women’s Collective indicated that the police response received by others discouraged them from going to the police for help. They complained of the lack of understanding of the problem by officers, and their lack of sensitivity. They believe the police do not understand the situation of the abused woman and the needs of children. More than one woman who spoke to [the Inquiry] told of complaining to the police, only to become the one removed from the home. This happened in spite of the fact that young children were left in the care of an intoxicated father. Others told of situations where police attended in the home, saw the situation was calm when they were there and told the woman everything would be all right. When the police left, the violence became worse than before. With such lack of support from police authorities, it is not surprising that women suffer in silence. 175 A.C. Hamilton, and C.M. Sinclair, “ A Historical Overview,” in The Justice System and Aboriginal People: Report of the Aboriginal Justice Inquiry of Manitoba Volume 1, (1991: Manitoba Queen’s Printer, Winnipeg), accessed on September 27, 2016. http://www.ajic.mb.ca/volumel/chapter13.html#7 (under the heading “Child Abuse”) - 53 -– May 2017 Canada’s legal system hates indigenous women From this information, it is clear that women in abusive situations, particularly in isolated communities in northern Manitoba do not feel confident in turning to the justice system. We were told that many abused Aboriginal women did not feel safe enough even to bring their personal stories before the Inquiry. Testimony presented to [the Inquiry] by the Manitoba Action Committee on the Status of Women in Thompson made it clear why this was the case: A man who beat his sister with a length of wood and who had a record of previous convictions for violent acts, was sentenced to seven months. A man who severely beat his common law wife, smashing her face against a fence, kicking her in the face, and slamming her face against the wall, before dragging her into a house, was sentenced to five months in jail, to be followed by probation after his release. Both these offenders were going to return to their home communities after serving their sentences. Offenders are returned to their community without notice to the victim—and without treatment—and, as a result, their victims were at risk upon their release. Reporting the crime to police authorities provides a temporary respite at best if the causes of abuse are not dealt with. The experience of staff at the Thompson Crisis Centre in assisting women who finally do report abuse is that police officers do not consider spousal assault as a serious crime. This view is supported by a report from Statistics Canada entitled “Conjugal Violence Against Women”: The primary reasons given by victims of wife assault who did not report the abuse to police were a belief that the incident was a personal matter and of no concern to the police (59%), a belief that the police would not be able to do anything about it (58%), and a fear of revenge by the offender (52%). Many also expressed a desire to protect the offender from the police (35%) or were concerned with the attitudes of the police or courts toward this incident (20%).... While almost half of all victims felt threatened enough by the violence to involve the police, half of those who did not report felt fearful of retaliation by the offender if they did involve the police. For some, the risk of having the abuser removed from the home, or involving the family in the justice system, would be worse than risking further violence. Some women seem to feel that the solution to the violence does not lie with the criminal justice system. In some cases, the Aboriginal woman making the complaint may be too frightened to testify. Should she decline to do so, she faces the risk of being charged with contempt of court. Aboriginal women said they would be more likely to lay charges and testify if someone were available to explain the court procedure to them, and if they were given emotional support throughout the proceedings. Women’s groups expressed concern about the whole criminal justice system, from police to Crown attorneys, judges and correctional institutions. Crisis shelter workers affirmed the experience Aboriginal women have in dealing with the justice system: ... indifference/arrogance of lawyers; long police response time; insensitive response of police to spousal abuse; humiliating questioning; failure of police to protect victims; failure of police to take spousal abuse as a serious crime; difficulties obtaining peace bonds; lack of supports to witnesses and treatment of witnesses as criminals; difficulties - 54 -– May 2017 Canada’s legal system hates indigenous women obtaining protection or getting away from abusive partners in small communities. In northern, isolated reserve communities, the abused woman is placed in a more difficult situation when the question of calling the police arises. If she calls the police, it may take a day or longer for them to arrive. If they arrive while a party is going on, they may refuse to remove the offender or may simply drive him down the road, from where he can return again, only angrier. There is a lack of housing for families in isolated communities and no ‘safe house’ available for women and children trying to escape an abusive man. They may be forced to spend the night in the bush, or be forced to leave the reserve entirely. Professor LaRocque points out that women move to urban centres to escape family or community problems. Men, on the other hand, cite employment as the reason for moving. In the new setting Aboriginal women experience personal, systemic, subtle and overt racial discrimination. What they are forced to run to is often as bad as what they had to run from. Why they feel they have to leave is a matter worthy of comment. The Aboriginal Justice Inquiry reported on the lack of supports for abused indigenous women and recommended: “Shelters and safe homes for abused women and children be established in Aboriginal communities and in urban centres. These shelters should be controlled by Aboriginal women who can provide culturally appropriate services.” 176 Domestic violence shelters continue to be urgently needed. On any given night in Canada, 3,491 women and their 2,724 children sleep in shelters to escape abuse, while about 300 women and children are turned away because these shelters are already full. Of the 455 women’s shelters across Canada, just five percent serve women and children in indigenous communities. This statistic is especially disturbing given that indigenous women are subject to five times more violence than other demographics in Canada (they’re also six times more likely to be murdered). Between 2004 and 2009 alone, some 48,000 indigenous women reported having experienced some form physical or sexual spousal violence at home (according to Stat Can, that number didn’t change significantly when data was collected again in 2014.) The heart-wrenching reality facing many Inuit, Métis and First Nations females in Canada (often with young children in tow), is that even when fleeing violence, they have absolutely nowhere safe to go. If they’re in a city, most shelters for victims of violence are spilling over capacity and seldom equipped to accept more people, let alone victims with unique cultural needs. In rural settings, such as remote reserve communities where violence is rampant, women and children have even fewer, if any, options.177 Further, the Commissioners wrote about the silence of male indigenous leadership surrounding domestic violence: 176 A.C. Hamilton, and C.M. Sinclair, “ A Historical Overview,” in The Justice System and Aboriginal People: Report of the Aboriginal Justice Inquiry of Manitoba Volume 1, (1991: Manitoba Queen’s Printer, Winnipeg), accessed on September 27, 2016. http://www.ajic.mb.ca/volumel/chapter13.html#7 (under the heading “Child Abuse”) 177 Jenn Jeffereys, “Indigenous communities across Canada need women’s shelters now,” Chatelaine magazine, February 24, 2017, http://www.chatelaine.com/news/womens-shelters-indigenous-communities/ - 55 -– May 2017 Canada’s legal system hates indigenous women Most chiefs and council members are male and often exhibit bias in favour of the male partner in a domestic abuse situation. This can effectively chase the woman from her home and community. The unwillingness of chiefs and councils to address the plight of women and children suffering abuse at the hands of husbands and fathers is quite alarming. We are concerned enough about it to state that we believe that the failure of Aboriginal government leaders to deal at all with the problem of domestic abuse is unconscionable. We believe that there is a heavy responsibility on Aboriginal leaders to recognize the significance of the problem within their own communities. They must begin to recognize, as well, how much their silence and failure to act actually contribute to the problem. Aboriginal leaders must speak out against abuse within their communities to their own community members, and they must take steps within their own spheres of community influence to assist the true victims. Women and children who report abuse should never feel they have to leave their communities in order to feel safe. Aboriginal communities and their leaders must do what is possible to make the home communities of abused women and children havens from abuse. The problem of abuse is dealt with presently by women either staying on the reserves and putting up with the abuse, or leaving their communities to live elsewhere, just to escape from it. It is clear, however, that most would prefer to stay in their home communities if they could be protected. Aboriginal women would like to see arbitration and community support systems in place in their communities. This is another area in which the development of local resources is badly needed. Aboriginal leadership must ensure that it is sought and governments must ensure that it is provided. … … Aboriginal leaders must begin to support the types of programs which assist Aboriginal women and children to report abuse and to get help for its effects. The silence and inactivity of Aboriginal leadership on this issue cannot continue. It amounts to a denial of responsibility.178 [citations in the original omitted] The Royal Commission on Aboriginal Peoples stated that “[w]omen endorsed the challenge addressed to male leaders by the Aboriginal Justice Inquiry of Manitoba.” 179 I have always wondered why the Royal Commission itself did not endorse what the Aboriginal Justice Inquiry Commissioners had to say on the silence of male indigenous leaders but merely reported that women endorsed it. For the RCAP Commissioners, the statement was important enough to quote, but not to endorse? Was this an example of the RCAP Commissioners not wanting to offend indigenous male leadership? Remember that the Government of Canada paid for indigenous organizations to intervene in court to defend the law that said that when an Indian woman marries a non-status man, she and her children lose their status. In the Lavell and Bédard cases, the following organizations intervened 178 A.C. Hamilton, and C.M. Sinclair, “ A Historical Overview,” in The Justice System and Aboriginal People: Report of the Aboriginal Justice Inquiry of Manitoba Volume 1, (1991: Manitoba Queen’s Printer, Winnipeg), accessed on September 27, 2016. http://www.ajic.mb.ca/volumel/chapter13.html#7 (under the heading “Child Abuse”) 179 Royal Commission on Aboriginal Peoples, Final Report, ch. 2 The Family in vol. 3 “Gathering Strength, “accessed on September 27, 2016, http://www.collectionscanada.gc.ca/webarchives/20071124125546/http://www.ainc-inac.gc.ca/ch/rcap/sg/ sim2_e.html - 56 -– May 2017 Canada’s legal system hates indigenous women against the indigenous women: National Indian Brotherhood, the Native Council of Canada, the Indian Association of Alberta, the Union of British Columbia Indian Chiefs, the Manitoba Indian Brotherhood Inc., the union of New Brunswick Indians, the Indian Brotherhood of the Northwest Territories, the Union of Nova Scotia Indians, the Union of Ontario Indians, the Federation of Saskatchewan Indians, the Indian Association of Quebec, the Yukon Native Brotherhood and the Six Nations of the Grand River.180 Imagine being an indigenous woman in these circumstances: the entire Canadian Parliament, Government, courts and most indigenous governments, solidly aligned against you, not merely in this court case, but for all of Canadian history. Maybe one day soon the discrimination against women in the Indian Act will finally be removed. That day has not yet arrived. A recent CBC news report highlights the bleak prospects of indigenous women filing abuse complaints with tribal police, especially when against a member of Chief and Council. Police will not file charges and when faced with media inquiries, will pass the inquiries on to Chief and Council for response. Of course it is well known that reporting sexual abuse to any police is extremely unlikely to result in a criminal charge or conviction. The point is that this fact is nonracial. Indigenous and non-indigenous police alike are unlikely to get a case to trial, let alone provide safety for the woman and her children and keep them in their home. 181 A recent example is a prosecution of a police officer, Cameron Lockhart, who assaulted his girlfriend. His sentence was 14 days house arrest. In a scathing analysis of the court judgment, Kimlee Wong pointed to four serious mistakes made by the judge. First, the judge minimized the male violence against women (the choking was only for a brief period of time), second, the judge treated the offender as the victim (the offender lost friends, felt shame and suffered depression), third, the judge categorized domestic violence as being a private matter, fourth, the judge showed a lack of understanding about the trauma suffered by the victim. 182 Indigenous women are the most likely victims of domestic violence. The Canadian court system is still not taking domestic violence seriously. Violence in indigenous communities, and experienced in Indian residential schools and child and family services/foster homes, leads to the world-leading suicide crisis indigenous women (and men) face today.183 … the rate of suicide on First Nations might well exceed that of any nation state on the planet. Among the Inuit in particular, it certainly does. According to Inuit Tapiriit Kanatami’s 180 K Harry, “The Indian Act and Aboriginal Women’s Empowerment, ” fn 68, citing B.J. McCourt, “Case Comment—Civil Rights: Loss of Indian Status By Indian Women Marrying Non-Indian Under Indian Act (Can.), s. 12(1)(b)” Whether Provision Inoperative Under Canadian bill of Rights as Discrimination By Reason of Sex and Denial of Equality Before the Law: Re Lavell and Attorney-General of Canada, 38 D.L.R. 3d 481 (Sup. Ct. 1973)” (1974) 6 Ottawa L.R. 635 at 637 181 Salimah Shivji, “Indigenous police accused of dragging feet on child sexual abuse complaint in Quebec community,” CBC News, February 16, 2017 http://www.cbc.ca/beta/news/canada/montreal/indigenousinnu-police-child-sexual-abuse-1.3983845 182 Kimlee Wong, “Courts failing to fight male violence against women: Case of RCMP officer sentenced to house arrest for domestic assault proves courts don't treat issue seriously,” CBC News, April 8, 2017 http://www.cbc.ca/beta/news/canada/manitoba/opinion-kimlee-wong-domestic-violence-courts-1.4045025 183 Kristy Kirkup, “‘A very vicious cycle’: Sexual abuse root cause of indigenous suicide crisis, Aglukark says,” Canadian Press, February 5, 2017, http://www.nationalpost.com/m/wp/news/canada/blog.html? b=news.nationalpost.com/news/canada/a-very-vicious-cycle-sexual-abuse-root-cause-of-indigenoussuicide-crisis-aglukark-says - 57 -– May 2017 Canada’s legal system hates indigenous women (ITK) suicide prevention strategy, in 2009-13 the suicide rate in Nunavut was 117 per 100,000. That’s almost twice the rate in Russia, which leads the world. In 2011, 13.5 per cent of all deaths in Nunavut were suicides. It’s horrifying. Suicide can be tackled as a standalone phenomenon. As Eggertson and Patrick observe, in recent years Quebec has chopped its youth suicide rate in half. Local interventions can halt outbreaks of youth suicide. ITK released its strategy in July. If a national strategy could help fund and streamline support for regional and local strategies, aboriginal and otherwise, it’s a splendid idea. But suicide is a symptom, not just a disease. Among the factors ITK mentions as driving suicide are “crowded housing,” along with “intergenerational trauma, family violence, family history of suicide,” “witnessing or experiencing physical or sexual abuse,” “depression, substance abuse, mental health disorders,” “intoxication, access to means, hopelessness (and) isolation.” Tragically, that’s exactly what you’ll find on too many of Canada’s worst-off First Nations reserves. They are practically an assembly line for bad life outcomes. Until those factors improve, it’s tough to imagine the aboriginal suicide rate won’t continue to outpace the nonaboriginal one by a considerable margin. And in the case of “hopelessness and isolation,” it’s tough in some cases to imagine how that will ever come to pass. 184 There is recent scientific research showing that child abuse has very damaging impacts on a person’s DNA. “The trauma of child abuse can last a lifetime, leading to a higher risk of anxiety, depression and suicide further down the line. This link seems obvious, but a group of Canadian scientists have found that it has a genetic basis.” 185 Child abuse in indigenous communities is rampant. Child sexual abuse is a disturbing reality in many of Canada's First Nations, Metis and Inuit communities, research is beginning to show. Extensive interviews with social scientists, indigenous leaders and victims undertaken over the past few months by The Canadian Press show that the prevalence of sexual abuse in some communities is shockingly high. And only now are prominent indigenous leaders speaking out publicly for the first time about the need for communities to take a hard look. It's a painful legacy connected to almost 120 years of government-sponsored, church-run residential schools, where aboriginal leaders say many native children were physically and sexually molested by clergy and other staff. The abused in turn became abusers, creating a cycle of childhood sexual violation that has spread in ever-expanding ripples from one generation to the next. 184 Chris Selley, “Shining a light on aboriginal suicides,” National Post, September 15, 2016 http://www.nationalpost.com/m/wp/full-comment/blog.html?b=news.nationalpost.com/full-comment/chrisselley-shining-a-light-on-aboriginal-suicides 185 Ed Yong, “Child abuse permanently modifies stress genes in brains of suicide victims,” Science Blogs, February 22, 2009, http://scienceblogs.com/notrocketscience/2009/02/22/child-abuse-permanentlymodifies-stress-genes-in-brains-of-s/ - 58 -– May 2017 Canada’s legal system hates indigenous women Within indigenous society, the knowledge that children are being molested is often an open secret — but one to which few are willing to give voice. Instead, they dance around the words, talking instead about child welfare, bullying, substance abuse, intergenerational trauma and community conflict.186 Recently, the Assembly of First Nations seems to be acknowledging the failure of First Nations leaders to speak and act about abuse in their communities, relating to the fact of isolation and close relations within indigenous communities. That isolation, a fact of life for many Aboriginal Peoples, is a pernicious barrier to the essential goal of exposing the scourge of indigenous sexual abuse and incest, says Perry Bellegarde, the national chief of the Assembly of First Nations. Bellegarde is pleading with chiefs to confront the problem head-on. But he also acknowledges a difficult truth: many First Nations people who live in remote areas are reluctant to come forward with their allegations for fear of reprisals in their small, tightly knit communities. “If you don’t have a safe space, are you going to talk about this?” he said in an interview. “If you do talk about this ... and expose this, are you going to have the necessary supports in place?”187 What will the MMIW Inquiry say about the steps being taken by indigenous male leaders to protect and honour indigenous women in their own homes and communities? Will the MMIW Inquiry identify existing First Nations by-laws that are best practices for protecting the ability of indigenous to remain in their homes in safety? Will the MMIW Inquiry propose such First Nations by-laws? What will the MMIW Inquiry say about how Canadian law created the male leadership model on First Nations and assigned inferior status to indigenous women? Did those laws contribute to the silence of indigenous male leadership? Will the Inquiry discuss the issue at all? Will it specifically endorse what the Manitoba Aboriginal Justice Inquiry had to say about the silence of male indigenous leadership? So much more is needed in many different ways, and across the country, to help abused women find safety and justice. The Canadian legal system has been an ongoing failure in protecting the most vulnerable among us.188 8. The law discriminates against indigenous mothers and children 186 Kristy Kirkup and Sheryl Ubelacker, “Child Sexual Abuse Is Disturbing Reality In Indigenous Communities,” Canadian Press, November 6, 2016 http://www.huffingtonpost.ca/2016/11/06/sexual-abuse-indigenouscanada_n_12832644.html 187 Kristy Kirkup, “Isolation a barrier to exposing sexual abuse in remote indigenous communities: Bellegarde; The national chief of the Assembly of First Nations is urging communities to confront the problem of sexual abuse head-on, despite barriers,” Canadian Press, November 13, 2016 https://www.thestar.com/news/canada/2016/11/13/isolation-a-barrier-to-exposing-sexual-abuse-in-remoteindigenous-communities-bellegarde.html 188 “Alberta court reviewing acquittal in death of Cindy Gladue,” Canadian Press, September 6, 2016, accessed on September 27, 2016, http://www.cbc.ca/beta/news/canada/edmonton/alberta-court-reviewingacquittal-in-death-of-cindy-gladue-1.3750342 - 59 -– May 2017 Canada’s legal system hates indigenous women The “sixties scoop” was the systematic removal of children from their homes and families to be adopted out to white parents all over North America. The legal system offered no protection from this. Once again, following the residential school system, the “sixties scoop” took children away from their mothers, their homes and their cultures. The “sixties scoop” is only now coming to Canadian courts, where Justice Canada lawyers will fight hard to deny and minimize compensation.189 In January 2016, the Canadian Human Rights Tribunal issued a scathing report finding that Canada has systematically been under-funding indigenous child and family services in Canada. 190 The Tribunal issued another order in April 2016.191 The Tribunal had asked the parties for clarification on how its January orders could best be implemented and retained jurisdiction to deal with these issues following further clarification from the parties. Remedial orders designed to address systemic discrimination can be difficult to implement and, therefore, may require ongoing supervision. Retaining jurisdiction in these circumstances ensures the Tribunal’s remedial orders are effectively implemented. The discrimination is not over yet; Canada must still fully implement the Tribunal’s orders. The Tribunal issued another order in September 2016, finding that Canada is still not complying with the original order and again ordering it to do so. 192 The 2016 Tribunal order was the result of a complaint filed in 2007 by Cindy Blackstock and the First Nations Caring Society and the Assembly of First Nations. Between 2007 and 2016, federal funding to the First Nations Caring Society was cut, the federal Privacy Commissioner found that the government had been spying on Blackstock’s personal life, and the Human Rights Tribunal found that the government had retaliated against Blackstock by barring her from a key meeting. In July 2016, Blackstock and the Assembly of First Nations criticized the government’s response to the January ruling of the Tribunal, saying it is too slow and fails to respect important parts of the ruling. Discrimination against indigenous children has obvious impacts on girls who grow up in the child welfare system and their mothers. When children are in the care of the state, indigenous girls are especially at risk. Mary Ellen Turpel-Lafond, B.C.’s representative for children and youth, issued a report in October 2016 189 https://sixtiesscoopclaim.com (Ontario); http://www.callkleinlawyers.com/class-actions/current/aboriginal-sixties-scoop/ (B.C.); https://kmlaw.ca/cases/manitoba-sixties-scoop-class-action/ and Thompson et al. v. Minister of Justice of Manitoba et al., 2016 MBQB 169 http://canlii.ca/t/gt6qq (Manitoba); https://www.merchantlaw.com/classactions/current-class-actions/indian-metis-scoop-class-action (Saskatchewan and Alberta); Julien Gignac, “Canadian judge rules in favor of forcibly adopted First Nations survivors,” Guardian, February 14, 2017, https://www.theguardian.com/world/2017/feb/14/canada-sixities-scoop-ruling-first-nations-children. The judge (at this stage of the case) ruled: “The uncontroverted evidence of the plaintiff’s experts is that the loss of their aboriginal identity left the children fundamentally disoriented, with a reduced ability to lead healthy and fulfilling lives,” Balobaba wrote. “The loss of aboriginal identity resulted in psychiatric disorders, substance abuse, unemployment, violence and numerous suicides.” 190 First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 2 http://canlii.ca/t/gn2vg 191 First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 10 http://canlii.ca/t/gppjk 192 First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 16. See also “The long history of discrimination against First Nations children,” Cindy Blackstock, Policy Options, October 6, 2016 http://policyoptions.irpp.org/magazines/october-2016/the-long-history-of-discrimination-against-firstnations-children/ (accessed October 6, 2016) - 60 -– May 2017 Canada’s legal system hates indigenous women entitled Too Many Victims: Sexualized Violence in the Lives of Children and Youth in Care.193 The report was a review of 145 reports of sexualized violence against 121 children and youth in the care of the B.C. Ministry of Children and Family Development (MCFD) and the province’s 23 delegated Aboriginal Agencies (DAAs) between 2011 and 2014. This review was the first of its kind in Canada. The report stated that the true number of sexualized violence against children in care was likely much higher, as reporting by traumatized youths in care probably does not occur in many cases. One of the most important messages from the report is how indigenous girls are by far the most frequent victims. Of the 121 youth who reported being the victim of sexualized violence while in government care, a total of 74 – or 61 per cent – were Aboriginal girls, despite the fact that Aboriginal girls comprised, on average, only 25 per cent of the total children in care in B.C. during the time period covered by this review. Female victims in this review who were age 12 or younger at the time of the incident of sexualized violence were four times more likely to be Aboriginal than non-Aboriginal, while girls between the ages of 13 and 18 were twice as likely to be Aboriginal. And, while this review looks at sexualized violence against children and youth in care over a three- year period ending in 2014, recent statistics are just as troubling. Of the victims of reported sexualized violence in 2015/16, nearly twice as many were Aboriginal girls than non-Aboriginal. … Children and youth in government care are more vulnerable to incidents of sexualized violence than their peers who are not in care. In fact, 2015/16 statistics show that sexualized violence is the most common type of critical injury involving children and youth in care, at 21 per cent. And yet, this report finds that not one specific policy or set of practice standards exists to guide social workers in their role as the guardian of a child or youth in care who is sexually assaulted while in care. Consequently, actions of social workers in the cases of the 121 youth in this review are, not surprisingly, varied and inconsistent, leaving children and youth potentially at risk for further abuse and long-lasting harm.  Of the 121 children and youth who were victims of sexualized violence, the vast majority (109) were girls. Girls were at an increased risk of being subjected to sexualized violence in their teenage years.  A quarter of the reported incidents of sexualized violence that occurred in care placements were perpetrated by the child or youth’s foster parent. More than one-third were perpetrated by another child or youth in the same placement.  Nearly 20 per cent of the children and youth in this review harmed themselves or attempted suicide, usually within a year of disclosing the sexualized violence.  Half had problematic substance use issues. 193 http://rcybc.ca/sites/default/files/documents/pdf/reports_publications/rcy_toomanyvictimsfinal.pdf (accessed October 6, 2015). See also “First Nations advocates call foster care sex abuse report ‘tragic’,” Roshini Nair, CBC News, October 5, 2016 http://www.cbc.ca/beta/news/canada/british-columbia/reactionto-sexualized-violence-report-1.3792232 (accessed October 6, 2016) - 61 -– May 2017 Canada’s legal system hates indigenous women  More than 70 per cent had at least one diagnosed or suspected mental health issue, with two-thirds having one or more neurodevelopmental disabilities.  Half of the 121 children and youth were dealing with both a mental health concern and a neurodevelopmental disability. Forty per cent had experienced some level of placement disruption during their time in care. The average number of moves per child or youth was eight, although some moved placements up to 30 times.194  So, Canada discriminates against indigenous families by systematically and routinely underfunding child and family services, by failing to provide adequate policies and training and advocacy for children in care, and indigenous girls become victims of sexualized violence at a very early age. The state discriminates against them and fails to protect them. They become traumatized and have mental health, addictions and suicide issues. Who could be surprised? 9. Reproductive rights of indigenous women: privacy, dignity, liberty and security of the person under attack Indigenous women have the fewest reproductive rights and autonomy and privacy in Canada. The MMIW Inquiry needs to examine and report on how the limits on the reproductive rights of indigenous women can lead to their isolation and poverty. It is essential in any inquiry into women’s issues that reproductive rights be included. This can be something as simple as noting that homeless women cannot even have a dignified period because shelters and food banks do not have feminine hygiene products available. 195 Dignity, privacy, autonomy and access in reproductive rights go a long way in telling women whether or not society values them. Birth I have discussed at some length the discriminatory provisions relating to status, which are really about the ability to pass Indian status from mother to child. A related aspect to that discrimination is the extent to which the Canadian government insists on knowing whether the father was or was not a status Indian. Mary Eberts writes about this issue in some detail. Until 1951, Canada did not make assumptions about whether an unnamed father was or was not a status Indian. Community acceptance of a child born out-of-wedlock was sufficient until 1951; the mother’s status as an Indian was sufficient after 1951, unless there was actual proof that the father was not an Indian. The person challenging the child’s right to be recognized as a status Indian would have provide that proof. Today, Canada assumes that a child born to an Indian woman out-of-wedlock did not have a Indian father if his identity is not known. This was a change of policy (not law) that occurred in 1985 when women who had “married-out” were given back their Indian status (but with an inferior ability to pass it to their children). Canada’s new policy was that the father’s name had to be on the birth form. 194 http://rcybc.ca/sites/default/files/documents/pdf/reports_publications/ rcy_toomanyvictimsfinal.pdf (accessed October 6, 2015) pp. 1-2 195 Samantha Allen, “The Fight to Give Homeless Women a Dignified Period: Homeless shelters’ biggest request isn’t canned goods. It’s feminine hygiene products,” The Daily Beast, August 25, 2016, accessed on September 18, 2016, http://www.thedailybeast.com/articles/2016/08/25/the-fight-to-give-homeless-womena-dignified-period.html - 62 -– May 2017 Canada’s legal system hates indigenous women Many difficulties have been identified with this practice. If pregnancy was the result of abuse, incest or rape, the mother could be unwilling or unable to identify the father. A father may not want to acknowledge paternity because of concerns about being held financially responsible for the child. Where the relationship has been unstable or abusive, the mother may worry about the father asserting a right to custody or access. Privacy concerns may influence whether the father is willing to disclose a paternity, or the mother is willing to ask that he do so, especially if the father is in a relationship with someone else. Difficulties also arise because of lack of knowledge about the requirements or other practical barriers to compliance, which may mean that even where the father is prepared to acknowledge paternity, the paperwork may not reach the Registrar in time to permit the appropriate registration.196 Eberts cites statistics showing that for about 30 per cent of children born to Indian mothers with unstated fathers, the Indian mothers were less than 20 years of age. It is estimated that more than 25,000 children have lost Indian status through unstated paternity. As Eberts notes, at a time when all of the legal burdens of being an “illegitimate” child have been removed from the common law and statute law, Canada continues to inflict “illegitimate” discrimination against indigenous women and their children.197 Recently, the Ontario Court of Appeal found that Canada’s “unstated paternity” policy is discriminatory. Thirty-five years after the Charter was enacted.198 Aside from the legal definitions relating to granting or denying Indian status, for much of Canadian history, indigenous women have been removed from their homes and home communities for birth. They are taken to alien environments, too often for extended periods of time, not knowing any of their “care-givers” and isolated from their families at a time of high anxiety and pain. Removing indigenous women from their homes is a constant theme running across Canadian history. Highlighted in recent Canadian news has been the policy of the Government of Canada to refuse to pay for escorts (close family members) for indigenous mothers who are forced to leave their communities to give low-risk births. After repeated questioning, Health Canada told the Star that although high-risk pregnancies may justify an escort, low-risk ones do not. Doctors and maternal health experts, including the Society of Obstetricians and Gynaecologists of Canada, are calling for Health Canada to extend escort coverage to all women who have to relocate for birth, not just for those who are high-risk. “Health Canada’s transport policy of not funding a support person to accompany a person in labour is decades old,” said SOGC midwifery representative Lisa Morgan. “Yet we’ve 196 Eberts (2014) at p. 156 See Lynn Gehl Gii-Zhigaate-Mnidoo-Kwe, “Canada’s unstated paternity policy amounts to genocide against Indigenous children,” Rabble, January 29, 2013 http://rabble.ca/news/2013/01/canadas-unstatedpaternity-policy-amounts-cultural-genocide-against-indigenous-children and Pamela Palmater, “Unstated paternity still excluding Indigenous women from 'Indian' status,” Rabble, October 21, 2014 http://rabble.ca/blogs/bloggers/pamela-palmater/2014/10/unstated-paternity-stillexcluding-indigenous-women-indian-st 198 Gehl v. Canada (Attorney General), 2017 ONCA 319, http://canlii.ca/t/h38cq 197 - 63 -– May 2017 Canada’s legal system hates indigenous women allowed it to happen for a very long time knowing that it didn’t work well for any of us for even a few days.”199 The news coverage of birth escorts seems to have forced the Government of Canada to change its policy.200 The lack of birth options for indigenous women (specifically, the lack of options for birth in their own communities and birth with midwives) has not come to court, to my knowledge. 201 However, an important birth and bonding case has to come to court in the specific context of incarcerated women in a case called Inglis.202 Once again, it was Madame Justice Carol Ross who rose to the occasion, just as she had done in the McIvor case. Ross stated that a provincial government decision to cancel a mother-baby program within a provincial jail violated the rights to security of the person, liberty and equality, contrary to the Charter. She held that the motherbaby program implicated the Charter rights of both mother and infant; that each of their security of the person is served by allowing them to stay together, even in jail. Justice Ross held that: [12] … the decision to cancel the Mother Baby Program was arbitrary, overbroad and grossly disproportionate and therefore contrary to the principles of fundamental justice. In that regard the following findings were of particular significance: (a) the decision was based upon a consideration of mandate that did not take account of the constitutional rights of the mothers and infants affected. As such there was no legitimate state objective; … [15] Provincially sentenced mothers and their babies are members of a vulnerable and disadvantaged group. In that regard the circumstances of Aboriginal mothers and their infants are of particular concern given the history of overrepresentation of Aboriginal women in the incarcerated population and the history of dislocation of Aboriginal families caused by state action. The Mother Baby Program represented a significant step forward in the amelioration of the circumstances of the mothers and their babies who qualified. How we treat indigenous women in pre-natal care and birth options says a lot about the extent to which Canada values indigenous women and their children. In Winnipeg, there is a multi-year research project called the Partners in Inner-City Integrated Prenatal Care (PIIPC), a joint project of the Winnipeg Regional Health Authority (WRHA) and the University of Manitoba. The PIIPC project was developed by Winnipeg Regional Health Authority (WRHA) working in the areas of population and public health, primary care, and women's health, as well as representatives from 199 Michael Robinson, “Giving birth alone and far from home,” Toronto Star, January 1, 2017, https://www.thestar.com/news/insight/2017/01/01/giving-birth-alone-and-far-from-home.html 200 “Ottawa to pay for travel companion for Indigenous women giving birth away from reserve Health Minister calls old policy of having woman travel alone 'extremely unhelpful' ,” Canadian Press, April 9, 2017 http://www.cbc.ca/beta/news/politics/indigenous-women-pregnancy-reserve-escort-policychange-1.4063082 201 It seems to me that Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC) might be used in support of such an argument, combined with the history of Canada’s interference with mother-child relationships through laws that limit the ability of mothers to pass their status to their children and grandchildren; through residential schools and the sixties scoop; through discriminatory funding of child and family services and indigenous education. The Inglis case below could also be invoked; how tragic if the only indigenous women that Canada will recognize as having mother-infant rights are incarcerated indigenous women. 202 Inglis v. British Columbia (Minister of Public Safety), 2013 BCSC 2309 (CanLII), http://canlii.ca/t/g2d20 - 64 -– May 2017 Canada’s legal system hates indigenous women Healthy Child Manitoba, Manitoba Health, and the Assembly of Manitoba Chiefs, in collaboration with researchers from the University of Manitoba. The project, which began in September 2012, was funded by the Canadian Institutes of Health Research (CIHR) and Research Manitoba through the Partnerships for Health System Improvement program (PHSI). The Winnipeg Health Region and Healthy Child Manitoba also helped fund the project. 203 The project involves four separate strategies to improve birth services in the inner-city. The project is not law-related, so I only mention it in passing. 204 Part of the project is a street outreach initiative, which means actively going out into the streets to seek out pregnant women who may be homeless or otherwise unable or unwilling to set up their own appointments. The principle is a form of harm reduction: focus on giving the woman the best prenatal care possible in her circumstances without turning the prenatal care into some form of addiction or mental health counselling (but of course provide the information and referrals as appropriate). To paraphrase the concept of “housing first”, in this circumstance, the concept is “birth first.” The PIIPC project has found that this kind of outreach can lead to better birth outcomes for mother and baby, and can lead many women to take concrete steps to improve the health of their pregnancy and to seek out other resources that can assist them in other parts of their lives. 205 In Vancouver, there is the Sheway Project. The Sheway Project is a unique outreach program located in the Downtown Eastside (DTES) of Vancouver, providing holistic services to pregnant women with substance use problems, and support to mothers and their families until their children are 18 months of age. Sheway promotes the well-being of pregnant women and their families, taking into consideration the context of living in the Downtown Eastside of Vancouver, one of Canada’s poorest neighbourhoods, renowned for its high crime rate, drug and sex trade, violence, substandard housing and high rate of HIV. Sheway takes a woman-centred, harm-reduction, culturally focused approach to providing services.206 It is not good enough to have a couple of projects for extreme at-risk mothers. What is needed are appropriate birth options for indigenous women without any pre-requirement that they be highly at risk. As the Toronto Star reported, indigenous women are routinely denied an escort to an urban centre where they will give birth.207 Further, governments need to support the expansion of indigenous midwifery care, as Ontario recently started doing. 208 203 For more information go to: http://www.wrha.mb.ca/community/publichealth/piipc/ . Full disclosure: my wife Kelly Klick was the co-chair of the community initiative working group for this project. Kelly was also the manager of the Winnipeg Regional Health Authority midwifery services. 205 L Tjaden, M Heaman, Z Marzan Chang, L Elliott, “Applying a Health Equity Promotion Lens to Prenatal Care for Inner-City Families in Winnipeg, Canada, October 6, 2015, accessed on September 27, 2016, http://eurpub.oxfordjournals.org/content/25/suppl_3/ckv176.066 . See more related publications here: https://www.researchgate.net/profile/Lynda_Tjaden/publications and here: http://www.pubfacts.com/author/Maureen+Heaman 206 Evaluation report of the Sheway Project for high-risk pregnant and parenting women, Nancy Poole, Vancouver: B.C. Centre of Excellence for Women’s Health, 2000 207 Michael Robinson, “Giving birth alone and far from home: Pregnant indigenous women in Canada’s North are routinely denied escorts when relocating to cities like Thunder Bay to give birth.” Toronto Star, January 1, 2017, https://www.thestar.com/news/insight/2017/01/01/giving-birth-alone-and-far-fromhome.html 208 Cathy Alex, “Ontario restores ‘beautiful ceremony’ of birth by funding 6 Aboriginal midwifery programs,” CBC News, February 10, 2017, http://www.cbc.ca/news/canada/thunder-bay/thunder-bay204 - 65 -– May 2017 Canada’s legal system hates indigenous women Will the MMIW Inquiry discuss to what extent the provision of appropriate prenatal care, birth options, reproductive choices and dignity might improve security for indigenous women and their children. In my view, giving a mother and child a good birth is necessary to giving the mother and child a better and safer life. Sterilization Karen Stote deserves high praise for her recent book on the sterilization of indigenous women in Canada. Alberta’s Sexual Sterilization Act was in effect from 1928 to 1972 and B.C.’s Sexual Sterilization Act was in effect from 1933 to 1973. “The B.C. Act permitted the provincial Eugenics Board to sterilize any inmate of provincial institution deemed “hereditarily unfit,” specifically any inmate of an industrial school or industrial home for girls.” 209 Stote cites historical records and specific cases showing that indigenous girls and women were sterilized under these laws. The B.C. and Alberta laws were intended to provide legal immunity for those carrying out the sterilizations. The sterilizations were already widespread before the statutes were enacted, and forced sterilizations were occurring in Ontario and elsewhere as well, despite the lack of a statute. In Canada, neither the federal government nor the provinces have taken any steps to acknowledge let alone investigate the true extent to which sterilization was imposed on Aboriginal women. … An important implication of the failure of the Canadian government to fully acknowledge the extent that Aboriginal women were targeted by this practice is that to do so might drastically change the nature of the conversation. The United Nations Convention on the Prevention and Punishment of the Crime of Genocide states that the imposition of measures to prevent births within a group constitutes an act of genocide when carried out with the intent to destroy a group in whole or in part.210 While some persons were eventually able to use the courts to obtain compensation for sterilization,211 others did not succeed.212 Stote concluded “For the victims of involuntary sterilization, law has been a weapon used to carry out injustice. For those seeking reparations for past abuse, it has been applied in such a way as to limit liability and has often inflicted further injustice on its victims.” 213 Sterilization was authorized both by statute in some places and by policy and practice by the Department of Indian Affairs. Hopefully it can be consigned to history, but it is an important to acknowledge yet another interference with the rights and freedoms of indigenous women. Abortion dilico-aboriginal-midwifery-1.3974972 209 Stote (2015) at p. 50 210 Stote (2015) at p. 123 211 Muir v. Alberta, 1996 CanLII 7287 (AB QB), http://canlii.ca/t/1p6lq 212 Base v. Hadley et al, 2006 NWTSC 4 (CanLII), http://canlii.ca/t/1mgcc ; Georgina Base is a described by Stote (2015) at p. 119) as a “Rae-Edzo woman” (the largest First Nations community in Northwest Territories now called Behchokö). Base lost her case because the court ruled she filed her claim too late for the Statute of Limitations. 213 Stote (2015) at p. 123 - 66 -– May 2017 Canada’s legal system hates indigenous women In 1988, the Supreme Court of Canada held that Canada’s laws restricting abortions violated the Charter of Rights and Freedoms.214 The court held that the laws infringed women’s rights to “life, liberty and security of the person” and could not be justified. Madame Justice Bertha Wilson’s reasons are perhaps one of the most important judgments in Charter history. The provisions of the Criminal Code were struck down and not replaced. Of course, that was not the final word on the subject. Indigenous women who live in small communities and have little privacy, who have no access to abortion procedures except by leaving home, who frequently require funding from their local government in order to pay their transportation and costs associated with seeking abortion services, do not have equal access to abortion in Canada. Their access is limited by funds and distance, and their privacy is in extreme jeopardy. In 2016, a group called Abortion Access Now PEI filed a notice of application in the Supreme Court of Prince Edward Island against the P.E.I. government. The group stated that they had been lobbying for abortion services on Prince Edward Island for more than 20 years, but it was clear that nothing short of a court order would force the government to provide equitable access. The group stated that it is not possible for everyone who requires an abortion to make the trip to Moncton or Halifax, to leave their families or in the case of young people 215 to create an excuse to travel out of the province or the means to do so. This is true, but it is almost quaint in comparison to the barriers faced by indigenous women. In March 2016, the PEI Government finally stated that it would ensure that abortion services, and comprehensive reproductive health services, are available on the island by the end of 2016.216 Only one in six hospitals provide abortions, most of which are located in big cities within 150 km of the United States border. Thus, for all of Canada’s history until at least 1988, Canadian law infringed and threatened the life, liberty and security of the person of Canadian women, as well as their freedom of conscience and privacy, as it relates to abortion. Even today, how is an indigenous woman with no resources living far from a centre which has abortion services supposed to have access to those services? How can they obtain funding from their local government to pay their transportation and associated costs, while preserving their privacy and dignity? Ontario doctors have explained the double-standard that indigenous patients must sacrifice more of their privacy than non-indigenous patients. Doctors who provide care for First Nations people in remote reserves have been required to provide clerks at Health Canada with detailed diagnostic information about their patients before travel grants for medical purposes will be issued. Provincial health travel grants in Ontario require only a doctor’s signature with no further requirement to reveal private medical information, although provincial travel grants would not cover the cost of flights from remote First Nations communities. 217 214 R. v. Morgentaler, 1988 CanLII 90 (SCC), http://canlii.ca/t/1ftj “How serious is Trudeau about women’s reproductive rights?” Sandeep Prasad, Anu Kumar, Ricochet, September 28, 2016 https://ricochet.media/en/1435/how-serious-is-trudeau-about-womens-reproductivehealth-rights (accessed October 14, 2016) 216 Sean Fine, “PEI drops opposition to abortion, plans to provide access by year’s end,”, The Globe and Mail, March 31, 2016, accessed September 27, 2016, http://www.theglobeandmail.com/news/national/peito-allow-abortions/article29474278/ . See also http://www.abortionrightspei.com 217 Jody Porter, “Health Canada breaches Indigenous patients' privacy, MDs say Northern Ontario doctors say there is double standard in privacy protection for First Nations people,” CBC News, October 10, 2016, 215 - 67 -– May 2017 Canada’s legal system hates indigenous women The current laws of abortion include the limitations on the Plan B drug, RU-486 or Mifegymiso or Mifepristone is included in the World Health Organization’s list of essential medicines, which only became legally available in July 2016. Health Canada requires that unlike with most drugs, where a doctor gives a patient a prescription and sends the patient to a pharmacy to collect the drug, doctors will be required to dispense the drug to patients themselves. “Most family physicians we’ve spoken to don’t have any mechanism to sell drugs to their patients,” said Dr. Wendy Norman of the Society of Obstetricians and Gynecologists of Canada. “You also need to buy, stock, store and maintain a stock — that is, recognize when something’s about to be out of date and change it over. And this is outside the expertise of physicians. We don’t have training in this, speaking as a family doctor myself,” Norman added. Norman said the rules will likely mean that only large family practices in big cities will have the expertise required to prescribe Mifegymiso, which can be used to terminate a pregnancy up to 49 days after conception. “All of these communities where abortion is not currently available, and where women are having to travel long distances and leave their families, and leave their jobs, the situation won’t change,” she said.218 And what about communities that do not have a doctor at all, and many remote indigenous communities that only have a nursing station? Indigenous women, who, given high birth rates and rates of sexual assaults, domestic violence, addictions and nutritional deficits, may be the most likely in Canada to have unwanted, high risk and even dangerous pregnancies. The discrimination against women generally, and invasion of their privacy, that existed in Canadian law for more than a century, has been lifted, but is only useful if there is reasonable, confidential access to it. Is there any group in Canada who will have less access to abortion and comprehensive reproductive health services, including access to RU486, than indigenous women? 10. Criminalization of addictions, drug use and sex work Undoubtedly, the MMIW Inquiry will provide the horrifying statistics concerning the extent to which indigenous women are victims of crime, insecure housing, in adequate education and forced to leave their homes, communities, and have their children taken away from them and find themselves disproportionately in jail. The traumas created by these events are difficult to imagine and unsurprisingly produce many adverse consequences, including extreme poverty, various addictions, mental illness and homelessness. Sexual assault survivors can expect to deal with a host of mental and physical struggles following an assault, including but not limited to: chronic pain, gastrointestinal disorders, shock, post-traumatic stress disorder, confusion and distrust of others. Sexual assault survivor Emily Peters spoke about her own experiences after she was raped. ‘Initially, it was the typical nightmares, flashbacks and feeling constantly triggered or reminded of the rape. I couldn’t keep a job or attend school. I was completely numb to everything; there was only darkness. I attempted suicide multiple times. Gradually, I became a shell of who I had been.’ Though Peters said her PTSD is no longer as all-consuming as it once was, years later she still feels constantly on high alert, having disproportional adrenaline responses to panic or accessed October 14, 2016 http://www.cbc.ca/beta/news/canada/thunder-bay/health-canada-privacy-firstnations-1.3796737 218 Susan Lunn, “Abortion pill can now legally be prescribed in Canada, but is still unavailable,” CBC News, Jul 06, 2016, accessed August 31, 2016, http://www.cbc.ca/news/politics/ru-486-abortion-pillcanada-1.3665865 - 68 -– May 2017 Canada’s legal system hates indigenous women stress, not to mention rarely feeling safe around men. 219 In short, Canadian law makes indigenous women isolated, desperate, traumatized, and fearful, with little sense of self-worth or dignity. In these circumstances, too many of them turn to drugs and sex work. And the law is ready to smash them yet again when they do. Drug laws Sugar and alcohol are legal drugs that can have incredibly damaging impacts on individuals, taxpayers and society in general. They can have terrifying impacts on indigenous communities and indigenous women. About eight in 10 Indigenous Canadians who are young adults will develop Type 2 diabetes in their lifetimes compared with five in 10 in the general population, a new study suggests. … Lack of access to healthy, affordable food, along with poverty, underpins the disease, said Spenta Mazkoori, a registered dietitian at the [Anishnawbe Health clinic in Toronto]. ‘They don’t have control over what they eat, because they’re in … temporary housing’, Mazkoori said. ‘It might take up to six months for them to have permanent.’ The top dietary culprit that comes to her mind is a beverage. Some clients drink up to two litres of pop a day, which she said increases their blood sugar levels dramatically. 220 There are no criminal laws attached to sugar, alcohol or nicotine, 221 and it could be argued that these are the three most dangerous drugs for indigenous peoples. Clearly, legalized drugs also pose great harms and strong public education campaigns with a public health focus are required. In addition to wholly legal drugs, Canada regulates lists and lists of legal pharmaceuticals, including RU-486 mentioned above. But Canada lists only a few drugs as being criminal to possess and sell. We started the criminalization of some drugs as a method of “controlling” Chinese immigrants, especially in Vancouver. Canada’s first drug law was the Opium Act of 1908. Canada kept adding to its drugs laws, and immigration laws, leading to the 1923 Chinese Exclusion Act. The drug laws became separated from the anti-Chinese racism. Although Canada repealed the Chinese Exclusion Act in 1947, Canada continued its criminal prohibition of selected drugs, now in the Controlled Drugs and Substances Act. A series of Charter challenges have been brought against the marijuana prohibitions, with the first important decision being R. v. Parker, 2000 CanLII 5762 (ONCA)222 and continuing to the present. The most recent case is Allard v. Canada, 2016 FC 236, which found that Canada’s present restrictions relating to the use of marijuana for medical purposes infringed the liberty and 219 Katy MacKinnon, “Sexual assault victims fight a losing battle,” CBC News, September 11, 2016, accessed on September 27, 2016, http://www.cbc.ca/beta/news/canada/manitoba/sexual-assault-victims-fight-a-losing-battle-1.3756465 220 “Diabetes epidemic in Indigenous populations’ highlights disparity,” CBC News, September 19, 2016, accessed on September 27, 2016, http://www.cbc.ca/news/health/diabetes-type-2-first-nations-1.3768773. 221 Indigenous people in Canada smoke tobacco at three times higher rates than non-indigenous Canadians. See position statement of the Canadian Paediatric Society “Use and misuse of tobacco among Aboriginal peoples,” December 1, 2006 222 http://canlii.ca/t/1fb95 - 69 -– May 2017 Canada’s legal system hates indigenous women security of the person.223 To date, the Charter challenges have succeeded in carving out permitted exceptions relating to the use of marijuana for medicinal purposes. In the meantime, the current federal government promises to legalize marijuana but has not done so yet. It is important to recognize that many believe that the legalization of marijuana is opposed by the pharmaceutical industry because its use may reduce the sales of opiods or synthetic marijuana.224 Many believe that it is the opiods which is the “gateway” drug to addiction and more dangerous drugs, not marijuana. Will the MMIW Inquiry talk about the rate of opiod use by the murdered and missing indigenous women? I believe the entire idea of the “war on drugs” has already been proven to be discriminatory and a severe attack on life, liberty and security of the person and privacy. I believe that the “war on drugs” has been a colossal waste of taxpayer dollars and a terrible mis-direction of needed resources, away from public health and education and towards police, lawyers and courts. I believe that the “war on drugs” drives traumatized people away from safety and into dark streets filled with criminals and predators. I believe that eventually the whole notion of laws that deem it to be “criminal” to possess or sell some drugs but not others will eventually be found to be arbitrary and contrary to the ideas of personal liberty, autonomy and privacy found in the Charter.225 But that could take a very long time. In the meantime, we continue to create a community of criminal, unregulated, non-taxpaying drug dealers and their clients, many of whom are not addicted, many of whom are. Those criminal drug dealers are experienced in evading law enforcement and, having decided to take the risk of criminal charges and imprisonment for possessing or selling drugs, it may be assumed that they are also willing to take the risks associated with assaulting individual drug users. So Canada’s drug laws criminalize indigenous women as users and sellers, and expose them as buyers to criminals with little legal protection or recourse as victims of violence. If those indigenous women also have children, then any complaints relating to violence will undoubtedly reveal their drug habit and lead to the apprehension of their children by the government. The drug laws severely threaten their life, liberty and security of the person. A joint report from Human Rights Watch and the American Civil Liberties Union details the horrendous impact of drug laws. The [The report] found that there were 574,640 arrests for marijuana possession nationwide in 2015, outnumbering arrests for all violent crimes combined, and that the massive enforcement of drug laws takes a toll at every level, from the individual to the institutional— 223 Allard v. Canada, 2016 FC 236 (CanLII), http://canlii.ca/t/gngc5 See for example: “Pharma Company Funding Anti-Pot Fight Worried About Losing Business, Filings Show,” Lee Fang, The Intercept, September 12, 2016 https://theintercept.com/2016/09/12/pharma-opioidmarijuana/ ; Opioid-related deaths decrease by 25 percent in states with medical marijuana program, Greg White, Natural News, January 27, 2016 http://www.natural.news/2016-01-27-opioid-related-deathsdecrease-by-25-percent-in-states-with-medical-marijuana-program.html ; “Confirming Big Pharma Fears, Study Suggests Medical Marijuana Laws Decrease Opioid Use,” Lauren McCauley, Common Dreams, September 16, 2016 ; “How the American opiate epidemic was started by one pharmaceutical company,” Mike Mariani, The Week, March 4, 2015 http://theweek.com/articles/541564/how-american-opiateepidemic-started-by-pharmaceutical-company originally published as “Poison Pill,” Pacific Standard February 23, 2015 https://psmag.com/poison-pill-d5eff7e7bcd#.bprad990m (accessed October 6, 2016) 225 Joshua Ostroff, “There Is A Solution To Canada’s Fentanyl Overdose Crisis: End Drug Prohibition,” Huffington Post, February 29, 2017, http://www.huffingtonpost.ca/2017/02/28/fentanyl-crisis-drugsprohibition_n_14916126.html 224 - 70 -– May 2017 Canada’s legal system hates indigenous women ruining lives and pulling families apart, discriminating against people of color, and undermining public health. In fact, the groups found, in the U.S., someone is arrested for lowlevel drug offenses every 25 seconds. “Every 25 seconds someone is funneled into the criminal justice system, accused of nothing more than possessing drugs for personal use,” said the report's author and HRW/ACLU Aryeh Neier fellow Tess Borden. "These wide-scale arrests have destroyed countless lives while doing nothing to help people who struggle with dependence." The long-term impacts of drug law enforcement range from the separation of families to lifelong discrimination, the report states. People arrested for drug use can be excluded from employment opportunities, housing and welfare assistance, and the right to vote, among other things. The organizations interviewed hundreds of drug users, family members of those prosecuted, government officials, defense attorneys, activists, and service providers, and analyzed data from Texas, Florida, New York, and the FBI. One woman interviewed in the report, “Nicole,” whose name was changed for privacy, was held pretrial for months in Houston, Texas away from her three children and eventually pled guilty to her first felony—possessing an empty baggie with heroin residue. The conviction cost her student financial aid, employment opportunities, and the food stamps she used to feed her children.226 A different approach to drug addiction is called “harm reduction.” Instead of having drug users use and trade dirty drug paraphernalia, in hidden places away from health services, instead of pouring public resources into criminal surveillance, arrests, court appearances, prosecutions, appeals, and jails, it is possible to create sites that provide safety for drug users, while at the same time encouraging those users to learn about and hopefully choose a variety of health and community services. A pilot project began in Vancouver in 2003 called Insite. Insite is a safe, health-focused place where people inject drugs and connect to health care services – from primary care to treat disease and infection, to addiction counseling and treatment, to housing and community supports. Insite is North America’s first legal supervised injection site. Insite does not provide illegal drugs to users, but it does create a safe, sanitary environment (including clean syringes) for users. Insite operates on a harm-reduction model, which means it strives to decrease the adverse health, social and economic consequences of drug use without requiring abstinence from drug use.227 In various ways, the Canadian government has been at war against the harm reduction model and Insite.228 The government was forced by court order to allow Insite to continue operating. 229 The Supreme Court of Canada held that the government’s refusal to extend Insite’s permits was arbitrary, threatened the lives of their clients, undermined the government’s and the Controlled Drugs and Substances Act’s purported objectives of public health and safety, and was grossly disproportionate. The court found that during its eight years of operation, Insite has been proven 226 Nadia Prupis, “Denouncing ‘Colossal Waste’ of Drug War, Report Makes Case for Decriminalization,” Common Dreams, October 12, 2016, accessed October 14, 2016 http://www.commondreams.org/news/2016/10/12/denouncing-colossal-waste-drug-war-report-makes-casedecriminalization 227 For more information see: http://supervisedinjection.vch.ca 228 https://en.wikipedia.org/wiki/Insite 229 Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44 (CanLII) http://canlii.ca/ t/fn9cf - 71 -– May 2017 Canada’s legal system hates indigenous women to save lives with no discernable negative impact on the public safety and health objectives of Canada. The effect of denying the services of Insite to the population it serves and the correlative increase in the risk of death and disease to injection drug users is grossly disproportionate to any benefit that Canada might derive from presenting a uniform stance on the possession of narcotics. In response, the government imposed severe regulations that effectively prevent other harm reduction, safe injection sites from operating. 230 The Alberta College of Physicians and Surgeons voted in September 2016 to support a bid for a safe injection site to open in Edmonton, but that bid will have to overcome the government’s regulatory hurdles. 231 So that means more Charter challenges, more delay, and of course, more danger for drug users and the general public, including indigenous women, who could benefit from harm reduction approaches. (Harm reduction works in other contexts too, especially “housing first”. 232) Vancouver has become the first city in North America where prescription heroin is offered to addicts outside of a clinical trial. Doctors at Providence Health Care had to fight the previous federal government and obtain a court injunction against the government over the right to continue prescribing heroin to patients who had finished being part of a clinical research trial. 233 Dr. Scott Macdonald said: “It is very dangerous and life destroying to have to ingest in an alley, to use illicit heroin three, four times a day. That destroys lives. This is an alternative”. MacDonald said some patients who took part in the trials have been able to reconnect with families and bring stability back to their lives, instead of shooting up in alleyways three or four times a day. “I think all the clinicians at the clinic have seen the great beneficial effect that this treatment can have on people — hard-to-reach populations that may have been using on the streets for 15, 20, 25 even 30 years,” he said. “There is a small percentage of people who aren’t engaged in treatment with methadone, the standard treatments. We don’t have enough options for them. This is one option, and we need it here in Vancouver.” All of the patients must use the drug under the care of a doctor, at the Crosstown Clinic, and cannot take the heroin to use somewhere else, MacDonald said.234 Under Canada’s new Liberal government, more harm reduction sites are 230 Roshini Nair and Jon Hernandez “Liberal government’s refusal to repeal Bill C-2 ‘disappointing’, supervised injection site advocate says,” CBC News, August 24, 2016, accessed August 31, 2016, http://www.cbc.ca/news/canada/british-columbia/supervised-injection-hurdles-1.3733942 231 Sarah Rieger, “Edmonton Safe-Injection Sites Get Doctors’ Support,” Huffington Post, September 9, 2016, accessed September 27, 2016, http://www.huffingtonpost.ca/2016/09/09/edmonton-safe-injectionsites_n_11935132.html 232 Matthew Stock, “Ending Homelessness? A Critical Examination of Housing First in Canada and Winnipeg,” Canadian Centre for Policy Alternatives, February 10, 2016, accessed on September 27, 2016, https://www.policyalternatives.ca/publications/reports/ending-homelessness#sthash.n2CCuflO.dpuf ; Emma Woolley’s, “Is Housing First effective for Indigenous women and children fleeing violence?” Canadian Observatory on Homelessness/Homeless Hub: York University, July 29, 2016, accessed September 16, 2016, http://homelesshub.ca/blog/housing-first-effective-indigenous-women-and-childrenfleeing-violence; Juha Kaakinen, “Lessons from Finland: helping homeless people starts with giving them homes,” The Guardian, September 14, 2016, accessed September 27, 2016, https://www.theguardian.com/housing-network/2016/sep/14/lessons-from-finland-helping-homelesshousing-model-homes 233 Providence Health Care Society v. Canada (Attorney General), 2014 BCSC 936 (CanLII), http://canlii.ca/t/g722s 234 “Prescription heroin offered in Vancouver outside of clinical trial for 1st time,” CBC News, November 27, 2014 http://www.cbc.ca/beta/news/canada/british-columbia/prescription-heroin-offered-in-vancouveroutside-of-clinical-trial-for-1st-time-1.2850223 (accessed October 6, 2016). See also “B.C. clinic's free heroin enables addicts to 'have a meaningful life again,' co-ordinator says,” Nick Purdon • Leonardo Palleja, CBC News, September 28, 2016 http://www.cbc.ca/beta/news/canada/crosstown-clinic-heroin- - 72 -– May 2017 Canada’s legal system hates indigenous women being approved.235 Canada can go further. Canada can learn from Portugal and from Dr. Joao Goulao, the public health physician who has received much of the credit for helping turn the situation around in Portugal, which used to have Europe’s most severe addiction crisis. Goulao’s revolutionary recommendation for Portugal was to remove the criminal penalties for all drug use — in other words, decriminalization. It would be combined with an intense focus on harm reduction, treatment and rehabilitation. A decade later, the number of addicts was halved and overdose deaths had dropped to just 30 a year for the entire country. The number has remained steady ever since. Europe’s drug-monitoring agency says Portugal’s mortality rate from drugs is now more than four times lower than the European average. Goulao says 90 per cent of public money spent fighting drugs in Portugal is channeled toward those health-care goals — just 10 per cent is spent on police enforcement. 236 Rather than prosecuting indigenous women whose lives are so desperate they turn to drugs; rather than forcing indigenous women into the dark streets where criminal drug dealers thrive, maybe indigenous women (and all Canadians) would be better served by following Portugal’s approach. What will the MMIW Inquiry say about the impact of Canada’s drug laws on indigenous women, about the ability of marijuana to reduce opiod deaths and addictions, about Insite, about the regulations that prevent similar services being offered in other places in Canada, about prescription and supervised use of heroin? Will the MMIW Inquiry report on the number of indigenous women who use Insite? The number of murdered or missing indigenous women who used Insite in the past? Will the MMIW Inquiry talk about the harm reduction model and its potential for keeping indigenous women safer? Will the MMIW Inquiry talk about how Canada’s drug laws push addicted indigenous women into dangerous places, far away from any protection from the legal system, and into close contact with extremely dangerous people? Prostitution laws In 1889, in Calgary, a journalist with the Herald reported that the police had found the “mutilated body of a murdered squaw” in the living quarters of William Fisk, known to be an afficiando of the Jack the Ripper murders in London, England in 1888. He admitted that he took a woman known as Rosalie, an alleged prostitute, to his room, which was a floor above a restaurant of which Fisk was a part owner. George Kelsy testified that he heard strange noises from his friend’s room and when he went to investigate found a bloodstained woman lying on the bed. He said she was still alive when he and his friend went downstairs to dinner. A North West Mountie testified that the murderer had ripped apart the woman’s abdomen with his bare hands, and a bloody handprint that matched Fisk’s hand was on the wall. An all-white, all-male jury found Fisk to be addiction-1.3779768 (accessed October 6, 2016); “Canada’s evidence-based plan to help fight heroin addiction: legalize prescription heroin,” German Lopez, Vox, September 15, 2016 http://www.vox.com/2016/9/15/12915200/canada-heroin-injection-site (accessed October 6, 2016) 235 Peter Zimonjic, “Health minister approves 3 supervised drug consumption sites in Montreal,” CBC News, February 6, 2017, http://www.cbc.ca/beta/news/politics/safe-consumption-site-montreal-1.3969258 236 Chris Brown, “How Europe’s heroin capital solved its overdose crisis: what Canada can learn from Portugal about opioid addiction, rehab and recovery,” CBC News, http://www.cbc.ca/news2/interactives/portugal-heroin-decriminalization/ - 73 -– May 2017 Canada’s legal system hates indigenous women not guilty. The judge ordered a retrial, this time the jury found guilty of manslaughter and the judge sentenced him to 14 years of hard labour at Stony Mountain prison. 237 Recall the horrific murders of Cindy Gladue and Pamela George, both sex workers, described earlier in this paper. Canada created special laws for indigenous prostitution. In the early 1880s, amendments to the Indian Act prohibited white settlers from allowing Indian women or prostitutes on their property. In 1886, it became illegal for any Indian to keep, frequent, or be found in a disorderly house, tent, or wigwam. By contrast, if a white man was found in such a place, prosecutors had to prove the man was an habitual frequenter. The 1892 Criminal Code reaffirmed the legislation but limited it to women who were Status Indians. The Code categorized indigenous prostitution as a crime against morality, while keeping a common bawdy house (the usual charge for white prostitutes) was under the vagrancy provisions. Crimes against morality were indictable offences, vagrancy crimes were summary offences.238 Canada has long played the game of pretending that prostitution is legal. We would say that prostitution is legal but then we passed laws saying that prostitution indoors was criminal; that communicating about prostitution on the streets was criminal; that the clients of prostitutes are criminals. Our current laws on prostitution came into effect in 2014, making it illegal to purchase or advertise sexual services but legal to sell them. The new laws came in response to the Bedford decision of the Supreme Court of Canada in 2013 that the previous laws prohibiting indoor prostitution, publicly communicating for the purpose of prostitution and living on the profits of prostitution all violated the life, liberty and security of the sex workers.239 Canada’s Chief Justice Beverly McLachlan wrote for the whole court and said: “The prohibitions at issue do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky — but legal — activity from taking steps to protect themselves from the risks.”240 Let’s be clear: Canada’s prostitution laws have put sex workers (a disproportionate number of them indigenous women) in danger and deprived them of their life, liberty and security of the person for all of Canadian history. So now we criminalize their clients and the charade goes on. Just imagine if you owned a small business and the Canadian government told you: what you do is legal, but we require that you only do business with criminals and you are prohibited from advertising your services? In my view, either prostitution is legal or it is not. You cannot say something is legal if the law defines advertising and purchasing your services as criminal. Your criminal clients will have to hide, find dark places far away from law enforcement. Your client base will be limited to persons who knowingly choose to be criminals. Your criminal clients have already chosen to be criminals in purchasing sex, what difference if they then assault you or steal from you? What difference if they criminally purchase sex from a child rather than an adult? The criminalization of clients of prostitution still puts sex workers at risk and grossly diminishes the legal difference between purchasing sex from children rather than adults. 237 Erickson (2011) at pp. 16-17 Erickson (2011) at pp. 62-63 239 Canada (Attorney General) v. Bedford, 2013 SCC 72 http://canlii.ca/t/g2f56 240 Canada (Attorney General) v. Bedford, 2013 SCC 72 http://canlii.ca/t/g2f56, at para. 60 238 - 74 -– May 2017 Canada’s legal system hates indigenous women Pivot is a legal advocacy group that fights against legislation, policies, and practices that undermine human rights, intensify poverty and deprive people of the opportunity to become a full and equal participant in their communities. Pivot was created in 2001 in the face of a health and human rights crisis in Vancouver’s Downtown Eastside. Pivot supports complete decriminalization of sex work: “Decriminalization is a necessary step to protecting the safety and rights of sex workers by ensuring that they have full access to health, safety and human rights.” 241 The Sexual Assault Centre of Hamilton and Area (SACHA) has been a leader in the fight to end sexual assault and other forms of violence against women locally and provincially through the Ontario Coalition of Rape Crisis Centres. Opening in 1975 as the third rape crisis centre in Canada, SACHA has been helping women for over 30 years. SACHA opposes the criminalization of any aspect of prostitution.242 Canada’s “Feminist Coalition” supports full decriminalization of prostitution for several reasons, including that Canada’s new legislation denies women’s right to bodily autonomy; infantilizes grown women who are sex workers, and locates them as damaged victims, in need of rescue only, versus adults capable of exercising choice (good or bad) and an ability to act and speak for themselves; conflates violence against women and children - which are separate and critical issues; conflates trafficking with sex work. 243 The Sex Professionals of Canada organization also opposes the new law. They say that Canada’s new prostitution law: recreates the harms of the provisions struck down in the Bedford case, allowing the epidemic of violence against sex workers to continue. Bill C-36 views all sex workers as victims of violence, rather than understanding that it is criminalization, isolation, and the denial of rights and freedoms that breeds violence and exploitation against sex workers. In solidarity with sex workers around the globe, the PWC calls for the full decriminalization of sex work to ensure the safety, dignity and security of all sex workers and in recognition that enforcement disproportionately targets Black, Indigenous, Migrant, Trans women and street based sex workers.244 Many others have researched prostitution laws and reached similar conclusions. 245 That being said, indigenous women’s groups take different views and some support the current provisions in 241 Pivot website, accessed on September 27, 2016, http://www.pivotlegal.org/sex_workers_rights (Pivot has other campaigns as well, including housing and safe injection sites.) 242 SACHA website, accessed September 16, 2016, http://sacha.ca/our-centre/decriminalization-of-sexwork 243 Feminist Coalition in Support of Full Decriminalization and the Human and Labour Rights of Sex Workers, “a Synopsis of Feminist Coalition Critiques of Bill C-36,” accessed on September 16, 2016, http://www.parl.gc.ca/Content/SEN/Committee/412/lcjc/Briefs/C-36/SM_C36_brief_Feminist_Coalition(NoraCurrie)_E.pdf 244 Sex Professionals of Canada, accessed on September 27, 2016, http://www.spoc.ca 245 See for example the Canadian Alliance for Sex Work Law Reform, accessed September 16, 2016, http://www.sexualhealthandrights.ca/wp-content/uploads/2015/07/Criminalizing-Purchase-of-Sex.pdf and see also Manpreet Abrol, “The Criminalization of Prostitution: Putting Women’s Lives at Risk,” Prandium - The Journal of Historical Studies, Vol. 3, No. 1 (Fall, 2014), the Department of Historical Studies, University of Toronto Mississauga, accessed September 16, 2016, http://jps.library.utoronto.ca/index.php/prandium/editor/submission/21843/ - 75 -– May 2017 Canada’s legal system hates indigenous women the Criminal Code (the “Nordic model”).246 Getting rid of Canada’s new law would not turn prostitution into a lawless jungle. Trafficking of persons will still be criminal; sex with children will still be criminal; assaulting and stealing from sex workers will still be criminal. Prostitution will still be (for most) a truly unfortunate line of work caused by colonialism, racism, sexism, poverty, addictions and a lack of personal safety. Calling some aspects of prostitution a “criminal” activity does not address any of those underlying issues. It is a bait and switch, a shell game, designed to take attention away from the real issues. And it makes sex workers vulnerable to more violence, not less. The question is whether the prostitution laws expose sex workers to greater danger than if prostitution was truly legal? Do the new prostitution laws threaten the life, liberty and security of the person of indigenous women? How many of the missing and murdered indigenous women were engaged in sex work, at some point in time? Maybe the MMIW Inquiry will answer these questions. 11. Conclusion Now we are 160 years removed from the original discrimination against indigenous women. Now we are more than 30 years removed from the enactment of the Charter’s equality guarantees and Sharon McIvor beginning her battle with Department of Justice lawyers. And the battle continues. We are still waiting for Canada’s gradual civilization. Will that day come soon? Will the Government of Canada ever apologize to Sharon McIvor and Cindy Blackstock for what it has put them through? Will the Government of Canada give them an Order of Canada for having fought so long and so diligently for the equality of indigenous women and children, against their own government? Will we ever see an indigenous woman on the Supreme Court of Canada? Let’s recall: the Gradual Civilization Act was enacted in 1857; Indian Act was enacted in 1869; the Canadian Bill of Rights was adopted in 1960; the Canadian Human Rights Act was enacted in 1977 (but only after all ten provinces had enacted their provincial human rights laws, beginning in 1947). The Canadian Human Rights Act expressly stated in s. 67: “Nothing in this Act affects any provision of the Indian Act or any provision made under or pursuant to that Act.” Section 67 of the Canadian Human Rights Act was not repealed until 2008. There continue to be a wide variety of barriers that indigenous women face before they can effectively use the Canadian Human Rights Act to protect themselves from discrimination.247 The Charter of Rights and Freedoms was enacted in 1982; the Aboriginal Justice Inquiry reported in 1991; the Native Women’s Association of Canada published Matrimonial Property Rights in 1991; the Senate Standing Committee report A Hard Bed to Lie in: Matrimonial Real Property on Reserve (Interim Report) was published in 2003. The sex discrimination in the Indian Act relating to Indian status is still not remedied. The sex discrimination in the Indian Act did not kill indigenous women, but it put them in harm’s way by making their lives more precarious, removing them from their traditional roles within their own societies and harming their dignity, in many ways forcing them from their homes and into a strange, uncaring world. 246 “Indigenous women divided on whether prostitution should be made legal,” Kenneth Jackson, APTN News, June 13, 2013 http://aptn.ca/news/2013/06/13/indigenous-women-divided-on-whether-prostitutionshould-be-made-legal/ (accessed October 27, 2016) 247 NWAC Report on the Five-Year Review of the Impacts of the Repeal of Section 67 of the Canadian Human Rights Act. Ottawa: Native Women’s Association of Canada, 2014 - 76 -– May 2017 Canada’s legal system hates indigenous women Add to the above the lack of protection of abused women and children, of inadequate police investigations, of a lack of respect and protection for victims of domestic violence to stay safe in their own homes, to say nothing of drug and prostitution laws that make girls and women even more vulnerable. I have written almost nothing about inadequate police investigations or over-representation of indigenous women in jails because my main purpose is to show the various ways that Canada’s legal system discriminates against indigenous women and girls outside of that narrow context. But on the topic of police investigations, what quality or urgency can we expect the police to apply to investigating and protecting indigenous women and girls when there is run-away sexual harassment by male police officers against their own female colleagues? On October 6, 2016, the Government of Canada announced a settlement of a class action lawsuit brought by female RCMP officers concerning the sexual harassment and lack of protection they found within the RCMP itself.248 As the Inquiry into Missing and Murdered Indigenous Women begins its work, it would do all of us well to remember what the Manitoba Aboriginal Justice Inquiry (AJI) wrote in 1991. It will be interesting to see what improvements have happened to make indigenous women and their children safer in their homes and communities since the AJI reported in 1991. It will be interesting to hear from the MMIW Inquiry about whether, how and to what extent the police and justice system now take domestic violence seriously and what specific steps they adopted since 1991 to better protect indigenous women and children and to give the victims of violence confidence that the justice system is there to protect them. It will be interesting to hear from the MMIW Inquiry on whether, how and to what extent indigenous leaders have shone a light and denounced domestic violence and fought to protect women and children and to ensure they have equality of status and dignity in their marriages, homes and communities. I was in law school when the Charter was adopted. I believed then, and continue to believe today, that its adoption has greatly benefited Canada and made a Canada a better place, particularly for minorities of many different kinds. I am ashamed to think that I take the sexual equality provisions in the Charter so much for granted that I fail to notice that the Charter has done very little to protect indigenous women from discrimination. I cannot understand how this situation can persist 30 years after the adoption of the Charter, but it does. I would like to see a law school exam, or a human rights or Canadian history university exam (and not just a native studies or women’s studies course) ask students this question: Choose three of the following persons and explain why they are important to defending and promoting the rights of indigenous women and promoting the values of the Charter: Two-Axe Earley, Lavell, Bédard, Lovelace, McIvor, Bernard, Blackstock, Turpel, Ross, L’Heureux-Dube. Or more simply, make it a test for students to provide one sentence for each of these people describing their importance in Canadian history. As the MMIW Inquiry begins its work, let’s all recognize that inferior status for indigenous women has been the law of Canada since 1857. Let’s all recognize that the Canadian Bill of Rights, the Canadian Human Rights Act, and the Canadian Charter of Rights and Freedoms have not succeeded in protecting them. The Indian Act has sent the message to every indigenous 248 Kathleen Harris, “Mounties offer apology and $100M compensation for harassment, sexual abuse against female members,” CBC News, October 6, 2016 http://www.cbc.ca/beta/news/politics/rcmp-paulsoncompensation-harassment-1.3793785 (accessed October 6, 2016) - 77 -– May 2017 Canada’s legal system hates indigenous women woman, to every indigenous man, to every Chief and Council, to every Parliamentarian, to every police officer and to anyone else who cares to listen: since 1857, by law, the lives and status of indigenous women and their children matter less. - 78 -– May 2017