As a group of common law students at the University of Ottawa’s Faculty of Law, we submit the following as input to the pre-Inquiry design process. Throughout January 2016, we examined important case law involving Indigenous women from a critical perspective in our Indigenous Women’s Legal Advocacy course, taught by Dr. Tracey Lindberg. The themes revealed from these cases such as silencing, erasure, dehumanization and Eurocentrism, inform our submissions. Given our commitment to legal advocacy informed by social justice principles and values, we feel it is our duty to partake in the the pre-Inquiry discussion to help tackle this ongoing tragedy of violence, discrimination, and racism. This duty is aligned with the principle of reconciliation, where reconciliation is based upon mutual respect and is a responsibility we all must carry.
There is a long history of the Court’s silencing of Indigenous women’s experiences. The cases we studied this term involving Indigenous women, especially in Criminal matters, were often grounded in a Eurocentric and male-dominated narrative in which Indigenous women’s voices, stories and experiences were nonexistent. To destabilize these colonial narratives, the Inquiry needs to be designed by centering the voices and experiences of Indigenous women and girls. While we recognize the violence that Indigenous men and boys experience, it is important that Indigenous women and girls be given a platform that addresses the violence they experience, including lateral and institutional violence. The importance of centering Indigenous women’s voices and experiences in the Inquiry is made by reference to the history of Indigenous women’s exclusion in Native Women’s Association of Canada v Canada,  3 SCR 627.
In 1991 the federal government set up a Special Joint Committee, the Beaudoin-Dobbie Commission, to amend the Canadian constitution to include a right to Aboriginal self-government. Four recognized Indigenous groups that were male focused received funding while the Native Women’s Association of Canada (NWAC) did not receive funding. In response to NWAC’s request for inclusion, then-Minister of Constitutional Affairs, Joe Clark, wrote a letter to NWAC suggesting the women work with the four recognized groups rather than directly communicate Aboriginal women’s concerns to the Commission.
Because of this case, we acknowledge the history of NWAC’s advocacy focus on Indigenous women’s issues and we believe that NWAC should be included in the Inquiry process. However, we respect that some families and survivors may not feel comfortable participating in the process with a mainstream and pan-Indigenous organization like NWAC present. We suggest, in this instance, prioritizing and centering the expertise of families and survivors in deciding who should lead the Inquiry, while organizations like NWAC may provide a supportive role and resource for families and survivors. Along with centering and prioritizing the expertise of families and survivors, we think that these same individuals should be given space to directly participate in the leadership, planning, and implementation of the Inquiry to the extent that they wish.
In addition to the Court’s silencing of Indigenous women’s experiences, colonial common law disregards Indigenous legal orders, traditions, worldviews, values, and principles which ultimately contributes to the erasure of Indigenous women’s realities from the Courts. For instance, the majority of colonial case law does not impart Indigenous values like respect, reciprocity, balance and interconnectedness. Colonial common law’s sentencing principles, for example, assume that everyone is equally deterred by incarceration and that removal from community can reduce recidivism. Sentencing principles, similar to other colonial common law principles may ignore the lived experiences of Indigenous women, such as collective and family values, alternative definitions of justice, distrust of Canadian authorities, and a history and normalization of violence committed by state actors and community members. While Gladue-sentencing reports help contextualize some Indigenous experiences in the courtroom, Indigenous incarceration has increased since the Supreme Court case, suggesting that silencing and erasure of Indigenous peoples in the Canadian legal landscape remain prevalent. Thus, in order to address Indigenous women’s realities, the Inquiry design needs to be grounded in and reflect Indigenous legal orders, traditions, worldviews, values and principles.
Indigenous legal orders must be brought to the dialogue and must infuse the foundation of the Inquiry. A reliance on colonial common law principles alone are inadequate for the treatment of Indigenous peoples, especially Indigenous women. Colonial common law principles which refuse to explore how gender, race and class intersect within a colonial lens impedes anti-colonial actions in policing and in the courtroom which may keep Indigenous women from a fair police interrogation, a fair trial, and equal treatment by legal authorities. The power imbalances inherent in the Canadian legal system, including its colonizing basis, access to justice barriers, and other location, language and cultural barriers can also keep Indigenous women from meaningful and effective legal experiences. Courtrooms then serve to legitimize the colonial violence and institutional violence that Indigenous women experience both as victims and offenders to the criminal justice system. Consequently, the Inquiry must rely on and recognize the value of Indigenous legal orders and create the space for Indigenous legal experts like Indigenous law professors, academics, and practitioners, especially Elders.
Case law sometimes gravitates toward a pan-Indigenous approach to Indigenous-specific issues, like violence against Indigenous women and girls. Case law also has a tendency to essentialize Indigenous women and girls by using general language and by failing to recognize the diversity of Indigenous communities. The Inquiry design process should be aware of the potential to essentialize the roles, responsibilities and identities of Indigenous women and girls and should avoid a pan-Indigenous approach to issues and characteristics specific to groups or communities. Additionally, the essentializing of Indigenous women and girls has the potential to alienate some Indigenous women and girls from the Inquiry process. This alienation has the potentiality to further erase Indigenous women and girls’ experiences. The Inquiry design process should alert itself to these potential vulnerabilities to adequately address the issues facing Indigenous women and girls.
Overall, colonial Canadian law has the capacity to violate and construct violence impacting Indigenous women by silencing and erasing Indigenous women’s realities, neglecting Indigenous legal orders, traditions, worldviews, values, and principles and essentializing Indigenous women and girls. By failing to recognize Indigenous women’s lived realities and the wider context in which Indigenous women are facing violence, courtrooms further legitimize the colonial violence Indigenous women experience. It is thus crucial for the Inquiry design to bring Indigenous women and girl’s voices and narratives to the forefront.
There is a dissonance between legal narratives and the stories of Indigenous women and girls. For example, in the case of Daleen Kay Bosse (Muskego), who went missing in 2004, she was not found until 2008 after a complex police investigation. Douglas Hales was convicted for her murder in 2014. While the case law recognizes Daleen as a mother, daughter and devoted student, the case law erases Daleen’s indigeneity from the facts of the case. The Court only mentions her indigeneity when referring to her murderer’s statements to the police. This erasure of Daleen’s indigeneity ignores the very real issue and racialization of missing and murdered Indigenous women and girls in the context of case law and legal procedures. In order to proceed and advocate for families of women and girls, their experiences must remain at centre, and Indigenous values and traditions acknowledged and respected across all legal platforms.
We also cannot forget the horrific actions of the prosecution in the case of Cindy Gladue, where the prosecutor tendered Cindy’s preserved pelvic region as evidence despite Crown Policy Manuals calling for treating victims of crime with respect. Cindy’s case made headlines across Canada and many people assumed that it was the Defence who attempted to tender Cindy’s preserved pelvic region as evidence. Many people were, however, sorrily mistaken. Despite colonial case law establishing a long-held principle that people cannot consent to violence, the jury acquitted Barton on murder charges in the death of Cindy. While the Defence acknowledged that Barton committed the acts that contributed to Cindy’s death, the courtroom condoned the violence experienced by Indigenous women, especially those who sell or trade sex. The courtroom condoned this violence by ignoring the colonial spaces that Cindy moved through by reducing Cindy to a body part and to an object on display. Consequently, we recognize this case as the complete dehumanization of Indigenous women, especially those who sell or trade sex. The dehumanization of Indigenous women is directly connected to colonialism, including all of its racist, sexist, and misogynistic assumptions about Indigenous women. Because of the decision to tender Cindy’s preserved pelvic region as evidence, we suggest the Inquiry include an examination on the prosecution’s capacity for unfettered decision making when it comes to the complete violation of Indigenous culture.
Furthermore, the Inquiry process can be set up to implement recommendations already made through the Royal Commission on Aboriginal Peoples (RCAP), the Truth and Reconciliation Commission (TRC), and recommendations from the Missing Women Commission of Inquiry in British Columbia. Accordingly, we underline the importance of the Calls to Action in the TRC, especially the Calls to Action under the heading, “Justice.” The TRC called on law schools and Federation of Law Societies in Canada to ensure that current and future legal professionals are trained in “history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal–Crown relations.” The TRC explicitly listed skills-based training in “intercultural competency, conflict resolution, human rights, and anti-racism.” These skills-based training should also be informed by an anti-colonial perspective. We wish to emphasize that specific training should be geared toward those who come into contact with files involving missing and murdered Indigenous women and girls (i.e., training for police, social workers, criminal defence lawyers, crown attorneys and trial judges). We would also highlight the important bill introduced by the Honourable Senator Lillian Dyck, Bill S-215, An Act to amend the Criminal Code (sentencing for violent offences against Aboriginal women). We agree with the intent and spirit of the bill and would ask that all political parties support the bill in its entirety.
Ultimately, we believe that this Inquiry will honour Indigenous women’s and girls’ stories. The Inquiry has the potential to be the counter-narrative to the case law which has a tendency to silence and dehumanize Indigenous women and girls. Counter-narratives are necessary to respond to the violence that Indigenous women and girls experience generationally and in their everyday lives. For that, we respect the government’s ongoing commitment to ensuring justice for the missing and murdered by remaining true to its promise to implement a national Inquiry, and we ask that it be lead and informed by Indigenous women’s voices in all aspects, including law. In sum, we recommend the following:
- Center the voices and experiences of Indigenous women and girls.
- Prioritize and center the expertise of families and survivors in deciding who should lead the Inquiry.
- Allow organizations like NWAC to provide a supportive role and resource for families and survivors.
- Allow families and survivors to directly participate in the leadership, planning and implementation of the Inquiry to the extent they wish.
- Ground the Inquiry in Indigenous legal orders, traditions, worldviews, values and principles.
- Bring Indigenous legal orders to the dialogue and allow them to infuse the foundation of the Inquiry.
- Avoid a pan-Indigenous approach to issues and characteristics specific to groups or communities.
- Include an examination on the prosecution’s capacity for unfettered decision making in relation to the violation of Indigenous culture.
- Implement recommendations already made through the BC Missing Women Commission of Inquiry, RCAP, and the TRC such as training for legal professionals on Indigenous history, law and rights; and support Bill S-215.
And other students enrolled in Indigenous Women’s Legal Advocacy, University of Ottawa’s Faculty of Law, English and French Common Law Sections