Justice system still not protecting Indigenous women and girls
(Picture by Pam Palmater, Rally for Justice for Murdered and Missing Indigenous Women and Girls in Winnipeg)
This article was originally published in The Lawyer's Daily on May, 28, 2019.
“Her life
mattered. She was valued. She was important. She was loved.”
R. v.
Barton [2019] S.C.J. No. 33.
Cindy
Gladue was an Indigenous woman originally from Alberta, where she grew up with
her four siblings and extended family. She was also the mother to three
daughters and her family described her as both a loving mother and caring
auntie. She had close friends and always dreamed about being the first in her
family to go to university. Cindy Gladue loved and was loved. She did not
deserve her violent death in 2011 nor the indignity done to her body
after.
She
is now one of the many thousands of murdered and missing Indigenous women and
girls in Canada — a growing crisis that represents grave human rights
violations. The trial of the man who admittedly committed this act of violence
against Cindy is an example of how defective Canada’s justice system is when it
comes to Indigenous women victims and how negligent Canada has been in ensuring
the basic human rights of Indigenous women and girls are met.
In
this column, there will be no details about Cindy’s appearance, what she wore
the night she was killed, where she was killed, whether she knew her killer,
her level of education, her health status, or what she did for a living —
because none of the facts is relevant to her death. Cindy is not to blame for
her death. Cindy did not kill herself. Cindy did not engage in a dangerous
knife fight or try to kill someone.
Regardless
of which version of the story is accepted by the next trial judge — that she was
killed by a male trucker who violently cut an 11-cm gash in her vagina, or that
she died from a tear from his violent, but unarmed interaction with her — she
still died as a result. According to the SCC quoting from evidence at trial,
the trucker then tried to hide evidence, change the crime scene and lie about
his involvement. His name doesn’t deserve to be said aloud, nor does he get to
hide behind any of the racist or sexist excuses he used at trial to defend
himself. None of the evidence referred to at trial or the SCC indicates that he
should be believed. Cindy’s life story does not get to be narrated by the man
who admits to committing this violence against her.
Sexualized
violence against Indigenous women and girls in Canada has been allowed to continue
in plain sight by government officials, police officers, lawyers and judges who
have treated Indigenous women and girls as though they are less worthy of life.
In fact, were it not for the lengthy and persistent advocacy of Indigenous
women and their allies, Canadians would still be unaware of the crisis.
However,
awareness of the crisis only gets us so far. The court proceedings which
followed Cindy’s death show just how deeply engrained racism and sexism against
Indigenous women still is in Canadian society, especially the justice system.
In R. v. Barton [2019] S.C.J. No. 33, Justice Michael Moldaver, writing for the
majority, allowed the accused’s appeal in part and sent the matter back to
trial, but only on the charge of the unlawful act of manslaughter. The dissent
would have dismissed the accused’s appeal entirely. Justices Rosalie Silberman
Abella and Andromache Karakatsanis writing for the dissent (Chief Justice
Richard Wagner concurring) agreed with the Alberta Court of Appeal that the matter
be ordered back for retrial on both charges of first-degree murder and
manslaughter.
The
majority made some important points about the extent to which racism is still
widespread in the justice system. At para.199, the majority explained:
“Furthermore, this Court has acknowledged on several occasions the detrimental
effects of widespread racism against Indigenous people within our criminal
justice system. For example, in Williams, this Court recognized that Indigenous
people are the target of hurtful biases, stereotypes, and assumptions,
including stereotypes about credibility, worthiness, and criminal propensity,
to name just a few. … In short, when it comes to truth and reconciliation from
a criminal justice system perspective, much-needed work remains to be done.”
They
went on to say that the criminal justice system and all of its participants
must take reasonable steps to address these biases — especially against
Indigenous women. To this end, they directed that, on a go forward basis, trial
judges ought to provide express instruction to juries to counter the well-known
prejudice against Indigenous women. While there is no set text, trial judges
should instruct juries about Indigenous women and girls having been subjected
to a long history of colonization and systemic racism and then dispel myths
about Indigenous women and those who are exploited for sex. These stereotypes
were outlined in para. 202:
- Are
not entitled to legal protections;
- Not
deserving of respect, humanity and dignity;
- Are
sexual objects for male gratification;
- Are
available for the taking and no consent needed;
- Assume
any risks associated with “sex work”;
- Are
less credible than other people.
The
majority further stressed that, as a matter of respect, both the Crown and the
defence counsel should have referred to her as Ms. Gladue instead of “Native
girl” during the trial. These are important points and the SCC made many
important clarifications in the case in relation to the many problems
surrounding sexual assault cases.
However,
there is a downside to the majority’s decision. Their logic and reasoning
around the impact of racism and bias in this case did not follow through to
their ultimate finding. The majority allowed the accused’s appeal in part, by
limiting the charge for which the killer could be retried — manslaughter only.
The dissent pointed out that racism doesn’t work that way and can’t be so
easily compartmentalized. They explained that there was no “filter” on the
victim’s prior sexual history and no warning by the judge to the jury to avoid
making stereotypical assumptions about Indigenous women.
They
also argued that this created an image of Cindy “that was unfair and would have
permeated the whole trial and the jury’s deliberations on both murder and
manslaughter” (para. 214). The dissent further emphasized, “He [trial judge]
provided no specific instructions crafted to confront the operative social and
racial biases potentially at work. This rendered the whole trial unfair” (para.
215).
While
the dissent did go further than the majority, they too missed an important
opportunity to speak to the indignity committed against Cindy’s body after her
death when segments of her vagina were brought into court as an exhibit. Cindy
was a life-giving mother of three girls. Her body and her life-giving parts had
already suffered a gross violation which led to her death. There was no
necessity — in an effort to prosecute her killer — to remove her life-giving
parts and put them on display in a courtroom. They could have used the
coroner’s testimony, animated illustrations of the extent of the cut or tear,
and worst-case scenario, pictures. Putting her life-giving parts on display
served to further dehumanize her before the judge and jury.
Even
though the SCC made some important findings in this case, their caution that
the justice system has a lot more work to do applies equally to them. We need
more than the “important step forward” they commended themselves for — we need
a wholescale change. That won’t happen if the highest court in the land cannot
call out and end the kind of indignity committed against Cindy — which
represents the many indignities committed against Indigenous women and girls
since contact.
This article was originally published in The Lawyer's Daily on May, 28, 2019 - link below:
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