Second reading of Bill S-215, An Act to amend the Criminal Code (sentencing for violent offences against Aboriginal women)Published on 27 January 2016 by Senator Lillian Eva Dyck
Hon. Lillian Eva Dyck:
Honourable senators, I rise today at second reading as the sponsor of Bill S-215, An Act to amend the Criminal Code (sentencing for violent offences against Aboriginal women). For the purposes of this bill, the definition of “Aboriginal” will include those individuals who are of First Nations, Inuit or Metis heritage.
Bill S-215 amends the Criminal Code to require a court to consider the fact that when the victim of an assault or murder is an Aboriginal female person, this constitutes an aggravating circumstance for the purpose of sentencing. In doing so, it adds new sections immediately after sections 239 and 273 of the Criminal Code.
Colleagues, according to the 2014 RCMP report, Aboriginal females are four times more likely to be murdered than non- Aboriginal females. Nearly 1,200 Aboriginal women and girls have been murdered or have gone missing over a 32-year period. The RCMP report confirmed what Amnesty International and the Native Women’s Association of Canada have said for many years, that Aboriginal women and girls are more likely to be victims of violence, be murdered or be made missing.
This tragic phenomenon of missing and murdered Aboriginal women and girls is now the subject of a national inquiry. Such an inquiry, it is hoped, will uncover the root causes and allow the formulation of effective evidence-based policies to prevent Aboriginal women and girls from being made missing or being murdered. In the meantime, colleagues, my bill is a focused proposed legislative action that we can implement now to help remedy the situation.
Colleagues, there are three lines of reasoning that support the implementation of Bill S-215. First, I will outline the human rights and equity considerations; second, I will outline several provisions within the Criminal Code that allow for protection for certain types of people and animals that are also subjected to violence; and third, I’ll discuss societal indifference.
First, with respect to the human rights and equity considerations, Canadians are truly blessed to be protected by the Canadian Charter of Rights and Freedoms. The Charter is meant to guarantee that all Canadians are treated equally before and under the law and that all Canadians have the equal benefit and protection of the law. The reality, however, is that this simply is not true for Aboriginal women and girls.
In 2004, Amnesty International released its groundbreaking Stolen Sisters report, noting that Canadian Aboriginal women were far more likely to be victims of violent crimes than any other Canadian women. Similarly, the Native Women’s Association of Canada in 2010 documented that a disproportionate number of Aboriginal women and girls have been murdered or have gone missing.
As mentioned previously, the 2014 RCMP report confirmed the increased rate of violence directed against Aboriginal women and girls. Moreover, it showed that even greater numbers of Aboriginal women and girls were missing or murdered. The RCMP found that 1,182 Aboriginal women have been murdered or have gone missing and that Aboriginal women were four times more likely to be murdered than other Canadian women. According to Statistics Canada, the homicide rate for Aboriginal women is actually six times higher than for other Canadian women.
These reports show the undeniable risk of being subjected to violence simply because you are born a female Aboriginal Canadian. It is obvious that despite the guarantees enshrined in the Charter of Rights and Freedoms, in reality, Aboriginal women do not have the equal protection of the law.
Our esteemed colleague Senator Joyal, in his arguments articulated and shared publicly to support a national inquiry, asked this question:
Does the Government not have [a legal] obligation to ensure that aboriginal women benefit from the protection of the equality rights under Section 15 of the Charter?
Honourable senators, surely the answer can only be yes. Bill S- 215 is meant to increase the protection of Aboriginal women and girls from assault and murder.
Colleagues, I will now discuss precedents where special provisions have been enacted in the Criminal Code to protect certain categories of persons, Aboriginal offenders and some animals.
Within the Criminal Code, there are a number of aggravating circumstances enumerated that are considered during sentencing of an offender. These aggravating circumstances in effect protect certain people. Section 718.2 lists a large number of these: for example, abuse of a minor, abuse of a spouse or abuse of the elderly are aggravating circumstances. More general factors such as race, ethnicity, sex or religion of the victim are also included as aggravating circumstances.
In addition, subsection (e) instructs the court to pay “particular attention to the circumstances of Aboriginal offenders.” This consideration, known as the Gladue principle, is intended to recognize that complex cultural factors such as racism, residential schools and foster care have led to the over-incarceration of Aboriginal people.
In 1999, in R. v. Gladue, the Supreme Court stated that this section of the Criminal Code was enacted to respond to the disproportionate incarceration of Aboriginals compared to non- Aboriginal Canadians. It is stressed that this section of the Criminal Code was a remedial response enacted specifically to oblige the judiciary to make special efforts to find reasonable alternatives to imprisonment for Aboriginal offenders and to take into account the background and systemic factors that contributed to their contact with the justice system.
Colleagues, nowhere in the Criminal Code, though, is there any provision for the over-victimization of Aboriginal women, who we know are raped at three times the rate and murdered at six times the rate of other Canadian women. The proposed amendments to the Criminal Code contained in Bill S-215 are somewhat akin to the Gladue principle, but they apply to the victim rather than to the offender. The purpose of the bill is also a remedial response and is meant to rectify the over-victimization of Aboriginal females. However, it is not meant to, nor should it be used to, justify the abandonment of the Gladue principle when an Aboriginal person is accused of assault or murder of an Aboriginal female.
Colleagues, now I will discuss two recent bills that have amended the Criminal Code to protect public transit operators and service animals. The first example is Bill S-221, An Act to amend the Criminal Code (assaults against public transit operators). Bill S-221 created a new section in the Criminal Code to make assault of an on-duty public transit worker, such as a taxi driver, an aggravating circumstance in sentencing the offender. During parliamentary study of Bill S-221, one of the most important arguments brought forward was that public transit operators are a particular segment of the population targeted for assault.
The same argument for protecting Aboriginal women can be made. At second reading of Bill S-221, the sponsor, Senator Runciman, said:
. . . the homicide rate for taxi drivers from 1997 through 2011 was 3.2 per 100,000 . . . .
That is significantly higher than for police officers.
Colleagues, the average homicide rate for Aboriginal women for the years 2001 to 2014 from Statistics Canada says that it’s 4.8 per 100,000 — 4.8 — even higher than for taxi drivers. By contrast, the corresponding rate for non-Aboriginal women, for other Canadian women, was 0.8 per 100,000 — less than one. These data clearly show the increased rate of murder of Aboriginal women compared to non-Aboriginal women, police officers and taxi drivers.
During debate on Bill S-221, the detrimental effects of assault on public transit operators on other people, such as passengers, was brought up as an important consideration.
It can be said that violent assaults and murders of Aboriginal women have long-lasting detrimental effects on their children, their families and their communities as a whole. When an Aboriginal female is subjected to violent offences, made missing or murdered, her family is devastated. Communities are torn apart and the well-being of all involved is adversely affected. It should be noted that Aboriginal girls grow up being anxious and afraid that they too will be victimized. This fear has given rise to the “Am I next?” campaign in which Aboriginal girls speculate whether or not they are next in line to be murdered or go missing.
Colleagues, the second example of legislation protecting a certain category of victims is Bill C-35. Last June we passed Bill C-35, Justice for Animals in Service Act, known as Quanto’s Law. Quanto was a police dog killed while on duty. This bill created a new specific offence prohibiting the killing or injuring of a law enforcement animal, service animal or military animal. One of the provisions was to create a mandatory minimum sentence of six months for the killing of these types of animals.
Colleagues, these are recent examples in which we have amended the Criminal Code to make specific provisions to protect public transit operators, such as taxi drivers, and service animals, such as police dogs. If we can make special provisions for them, then surely we can make special provisions for Aboriginal female persons.
Hon. Senators: Hear, hear!
Senator Dyck: Colleagues, I would now like to raise the issue of societal indifference to Aboriginal women.
Not only are Aboriginal women more likely to be victims of violent crime, their circumstances are also more likely to be taken less seriously. Societal indifference is thought to further victimize Aboriginal women whose safety and lives are seen as less important and less worthy than other Canadian women. As noted in Amnesty International’s report, Stolen Sisters, some of the acts of violence that Aboriginal women are subject to are “motivated by racism,” and others are carried out:
. . . in the expectation that societal indifference to the welfare and safety of indigenous women will allow the perpetrators to escape justice.
Similarly, as noted in the Native Women’s Association of Canada’s report, What Their Stories Tell Us:
The experiences of violence and victimization of Aboriginal women do not occur in a vacuum. Violence is perpetuated through apathy and indifference towards Aboriginal women, and stems from the ongoing impacts of colonialism in Canada. . . . Systemic racism and patriarchy has marginalized Aboriginal women and led to intersecting issues at the root of the multiple forms of violence. The result of the system of colonization is a climate where Aboriginal women are particularly vulnerable to violence, victimization, and indifference by the state and society to their experiences of violence.
For the three reasons that I’ve just discussed — one, fulfilling the Charter rights of Aboriginal women and girls to the equal benefit and protection of the law; two, accessing the same type of protection available to taxi drivers and others, such as police dogs; and three, overcoming societal indifference — I believe the courts should take into account the female identity of the victims in cases of assault, sexual assault and murder as an aggravating circumstance from the outset. This bill aims to balance the criminal justice system for female Aboriginal victims by so doing.
Honourable senators, I will now describe two case examples to illustrate what Aboriginal females encounter in the courts. And I should give you a warning, the stories are graphic. If you were watching TV they would say, “What you’re about to hear is very disturbing.”
One recent example of this is the case of Cindy Gladue. Cindy Gladue was a 36-year-old Cree mother of three found bleeding to death in an Edmonton hotel bathtub in June 2011. The accused in the case was a truck driver who had spent two days with Gladue. Gladue bled to death from an 11-centimetre tear to her vaginal wall while the accused slept. The Crown argued that the tear in her vagina was caused by a sharp object. The defence argued that the tear was caused by consensual rough sex, as Gladue was a sex worker at the time. The jury found the accused was not guilty — this was last spring — of murder, not even guilty of manslaughter. Fortunately, the Attorney General of Alberta is appealing the decision.
In the last 20 years there have been only three reported cases in Canada where a victim died as a consequence of rough sex. In all three of those cases the defendant was convicted of at least manslaughter. As I said, the jury in the case did not even do that. There was no Aboriginal person on the jury. The Crown, in an unprecedented move, actually entered into evidence the torn vagina of Cindy Gladue in the courtroom. Ms. Gladue was reduced to a mutilated body part. This was not only highly offensive and extremely disrespectful to the victim and her family, it didn’t even result in a guilty verdict.
The second example is the case of Helen Betty Osborne. Osborne was 19 years old when she was abducted and brutally murdered near The Pas, Manitoba, on November 13, 1971. The RCMP eventually thought four men were responsible for the murder. However, charges against three men were not brought until 1986 — 15 years after the murder. In the end, only one man was convicted to life in prison for the murder of Osborne, one man was acquitted and a third was given immunity and set free in exchange for testifying against the others.
It should be noted that Helen Betty Osborne’s murder was extremely violent. She was badly beaten, assaulted and stabbed more than 50 times, apparently with a screwdriver. I remember this case very well. As a young woman, can you imagine hearing something like that?
I’m so pleased that the University of Winnipeg has named a building after Helen Betty Osborne to honour her and to remember what happened to her.
Helen Betty’s case sparked the Aboriginal Justice Implementation Commission to conduct an investigation into the length of time it took to resolve this case. The commission concluded that the most significant factors that delayed and deterred the case were racism, sexism and indifference from the community, right through to the criminal justice system. The report stated:
It is clear that Betty Osborne would not have been killed if she had not been Aboriginal. The four men who took her to her death from the streets of The Pas that night had gone looking for an Aboriginal girl with whom to “party.” They found Betty Osborne. When she refused to party she was driven out of town and murdered. Those who abducted her showed a total lack of regard for her person or her rights as an individual. Those who stood by while the physical assault took place, while sexual advances were made and while she was being beaten to death showed their own racism, sexism and indifference. Those who knew the story and remained silent must share their guilt.
The whole community protected the men, and I can understand that. So, for 15 years, her family suffered.
Colleagues, these are just two of the numerous cases in which offenders who are accused of violent attacks or brutal murders of an Aboriginal woman have received sentences that appear to be more lenient than warranted.
Colleagues, it was reported in The Globe and Mail just a few months ago, in November, that the family of an Aboriginal woman who was murdered and mistakenly identified as Caucasian chose not to reveal that she was Aboriginal because they feared that her Aboriginal identity would lead to police bias and public apathy.
In response, the Minister of Indigenous Affairs, Carolyn Bennett, is quoted as saying:
The poignancy of the family having to hide the indigenous identity of a loved one just speaks to the huge problem in this country of racism and sexism on this issue.
Honourable senators, the release of the summary report of the findings of the Truth and Reconciliation Commission last June was a watershed moment in Canadian history. Commissioner Justice Murray Sinclair stated:
Even those children who didn’t go to residential school, who went to public schools, were affected by the very same teachings that were going on in the schools, because the attitude of society as reflected in residential schools was also reflected in public schools.
In other words, colleagues, all Canadians were taught that Aboriginals:
. . . were heathens, savages, pagans, they came from an inferior culture, an inferior people.
These teachings underlie present-day stereotypes of Aboriginal men as sexual predators and Aboriginal women as sexual prey.
Honourable senators, I think it is fair to say that being an Aboriginal female person is a unique circumstance. The combination of being Aboriginal, female and living in a colonial society has devalued and dehumanized them. They are still seen by some as inherently less worthy than other women.
Worse yet, the stereotype of Aboriginal women as loose and sexually available still persists and makes them more vulnerable to unwanted and, unfortunately, more violent sexual assaults and more gruesome murders.
In addition, the so-called subtle discrimination against Aboriginal women and girls in the justice system minimizes the grievous harm done to them, which can result in leniency in the sentencing of offenders.
To put it simply, Bill S-215 will increase the likelihood that the consequences of assaulting or murdering an Aboriginal woman or girl are appropriate and meaningful.
Colleagues, Bill S-215 obviously won’t fix all the complex issues of a criminal justice system that has so profoundly failed Cindy Gladue, Helen Betty Osborne and many other Aboriginal women, but it is a step in the right direction towards reconciliation. By including Aboriginal female persons as a specific aggravating circumstance — that is, a protected category of persons — we would acknowledge the historic roots that have led to their over- victimization and the systemic discrimination against them in the judicial system.
Honourable senators, Bill S-215 amends the Criminal Code in two places. First, the bill inserts a new clause at the end of the sections of the Criminal Code that outline the murder provisions. The new clause reads:
239.1 When a court imposes a sentence for an offence referred to in section 235, 236 or 239, it shall consider as an aggravating circumstance the fact that the victim of the offence is a female person who is Indian, Inuit or Métis.
Secondly, the bill inserts a new clause at the end of the sections of the Criminal Code that outline the assault and sexual assault provisions. The new clause reads:
273.01 When a court imposes a sentence for an offence referred to in paragraph 264.1(1)(a) or any of sections 265 to 269 or 271 to 273, it shall consider as an aggravating circumstance the fact that the victim of the offence is a female person who is Indian, Inuit or Métis.
Honourable senators, the tragic phenomenon of the high numbers of missing and murdered Aboriginal women and girls is undeniable. The homicide rate of Aboriginal women is 4.8 per 100,000. The corresponding homicide rate is 3.2 for taxi drivers, 2.6 for police officers and 0.8 for non-Aboriginal women. Aboriginal women and girls in Canada are victims of more violent offences and go missing at far higher rates than other Canadian women. Bill S-215 addresses this inequity by specific consideration of their greater vulnerabilities as an aggravating factor in sentencing.
Thus, if an Aboriginal female person is a victim of assault, sexual assault or murder, her identity is an aggravating factor. Such a move would send a clear and strong signal to the court system and to the public at large, denouncing the violent targeting of Aboriginal women and girls. Proclaiming this bill will demonstrate that we value Aboriginal women just as much as we value other Canadian women, taxi drivers, other public transit operators, police officers, and police dogs and other service animals.
Honourable senators, the laws of a country reflect the beliefs and values of its citizens. As the president of Inuit Tapiriit Kanatami, Terry Audla, stated, “we will be judged as a society on how we treat our most vulnerable.”
Colleagues, we have an opportunity, with this bill, to declare that we, as members of the Senate, value Aboriginal women and girls and will take their identity as Aboriginal female persons into consideration as an aggravating circumstance that must be considered during sentencing for assault and murder.
Honourable senators, we have an opportunity to take a united stand and deal with this bill expeditiously and to send it to committee for thorough study. It is my honour and privilege, as an Aboriginal female senator, to ask for your support on behalf of the murdered and missing Aboriginal women and girls, their families and their communities.
The Hon. the Speaker pro tempore: Senator Dyck, will you take a question?
Senator Dyck: Yes, I will. Thank you.
Hon. George Baker: Thank you, Your Honour. First of all, I’d like to congratulate the honourable senator for introducing this bill. We can see the same reasons, as expressed by the Supreme Court of Canada in the case she referenced of Gladue, supporting the bill that she has introduced.
My question to her is a bit technical, but I think it’s important. The normal section of the Criminal Code — she has researched this thoroughly. I know this from her presence and her speeches at our Standing Senate Committee on Legal and Constitutional Affairs concerning similar subjects. The aggravating and mitigating factors on sentencing are contained in section 718.2 of the Criminal Code. She is very familiar with it.
In this case, with this bill, I imagine the question will be asked down the road if she had considered amending that section on sentencing, but I would congratulate her in saying that she went right to the core of the problem, section 239 of the Criminal Code, attempted murder. The other section which she referenced, 273, is aggravated sexual assault.
So you have gone right to those very sections, and you’ve introduced an aggravating factor. The mitigating factor that you referenced earlier, senator, in your speech related to section 718.2(e) of the Criminal Code, as you’re well aware.
Senator Dyck: Correct.
Senator Baker: My question is this: From all the research you have done, did you come across any suggestion, either from some legal authority or from some academic authority, that either of those sections of the Criminal Code should be amended to do exactly what you’re trying to do now? Did you encounter anybody in any writings who had made this excellent suggestion that you’re making now? I’m not aware of any, but perhaps you can tell us if you have encountered that.
Senator Dyck: Thank you for that question, Senator Baker. We did look through the literature. As you may know, in most cases, people are focused on the offenders. They’re not thinking about the victim. We didn’t find anything at all like that. We specifically picked assault and murder because it has been proven by all the previous reports that that is what happens to Aboriginal women and girls.
We considered amending section 718 itself to put it in with all those other factors, but that would have made it more general, and I didn’t think that was correct. We did not find anywhere any suggestion that something like this should be done. However, on the weekend I was searching — and you know how when you’re searching on the Internet you kind of find things by happenstance — and I did find a Master of Laws thesis from the University of Saskatchewan, my alma mater, by a lawyer who was suggesting amending section 718.2. In order to do that, it seemed very convoluted, and you could see that by the way she was discussing it, because you would have to prove that hate is involved. You know that something like hate is very difficult to prove, whereas in this case, looking at the specific sections having to do with assault and murder makes the intent of the bill much clearer, and it’s directly targeting what’s happening to the women.
Senator Baker: Hear, hear!