An Act to amend the Criminal Code (sentencing for violent offences against Aboriginal women)

This bill was last introduced in the 42nd Parliament, 1st Session, which ended in September 2019.


Defeated, as of April 10, 2019
(This bill did not become law.)


This is from the published bill. The Library of Parliament often publishes better independent summaries.

This enactment amends the Criminal Code to require a court, when imposing a sentence for certain violent offences, to consider the fact that the victim is an Aboriginal woman to be an aggravating circumstance.


All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.


April 10, 2019 Failed 2nd reading of Bill S-215, An Act to amend the Criminal Code (sentencing for violent offences against Aboriginal women)

Criminal CodePrivate Members' Business

April 9th, 2019 / 6:35 p.m.
See context


Sheri Benson NDP Saskatoon West, SK

Mr. Speaker, I want to begin my remarks by recognizing that we meet today on the traditional and unceded territory of the Algonquin Anishinaabe people. I hope that one day we will begin all of our daily proceedings in this place with this acknowledgement.

I also wish to acknowledge that my riding is situated in Treaty 6 territory and the ancestral homeland of the Métis.

It is an honour and a privilege to rise to speak on such an important topic as the mistreatment by our justice system of indigenous women and girls and to speak of a way that our justice system could make that change. I say that because we have a justice system that must do better for indigenous women and girls. We have a justice system that is just for some, but not for all Canadians.

Our Charter of Rights and Freedoms guarantees that everyone has the right to be treated equally before and under the law and that all Canadians have the equal benefit and protection of the law. However, that is not the case for indigenous women and girls in our country. Indigenous women and girls cannot count on a justice system that is fair and just, that provides them the full protection of the law and that is blind to race and gender.

That is why I am speaking in support of Bill S-215 and to support the leadership of Senator Dyck, whose work and advocacy on the issue of missing and murdered indigenous women and girls is to be commended and respected.

Bill S-215 is about bringing equality into our justice system for indigenous women and girls. The bill would amend the Criminal Code to make indigenous female identity an aggravating factor during sentencing. We need such a bill because we need to reform our justice system now. For too long we have tolerated the discrimination against indigenous women and girls. We need such a bill because the treatment of indigenous women and girls in the justice system reflects “societal indifference to the welfare and safety of Indigenous women [that allows] the perpetrators [of violence against them] to escape justice.”

We know the names of two indigenous women, Cindy Gladue and Betty Osborne, not because justice was served, but for the exact opposite reason. We know these women's names because of the unspeakable violence perpetrated against them in life and in death; a justice system that continued to degrade them as human beings, treated them as less than. We know their names because of the efforts of indigenous women and human rights advocates who demanded justice for Cindy and Betty.

The bill before us today is one measure to combat societal indifference to the lives of indigenous women who are more likely to be victims of violent crimes and their circumstances more likely to be taken less seriously by our justice system. We have systems of protection and justice in the country that effectively demonstrate that indigenous women's lives and their safety are less important and less worthy than non-indigenous women.

The family of Nadine Machiskinic know this fact all too well. In 2015, Nadine, a 29-year-old indigenous woman, was found in medical distress in the laundry room of the Regina Delta Hotel. She had fallen 10 floors down a laundry chute. Because of a justice system that did not value Nadine's life, her death was never properly investigated. It is because of her family's tireless efforts for more than three years that in 2018 the Regina police service's actions in this case were formally reviewed by the RCMP.

We know now all that was not done for Nadine by the hotel, EMS, police and investigators to help her, to determine the circumstances of her death and to find the perpetrators. We learned that her death was not reported to police for some 60 hours, that police took four months to send toxicology reports and that it was over a year before the police made a public plea for information about the two men on surveillance cameras and video who appeared with Nadine.

In her own words, Senator Dyck acknowledges that her bill is not the magic solution that will end the violent victimization of indigenous women and girls and it will not change how Nadine was treated by the system. The bill is intended to cause a ripple effect in the justice system by ensuring judges consider the unique circumstances of indigenous women and girls in Canada today.

Bill S-215 is needed because despite all our justice system is meant to be, it is failing to provide equal benefit and protection through the law.

Like many systems that are being challenged today by indigenous peoples and human rights advocates, our justice system has not escaped the historical influences of colonialism and racism; influences that continue to this day. These influences have led to what is the reality for indigenous women in Canada, a climate in which indigenous women are particularly vulnerable to sexism by the police and the court system. Indigenous women who are victims of violence are mistreated by the systems that are intended to protect them.

Senator Dyck's bill is a response to extremely high rates of murder and disappearances of indigenous women and girls. This legislation will help to ensure a justice system that provides equal protection under the law for indigenous women and girls as guaranteed by the Charter of Rights and Freedoms.

This legislation also responds to our legal obligations in the United Nations Declaration on the Rights of Indigenous Peoples to protect indigenous women and girls from violence, victimization and the indifference by the state and society to their experiences of violence.

I had the opportunity to sit in on presentations by Senator Dyck on her bill and to also hear of her research initiatives in partnership with the University of Saskatchewan. Prior to being appointed to the Canadian Senate, Dr. Dyck was a professor in the neuropsychiatry research unit in the Department of Psychiatry and an associate dean of the College of Graduate Studies and Research at the University of Saskatchewan.

It is through her leadership and her support of current research that we are learning definitively of the detrimental impacts of the racism perpetrated on aboriginal girls.

Finally, Senator Dyck's bill would afford indigenous women and girls protection similar to that given to others in the Criminal Code, such as taxi drivers and transit workers.

In debate so far on this bill, we have heard technical legal arguments from hon. colleagues in the official opposition about how this bill is not an appropriate avenue for addressing the failings of the justice system to protect indigenous women and girls. To that I say that technically, the law is not to discriminate; technically, the law is not to be sexist or racist in its application; and technically, the law is to enforce the Charter of Rights and Freedoms. I rest my case.

We have heard from some on the government side, such as the special adviser to the Prime Minister on LGBTQ2 issues, the MP for Edmonton Centre, who in his speech during debate called for a broad-based, holistic approach as the best way to ensure better protection for indigenous women and girls.

First, I must object to the member's paternalistic tone and the choice of language in his comments. He stated that his way or the government's way is the best way—not a better way, but the best way. It is presumptuous of any member to state that his or her way is the best way. Further, terminology like “broad-based” and “holistic” are words that say to me that the government wants indigenous women and girls to continue to wait for justice and equal protection under the law.

Iskwewuk E-wichiwitochik, Women Walking Together, is a local women-led volunteer group in Saskatoon that has been supporting families and relatives of murdered and missing indigenous women and girls since 2005. Most recently, in 2018, the founders of the group, Darlene Okemaysim-Sicotte and Myrna LaPlante, received the YWCA Women of Distinction Award for their work.

Darlene and Myrna, along with the volunteer members of Women Walking Together, fully support Bill S-215. This endorsement must be respected and hold much weight in our deliberations on the bill, as it comes from women who know first-hand the impact of the epidemic of violence against indigenous women and girls and who combat every day the indifference of the institutions meant to protect women and girls.

Long before this chamber was talking about murdered and missing indigenous women and girls, these women were speaking out, helping families and getting results. This House can do something now to change the lives of indigenous women and girls. We can pass Bill S-215 and begin to see justice served to all Canadians; not just some Canadians.

Criminal CodePrivate Members' Business

April 9th, 2019 / 6:45 p.m.
See context

Parkdale—High Park Ontario


Arif Virani LiberalParliamentary Secretary to the Minister of Justice and Attorney General of Canada and to the Minister of Democratic Institutions

Mr. Speaker, I am pleased to speak today to Bill S-215, an act to amend the Criminal Code, which was introduced in the Senate on December 11, 2015, by the Hon. Senator Lillian Dyck. The bill's objective is to provide greater protection to indigenous women from certain violent offences.

I wish to note at the outset that this critical issue is currently being studied in the context of the National Inquiry into missing and Murdered Indigenous Women and Girls, which is examining institutional policies and practices that have been put in place as a response to violence, including those that have been effective in reducing violence and increasing the safety of women and girls.

As many of the constituents in my riding of Parkdale—High Park have indicated to me, indigenous women are disproportionately impacted by violent crime. Therefore, I know that we all support the pressing objective that Bill S-215 identifies.

Bill S-215 seeks to achieve its objective through new provisions that would require a sentencing judge to treat the fact that a victim is an aboriginal woman as an aggravating factor when sentencing an offender for certain specific offences, including murder, assault, unlawfully causing bodily harm and sexual assault. If a judge determines that an aggravating factor is present in a given case, a higher sentence is expected to be imposed.

Denouncing and deterring violent offences against indigenous women is critical. However, after significant reflection, it is incumbent upon us to express the government's concerns about the potential effectiveness of the bill's reforms in achieving the important objective which it targets.

Specifically, Bill S-215's proposed reforms may duplicate or conflict with existing sentencing provisions and may be under-inclusive in terms of protecting indigenous women, as well as similarly vulnerable victims, from all violent crimes.

Notably, the Criminal Code already requires sentencing judges to treat as aggravating factors the fact that an offence was motivated by hate based on gender or race or the fact that the offender abused a spouse, common-law partner or child. That is covered in section 718.2 of the Criminal Code.

Furthermore, the Gladue principle, which is entrenched in the Criminal Code as a sentencing principle at paragraph 718.2(e), requires sentencing judges to consider the unique systemic and background factors that contributed to the commission of the offence, as well as all reasonable alternatives to imprisonment, when sentencing indigenous offenders.

Bill S-215's proposed aggravating factor may complicate the application of the Gladue principle. For example, in cases involving a female indigenous victim and an indigenous offender, a sentencing judge would be required both to lengthen the sentence for an indigenous offender's criminal conduct against an indigenous woman and, at the same time, to consider alternatives to incarceration, particularly in cases involving less serious types of offences, such as simple assault.

Assault is one of the most common offences charged in the context of intimate partner violence, and we know that this type of violence occurs in all cultures.

Although interpersonal violence is always a serious matter, we must keep in mind that Canada's definition of assault is broad and applies to any intentional and non-consensual application of force. ln some cases, especially those involving less serious forms of offending, incarceration may not always be the most appropriate response. Nor may it be the response supported by the victim, for example, in the context of intimate partner violence where the offender provides financial support to his family or takes care of the children while the spouse does so.

I am also concerned that the proposed aggravating factor may be too narrowly construed. Allow me to explain. For example, it would apply only to offenders sentenced for specific violent offences, such as uttering threats, assault, sexual assault and murder, but not to other types of offenders, such as those sentenced for human trafficking or other serious offences for which indigenous women and girls are overrepresented as victims.

These types of offenders are generally not indigenous themselves; rather, they may specifically target indigenous women because of their gender and ethnicity. For example, we know that indigenous women and girls are disproportionately represented among the vulnerable people who are sexually exploited in Canada. For that we can refer to the Department of Justice's 2014 technical paper on what was then Bill C-36, the Protection of Communities and Exploited Persons Act.

We also know that indigenous women and girls are targeted for this type of exploitation precisely because of their vulnerability such that applying the proposed aggravating factor to simple assault, but not to human trafficking, seems incongruous in this context.

Bill S-215's aggravating factors would also not apply to offenders sentenced for violent crimes committed against non-indigenous female victims, some of whom may be similarly marginalized and vulnerable to predation. My specific concern here is that this type of approach could create an unintended “hierarchy” of victimization. It is important to point that out.

Also, in certain types of cases, aggravating factors may be inapplicable or apply only in the determination of the period of parole ineligibility. For example, first degree murder, as well as second degree murder where the offender was previously convicted of murder, is punishable by a mandatory minimum penalty of life imprisonment without eligibility for parole until 25 years has been served. Otherwise, second degree murder is punishable by a mandatory minimum penalty of life imprisonment without eligibility for parole until at least 10 years and up to 25 years has been served.

Therefore, in murder cases, aggravating factors can only be taken into account in determining the period of parole ineligibility, i.e., 10 to 25 years, for an offender sentenced for second degree murder, as long as the offender was not previously convicted of murder.

For all these reasons, there are concerns about the potential effectiveness of Bill S-215's proposed reforms in achieving the bill's objectives. ln certain situations, the proposed reforms may even create results that are inconsistent with their objectives. Therefore, I suggest that the bill's objectives and proposed reforms be further studied with a view to determining whether there are other ways to achieve its objectives, while avoiding the potential unintended consequences that I have just described.

Examining the impact of criminal legislation on indigenous persons is a critical part of ensuring that legislation responds appropriately to the unique lived realities, which are the result of a long history involving many different forms of abuse stemming from colonization.

ln particular, indigenous persons are overrepresented as both victims and offenders. A piecemeal approach to law reform, given this complex social context, could have unforeseen and undesirable consequences.

The complexity of these issues is reflected in the January 2016 FPT framework to address violence against indigenous women and girls, which identifies principles and priorities to assist in improving how the justice system prevents and responds to this type of violence. The framework concludes with a poignant statement on the multi-sectoral response that is required:

Violence against Indigenous women and girls is a serious concern in this country. The causes of the violence are complex, but closely linked to historical government policies, which led to current conditions of low socio-economic status and vulnerability to violence. There is no simple or singular solution to this issue. Stopping the violence will require the combined efforts of multiple sectors and stakeholders.

I therefore stress the importance of taking into consideration all of the complexities of this issue when analyzing what can be done to improve the protection of indigenous women from violent victimization. Significantly, the missing and murdered indigenous women inquiry's report, which is expected to be released this spring, will provide important recommendations for concrete and effective action that can be taken to remove systemic causes of violence and increase the safety of indigenous women and girls.

Criminal CodePrivate Members' Business

November 26th, 2018 / 11:05 a.m.
See context


Robert-Falcon Ouellette Liberal Winnipeg Centre, MB

moved that Bill S-215, An Act to amend the Criminal Code (sentencing for violent offences against Aboriginal women), be read the second time and referred to a committee.

Mr. Speaker,

[Member spoke in Cree]


Bill S-215 has been meandering its way through Parliament. It has now come to this place. It has come to the House of Commons, the people's place. It has moved through the Senate through first reading, second reading, committee stage, report stage and third reading. It was proposed by Senator Lillian Dyck.

Bill S-215 would amend the Criminal Code to require a court to consider the fact that when a victim of an assault or murder is an aboriginal female it constitutes an aggravating circumstance for the purposes of sentencing. In doing so, it would add new sections immediately after sections 239 and 273 of the Criminal Code.

We know indigenous women are overrepresented in violence committed against women in Canada. We only need to think of cases like that of Tina Fontaine in Winnipeg. I remember all too well four years ago how a young girl had gone missing, but at first no one seemed to care. It was only upon her discovery at the bottom of the Red River wrapped in a plastic garbage bag that people actually took note. She was only discovered because people were looking for someone else in the Red River. They discovered her body there, and it galvanized the city of Winnipeg. For the next two days, thousands upon thousands of people came to walk the streets in protest, to raise awareness of the issue of violence against indigenous women and girls and to say enough was enough.

In fact, Tina Fontaine's death eventually led to the murdered and missing indigenous women's inquiry. It was one of those defining moments in Winnipeg, when people from all walks of life, whether indigenous, Caucasian, or from African or Asian heritage, all came together and really truly said that enough was enough.

However, this is not the only case we have of violence against indigenous women in Canada. There is the recent example 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 of 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 later argued in court that the tear in her vagina was caused by a sharp object, and the defence argued that the tear was caused by consensual rough sex because she was a sex worker at the time. The jury found the accused was not guilty. This was last spring. The accused was found not guilty of murder, not even guilty of manslaughter.

Fortunately, the Attorney General of Alberta had common sense and appealed the decision, and it was just heard in the Supreme Court. In the last 20 years, there have only been three reported cases in Canada where the victim died as a result 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 indigenous person on the jury. In an unprecedented move, the Crown actually entered into evidence the torn vagina of Cindy Gladue in the courtroom, and Gladue was reduced to a mutilated body part. This was not only highly offensive and extremely disrespectful to the victim and her family, it did not 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 of the 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 the third was given immunity and set free in exchange for testifying against the others.

It should be noted that Helen Betty's murder was extremely violent. She was badly beaten, assaulted and stabbed more than 50 times, apparently with a screwdriver. I remember this case, having read about it at the University of Winnipeg and the University of Manitoba, where it was taught to us in class. Imagine reading about something like this. Thankfully, there is a building named in her honour at the University of Winnipeg.

Helen Betty's case sparked the Aboriginal Justice Implementation Commission to conduct an investigation into the length of time it took to resolve the 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 these men, so for 15 years the family suffered.

There are numerous cases in Canada. I could continue to enumerate all of them, but we must also think about other cases, which go on continuously here in Canada, about why indigenous women need greater protection, why we need to rebalance the scales of justice. Let us think of the Highway of Tears; between 18 and 40 women have gone missing on the Highway of Tears in British Columbia near Prince George.

I was speaking with Paul Lacerte and his daughter Raven, who started the Moose Hide Campaign, a patch that many of us wear in the House of Commons and that many of my colleagues care about. The campaign tries to raise awareness of this issue of violence against indigenous women and girls, and it is for men to have this issue raised among ourselves because it is not an issue of women who conduct the violence, it is an issue of men.

The father and daughter were out shooting a moose over a decade ago and they managed to shoot one. The father at first did not want to keep the hide, but his young daughter Raven, who was only around 10 at the time, said, “Dad, we can't throw it away. We need to use the entire animal.” He said, “What do we need a hide for?” She said, “Let's raise awareness, because we are not far from the Highway of Tears, and do something about the missing indigenous women and girls.”

This is an extremely important bill because it would rebalance the scales of justice. It is fair to say that being an aboriginal female is a unique circumstances. The combination of being aboriginal female and living in a colonial society has devalued and dehumanized our women, and they are seen 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.

I heard from an elder in Quebec. He described where the word, the derogatory term, “kawish” comes from, which is used sometimes in Quebec to describe indigenous people. In fact its base is “awas”, “away” in Cree. According to the elder, it means to push someone away and it is from the sexual advances often made against indigenous women by non-indigenous men.

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 sentencing of the offenders. Bill S-215 would increase the likelihood that the consequences of assaulting or murdering an aboriginal woman or girl are appropriate and meaningful.

Bill S-215 obviously would not fix all of the complex issues of the criminal justice system, and that is not the goal, but this justice system has failed Cindy Gladue, Helen Betty Osborne and many other indigenous women and the bill is a step in the right direction toward reconciliation. By including aboriginal females 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 justice system.

Bill S-215 would amend the Criminal Code in two places. First, the bill inserts a new clause at the end of 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.

Second, the bill inserts a new clause at the end of the sections of the Criminal Code that outline the assault and sexual assault provisions. This 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.

The tragic phenomenon of the high numbers of missing aboriginal women and girls is undeniable. The homicide rate of aboriginal women is 4.8 times higher, or 4.8 per 100,000 people. 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 are victims of more violent offences and go missing at far higher rates than other Canadian women. Bill C-215 would address this inequity by specific considerations of their greater vulnerabilities as an aggravating factor in sentencing.

Thus, if an aboriginal female is a victim of sexual assault or murder, her identity is an aggravating factor. Such a move would send a clear and strong message to the court system, to justices, judges, and the public at large, denouncing the violent targeting of aboriginal women and girls. Proclaiming the bill into law would demonstrate that we value indigenous women just as much as we value other women, taxi drivers, public transit operators, police officers, police dogs and other service animals.

The laws of our nation must reflect our values and the values of all our citizens. Terry Audla from the ITK stated, “we will be judged as a society on how we treat our most vulnerable.” We have an opportunity to truly make a great difference in the lives of more of our fellow citizens.

An eagle feather weighs not very much, but on the scales of inequality in Canada, it can help to readjust the scales of justice so that lady justice is not blind to the suffering of her fellow citizens. We all deserve justice in our country. We deserve justice because this is what we aspire to as a nation. We desire and deserve basic respect and indigenous women need our protection at this time. They need our protection at this time because no one else is giving it to them. Many in our society still consider them less than valuable, less than human. If we cannot protect our most vulnerable citizens, then how can we send a message around the world? How can we stand tall as a beacon of hope and democracy and proclaim our charter as protecting all of us?

It may be difficult to single out one group, but we have done this for taxi drivers, police service dogs and police officers. For a short time, until our society has caught up to what it truly means to have a charter of hope and true equality, it is time to protect our most vulnerable, indigenous women and girls and to take a stand in Parliament to complete the work that was done on behalf of all Canadians in the Senate, which has already looked at the bill and sees it of value. Now it is time for the House of Commons to consider it, weigh it and hopefully tip the scales of justice to a greater level of equality and justice.

[Member spoke in Cree]

Criminal CodePrivate Members' Business

November 26th, 2018 / 11:20 a.m.
See context


Robert-Falcon Ouellette Liberal Winnipeg Centre, MB

Mr. Speaker, I would also like to mention that the bill also has the support of the Assembly of First Nations, as well as the FSIN from Saskatchewan, in resolutions that were passed in 2016 on the Niagara Falls Annual General Assembly of the Assembly of First Nations. Perry Bellegarde signed resolution, 26/2016, concerning his support for Bill S-215.

Also, when we talk about how we protect individuals, it is extremely important that we not only take into consideration the idea of offenders. We also need to take into consideration the whole idea surrounding victims in our justice system. I know the members from the Conservative Party moved quite extensively to try to put more victims rights into our justice system, and that is to be applauded.

This goes a little further in trying to ensure that one specific group, or a specific period of time, at least receives additional protection to ensure that we hold them in high esteem, that we hold them up and do not continue to debase them in popular culture, as well as in how we view them in general Canadian society.

Criminal CodePrivate Members' Business

November 26th, 2018 / 11:20 a.m.
See context


Michael Cooper Conservative St. Albert—Edmonton, AB

Mr. Speaker, I rise to speak to Bill S-215, introduced by Senator Dyck and sponsored in this place by the hon. member for Winnipeg Centre.

The bill seeks to amend section 718.2 of the Criminal Code, whereby it would provide that where a judge would impose a sentence for certain violent offences, including murder and sexual assault, that the judge would be required to consider as an aggravating factor the fact that the victim was a Indian, Inuit or Métis woman.

The hon. member for Winnipeg Centre is a strong advocate in this place for indigenous peoples. There is no question that the rate of victimization among indigenous Canadians is disproportionate. That is particularly so with respect to indigenous women. Indeed, indigenous women are three times more like to be victimized than non-indigenous women.

There is no question that the intentions relating to the bill are good. However, good intentions do not always make good laws. It is on that basis that I regretfully will be unable to support Bill S-215.

There are three reasons why I believe the bill unfortunately falls short. First, it is partially redundant. Second, there are serious constitutional questions about whether it would run afoul of section 15 of the charter, which guarantees equality before the law without discrimination. Third, there are questions about whether it is inconsistent with the Gladue principle in sentencing, which is enshrined in section 718.2(e) of the Criminal Code.

With respect to the issue of partial redundancy, in the Criminal Code the fact that a victim is a woman who is indigenous is already considered to be an aggravating factor to the degree that the offence was committed on the basis that the individual victim was a female indigenous person. The key, though, is motive, the fact that it was motivated by prejudice or hate toward an individual on the basis of his or her gender or race.

That brings me to the second point, which is the question of whether the bill would violate section 15 of the charter, which guarantees that all Canadians are entitled to equal protection and equal benefit under the law without discrimination. What the bill would do with respect to the Criminal Code is quite novel from the standpoint of aggravating circumstances. It is novel because it would create a special class of victim, namely indigenous women.

As I mentioned, race and gender can be considered aggravating factors, but the basis upon which that would occur is if the offence were motivated because the victim was of a certain race or gender. Similarly, there are other aggravating circumstances that relate to the connection between the offender and the victim. For example, if the victim were vulnerable, and many indigenous women are vulnerable and in vulnerable circumstances, then that could be considered an aggravating factor.

In his speech, my friend from Winnipeg Centre alluded to the fact that there are aggravating circumstances in the Criminal Code with respect to service dogs and transit workers. Again, those aggravating factors arise from the fact that the individuals are performing certain duties, such as a transit worker who is attacked. Again, there is a connection between the offender and the victim based on the offence at hand.

By contrast, the bill would say that it would not matter whether the offence was motivated by the fact that the victim was an indigenous woman. Indeed, it would not even matter if the offender knew that the victim was an indigenous woman. Simply because the victim was an indigenous woman, it would constitute an aggravating factor. This is unique, it is novel and it does not exist in the Criminal Code. Many lawyers who appeared before the Senate legal and constitutional affairs committee flagged the constitutionality of the bill in respect of it running afoul of section 15 of the charter.

Finally, there is the issue of the Gladue sentencing principles, which provide that when imposing a sentence on an indigenous offender, the judge is to consider all reasonable alternatives to incarceration. We know that a disproportionate number of victims are indigenous women, but at the same time, there is, regretfully, an overrepresentation of primarily indigenous male offenders. In these cases, we have subsection 718.2(e) that says that a judge is to look at all reasonable alternatives to incarceration. At the same time, it would be treated as an aggravating factor that the victim was an indigenous woman. There would certainly be some litigation and some degree of uncertainty around sentencing. From the standpoint of backlogs and delays in our courts, which is a very real issue today, it would be problematic.

Therefore, while this bill is well intentioned, and while there is no question that indigenous women are disproportionately victimized in this country, and while there is no question that we as members of Parliament in this place have a duty to do what is necessary to bring about necessary changes to protect vulnerable persons, including indigenous women, this bill misses the mark for the aforementioned three reasons I enunciated.

Criminal CodePrivate Members' Business

November 26th, 2018 / 11:30 a.m.
See context


Georgina Jolibois NDP Desnethé—Missinippi—Churchill River, SK

Mr. Speaker, today I rise in support of, and in solidarity with, the generations of first nations, Métis and Inuit women who have come before me and will come after me. Today I would like to add my voice to the apparent silence that exists for indigenous women in Canada's justice system and speak in support of Bill S-215.

Within the Canadian Charter of Rights and Freedoms, all individuals are guaranteed equality before and under the law. All individuals have the right to equal protection and equal benefit of the law without discrimination. However, it is clear that this is not the case for first nation, Métis or Inuit women.

If indigenous women had equal protection under the law, we would not have an ongoing inquiry into the 1,200 missing and murdered indigenous women and girls. All those women and girls had names, are loved and have families and communities that continue to search for justice in a system that does not view them as equals.

If indigenous women were viewed as equals in Canadian society, we would not mourn with the families of young indigenous women lost in child and family care. We would not have to continue to fight for an inquiry into the systemic oppression indigenous women face. We would not have a Highway of Tears, and in 2018, we would not have to call for justice for the indigenous women forced into sterilization.

When first nation, Métis and Inuit women and the organizations that support them call for justice and propose changes to the justice system, we should be listening. Not only should we be listening, we should do everything in our power to bring those changes and reforms into effect.

Canada has a long history of oppressing and excluding indigenous women from systems of justice, but surely Canada's future is one that includes the voices of indigenous women. For this reason, I am proud to support this bill my friend in Saskatchewan, who serves our province in the other place, has brought forward, which is now being considered here. Bill S-215 would amend the Criminal Code to require a court to consider that when a victim of assault or murder was a first nation, Métis or Inuit female person, this fact would constitute an aggravating circumstance for the purpose of sentencing.

It is not without precedent that consideration of aggravating circumstances has been given to other groups in society. Among others, police officers, transit workers and animals have been identified as vulnerable within the Canadian justice system by virtue of the line of work and social position they are in when they are the victims of a crime.

The evidence exists for indigenous women to be given similar status. A 2014 RCMP report, reports from the Native Women's Association of Canada and reports from Amnesty International all affirm that indigenous women are three to four times more likely than other Canadian women to be murdered, sexually assaulted or made missing. Aboriginal women are seven times more likely to be targeted by serial killers. Statistics Canada has reported that being indigenous is a significant risk factor for women to experience violence, but that is not the case for indigenous men.

I myself am an indigenous woman from northern Saskatchewan, and I repeat these statistics here not for my benefit but for the benefit of my colleagues present in the House today. My family and community are Dene. Most of the constituents in my riding are first nation or Métis. My constituents know how difficult life is for indigenous people in Canada, because they see and experience Canada as indigenous people.

Our families suffered and survived residential schools. We feel the pain of colonialism every time young indigenous persons lose their lives, either from suicide or the violent actions of others. We feel the isolation of the north when we have to hitchhike for medical care. We know the danger of what it is like to be indigenous, because in virtually every way, our lives are governed by a colonial system that puts our communities at a lower status than those of non-indigenous Canadians.

Like many indigenous women, I am personally affected by the injustice of violence against women. My auntie Janet Sylvestre and my friend Myrna Montgrand are among the 1,200 women and girls who were murdered and made missing. To this day, their killers are not known. Happy Charles, from La Ronge, has been missing for a year and a half, and her family remains determined, despite a lack of answers.

I understand that we do not make policies or decisions as a government from the stories of individuals or from the anecdotes of history. However, at certain points in history, the stories of individuals become the narratives of a country if those stories are told again and again. This story of violence against indigenous women has been repeated far too often for us to think of it as a footnote.

Our stories exist to teach us lessons and guide our future. If we learn nothing from the continued story of violence against indigenous women from the stories of Happy, Janet and Myrna, among so many others, we do nothing but silence those who bravely step forward to speak. This narrative of violence must be accounted for in Canada's laws so that indigenous women are no longer targeted and overwhelmingly the victims of violence in Canada.

Of course, the bill is not without concerns. I have heard and read the debates about how Bill S-215 would be unfair to aboriginal offenders who could be sentenced to more time in prison, and as a result, would be more likely to reoffend in the future. In particular, the bill, if implemented, could potentially negatively interfere with the section of the Criminal Code known as the Gladue provisions. To this I have two responses.

First, as my colleague from Manitoba has said, the Gladue provisions of the Criminal Code are not meant to reduce prison time. The Gladue provisions are intended to ask the court to consider alternatives to prison, such as restorative justice and rehabilitation programs. Programs like these retrain and heal offenders and thereby decrease the likelihood that they will reoffend.

Furthermore, the Gladue principles do not call for sentences outside the range of legally available penalties. A court cannot substitute a sentence just because someone is indigenous. The practitioners of violence would still get the punishment the law calls for, even with the aggravating circumstances the bill would put in place. It is even questionable whether the Gladue principles could be applied to violent crimes, with the Supreme Court ruling that for serious offences, there may not be any reduction in imprisonment for aboriginal offenders.

Second, I want to speak about the balance of rights for indigenous women in the justice system. It says a lot in a debate about how we can help indigenous women and their families get the justice they are owed when we put the concerns of the offender over the concerns of the victim. Do not get me wrong. I am not trying to say that perpetrators of violence do not have rights, because those rights are important, but where we have protections for aboriginal offenders in Gladue reports, our courts must not fail to consider the situations and circumstances of the victims.

Indigenous women who are the victims of violent crime are affected by the same historical factors and upheaval of economic development experienced by their communities. Not only are indigenous women victimized by the accused, they are victims of systemic discrimination and are economically and socially disadvantaged to a greater degree than the accused.

Bill S-215 is not a catch-all solution for the problems indigenous women face in the justice system. The justice system is not destined to stay the same forever. It changes just as society does. It is a living, breathing system full of individuals who are constantly challenging it. Bill S-215 is an opportunity for us to examine and question the belief systems judges, lawyers, police officers and court workers have and calls on them to see indigenous women from a new perspective.

For these reasons, I am proud to support this bill that works to create a safer world and a more equitable justice system for first nation, Métis and Inuit women.

Criminal CodePrivate Members' Business

November 26th, 2018 / 11:40 a.m.
See context


Randy Boissonnault Liberal Edmonton Centre, AB

Mr. Speaker, I welcome this opportunity to speak to Bill S-215, an act to amend the Criminal Code (sentencing for violent crimes against aboriginal women), introduced in the Senate on December 11, 2015, by the Honourable Senator Lillian Dyck.

First of all, I would like to commend Senator Dyck for her advocacy on the critical issue of violence against indigenous women and girls. Our government shares the view that the unacceptable rates of violence against indigenous women and girls is a matter of urgency and national concern.

Bill S-215's objective is outlined in its preamble, which states the importance of denouncing and deterring violent crimes against indigenous women, given that indigenous women have been, for many decades, and still are, far more likely than non-indigenous women to be victims of violence.

Bill S-215 proposes to create two new Criminal Code provisions, sections 239.1 and 273.01, which would require the fact that a victim is an indigenous woman to be considered an aggravating factor when sentencing an offender for certain violent offences. These offences are murder, manslaughter and attempted murder; uttering threats to cause death or bodily harm; assault, assault with a weapon, or causing bodily harm and aggravated assault; unlawfully causing bodily harm and sexual assault, sexual assault with a weapon or causing bodily harm and aggravated sexual assault.

While I know that all of us support this bill's objective, these proposed reforms may have unintended consequences in the application of sentencing. The purpose of aggravating factors is to signal to sentencing judges that lengthier sentences are warranted in cases where the aggravating factor is present. I will note that the Criminal Code already establishes that it is an aggravating factor for the purpose of sentencing where an offence is motivated by hate, for instance, because of the victim's gender or race. It is also already an aggravating factor where the victim of a crime is a spouse, common law partner or child. In that regard, the proposed aggravating factor in Bill S-215 duplicates these provisions. Furthermore, Bill S-215 might have the unintended consequence of contradicting the application of the Gladue principle.

Section 718.2(e) of the Criminal Code requires sentencing judges to consider “all available sanctions, other than imprisonment, that are reasonable in the circumstances”, and mandates judges to pay "particular attention to the circumstances of Aboriginal offenders" in conducting this analysis. This provision requires sentencing judges to consider the background and unique circumstances of an indigenous offender, usually with the assistance of a Gladue report, and to consider alternatives to incarceration wherever possible. Where the offender is indigenous, combined with Bill S-215 , a judge could be under contradictory obligations both to lengthen the sentence for an indigenous offender's criminal conduct against an indigenous woman and, at the same time, to consider alternatives to incarceration and reduce the sentence because the offender themself has an indigenous background.

Beyond these concerns, it is imperative to also consider the societal context in which this bill's proposed reforms are situated. This includes the lived realities of indigenous persons in Canada. This broader context highlights the importance not only of Bill S-215's objectives, but also the need for multifaceted responses outside the criminal justice system to meaningfully address this complex issue. Statistics indicate that indigenous persons are overrepresented among both victims and offenders of violent crimes.

Indigenous women experience dramatically higher rates of sexual assault, intimate partner violence, and homicide than their non-indigenous counterparts. Specifically, indigenous females recorded a sexual assault rate of 113 incidents per 1,000 people, which is significantly higher than the rate of 35 per 1,000 recorded for their non-indigenous counterparts. Also, according to the 2014 general social survey on victimization, indigenous women had an overall rate of violent victimization double that of indigenous males, with 220 violent incidents per 1,000 people compared with 110 per 1,000; close to triple that of non-indigenous females, with 81 violent incidents per 1,000 people; and more than triple that of non-indigenous males, with 66 violent incidents per 1,000 people.

At the same time, indigenous persons are also overrepresented in Canada's correctional institutions. In 2016-17, indigenous adults represented 28% of the total provincial-territorial offender population and 27% of the federal offender population, but only 4.1% of the Canadian adult population. In particular, indigenous women accounted for 43% of admissions to provincial or territorial custody and 31% to federal custody, while indigenous men accounted for 28% of admissions to provincial or territorial custody and 23% of admissions to federal custody, according to the Statistics Canada's adult and youth correctional statistics for 2016-17.

As we can all agree, these findings paint a stark reality. In thinking about both the overrepresentation of indigenous persons in prison, as well as women and girls' unacceptably high vulnerability to violence, we must acknowledge and act on the understanding that these realities are inseparable from the historic and contemporary impacts of colonialism.

As explained in the Truth and Reconciliation Commission's final report entitled “Honouring the Truth, Reconciling for the Future”, violence and criminal offending are not inherent to aboriginal people, but rather emanate from very specific experiences that indigenous people have endured, including but not limited to, first-hand victimization and experience with physical and sexual violence in residential schools, poverty, and substance abuse. These factors have contributed to the overrepresentation of indigenous persons in all stages of the Canadian criminal justice process, both as offenders and as victims.

While we are all committed to addressing the pressing issue of violence against indigenous women and girls, Bill S-215 cannot respond to these lived realities to which the bill's proposed reforms would apply. These concerns lead me to the conclusion that the proposed reforms are unlikely to achieve their important objective.

Such a complex issue requires comprehensive approaches to ensure that the proposed solutions have their desired effect. I note that the results of the ongoing National Inquiry into Missing and Murdered Indigenous Women and Girls will be instructive in this regard. The inquiry is studying relevant issues, such as identifying the root causes of violence and abuse and finding ways to them, and addressing the impacts of poverty, marginalization, cycles of violence and disempowerment. Our government looks forward to receiving the recommendations of the national inquiry.

While the commissioners complete their important work, we are taking immediate action by investing in a commemoration fund that will support local and national commemoration activities; in organizations with expertise in law enforcement and policing to lead a review of police practices; in housing and shelters; in education and reform of child and family services; in programs to prevent and address violence against indigenous women and girls; and in increasing health support and victim services for families and survivors.

A broad-based, holistic approach is the best way to ensure better protection for indigenous women and girls from violence. Our government is committed to ensuring tangible and systemic changes that will ensure improved outcomes for indigenous people, including indigenous women and girls.

Moose Hide CampaignStatements By Members

October 18th, 2018 / 2 p.m.
See context


Robert-Falcon Ouellette Liberal Winnipeg Centre, MB

Mr. Speaker,

[Member spoke in Cree]


Today, thousands of men from across Canada are in Ottawa fasting, not having food or water, to raise awareness in support of the Moose Hide Campaign. We all wear a small square of moosehide. This movement of men, both indigenous and non-indigenous, is about taking a stand against violence against women and children. Top civil servants, military generals, members of the RCMP, parliamentarians, MPs and senators are all fasting and committed to doing what we can to make Canada a better place.

Today, in the House of Commons, I introduced Bill S-215, which is a Senate public bill written by Senator Lillian Dyck. This bill amends the Criminal Code to require a court, when imposing a sentence for certain violent offences, to consider the fact that the victim is an aboriginal woman to be an aggravating circumstance. There have been many recent cases that highlight the low level of respect that some in our society have toward indigenous women, including Cindy Gladue. They seem to just not get it. This bill will go a long way to protecting indigenous women from assault.

Tapwe akwa khitwam hi hi.