Bill S-215 (Historical)

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

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.

Criminal Code

[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.

[Arif Virani, Liberal, Parliamentary 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.

[The Deputy Speaker, Bruce Stanton]

Accordingly, I invite the hon. member for Winnipeg Centre to give his right of reply. The hon. member has up to five minutes.

[Robert-Falcon Ouellette, Liberal, Winnipeg Centre, MB]

[Member spoke in Cree as follows:]

[Cree text translated as follows:]

Mr. Speaker, to all my relations, I say hello. I am very proud to be here.

[English]

Mr. Speaker, I remember back in 1995 or 1996, as a young child, watching some of the news surrounding indigenous status and the status of indigenous women in this country. I remember listening to an indigenous woman who said, “I am not just simply a second-class citizen in Canada. I am a third-class citizen, because I am a woman.”

I have heard about equality in this debate. What does equality mean in this country, when the outcomes are so different? What does equality mean when we see the Gladue case in Alberta, where a woman in the justice system was treated very unequally? She was essentially cut up inside, with a six-inch gash in her vagina, and the judge let the perpetrator off. Only after an outcry did the prosecutor in Alberta actually take it back to court. That is a difference in outcomes.

I have heard lots of interesting comments in the House. One of the comments I heard was that because this bill does not deal with all of the justice issues related to the Criminal Code, then it should not apply, that it has no importance, that we need to deal with all of it at the same time. Well, let us take that first step.

I do not mean to get emotional about this, but I think this impacts a lot of people I know.

Bill S-221 was an act to amend the Criminal Code with regard to assaults against public transit operators. Now, from 1997 to 2011, there were 23 taxi driver homicides. Parliament modified the law.

In 2013 alone, just in RCMP jurisdictions in Canada, there were 42 recorded female homicide victims, and 17 of those were indigenous. That is 40%. That is a fact. Is that equality? We talk about equality, but the outcomes seem to be so different.

What are we actually doing? It is great to have some programs and spend some money. I wear the moosehide patch all the time, but what does that really change? I have people asking me all the time what it means. No one seems to know. It is about indigenous men and boys taking a stand against violence against indigenous women and girls, and children. How many people keep asking every day what I am wearing that for and what it means? Yet we have handed out a million of them across the country.

Do members know we also had a bill called Bill C-35, the Justice for Animals in Service Act? It was known as Quanto's Law. Quanto was a police dog. He was killed while on duty. This bill created a specific new offence prohibiting the killing or injuring of a law enforcement animal, and it created a minimum sentence. Who is worth more: Quanto, Tina Fontaine, Gladue, Helen Betty Osborne?

There are lots of organizations that support this bill. I could list them all. The First Nations of Saskatchewan and the Assembly of First Nations have passed resolutions in support of this, and there are women's groups across the Prairies that have asked for legislation on this issue. It deserves a full and wholesome debate in this House.

I hope the government takes this bill and moves forward, because I am sure the missing and murdered indigenous women's inquiry will have something about the justice system. I hope we actually go ahead and change some of these laws so that equality means the equality of outcomes, so that people walking around the streets of downtown Winnipeg will know that they are just as valued as anyone else, no matter what their birth in this country.

[The Deputy Speaker, Bruce Stanton]

The question is on the motion. Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

No.

[The Deputy Speaker, Bruce Stanton]

All those in favour of the motion will please say yea.

[Some hon. members]

Yea.

[The Deputy Speaker, Bruce Stanton]

All those opposed will please say nay.

[Some hon. members]

Nay.

[The Deputy Speaker, Bruce Stanton]

In my opinion the yeas have it.

And five or more members having risen:

Pursuant to Standing Order 93 the recorded division stands deferred until Wednesday, April 10, immediately before the time provided for Private Members' Business.

The House resumed from April 9 consideration of the motion 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.

[The Speaker, Geoff Regan]

The House will now proceed to the taking of the deferred recorded division on the motion at second reading stage of Bill S-215.

The question is on the motion. Shall I dispense?

[Some hon. members]

Agreed.

No.

[The Speaker, Geoff Regan]

[Chair read text of motion to House]