Status of Women Committee on June 10th, 2010

[The Chair, Liberal, Hedy Fry]

I don't know that we have a lot later. It's now 3:12 p.m. We're due to finish at 4 p.m. When they get a kick at the can, they're getting a fulsome response, and that's good.

Irene.

[Irene Mathyssen, NDP, London—Fanshawe, ON]

Thank you, Madam Chair.

And thank you to the witnesses for being here. I've appreciated everything you've said.

I want to go back and forth and pick up on some threads. When you said that the political focus should be on getting rid of all the discriminatory sections of the Indian Act, it set me back. While I know that the act has been very harmful, I wonder if you might take us through it in terms of those discriminatory sections and what we have to really focus on if we're going to understand the kinds of changes that we need to make.

[Prof. Mylène Jaccoud]

I'm neither a legal expert nor a specialist on the Indian Act, but the rules on descendance and belonging, which are still discriminatory, should definitely be amended as soon as possible. I prefer to let the aboriginal women's associations present their viewpoints to you. However, an effort should definitely be made to clean up the Indian Act. I also believe the clauses on heritage and land possession should also be examined.

In fact, I recommend that a group conduct a thorough examination of the Indian Act and really clean up everything the contravenes the good governance of the communities and their empowerment. I can't answer your question in detail, but it is absolutely relevant. I believe that has to be examined with the aboriginal people. It is indeed quite complicated. There are territorial rules, local powers, band councils. As we know, that's prescribed in the Indian Act. There are a lot of challenges to these forms of power, which should perhaps be rethought. A lot of work has to be done on the Indian Act.

[Marie-Pierre Bousquet]

I'd like to add a few comments. This act dates back to 1876 and was originally based on racial criteria. When it was introduced, a man, that man's children and, lastly, that man's lawful wife were Indians. That necessarily marked people because the act is characterized by patriarchal conceptions. In addition, it does not apply to all Indians. It only applies to those who are entered in the federal register, and that register, as its name indicates, is federal, that is to say that it is Ottawa that decides who is Indian and who is not. So that's the first problem. Belonging, recognition as an Indian depends, on a priority basis, on the services that the person receives from the federal government. The act also imposed a political system, the band council system, which was established in order to standardize politics, but also to establish the criteria for defining who would be the government's interlocutors.

Without going too far into the details, I will say that it is very hard to be a band chief. In fact, a band chief is simultaneously a kind of head of state, a negotiator for his nation, a federal programs administrator and a mayor. It's a very complicated task to try to perform these four functions at the same time. One or another should be selected. You can't be both administrator and negotiator, for example, to the same state from which you receive programs. It seems to me that, from a political point of view, something isn't working right. I conducted a number of interviews with chiefs who told me that they were in this system that they had to deal with and found it very hard to develop their own political initiatives because they no longer necessarily knew what their role was, since it didn't coincide with their conception of what a chief should be, based on what had been passed on to them historically.

As for the women, until 1985, as a result of the amendments made to the Indian Act by Bill C-31, an aboriginal woman who had married a non-aboriginal man lost her status. Starting in 1985, they were granted the right to retain their status. However, their children rely on a paragraph concerning an amendment made to the Indian Act under Bill C-31. They are classified as either type 1 or type 2, which I find abominable. I know some women who have told me that they are the daughter of so and so, but that, as they had married a non-aboriginal man, their children would not be aboriginal, whereas if they had married another one, they would be.

In a system of this kind, people define themselves under the act by means of a paragraph, which I find utterly terrible. I also know some aboriginal women who had a first aboriginal spouse with whom they had a child, then a second non-aboriginal spouse with whom they also had a child. As a result of the situation, one of their children would be able to pass on his status and the other not. And yet they have the same mother and were brought up the same way.

This is an aberration. Non-aboriginal women who married aboriginal men before 1985 became Indians under the act. In their case, their children don't depend on either a number or a paragraph in the act and can pass on their status without any problem. That's one of the fundamental discriminations. The amendments made to the Indian Act under Bill C-31 did not correct all the injustices of the act in question. This is only one example among many.

[Irene Mathyssen, NDP, London—Fanshawe, ON]

It's breathtaking when it's put that way, because we have a sense of self, that if we are part of a community and we belong there, then that community accepts us: we are just members of a community. To have someone from someplace else, out there in the east or somewhere, say “you belong” and “you don't” is bizarre. When it's put in just that way, it underscores how strange the Indian Act is.

This sense of aboriginal women's organizations being able to unravel this Gordian knot Is interesting, too. I've seen a great deal of the work from NWAC. It is incredibly complex, and I know they've truly put their minds to sorting this out and trying to do the overhaul you spoke of. But now they don't have the funding. They're laying off staff. It gets to be a very frustrating kind of situation.

I want to also ask about the impact of all of this on kids and youth. I taught at a high school, and we had aboriginal and non-aboriginal students. The aboriginal students came from outside the city, from a small community. When they arrived, they were doomed to failure, because it wasn't a good cultural fit. When hunting season came along or when community festivals came along, they didn't coincide with what was going on in the school, and so very often these kids were missing class, and no leeway was given for them; they were just marginalized.

I always worried about that, and it fits in with what you were talking about in terms of the justice system. I'm very concerned that the kind of punitive system we have in place is not going to suit the community, or it's not going to benefit these kids. They are being removed from their homes; they're being regarded as little criminals in the making. We're not doing what we need to do in regard to letting there be a system.

This is bizarre, our saying “letting there be a system” that suits this cultural reality for kids. I know that the suicide rate is horrendous, and I know that kids are being taken out of their cultural reality and transferred into care.

I wonder whether you could talk a little bit about the justice system, or the lack thereof, and youth criminal justice.

[Prof. Mylène Jaccoud]

I'd like to start answering that question by telling an eloquent little story. At one point, I conducted a field study for my doctoral thesis in Puvirnituq, an Inuit community in Hudson Bay. My thesis concerned the administration of criminal justice and included a historical component to understand how the Euro-Canadian justice system had been imposed on the Inuit, in particular. There was also a component concerning the land, in which I asked them for their views on the administration of justice.

I explained my subject by saying that it concerned the criminal justice system. One woman interrupted me by saying the words “criminal justice”. She asked me what criminal justice was. I explained to her that it was punitive justice, our penal system. She answered that that was funny because the words “justice” and “punishment” didn't go together. I asked her what she meant by that. She told me that, for them, justice means doing good; punishment means doing bad.

I've always remembered that. As a result of going into criminology, I have developed a critical and suspicious look at our way of doing things, which doesn't work any better in the south or in the non-aboriginal communities. We really have to reinvent our approaches to social problems.

I often say that when a problem event occurs, whether you call it a crime or an assault—regardless of the name given to it—the major problem is that a justice system will always consider it a transgression. There has been a transgression of a code. In fact, before that transgression, there are two things. There's often something that precedes a problem situation that will be characterized as a crime, so problems that precede that transgression. The transgression also creates consequences.

So if you want my opinion, a true justice system should focus upstream from the transgression. In fact, it is important to know why someone hits someone else on the head. We won't focus on the transgression, but rather on why it happened. Can we take action to prevent people from hitting each other and help people avoid doing that? The other thing is that hitting someone creates consequences. Can we address those consequences?

So a real system, whether we call it justice or something else, is a system that takes into account the people in the situation, and the transgression is ultimately secondary. I know it may shock some people to hear me say that, but the further I go into my work, the more I assert, and am very sure, that we have to get away from the idea of a transgression against social standards and deal with the people who are caught in these social problems in order to support them. So we have to develop a network of assistance and support.

Going back to the issue of violence in the aboriginal communities, having met a lot of people who were brought up within these dynamics, I can tell you that men and women need support. There's nothing worse than a justice system that, in any case, operates in a completely different manner. Marie-Pierre can give you a lot of examples, but, in my field, for example, the notion of guilt does not exist in the aboriginal languages. So how do you translate it in court? You ask whether the person did it or not; that's how you translate the notion of guilt.

So we have to completely change our ways of seeing things in order to reinforce the idea of accountability instead. For example, a person admits that he was involved in such and such an incident, that he was responsible for that, he admits it, and so on. People need support. They don't need to be sent to prison.

People obviously have to be protected. The problem is different in an urban environment, but, in the communities, there are in fact natural protection areas that can be used. There are very promising initiatives for taking charge of male assailants who have problems. The male assailants aren't very happy people. However, it takes courage, initiative and creativity, and we have to go off the beaten path.

In the third report I'm preparing, on the community of Kuujjuaq, I came across an idea that I very much like and that I want to share with you. This idea has been used a lot by the people who work in political science. They say the problem with institutional reforms that we try to make is that we suffer from path dependency syndrome. Pardon me, my English is terrible. This path dependency idea is very interesting. It means that, when we're in an institution or an organization—whether it be the justice system, politics or whatever—we are always, like a hamster, stuck on our wheel, and we think of reform not just in terms of the logic of our system, but also in terms of the history and path of our institution.

So we always adopt reforms consistent with that logic and we become dependent on our own organization and the weight of its history. What does that mean? We are all caught up in this path dependency: you, me, Ms. Bouquet and everyone. We're always on a pathway and we always think in terms of that pathway.

I'll give you the example of the research I conducted on Kuujjuaq, where I interviewed a person—

[The Chair, Liberal, Hedy Fry]

Madame, can you wrap up after this example?

[Irene Mathyssen, NDP, London—Fanshawe, ON]

Can I just ask to connect that to the violence that aboriginal women experience when they are incarcerated? We've been talking about the punitive nature of incarceration, yet 3% of the population is aboriginal and 25% of the female population in penitentiaries are aboriginal women. How did they get there? What happens to them? What on earth are we doing jailing them, incarcerating them, throwing them away?

Thank you, Madam Chair.

I just wondered if you could also add that on.

[The Chair, Liberal, Hedy Fry]

It's a form of violence.

[Prof. Mylène Jaccoud]

That's somewhat what I was emphasizing earlier.

In a community that experiences this dynamic of violence to a high degree, the categories of executioner and victim completely overlap. These women who find themselves incarcerated are above all victims of all kinds of things, of having experienced forms of institutionalization early in their lives, of having been placed, or being separated from their families and finding themselves in all kinds of situations.

We conducted a study on the paths of women who are incarcerated in order to try to understand their paths. Their path is mainly strewn with injuries. I believe that anyone who finds himself in that situation, your or I, might be capable of committing a violent crime, because that's part of this dynamic. Furthermore, many women wind up incarcerated because they went back to their spouse as well.

So, yes, it's terrible, and incarceration obviously resolves nothing. I think we have to draw on the idea of healing lodges, as is the case in the west. Of course, it's essential to consider that a woman who acts violently may need to be helped more than to be excluded from society. You don't learn to live in society by being excluded from it. That's the classic paradox of prison.

[The Chair, Liberal, Hedy Fry]

Thank you.

I'm sorry, did you have something to add?

Go ahead.

[Marie-Pierre Bousquet]

I'd like to emphasize something that has already been said, but that is along the same lines as the question. I want to emphasize the importance of addressing the problems comprehensively. I spent time with social workers in communities who told me they no longer knew where to start, because a “band-aid policy” is often pursued. Little band-aids are put on injuries, but the open wound is ultimately much too big. So the band-aids will never be enough to cover the entire wound. It will still be there.

When we talk about young people who enter this circle of violence—there are drugs and alcohol—it's related to the fact that they themselves have seen and experienced violence. We can't treat that in small stages, or else we waste a lot of energy. I remember doing a project in a community of 350 persons where we simply surveyed a number of health services programs. There were more than 25 programs. There were programs for virtually everything and anything. As a result, since the programs operated separately, a woman might have an appointment on Thursday from 10 to 11 o'clock if she had a child under one year of age, and in the afternoon if she had children from one to three years old. That's ridiculous because, in any case, they are the mothers and have a number of children, so there's no point in separating the groups. This is one example to show you that there should really be a much more comprehensive model.

I also realized, during a quite recent research project that I did on the passage to adulthood among young people, that those youths has assimilated a number of negative ideas about being aboriginal. In particular, they engaged in high-risk behaviour. They might think, for example, that if you're a young aboriginal and haven't had any drinking problems or serious problems, you're not as aboriginal as the others. There's a reproduction of violence as well, because they have assimilated the idea of the model they have known, that of the very tough guy who does stupid things. They often become aware of this around the age of 25 or 30 because they have really engaged in very high-risk behaviour and have nearly died. Sometimes there's an epiphany, but when that epiphany doesn't occur, there are cases that are not always surveyed as suicides, but that are suicides all the same. These young people have really done everything possible to die younger.

The entire problem of embodying negative images about being aboriginal is extremely serious, and I would say that addressing these problems in a comprehensive manner also means making aboriginal people proud of being aboriginal. I've seen young people crying during pow-wows, for example, because they thought it was beautiful; they were proud. They found it beautiful to see people dancing and taking charge of their lives. Often being a dancer at a pow-wow means supporting sobriety, healing, and so on. I've seen young people, little tough guys who never show their feelings, dissolve into tears because they were so proud to be aboriginal. That's really striking, when you see this pride in these young people. I remind them that I crossed the Atlantic to come and understand their cultures. Those cultures are worth it, they are interesting, their society is worth it, and they don't always know it. So that's also part of this dynamic and of violence they have known through their lives.

[The Chair, Liberal, Hedy Fry]

Thank you.

Given the time, I'm going to have to move on.

Julie, did you want to ask something?

[Julie Cool]

I simply wanted to follow up on the subject of the courts specializing in domestic violence. I wonder whether there are any. When we went to Iqaluit, the people told us that the Criminal Code was developed for southern communities and that it applies very poorly to them. We also heard about the RCMP that has to lay charges, and that creates divisions in the communities, especially those where the RCMP is the only police force in place.

Are there any alternatives, and, if so, can you give us any examples?

[Prof. Mylène Jaccoud]

There are some. I believe the west is ahead of here—we're very far behind. What I find particularly interesting in the specialized courts is that they're called the problem-solving courts. That's been developed to a great extent in the United States. They talk about community courts, problem-solving courts, specialized courts; there are a number of names.

The principle is really interesting. These are initiatives in which there is a higher degree of formal intervention than an alternative to prosecution—let's say it that way—but in which the role of the judge is changed so as to take a more balanced look at the social problem than as a transgression or the idea of an offence.

The problem-solving courts operate differently from one region to another. Some are very oriented toward the punitive aspect, whereas others are oriented more toward therapeutic care. The judge changes in a way—as is the case in France—and becomes a sentence executor, where the sentence is in effect suspended. In addition, people dealing with problems are monitored very closely. They regularly go before the judge to testify, for example, about the progress they are making on their detox program.

This is a promising initiative that has not yet been introduced in Quebec. I believe there is some talk of establishing a problem-solving court in Montreal. I think it's a kind of initiative that should be put in place in the aboriginal communities. Of course, an evaluation would have to be... It's true that is causing dissent in the communities. The positions on alternatives aren't the same. In Quebec, for example, there are about 15 justice committees, but not all of them function as well as that. Sometimes they may be a bit too much in the pay of the courts. They act as sentence executors.

I think we have to try to intervene more upstream. There are some promising initiatives, such as the healing circles. The one in Hollow Water, Manitoba, is an example of an initiative where there is a genuine partnership between the community of Hollow Water, the healing circle, the RCMP, the courts and the prosecutors. You have to have the courage to say that you're suspending charges to permit more suitable initiatives. Hollow Water is a good example of a community that has taken charge of itself.

[The Chair, Liberal, Hedy Fry]

We have 20 minutes left, and I have a few people. But we're going to have to cut this off, so what I'm going to have to ask is that you please ask very short questions, and if we could, please make very short answers.

Ms. Simson and Ms. Brown are next.

We'll hear Ms. Simson quickly and Ms. Brown.

[Michelle Simson, Liberal, Scarborough Southwest, ON]

I got on the list to ask a question on a totally unrelated topic, but this has got my attention, about the justice system or having courts that you know really will do the job for the aboriginal community.

Were you referring strictly to justice when it's on reserve, or would it include off reserve as well?

[Prof. Mylène Jaccoud]

Yes, absolutely. I think that the problem-solving courts—

[Michelle Simson, Liberal, Scarborough Southwest, ON]

Do you mean off reserve too?

[Prof. Mylène Jaccoud]

Yes, absolutely.

[Michelle Simson, Liberal, Scarborough Southwest, ON]

I just want to ask a question, and it isn't accusatory.

Canada has been very accommodating in a multicultural fashion. If we were to institute something like this, which by the way I don't disagree with, how do you balance that against communities?

Coming from Ontario, for instance, we put up a fierce battle against instituting sharia law, another justice system for another group, and won. Once you introduce something like that for the aboriginal community.... It's just a question, because I think it's a great idea about the aboriginals, but I guess part of me has this fear that once you open that door, if it wasn't related to the reserve and was available province-wide, then it would reopen this door for sharia law, which a lot of women were fiercely.... It wasn't going to advance the cause, at least in Ontario. We were literally two days away from the attorney general coming in and saying that it was going to happen.

I don't know if you have a comment on that.

[Marie-Pierre Bousquet]

In Canada, aboriginal people were the first inhabitants. I especially don't want to get into victimization, but we have a debt toward the aboriginal people. That's undeniable. Depending how the statistics are prepared, they say that approximately 3% of the Canadian population is aboriginal. Showing a little more humanity toward that modest 3% of the Canadian population is a necessity.

It should not be forgotten that Canada's aboriginal women are the most vulnerable individuals. We therefore have a duty. We aren't creating special cases. We really have a duty of memory. We also have a duty to realize that this is a minor national scandal. In a country as developed as ours, aboriginal people too often live in third-world conditions.

Even if this doesn't necessarily make sense for everyone—in any case, it does for me—I really believe that we must not forget that these were the first peoples of Canada. These women, more than the others, need us. They need justice. They need us to help them get rid of this violence. When I think of them, I also think of their spouses and those in their circle. In my view, this is really a social duty.

[Prof. Mylène Jaccoud]

I'd like to clarify one point. When I refer to problem-solving courts, I'm not talking about aboriginal courts. I'm really talking about an approach that may or may not be applied within the aboriginal communities. It's a completely different approach, one that is focused on conflict resolution, problem-solving. That's what I meant by problem-solving courts.

Incidentally, I'd like to say that, if we wanted to humanize our society, aboriginal cultures would have a lot to teach us from their traditions about solving social problems.

So I don't have a lot of fears about the advent of aboriginal justice systems. I believe they are much more humanistic systems than our own. I really invite you to go and see how justice is administered in the aboriginal communities.

[The Chair, Liberal, Hedy Fry]

I'm sorry, this is carrying on a bit.

Ms. Brown, and anybody else who wants a quick....

[Lois Brown, Conservative, Newmarket—Aurora, ON]

I'll keep my question very short.

Madam Jaccoud, you talked earlier, in prevention, about female leadership being important. I wonder if you could talk a little bit more about that. You talked about access to key positions and women's roles in the community. Could you expand on that a little bit?

One other question, just to go along, because I think it fits in very well....

Our government has brought forward legislation to extend status for children when a grandmother has lost her status because of marrying a non-Indian man. We have brought in legislation that is going to extend status to those grandchildren in the same way that a grandfather can extend it if he has married a non-aboriginal woman.

Can you talk about the leadership, and do you see this working well within the community?