Speaking notes from “Missing and Murdered Women: What can the law do?” panel at the Law Union of Ontario Annual Conference (March 2014).[1]

From an Indigenous Feminist approach, my perspectives are informed by my experiences in politics as the VP women’s representative for Aboriginal People’s Commission with the Liberal Party of Canada. During this term, I drafted a resolution which was adopted unanimously by the party at their last convention. A previous resolution was drafted by the National Women’s Liberal Commission which assumed violence only occurs in the home and that violence is a private issue that happens only to mothers and their children which is problematic in and of itself. What about single Indigenous women with no kids, like myself? The current government also assumes that Indigenous women are the most vulnerable in Canadian society. Yet, Sherene Razack (1998) argues that feminism needs to question how their responses are complicit in maintaining systems of domination. One such system of domination includes colonialism. Further, Razack (1998) highlights the problems with focusing on the vulnerability of women instead of the systems of domination that increase this vulnerability. Mainstream (white) feminists often label indigenous women as the most vulnerable and their movements usually call for increased policing. Yet, at the same time, mainstream feminism often ignores how these efforts indirectly criminalize Indigenous women. Also, Cynthia Enloe and Carol Cohn highlights that “Feminists have taught us to be very, very careful before we adopt a response to grief, loss, and anger that is a state response, especially a militarized state response” (p. 1204). This article also argued that “we (women) should be on high alert; they’ll (the state) put it (gender issues/women’s issues) back on the shelf just as soon as it no longer serves their longer-range purpose” (p. 1203)[2]— this informs my critique in using a state response to the MMIW issue. The state will use the MMIW issue until it no longer serves their longer range purposes–wherein history has informed us that Indigenous peoples are not supposed to be here…the systems are designed to do exactly what they are designed to do–to get rid of the Indian problem. The state assumes that violence only occurs in the home (domestic violence). This is evident with the pro-arrest policies of the 1980s which were advocated heavily for by feminist organizations and research has shown that it had the opposite effect in protecting women from violence.[3] The policies actually increased the criminalization of women (and from my experience, criminalized Indigenous women)

There are contradictions present in these reports by the government – we (Indigenous women) are vulnerable yet still delinquent, and that society needs to be protected from and they need to be protected from their own communities/homes but that they don’t require protection themselves; that perpetrators take advantage of this vulnerability; the state takes advantage of this vulnerability (by not naming the heart of the issue: colonialism) and by ignoring the fact that the state is complicit in this violence.

The report, “Invisible Women: A call to action”[4] is indicative of who gets to be heard and who is silenced. Also, the Invisible Women report only names residential schools, poverty, homelessness, racism, failure of services, jurisdictional barriers – but it doesn’t name colonialism. The report names “lack of continuous police presence” as a challenge to protecting victims; yet, sometimes Indigenous women face violence at the hands of police. Increased policing does not equal increased protection. The fact that the Indian Act was enacted before the Criminal Code of Canada (CCC) is demonstrative of the logically pathway to criminalization of Indigenous peoples. For instance, the definition of a gang is 3 or more people gathering/organizing to commit crime. This definition was adopted first by the Indian Act but explicitly used the words “Indians” in place of gang. When it comes to Indigenous sex workers, their criminalization is heightened through the CCC and the history of these laws show us that they originated in the Indian Act. One of the recommendations in the report was to collect ethnicity variable for violence against Aboriginal women—funny thing is the police already do this but only when they are criminalized. The report also recommended that the state protect Indigenous women against violence in prostitution when Chief Justice already said in her decision,

“The prohibitions at issue do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky – but legal – activity from taking steps to protect themselves from the risk.” (para 60)[5]

The report that Peter Mackay threw on the ground just outlined all the accomplishments–for lack of a better word– by the Conservative government–including the enactment of The Truth in Sentencing Act and The Safe Streets Act, and increasing “offender accountability” just to name a few.[6] This outlines the contradictions with how the government treats Indigenous issues, and the safety of Indigenous people, including Indigenous women—it says the state needs to increase policing powers, create mandatory sentencing, create limits for granting credit for time served–all of which increases criminalization and prison population.

The prison is the new residential school.

We need to take into consideration how justice looks and feels to various communities. Justice for one community may not be calling an inquiry when for another community they would like to push harder for that inquiry. We also need to look at how the government, conservative or not, has treated previous reports and inquiries. Yes, the Missing Women Inquiry was conducted to address the missing and murdered women in Vancouver’s downtown east side but it told us that the lack of response from police.[7] The Invisible women report also stated the same thing. The inquiry may take a long time to begin and to end. It may not be satisfactory to some and they will still demand justice. Specifically, the national inquiry is set up formally and its jurisdiction is established by legislation (we already know how legislation plays out in favour of Indigenous peeps—NOT); its set duration established in terms of reference (ToR). This means that the inquiry “can be short, medium or long” (oh the excitement!). The inquiry can be headed by one or more Commissioners (with legal and supporting staff hired). It is often open to public including documents, process, hearings, and final report may be posted on the internet (kind of like this 150+ page document here). Some organizations like to say that the inquiry’s relationship to the government is independent but this is contradictory in itself because it is established by the government–because it really isn’t independent. The costs can be high (for all the bullshit reasons that we need an inquiry in the first place). The structure is dependent on the ToR, the process is dependent on the ToR, and the activities include “generally intended to advise or investigate” and “may call subject matter experts, witnesses, etc.” This is where only certain voices and bodies matter to the inquiry. Just think about who is going to be called to be a witness and who isn’t? What differential power relations are at play here? Where will the hearings be held? How will the witnesses be able to get there? As for the big kicker, future actions? These are at the discretion of the governments that established the inquiry (which won’t be done by Harper I will tell you that much and that includes if the government who established the inquiry remains in power after the inquiry is over). Additionally, participation is only granted by Commissioner at hearings and maybe, just maybe written submissions may be accepted (probably in English, which ultimately views Indigenous languages as inferior—you know the usual). Oh, but don’t forget, all of this is non-binding (translation: the government can do what it has done before in other inquiries, ignore it).[8]

 

But what does justice look like?  A lot of people support restorative justice responses but we need to also look into the issues with restorative justice. A response to the inadequacy to restorative justice is transformative justice approaches. Andrea Smith, on her blog writes, “Hence the ‘transformative’ justice model builds on restorative justice to hold that our goal is not to restore a community to a state that was structure by oppression but to create and transform communities so that are less oppressive.  In addition, whereas restorative justice models generally operate through the state through sentence diversion programs, etc – transformative justice models operate outside the legal system all together.” which advocate, as Smith highlights, for community based responses. Relying on police presence or policing initiatives may have the opposite response–like criminalization of victims themselves especially in domestic violence cases. One suggestion listed by Smith in her list of transformative justice strategies is creating a neighbourhood check in program as opposed to a neighbourhood watch program–this shows that everyone is connected to the community and builds positive relationships as opposed to the neighbourhood watch approach which assumes everyone you don’t know or who looks suspicious is an offender.

REFERENCES

Razack, S. (1998). “From Pity to Respect: The Ableist Gaze and the Politics of Rescue.”Looking White People in the Eye: Gender, Race, and Culture in Courtrooms and Classrooms,” 130-156. Toronto: University of Toronto Press.

Cohn, C. and Enloe, C. (2003). “A Conversation with Cynthia Enloe: Feminists Look at Masculinity and the Men who Wage War.” Signs, 28(4): 1187-1207.

[1]Speaking notes edited for blog post—not exact words as spoken in the video https://www.youtube.com/watch?v=E8JBhYStfkc

[2]Text in brackets not in original quote and added for clarification

[3]http://socialsciences.uottawa.ca/sites/default/files/public/research/eng/documents/HJohnson_WorldIdeas.pdf.

[4] http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=6469851&Language=E&Mode=1&Parl=41&Ses=2

[5] http://www.pivotlegal.org/canada_v_bedford_a_synopsis_of_the_supreme_court_of_canada_ruling

[6] http://www.justice.gc.ca/eng/news-nouv/nr-cp/2013/doc_32844.html

[7] http://www.missingwomeninquiry.ca/

[8]The above information is taken from a previous blog post entitled “So you want a national inquiry?” and the source of the information is taken from NWAC—an organization who aggressively advocates for an inquiry AND also for the criminalization of the sex trade.