Doing/Undoing Justice: Violence Through Colonial Law

The first protest that I went to was for Cindy Gladue, calling for an appeal to the not-guilty jury verdict against Bradley Barton. I knew two days before that the Crown was going to appeal—two days before the Crown decided to make a public announcement on the same day the nation-wide protests took place, and two days before the rest of Canada.[1]

The headlines that followed the announcement of the not-guilty jury verdict attempted to paint Cindy as more than just another dead Indigenous sex worker. One Globe and Mail headline reads, “More than a tragic headline: Cindy Gladue dreamt of a happy life.”[2] This is important to highlight because the assumption that follows with Indigenous sex workers is that the majority are women who live sad, poor, deplorable realities.[3] However, courts still continue to position women like Cindy Gladue as consenting to the violence they experience.[4] Positioning these women as consenting to violence raises questions surrounding who is seen as a worth/unworthy victim and who is deserving of justice, defined by the criminal justice system.[5]

Struggling, I sit in anger while I write this paper, a paper that aims to have a practical aspect to it: recommendations to help Judges, Crowns and Defence Lawyers when a case involving a Missing or Murdered Indigenous Woman, Girl or Two-spirit Person (MMIWG2S) case comes across their desk. The irony, however, is that I am not entirely convinced that recommendations will help much. For these recommendations to be helpful, that would suggest that police are actively investigating MMIWG2S files and that Crown Attorneys are vigorously prosecuting these cases. In creating these recommendations, this would also mean that I support the continued policing of communities where Indigenous women live and work.

Sherene Razack writes about Pamela George, another Indigenous sex trade worker[6] murdered by two young white men in her seminal piece, “Gendered Racial Violence and Spatialized Justice: The Murder of Pamela George.”[7] Razack outlines that the aggressors went looking for Pamela or a woman like her—living and working on the streets of Regina, Saskatchewan.[8] The first Indigenous woman that the men initially approached declined to get into their car, not once but twice; this first woman knew that there were two men in the car.[9] To be blunt, however, Razack fails to engage in a discussion why it is harmful for any sex worker to get into a car with more than one person, assuming that the violence prostitutes experience cannot be mitigated through screening or working in pairs.[10]

After the first woman declined to get inside the car, the men drove away from the street, agreed to have one climb into the trunk and then proceeded to search for a woman willing enough to climb into their car to service them.[11] The next woman these men found was Pamela.[12]

Razack contends that her intention in the essay is to write about the trial as spatialized justice and the murder as “gendered racial or colonial violence.”[13] Though Razack asserts that the law conspires with “settler violence”[14], she does the exact opposite of spatialized justice: she ignores how laws allow the violence against Indigenous women who sell and trade sex to persist. Explicitly, Razack is quick to acknowledge the way law colludes with white settler colonialism to allow violence to take place, but she is just as fast to ignore the continued criminalization of Pamela and other women like Pamela.[15] In fact, even more disconcerting, Razack acknowledges the over-policing and over-incarceration of Indigenous communities and Indigenous peoples but blatantly ignores the continued criminalization of prostitution.

Thus, I make it clear at the outset: I do not support a system which continues to criminalize Indigenous, Brown and Black bodies, especially with an ever increasing Indigenous women prison population.[16] In particular, I reject the idea that criminalization of prostitution including both the buyer and seller will overcome colonial and gendered racialized violence. With my hesitation to believe that the criminal justice system can respond to the targeted violence that Indigenous sex trade workers continue to experience and my reluctance to rely on the prison system to remedy such violence in mind, I assert that it is the continued reliance on the colonial law, a law that is created by a nation-state which acts as a seemingly neutral arbiter in remedying targeted violence, that allows the courts to continuously deny justice for MMIWG2S.

The problem is no longer one of trying to have MMIWG2S recognized; rather, the problem is the hyper-visibility of MMIWG2S that reveals the worth/unworthy victim narrative.[17] It is through relying on colonial law to remedy the violence that Indigenous women, especially Indigenous women in the sex trade, experience:

  • That causes the erasure of violence committed through colonial law, including through categorization of worth/unworthy victims of violence, where unworthy victims mean they either consented to the violence or they deserved the violence;
  • That limits the possibilities of Indigenous legal traditions (ILTs) to respond to the violence that Indigenous women, especially those who sell and trade sex, including through ILTs potential to erase and ignore the violence that these women experience through ILTs’ construction of Indigenous women and girls; and
  • That ignores our responsibility to end targeted violence.

While I acknowledge the limitations of relying on colonial law and its processes, like the criminal justice system, I also realize that this is a system which people and communities will come into contact with. It is through this realization that I decided to make these recommendations for Judges, Crown Attorneys and Defence lawyers. These recommendations will be informed by a responsibilities-oriented approach, as proposed by Patricia Monture and later expanded upon by Dr. Sarah Hunt, and through an Indigenous feminist legal theory (IFLT) lens.

Additionally, throughout this paper, I will engage in an autoethnographic method through the IFLT lens to interrogate the history of criminalizing Indigenous women’s bodies and sexualities through the Indian Act, RSC 1985 c I-5 (Indian Act) and now through the Criminal Code, RSC 1985, c C-46 (Criminal Code). Using this autoethnographic method, I adopt an anti-colonial and anti-racist inquiry method with a particular eye to Indigenous sex trade workers’ realities to address so-called anti-violence narratives in the dominant discourse surrounding MMIWG2S. The autoethnographic method is a way to resist dominant discourses, especially surrounding the realities of Indigenous sex trade workers.[18] The reality of Indigenous sex trade workers is outlined by Justice Cromwell in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society (SWUAV), 2012 SCC 45, [2012] 2 SCR 524:

[Members of SWUAV] feared loss of privacy and safety and increased violence by clients. Also, their spouses, friends, family members and/or members of their community may not know that they are or were involved in sex work or that they are or were drug users. They have children that they fear will be removed by child protection authorities.  Finally, bringing such challenge, they fear, may limit their current or future education or employment opportunities.[19]

Many Indigenous sex trade workers experience fear of limited current or future education or employment opportunities coupled with loss of privacy and safety, and particularly, a fear of police harassment especially when their sex trade identities are linked to their real identities via criminalization and harassment from the general public. I am also targeted by increased surveillance and police intimidation when I speak out about my experiences in the sex trade.[20] It is through this targeted violence against Indigenous sex trade workers and through silencing that I write; I speak back to these instances of violence (i.e., criminalization and harassment against all Indigenous sex trade workers) and efforts to silence me via police intimidation. Calanit Tsalach writes about this speaking back as unsettling this silence and silencing.[21] Autoethnography is then about “breaking the dichotomy between those who are silent and those who silence them.”[22] Thus, in this context of silencing and violence, I seek to highlight the fact that I attend a law school that previously hosted purported private consultations on the upcoming Federal Missing and Murdered Indigenous Women and Girls Inquiry (the Inquiry), attended mostly by abolitionist-leaning feminists and hosted by a mainstream Native women’s organization that continues to support the criminalization of prostitution.[23]

Indigenous Feminist Legal Theory

An Indigenous feminist legal theory (IFLT) adopts a critical perspective of mainstream feminist legal theory, Indigenous feminism and Indigenous legal theory (ILTs).[24] An IFLT is also informed by these three areas of theorizing; however, these theories create a gap through a failure to critically engage with each other.[25]

For instance, Indigenous feminist theory ignores ILTs and in particular, fails to critique the foundation of ILTs, while only critiquing colonial law.[26] Then, mainstream feminist legal theory ignores Indigenous feminism and assumes that state law is the only valid law worthy of critique.[27] Meanwhile, Indigenous legal theories take “perfectly balanced gender roles”[28] between men and women in Indigenous communities as a given, re-producing gender powered dynamics and essentializing Indigenous women’s roles and responsibilities.[29]

The failures with all three schools of thought to critically engage with each other can be seen in the published report following the private Inquiry consultation meetings at the University of Ottawa’s Faculty of Law. The report following these consultations called for the Inquiry to adopt an Indigenous feminist perspective with a focus on Indigenous legal traditions. Yet, the problems with adopting an Indigenous feminist perspective without questioning what kind of Indigenous feminism remain especially in the context of Indigenous women who sell and trade sex.[30] The report reads, “The inquiry is an opportunity to play a part in this rebuilding process by creating a venue that takes the role and practice of Indigenous law seriously, and where Indigenous knowledge, Indigenous feminism and feminist legal theories, Indigenous legal and critical theories are central.”[31] The report, however, fails to acknowledge the gap between all three theories by assuming that all three theories engage in the same conversations surrounding violence against Indigenous women and girls.

In researching for this paper, I also talked to several Indigenous women, my mother, an academic, an activist, a current sex worker and a filmmaker.[32] I asked for their thoughts on the role that law plays in shaping how society views Indigenous women who sell and trade sex. Alternatively, I also asked for their thoughts on the role society plays in shaping how laws treat and respond to Indigenous women who sell and trade sex. Their answers gave me chills.

All but two of the women met at a gathering to support Indigenous sex trade workers and their right to self-determination. Yet, their answers remained the same: there is a gap between the law and its inability to respond to the realities of Indigenous women, especially those who sell and trade sex. In adopting an IFLT, this paper will seek to fill this gap that IFLT negotiates between Indigenous feminist, mainstream feminist legal and Indigenous legal theories, as well as this gap that all women mentioned in their interviews.

Responsibilities-Oriented Approach

Patricia Monture’s paper on the erasure of Indigenous women from mainstream anti-violence efforts first introduced me to the concept of a responsibilities-oriented approach in discussions on mainstream feminism and Indigenous women.[33] Unfortunately, I am saddened in how Monture accepts that pornography, and most likely prostitution, is the meaning of violence.[34] It is through my own work and through Monture’s work that I have come to an understanding that colonial law is violence; however, it is through the limitations of Monture’s work that I sought out other Indigenous scholars wanting more.

Dr. Sarah Hunt, in her investigation of law, violence and space, outlines the possibilities of a reciprocal responsibility, expanding on Monture’s work on responsibilities-oriented approaches.[35] Dr. Hunt talks about responsibility as a law of relationships and through these relationships, it is how Indigenous legal traditions create reciprocal responsibilities, always returning to the relationship with the land.[36]

In talking about these reciprocal responsibilities, Dr. Hunt acknowledges her responsibility as a witness to violence in her communities, especially against Indigenous women.[37] For Dr. Hunt, in citing Monture, these responsibilities are both individual and collective.[38] Dr. Hunt posits that it is through “intimate networks” [39] that Indigenous law exists. These intimate networks are linked back to communities and then, the intimate networks become possible through the closeness in the implementation of Indigenous law as reciprocal responsibilities.[40] In contrast to Western legal orders (WLOs), WLOs are implemented and interpreted by individuals who appear to be neutral and objective. In reality, however, the WLOs, especially in the criminal justice system, help maintain the colonial power and sustain the violence of colonial law.[41] Dr. Hunt advances the notion that violence “is not always inherent to law, but is culturally specific to Western legal orders.”[42] I adopt this same perspective especially in the history of criminalizing prostitution.

In the end, through an autoethnographic method, it is my responsibility as someone who occupies a privileged space in a law school atmosphere to carry the stories that other Indigenous women who sell and trade sex share with me. I use this privilege to honour these stories in a system that is designed to dismiss and silence these stories, as evidenced during the private consultation held on campus.[43] I also ground my work in Dr. Hunt’s “sex workers as my relations” where she talks about the continued silencing and marginalization of people working in the sex trade.[44] In a brutal recognition of how the violence sex trade workers experience is taken up in anti-violence movements, it is when these sex trade workers are murdered or are reported missing (if they are ever reported at all) that the dominant anti-violence and abolitionist feminists care about sex trade workers’ lives.[45]

This disconnect between acknowledging the violence that Indigenous sex trade workers experience through criminalization and stigma, and MMIWG2S discourse is rarely questioned in dominant narratives about MMIWG2S. Yet, when dominant narratives do acknowledge this disconnect, the only voices heard are the voices that align with victim or survivor narratives.[46] Dr. Hunt also wants to move away from these victim-centred or damaged-centred narratives which serve to satisfy outsiders’ fantasies about violence against Indigenous women and girls.[47] In framing her work, Dr. Hunt states that a discussion about law and violence is not “just about victimization.”[48] Discussions surrounding Indigenous women in the sex trade position Indigenous women as victims. This paper rejects this victim label because of the harm that victim narratives create.[49]

In refusing to focus solely on victimization, Dr. Hunt is cautious in reproducing a discourse that simply replicates the “fantasies that outsiders”[50] have about Indigenous communities. These fantasies replicate colonial power dynamics over Indigenous communities, where outsiders view Indigenous communities only in an oppressed state as opposed to exercising agency. Dr. Hunt refers to the replication of colonial power dynamics with Indigenous communities as creating colonial categories or categorization.[51] Specifically, these narratives fetishize the violence Indigenous women and girls experience. Thus, I also reject this focus on violence existing at an individual level; rather, I focus on the broader violence that both colonial law and Indigenous law creates in the lives of Indigenous sex trade workers.

Rejecting the Prison Industrial Complex as a way to Re-Imagine Indigenous Legal Orders

As noted earlier, I do not support a system which continues to criminalize Indigenous, Brown and Black bodies, especially an ever increasing number of Indigenous women. As someone who has been in prison and who has traded and sold sex, I believe that social justice lawyering must demand more from legal remedies. These remedies must move beyond supporting a colonial system which benefits from imprisoning Indigenous people and these remedies must respond to the realities of Indigenous sex trade workers who experience criminalization in their everyday lives.

In discussions calling for the abolition of prostitution, there is also a conflation of slavery with prostitution. While slavery exists and prostitution can turn into exploitative situations, to suggest that the two are one in the same ignores the history of slavery in Canada. More importantly, this conflation ignores real instances of slavery.

Afua Cooper, in The Hanging of Angelique: The Untold Story of Canadian Slavery and the Burning of Old Montreal, provides for a definition of slavery in a Canadian context,

A useful definition of slavery is the robbery of one’s freedom and labour by another, usually a more powerful person. Violence and coercion are used to carry out the theft and to keep the slave captive in the condition of bondage and servitude. This definition applies to slavery in Canada. Laws were enacted and institutions created to rob persons of their freedom and labour and keep them in perpetual servitude. In the earliest era of colonial rule in Canada, both Aboriginal people and Africans and their descendants were enslaved (Aboriginal slaves were colloquially termed ‘Panis’). From 1428 to 1833, slavery was a legal and acceptable institution in both French and British Canada was vigorously practised (emphasis added).[52]

This paper acknowledges that while some people can experience violence and coercion in the context of prostitution, other people will inevitable have to make a decision to engage in a form of labour viewed as inherently violent: prostitution. However, erasing the kind of violence that law creates in the lives of sex trade workers, especially Indigenous sex trade workers, creates the kind of gendered racial and colonial violence that scholars like Razack sought to unsettle. Yet, it is these scholars that contribute to this erasure of violence through claims that prostitution is inherently violent or prostitution is the modern-day slavery.

If we take Cooper’s definition of slavery and position it in a Canadian context, the claims that prostitution is inherently violent or prostitution is the modern-day slavery fail completely. It is the Canadian government that abolished slavery through legislation in 1833[53], created the first prison in 1835[54], but continued and continues to criminalize prostitution by enacting laws and creating institutions (i.e, large scale anti-human trafficking initiatives where victims are not necessarily being protected).[55] It is through these laws that violence and coercion is carried out as remedies to respond to violence and coercion.[56] The circle never ends: laws are created to respond to violence and coercion but the laws carry out more violence and coercion.

Erasure of Violence Committed Through Colonial Law

Dr. Hunt, in citing the Native Youth Sexual Health Network and the First Nations Child & Family Caring Society of Canada, outlines the need for a “re-definition of violence.”[57] This re-definition of violence includes acknowledging the “systems that ignore Indigenous specific approaches.”[58] While Dr. Hunt distinguishes her calls to talk about the connection between physical and state violence from Monture’s calls to talk about gendered violence as a political priority, I expand on Dr. Hunt’s reluctance to focus on specific forms of violence.[59] In this same breath, I take Monture’s calls to talk about gendered violence as a political priority, expanded the discussion of violence to more than just gendered violence, and keep the following questions in the background: What kind of violence matters and what kind of women who experience violence matters in these priorities?

Type of Violence Analysis
Racialized Violence

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Yvonne Boyer’s essay titled “First Nations Women’s Contributions to Culture and Community through Canadian Law” first introduced me to the history of criminalizing prostitution through the Indian Act. It is through this history that I position history of criminalizing prostitution as racialized violence.

Canada enacted its first prostitutions provisions in 1839.[60] However, the influence of these initial pieces of legislation originates from Britain.[61] Following this legislation in 1839, Canada amended the Indian Act in 1879, 1880, 1884 and 1887.[62] With each amendment, there was a presumption that anyone providing housing to Indigenous women also allowed the Indigenous women to prostitute herself regardless of any evidence or lack of evidence that she was prostituting herself.[63] Also, if any Indigenous woman was found in a disorderly house, the house owner or woman was liable for punishment. Later, it was assumed “disorderly houses” [64] were also bawdy houses.

There were punishments attached to the provisions which ranged from fines to imprisonment. However, given that Indigenous women had limited economic freedom, I suspect many Indigenous women were unable to pay these fines.[65] By the time these provisions were implemented into the Criminal Code, the criminalization increased, from summary convictions to indictable offences.[66] The Criminal Code also combined previous all previous Acts which criminalized “vagrants”, and Indigenous women and Indigenous men.[67]

Gendered Violence

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The calls to abolish prostitution tend to focus solely on male violence that Indigenous women in the sex trade experience, as if this focus on male violence is new.[68] The focus of criminalizing prostitution has always been on Indigenous women, either implicitly or explicitly.[69]

Previous feminist interventions regarding the criminalization of women through prostitution provisions only addressed the category of women but not Indigenous women.[70] Again, these are the limitations of mainstream feminism regarding Indigenous women. While one can argue that the centering of Indigenous women in recent years in the call for abolishing prostitution has improved, the centering of Indigenous women does not address the fact that Indigenous women still continue to experience the violence of colonial law in their everyday lives. Further, when calls for abolishing prostitution through criminalization dominate the discourse surrounding violence against women, especially Indigenous women, there is an erasure of the violence that Indigenous sex trade workers experience through criminalization of prostitution.[71] When the colonial law adopts the view “all prostitution is inherently violent”[72], this kind of narrative reduces the ways violence manifest itself in the lives of Indigenous women in the sex trade to one type of violence: individual male violence.[73]

These calls to abolish prostitution through criminalization also create the categories of worth/unworthy victims of violence.[74] The criminalization masks the ways in which the criminal justice system creates the categories that Indigenous women who sell and trade sex must occupy in order to be credible or believable.

When I interviewed an Indigenous police officer for this paper, he expressed similar concerns regarding the credibility or believability of Indigenous women who sell and trade sex and related this concern to “safety.”[75]

I asked the police officer (D.A.) what he meant by “safety” when he continuously mentioned that for his interactions with sex workers, “it is about safety.” When he responded to my question, he talked about the rest of society’s reasoning that when the transaction happens, “she is getting paid for it and she deserves it.” In his policing, he aimed to stop that violence, to enforce safety. Yet, it is the criminal laws that force these women to work alone or isolated areas.[76] Then, when I asked him about whether colonial laws influence how court room or legal players respond to the violence that Indigenous sex trade workers experience, he said, “For me that goes into credibility.  If they have been labelled as a sex worker, that reduces their credibility and the defence counsel will take that into their list of conditions if they are testifying.” In other words, the fact that an Indigenous woman is a sex worker, the defence lawyer will use that fact to undermine the violence that happened to her.

I witnessed this creation of a worth/unworthy victim when I reached out to the defence lawyer in the Cindy Gladue case, requesting access to the transcripts. The defence lawyer proclaimed that because Cindy went to see Barton not once but twice, walked to the room, negotiated the fee for sex, undressed herself and appeared to be enjoying sex both times, Cindy consented. These assertions also appear in the instruction to the jury.[77] However, when D.A. and I discussed the case, he replied, “I don’t know the full circumstances of the case but […] if you put in the exchange of money, I don’t think that gives consent to sexual assault.” While these are adequate statements regarding consent and the law, reducing these interactions down to whether someone said yes or no erases how the criminal justice system painted Cindy Gladue as someone deserving of the gendered violence. Referring back to Razack’s piece on spatialized justice, it is these same people who prey on Indigenous women who sell and trade sex that think these same women deserve the harm done to them; in other words, these killers and predators are doing justice. The criminal justice system just neutralizes and erases this kind of doing justice.

Economic Violence

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

When discussing the intimate surveillance of Indigenous women’s sexualities, Robin Jarvis Brownlie reveals the true intention of criminalizing prostitution.[78] Brownlie examines the notes of Indian Agents in the Manitoulin Island and Parry Sound area.[79] Throughout this examination, Brownlie uncovers how Indian Agents “enforced” laws against Indigenous women and their sexuality especially when Indigenous women did not follow Eurocentric ideals about sexuality (i.e., monogamous relationships).[80] The unveiling of these histories indicates that these laws and policies attached to the laws were meant to restrict Indigenous women’s “access to money and resources.”[81]

When I asked Colleen Cardinal, a family member of a murdered Indigenous woman, about how the law influences the treatment of Indigenous women who sell and trade sex, Colleen stated, “It’s a punishing law for making your own money.” She continued, “It’s a saviour type law which says we are protecting you from assault, murder, drugs, or trafficking but we are punishing you and we are hoping you would end that lifestyle and save yourselves; exiting is considered ‘good behaviour.’” Sex workers who refuse to access exiting services or who refuse to exit are engaging in bad behaviour and arguably, the violence they experience is expected. Colleen then described how all the supports for Indigenous women are going to supporting exiting or punishing Indigenous women who refuse to exit.[82] Creation of large networks of funding to end prostitution or face punishment can be likened to Cooper’s definition of slavery: laws are enacted and institutions are created to keep Indigenous sex trade workers in perpetual servitude, usually by a more powerful person.

Further, when one investigates what help actually means for sex trade workers, it gives them an ultimatum: either attend this diversion program or face criminalization.[83] In the end, the sex trade worker still lives with a criminal record.[84] Even more the point, if Indigenous women who sell and trade sex, as asserted by Razack, live and work in over-policed areas, then the laws still fail to address the harms that it creates, like pushing these women to work in isolated areas—similar to the isolated area where the two men killed Pamela George.

Cultural Violence

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

When I write about cultural violence, I critique both Western legal orders and Indigenous legal orders. Both of these orders carry dangerous assumptions in their foundations that influence their treatment of, and remedies to, violence against Indigenous sex trade workers. Western legal orders (WLOs) take the position as the neutral, objective arbiter of justice and truth. However, in their treatment of Indigenous sex trade workers who experience violence as worth/unworthy victims, WLOs expose the insidious treatment of this same group.

Ariel Smith, an Indigenous feminist and self-taught filmmaker, talks about the insidious nature of WLOs through enactments of special laws that aim to target Indigenous women, like Bill C-36. When I asked Ariel about whether the assumptions about Indigenous sex trade workers are influenced by colonial law or society, she said,

[Those assumptions] are already there, in the Indian Act; it is insidious because they are integrated in the legal system and it’s harder to detect if it’s a new or same of the old stuff. [The assumptions] are so part of the basis of the legal system [and] let’s say they are coming up with a new law like C-36 and that is going to negatively affect Indigenous women and that’s a new law but it is a new law that is already coming into a system that is oppressive.[85]

Supporters of Bill C-36 proclaimed that the Bill was meant to protect Indigenous women from exploitation; yet, these statements ignore the fact that the Indian Act was enacted to prevent exploitation of Indigenous Peoples[86], and the very essence of the Indian Act targeted, regulated and criminalized Indigenous women’s bodies and sexuality. This is the insidious nature of relying on WLO to end violence against Indigenous sex trade workers. Nevertheless, treating Indigenous legal orders (ILOs) as free from critique does not make for a better remedy.

There is this dangerous narrative that assumes Indigenous communities were free from violence and that the only source of violence is born out of post-contact with settlers.[87] These narratives presume that Indigenous communities did not have a way to respond or remedy violence.[88] By ignoring the way Indigenous communities have remedied violence, there is a real potential to deny the possibility of Indigenous law to help address and end violence against Indigenous sex trade workers. Yet, how individuals and organizations employ Indigenous law to remedy violence against Indigenous women in the sex trade is problematic because of ILOs’ assumptions. ILOs assume “perfectly balanced gender roles.”[89] These gender roles essentialize Indigenous women’s roles and responsibilities, excluding women who do not abide by their gender roles and responsibilities outside remedies responding to violence. In other words, women and girls who do not fulfill their roles and responsibilities deserve the violence they experience.

 

Limitations of the Possibilities of Indigenous Legal Traditions (ILTs)

With every possibility, there are impossibilities, or limitations. The limitation of Indigenous legal traditions (ILTs) is the possibility for colonial law to recreate the colonial power dynamics which contribute to the violence Indigenous women who sell and trade sex experience. In dominant discussions surrounding MMIWG2S interventions, the majority of people assume that selling or trading sex was not a “traditional” activity. However, relegating sex to a traditional activity presumes that sex should only be done in the context of traditional conventions surrounding sex—hetero-normative, heterosexual and Eurocentric.

Further, a theme that produces throughout these discussions surrounding MMIWG2S includes one of empowerment. In order for Indigenous women and girls to stop experiencing violence, they must be empowered through adopting their traditional roles as mothers and daughters. These notions that only good women and girls who fulfill their roles as mothers and daughters position people in the sex trade as deserving of their violence they experience. Questions must be asked about who is being empowered and on what terms.

Arising Assumptions

In her biography, Elder Maria Campbell documents about her experiences living and working in Vancouver’s Downtown Eastside (DTES).[90] When I read about Elder Campbell’s experiences in the DTES, I noticed she wrote about engaging in selling and trading sex or sexual services, despite any reference to the actual word “prostitution” or “sex trade.”[91]

The language and phrasing employed by Elder Campbell gives me the sense that it was an enraging experience. When writing about Lil, Elder Campbell’s madam[92], buying her “rich and expensive” clothes, Elder Campbell describes her feelings once she looks into the mirror, “‘Dear God,’ I thought, ‘this is how I’ve always wanted to look but do the women who look like this ever feel like I do inside?’ I wanted to run away, and yet I had to stay.” Then, upon discovering another “girl”[93] she worked with dead from a drug overdose, Elder Campbell writes, “She was on the floor—dead. She looked so little, so defenseless and young. I stood there, filled with so much hate I was almost sick.”[94]

A lot could be said about the assumptions I made when reading Elder Campbell’s story. Yet, even more can be said about the fact I knew that prostitution is what was taking place including Elder Campbell’s reliance on Lil’s relationship. In light of these assumptions, I want to explore the dangers in courts imposing similar assumptions about Indigenous realities, whether these realities include selling or trading sex.[95]

Historic Cases[96] Assumptions in case law (and reasons for including case)
R v Patterson (1972), 9 CCC (2d) 364, 1972 CarswellOnt 28 (WL Can) This case does not involve an Indigenous woman; rather, it involves a man engaging in prostitution. This case outlines the prostitution provisions specifically targeted “women.”[97] However, the case law says much more about how case law assumes only women can be prostitutes. If the colonial law refers to men in any provision, then it is assumed to refer to both men and women; however, if colonial law does not refer to men, the provisions can be presumed to refer to primarily women.[98] Thus, there is an assumption that criminalizing prostitution is only meant to target women.
R v Cyr (Waters) (1917), 1917 CarswellAlta 98 (WL Can), 38 DLR 601, 3 WWW 849

 

 

 

 

 

This is a case involving a Metis woman, whose Metis identity is erased from the decision itself. However, the case is important because it led to the suffrage movement, advocating for the white Canadian women’s right to vote.[99] Liz Cyr was convicted under the Criminal Code for vagrancy (specifically, prostitution).[100] I highlight this case because it indicates the tendency for mainstream/white feminism to fight for changes in law while ignoring the realities of Indigenous (i.e., Metis) women. Also, this is a good case for highlighting the gaps between Indigenous feminist and mainstream feminist theorizing. Notably, this case speaks back to Razack’s failure to recognize criminalization of prostitution. In particular, Indigenous sex trade workers only matter when dead.
Montana Band v R (2006), 2006 FC 261 (CanLII), [2006] FCJ No 334, 2006 CarswellNat 465 (WL Can) Though this is a contemporary case, I included this case because the court discusses an Indian Inspector’s notes, dated 1886. I chose to include this case because of how the Inspector talked about “vagrant”[101] Indians. There is an assumption that if an Indigenous person who cannot, at the time, prove to provide for him/herself and his/her family, then they are vagrant. This assumes that only labour approved by the nation-state is valid.
R v Atkinson (1914), 18 DLR 462, 6 WWR 1055, 1914 CarswellMan 191 (WL Can) This case does not involve an Indigenous woman but it does show how Indian Agents acted pursuant to the Criminal Code and related Acts (i.e. Vagrancy Acts).[102] Further, this case demonstrates the criminalization of Indigenous peoples under the Indian Act via Indian Agents acting pursuant to the Criminal Code and related Acts. This case also demonstrates how Indigenous women are criminalized in other ways outside the Criminal Code.
Fitch v Murray (1876), 1876 CarswellMan 7 (WL Can) This case does not involve an Indigenous person (specifically, a woman). However, there is an assumption that one keeps alcohol in their house for “expecting Indians.” Thus, the case law assumes Indians to be vagrant (especially regarding alcohol).[103]
R v Veins (1970), 1970 CarswellOnt 9 (WL Can)

 

 

 

 

 

 

 

 

 

 

 

 

 

This case involves a vagrancy charge under the Criminal Code.[104] This case does not involve an Indigenous woman but it is useful to include because the police officer charged the woman merely for walking from one place to another.[105] In Brownlie’s examination of Indian Agents’ notes during the 1920s, Brownlie noted that Indigenous women would be harassed or surveilled for being outside of their homes, walking and communicating with non-Indigenous men, and for not giving a satisfactory account of one’s self.[106] Thus, the law assumes that just being outside of the home, interacting with men one is not supposed to be talking to (i.e., strangers), one is committing vagrancy and for women, especially Indigenous women, it is assumed they are intending to engage in prostitution. Parallels can be drawn to Indigenous women who live and work in the streets in the present day; they are surveilled and harassed in many ways.[107]

 

Contemporary Cases Assumptions in case law (and reasons for including case)
R v Kimberly Mack, 1982 CarswellBC 2577 (WL Can) This case involves an Indigenous woman who “stabbed”[108] a man. Kimberly “live[d] both on welfare and by prostitution.”[109] The court describes Kimberly’s life as “one of deprivation […] and her manner of living has become deplorable.”[110] I chose this case because how the court talks about Kimberly. While the court states the relevant facts considered in the appeal on sentencing, the facts focus solely on “deplorable” facts that position Indigenous women as a victim but she is the person charged. Focusing on the victim/offender categories in the criminal justice system ignores how violence takes place in other forms.[111]
Sawridge Indian Band v Michelle Ward, 33 ACWS (2d) 162, 1985 CarswellAlta 987 (WL Can) This case does not involve any criminal charges. The Respondent’s mother, Georgina Rose Ward, was a member of the Sawridge Indian Band, the Applicant. The Band fought to exclude Michelle from the Band list because of “non-Indian Paternity” evidence.[112] The Registrar did not find enough evidence to support such a claim and Michelle’s name remained on the list.[113] The court mentioned that if it was true Georgina was a prostitute, then “that could well cast doubt on her ability to identify the father of the child.”[114] There was no solid evidence, just allegations, that the mother was a prostitute. The Court upheld the decision of the Registrar and kept Michelle’s name remained on the Band list.[115] This case shows the dangers that just mentioning evidence, whether it is true or false, could create the assumption that an Indigenous woman is a prostitute, even if she is not. Still, there must be caution in refraining from resisting the “prostitute” label which contributes to exclusion of Indigenous sex trade workers from community.
R v Hales, 2014 SKQB 411 (CanLII)

 

This case involves an Indigenous woman who was murdered after meeting her murderer at a bar. Hales accused Daleen Bosse of being a “hooker” and says “I’ve killed, killed a hooker […] she deserved every bit of it.” While the judge focuses on Daleen’s education achievements, this focus on her education seeks to detach the victim, Daleen, from the hooker label. Yet, the judge never questions Hales’ statements and thus, assumes to justify hookers deserved to be killed.
R v Barton, 2015 ABQB 159 (CanLII) This case involves an Indigenous woman, Cindy Gladue who met her murderer in the context of prostitution. Barton admitted to inflicting the wound that led to Cindy’s death (an 11 cm wound to her vagina). The Crown tendered her preserved pelvic region as evidence. The court admitted the evidence because if a photograph of an object can be submitted as evidence, then so can the object in the photograph.[116] When Barton woke the next morning, he alleged he found her in the bathtub dead and went to work.[117] However, Barton did not just wake up and check out of his hotel room; rather, he attempted to clean up the hotel room and disposed of the towels in a garbage can in the hotel parking lot.[118] The court did not allow the jurors to consider post-offence conduct.[119] Barton was found not-guilty.[120] This case is alarming for many reasons. However, for purposes of this paper, I highlight how the court ignores the criminalized and stigmatized context of prostitution which assumes prostitutes deserve to be killed (See Hales, above).[121]
R v Rodgerson, 2015 SCC 38, [2015] 2 SCR 760 This case involves an Indigenous woman, Amber Young, who was murdered after meeting a man at a bar. The two had sex but after Rodgerson refused to pay Amber for her drugs, Amber stabbed Rodgerson. Rodgerson then killed Amber and attempted to cover-up his actions. The Supreme Court upheld the decision to convict Rodgerson and clarified the role of post-offence conduct in jury instructions. There was no evidence that Amber was engaging in prostitution but Rodgerson’s roommate compared Amber to a “prostitute”[122] and claimed she acted like a “whore.”[123] These labels try to justify the actions of the accused; he is doing justice.

 

Our Reciprocal Responsibility as Individuals and as Communities

The assumption is Judges, Crown Attorneys and Defence Lawyers are merely players in a system that is objective and neutral. They seek to attain the truth in a system built on maintaining control and dominance through violence and coercion; they are simply enforcing the rules.

Dr. Tracey Lindberg proclaims that it is the Western legal principles of truth and justice that undermine Indigenous legal principles of truth and justice. [124] There is an assumption that the “settler experience as superior.”[125] The criminal justice system views its own principles and values as superior. People in the system who are simply enforcing the rules are merely doing justice. Yet, they must buy into a system and all that it stands for in order to play within it.

To remedy the violence that Indigenous sex trade workers experience, there would have to be recognition of the many ways violence manifests: gendered, racialized, economic and cultural. The courts would have to refrain from relying on assumptions that Indigenous women act like prostitutes or consent to the violence experience. Specifically, the courts would have to refrain from relying on assumptions that these women deserve to be killed and their killers are simply doing justice. In particular, the courts would have to work to undo this so-called justice. The courts would also have to be willing to call out Defence Lawyers and Crown Attorneys (or Defence Lawyers and Crown Attorneys call out the courts) who rely on these stereotypical assumptions. More importantly, the courts would have to acknowledge their relationship to colonial law and law making—it is not always neutral and objective.

 

 

Bibliography

Legislation

Bill C-36, An Act to amend the Criminal Code in response to the Supreme Court of Canada decision in Attorney General of Canada v Bedford and to make consequential amendments to other Acts, 2nd Sess, 41st Parl, 2014 (assented to 6 November 2015).

Criminal Code, RSC 1985, c C-46 as amended by An Act Respecting Criminal Law, 1892, c-29, s 190.

Indian Act, RSC 1985, c I-5 as amended by An Act further to amend “The Indian Act, 1880”, 1884, c-28, s 96.

Indian Act, RSC 1985, c I-5 as amended by An Act further to amend “The Indian Act, 1880”, 1884, c-27, s 14.

Indian Act, RSC 1985, c I-5 as amended by An Act to Amend “The Indian Act”, 1887 c-33, s 11.

Indian Act, RSC 1985, c I-5 as amended by An act to amend and consolidate the laws respecting Indians, 1880 c-28, s 95, 96.

Indian Act, RSC 1985, c I-5 as amended by An Act to Amend the “Indian Act, 1876”, 1879 c-36, s 7.

 

Jurisprudence

Bedford v Canada, 2010 ONSC 4264 (CanLII).

Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 72.

Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society (SWUAV), 2012 SCC 45, [2012] 2 SCR 524.

Fitch v Murray (1876), 1876 CarswellMan 7 (WL Can).

Montana Band v R (2006), 2006 FC 261 (CanLII), [2006] FCJ No 334, 2006 CarswellNat 465 (WL Can).

R v Atkinson (1914), 18 DLR 462, 6 WWR 1055, 1914 CarswellMan 191 (WL Can).

R v Barton, 2015 ABQB 159 (CanLII).

R v Gladue, [1999] 1 SCR 688, 1999 (CanLII) 679 (SCC).

R v Hales, 2014 SKQB 411 (CanLII).

R v Kimberly Mack (1982), 1982 CarswellBC 2577 (WL Can).

R v Kimberly Mack, 1982 CarswellBC 2577 (WL Can).

R v Patterson (1972), 9 CCC (2d) 364, 1972 CarswellOnt 28 (WL Can).

R v Rodgerson, 2015 SCC 38, [2015] 2 SCR 760.

R v Veins (1970), 1970 CarswellOnt 9 (WL Can).

Sawridge Indian Band v Michelle Ward, 33 ACWS (2d) 162, 1985 CarswellAlta 987 (WL Can).

 

SPECIAL COMMITTEE(S)

Canada, Special Committee on Pornography and Prostitution, Pornography and Prostitution in Canada: Report of the Special Committee on Pornography and Prostitution, vol 2 (Canada: Ministers of Supply and Services Canada 1985).

 

OTHER PRIMARY DOCUMENTS

Brent Dahlseid, “Information to Obtain a Search Warrant” at para 8, 9, August 2011 (not publicly available).

Graesser, R A, J.“Instructions to the Jury” (17 March 2015) (not publicly available).

Senate, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue 19 (29 October 2014), online: <http://www.parl.gc.ca/Content/SEN/Committee/412/lcjc/19ev-51683-e.htm?Language=E&Parl=41&Ses=2&comm_id=11&gt; (Hon. Andrew Swan).

 

Secondary Materials: Monographs/BOOKS

Campbell, A. Sister Wives, Surrogates and Sex Workers: Outlaws by Choice? (Surrey, England: Ashgate Publishing Limited, 2013).

Campbell, M. Half-Breed (Toronto: McClelland and Stewart Limited, 1973).

Cooper, A. The Hanging of Angelique (Toronto: HarperCollins Publishers Ltd).

Hunt, S E. “Witnessing the Colonialscape: lighting the intimate fires of Indigenous legal pluralism” (PhD Thesis, Simon Fraser University, 2014).

Lindberg, T. “Critical Indigenous Legal Theory” at 10, (LLD Thesis, University of Ottawa, Faculty of Law, 2007) [unpublished] in Tracey Lindberg, Indigenous Women and Legal Advocacy (Faculty of Law, University of Ottawa, 2016).

 

Secondary Materials: Articles

Lowman, J. “Deadly Inertia: A history of Constitutional Challenges to Canada’s Criminal Code Sections on Prostitution (2011) Beijing Law Review 2.

Razack, S H. “Gendered Racial Violence and Spatialized Justice: The Murder of Pamela George” (2000) 15:2 CJLS 91.

Smith, A. “Sexual Violence and American Indian Genocide” (1999) 1:2 Journal of Religion and Abuse 31.

Snyder, E. “Indigenous Feminist Legal Theory” (2014) 26:2 CJWL.

Snyder, Emily, Val Napoleon & John Borrows, “Gender and Violence: Drawing on Indigenous Legal Resources” (2015) 48:2 UBC L Rev 593.

Tsalach, C. “Between Silence and Speech: Autoethnography as an Otherness-Resisting Practice” (2013) 19:2 Qualitative Inquiry 71.

 

Secondary Materials: Essays in a Collection

Bindman, J. “An International Perspective on Slavery in the Sex Industry” in Kamela Kempadoo & Jo Doezema, eds, Global Sex Workers: Rights, Resistance and Redefinition (New York: Routledge, 1998) 65.

Boyer, Y. “First Nations Women’s Contributions to Culture and Community through Canadian Law” in Gail Guthrie Valaskakis, Madelein Dion Stout & Eric Guimond, eds, Restoring the Balance: First Nations Women, Community and Culture (Winnipeg: University of Manitoba Press, 2009) 69.

Brownlie, R J. “Intimate Surveillance: Indian Affairs, Colonization, and the Regulation of Aboriginal Women’s Sexuality” in Katie Pickles & Myra Rutherdale, eds, Contact Zones: Aboriginal & Settler Woman in Canada’s Colonial Past (Toronto: UBCPress, 2005) 160.

Doezema, J. “Forced to Choose: Beyond the Voluntary v Forced Prostitution Dichotomy” in Kamela Kempadoo & Jo Doezema, eds, Global Sex Workers: Rights, Resistance and Redefinition (New York: Routledge, 1998) 34.

Holmes, L. “Conclusions: quadruple victimization?” in Leslie Holmes, ed, Trafficking and Human Rights: European and Asia-Pacific Perspective (Northhampton, MA: Edward Elgar Publishing Inc, 2010) 175.

Monture-Okanee, P. “The Violence We Women D: A First Nations View” in Constance Backhouse & David H Flaherty eds, Challenging Times: The Women’s Movement in Canada and the United States (McGill-Queen’s University Press, 1992) 193.

Peach, Ian & Kiera Ladner, “Missing Out and Missing: Connecting the Economic and Political Marginalization of Women to the Phenomenon of Disappearance” in Brenda Anderson, Wendee Kubik & Mary Rucklos Hampton, eds, Torn From Our Midst: Voices of Grief, Healing and Action from the Missing Indigenous Women Conference, 2008 (Regina, SK: Canadian Plains Research Centre, 2010) 86.

Tobias, J L. “Protection, Civilization, Assimilation: An Outline History of Canada’s Indian Policy” in JR Miller, ed, Sweet Promises: A Reader on Indian-White Relations in Canada (Toronto: University of Toronto Press, 1991) 127.

 

Secondary Materials: Other

“Bradley Barton found not guilty in death of Cindy Gladue” CBC News (18 March 2015).

Ball, D P. “New Justice Minister Says She’ll Listen to Sex Workers on Prostitution Reforms” The Tyee (27 November 2015).

Blaze Carlson, K. “More than a tragic headline: Cindy Gladue dreamt of a happy life” The Globe and Mail (15 May 2015).

Burton, S. “The Person Behind the Persons Case”, Canada’s History (2004).

Factum of the Interveners, Downtown Eastside Sex Workers United Against Violence, PACE Society and Pivot Legal Society at paras 4, 8-9, in Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 72.

Malone, G. “Why Indigenous Women Are Canada’s Fastest Growing Prison Population” VICE (2 February 2016).

Native Women’s Association of Canada, Feminist Alliance for International Action (Canada), Planning for Change – Towards a National Inquiry and an Effective National Action Plan.

Sayers, N. “#MMIW: A Critique of Sherene Razack’s Piece Exploring The Trial of Pamela George’s Murder” (26 December 2014) Kwe Today (blog).

—. “Dear Justice Minister, Let’s Discuss the Concerns of Sex Workers” Huffington Post Politics, Canada (9 November 2015).

—. “Silencing” (27 March 2014) Kwe Today (blog).

Sex Workers United Against Violence,  Sarah Allan, Darcie Bennett, Jill Chettiar, Grace Jackson, Andrea Krüsi, Katrina Pacey, Kerry Porth, Mae Price, Kate Shannon and Chrissy Taylor. “My Work Should Not Cost Me My Life: The Case Against Criminalizing the Purchase of Sex in Canada” (2014).

Smith, J. “Inquiry into missing aboriginal women must not ignore indigenous law, advocates say”, The Toronto Star (20 February 2016).

 

[1] The day the verdict was released, I called the Edmonton, Alberta Court Registry to see whether they had anything publicly available that they could send to me via email. The lady who answered the phone did not say there was anything publicly available. But when I asked about whether there would be an appeal and how I can expect to get access to the transcripts, the lady replied that the appeal is definitely happening and that transcripts would come later. Also, I have previously called the Court Registry on other occasions for this paper and I was told that I would have to file an application and outline what it is exactly I needed. The Court Registry stated I would have to file in person. I have also previously asked members of a group appealing the decision. However, these members were specifically told not to give me (referring to me by name) anything, or else they could get into legal trouble, despite these documents being publicly available. I have much to say about these interactions with a so-called feminist legal group and their partnering with an abolitionist-leaning Aboriginal women’s rights group. However, that discussion will be saved for another day.

[2] Kathryn Blaze Carlson, “More than a tragic headline: Cindy Gladue dreamt of a happy life” The Globe and Mail (15 May 2015), online: <http://www.theglobeandmail.com/news/national/the-death-and-life-of-cindy-gladue/article24455472/&gt; [Carlson].

[3] R v Kimberly Mack (1982), 1982 CarswellBC 2577 (WL Can) at para 3 [Kimberly Mack].

[4] Carlson, supra note 2.

[5] See especially Jo Doezema, “Forced to Choose: Beyond the Voluntary v Forced Prostitution Dichotomy” in Kamela Kempadoo & Jo Doezema, eds, Global Sex Workers: Rights, Resistance and Redefinition (New York: Routledge, 1998) 34 at 43-44 [Doezema] and Jo Bindman, “An International Perspective on Slavery in the Sex Industry” in Kamela Kempadoo & Jo Doezema, eds, Global Sex Workers: Rights, Resistance and Redefinition (New York: Routledge, 1998) 65 at 65-66 for a discussion on  (respectively) “innocent victims” in prostitution and the dichotomy of “prostitutes” versus “everyone else.”

[6] I use the word sex worker, prostitute or sex trade worker interchangeably; however, I know that prostitute refers to a legal term while sex worker is an umbrella term to refer to many instances of selling/trading sexual services for money or other items. This paper refers to sex work/sex workers to mean prostitution/prostitutes. Further, I recognize that some people view the term sex work when referring to Indigenous women in the sex trade as erasing the colonial violence they experience by reducing the discussions surrounding sex work down to “choice.” So, I reject the use of the term “sex work” when referring to Indigenous women. I also reject the narratives that reduce Indigenous women’s decisions to sell or trade sex down to simplistic choices. Indigenous women live complex lives and this complexity should be respected in their right to have self-determination over their bodies and lives. Also, throughout this paper, I refer to “Indigenous sex trade workers” when I mean Indigenous women in the sex trade given the fact the majority of resources focus on Indigenous women in the sex trade.

[7] Sherene H Razack, “Gendered Racial Violence and Spatialized Justice: The Murder of Pamela George” (2000) 15:2 CJLS 91 at 91 [Razack].

[8] Ibid at 91.

[9] Ibid.

[10] See especially Factum of the Interveners, Downtown Eastside Sex Workers United Against Violence, PACE Society and Pivot Legal Society at paras 4, 8-9, in Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 72, online: < http://www.scc-csc.ca/WebDocuments-DocumentsWeb/34788/FM090_Intervener_Pivot.pdf&gt; [SWUAV, PACE & Pivot]; See also Canada (Attorney General) v Bedford, 2013 SCC 72 at para 158, [2013] 3 SCR 72 [Bedford SCC].

[11] Razack, supra note 7 at 91.

[12] Ibid.

[13] Ibid at 92-96.

[14] Ibid at 94-95.

[15] I first critiqued Razack’s paper on Pamela George’s murder in a blog post titled “#MMIW: A Critique of Sherene Razack’s Piece Exploring the Trial of Pamela George’s Murder.” See Naomi Sayers, “#MMIW: A Critique of Sherene Razack’s Piece Exploring The Trial of Pamela George’s Murder” (26 December 2014) Kwe Today (blog), online: <https://kwetoday.com/2014/12/26/mmiw-a-critique-of-sherene-razacks-exploration-of-the-trial-of-the-murder-of-pamela-george/&gt;.

[16] Geraldine Malone, “Why Indigenous Women Are Canada’s Fastest Growing Prison Population” VICE (2 February 2016), online: <https://www.vice.com/en_ca/read/why-indigenous-women-are-canadas-fastest-growing-prison-population&gt;.

[17] Sarah Elizabeth Hunt, “Witnessing the Colonialscape: lighting the intimate fires of Indigenous legal pluralism” (PhD Thesis, Simon Fraser University, 2014) at 125, 145, online: <http://summit.sfu.ca/system/files/iritems1/14145/etd8317_SHunt.pdf&gt; [Hunt].

[18] Calanit Tsalach, “Between Silence and Speech: Autoethnography as an Otherness-Resisting Practice” (2013) 19:2 Qualitative Inquiry 71 at 72 [Tsalach].

[19] Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society (SWUAV), 2012 SCC 45 at para 71, [2012] 2 SCR 524; this same court recognized the majority of SWUAV’s membership was mostly Indigenous sex trade workers.

[20] I previously wrote about being interrogated by police after a panel on MMIWG that I sat on in a blog post titled, “Silencing” (See Naomi Sayers, “Silencing” (27 March 2014) Kwe Today (blog), online: <https://kwetoday.com/2014/03/27/so-they-cant-a/&gt;.

[21] Tsalach, supra note 18 at 72.

[22] Tsalach, supra note 18 at 78.

[23] Joanna Smith, “Inquiry into missing aboriginal women must not ignore indigenous law, advocates say”, The Toronto Star (20 February 2016) online: <http://www.thestar.com/news/canada/2016/02/20/inquiry-into-missing-aboriginal-women-must-not-ignore-indigenous-law-advocates-say.html&gt;; Native Women’s Association of Canada, Feminist Alliance for International Action (Canada), Planning for Change – Towards a National Inquiry and an Effective National Action Plan, online: <http://www.nwac.ca/wp-content/uploads/2016/02/NWAC-FAFIAsymposium_22reccommendations_2016_EN.pdf&gt; [NWAC & FAFIA]. In her chapter titled, “The Violence We Women Do: A First Nations View”, Patricia Monture writes about the violence that mainstream feminism commits by erasing race. However, I highlight these events because of the violence that not only mainstream feminists but also Indigenous feminists contribute to in their silencing of Indigenous sex trade workers’ voices especially with the focus on “survivor only experiences” as if MMIWG2S discussions must distance themselves from current Indigenous sex trade workers and as if current Indigenous sex trade workers are the problem [See Patricia Monture-Okanee, “The Violence We Women D: A First Nations View” in Constance Backhouse & David H Flaherty eds, Challenging Times: The Women’s Movement in Canada and the United States (McGill-Queen’s University Press, 1992) 193].

[24] Emily Snyder, “Indigenous Feminist Legal Theory” (2014) 26:2 CJWL 365 at 366-367 [Snyder].

[25] Ibid. I first wrote about Indigenous Feminist Legal Theory for my paper in Civil Liberties, CML 3365 at the University of Ottawa, Faculty of Law.

[26] Snyder, supra note 25 at at 368.

[27] Ibid.

[28] Emily Snyder, Val Napoleon & John Borrows, “Gender and Violence: Drawing on Indigenous Legal Resources” (2015) 48:2 UBC L Rev 593 at 608 [Snyder et al].

[29] Synder, supra note 25 at 368, 377.

[30] NWAC & FAFIA, supra note 24 at 5-7.

[31] NWAC & FAFIA, supra note 24 at 5.

[32] I also reached out to several defence lawyers and Crown attorneys. I was unable to secure interviews with both of these groups because of time constraints and scheduling. However, I also interviewed an Indigenous police officer and a woman who is a member of the Migrant Sex Workers Project (See Migrant Sex Workers Project, online: <http://www.migrantsexworkers.com&gt;).

[33] Patricia Monture-Okanee, “The Violence We Women D: A First Nations View” in Constance Backhouse & David H Flaherty eds, Challenging Times: The Women’s Movement in Canada and the United States (McGill-Queen’s University Press, 1992) 193 [Monture-Okanee].

[34] See especially Monture-Okanee, ibid at 193. There is an assumption in the type of feminism which believes pornography is violence also includes prostitution (Monture also cites Catherine MacKinnon in her discussion on pornography as violence and Catherine MacKinnon is an abolitionist feminist).

[35] Hunt, supra note 17 at 150.

[36] Hunt, ibid at 150.

[37] Hunt, ibid at 36.

[38] Hunt, ibid at 150.

[39] Ibid.

[40] Ibid.

[41] Ibid. Note: when talking about law/colonial law versus indigenous law, I will make it explicit and clear when I am referring to Indigenous law. Because not all my resources used in this paper refer to law as colonial law, there may be instances where I only refer to “law” but I really mean to refer to “colonial law.”

[42] Hunt, supra note 17 at 150.

[43] Ibid.

[44] Ibid at 202.

[45] Hunt, ibid at 25. See also Andrea Smith, “Sexual Violence and American Indian Genocide” (1999) 1:2 Journal of Religion and Abuse 31 for a discussion on the failures of anti-violence movements to include anti-colonial principles and perspectives.

[46] For instance, when I reached out to the MMIWG Secretariat, I asked what they meant by survivor since the no-longer active website said only survivors or family members could attend the pre-Inquiry consultations; survivor narratives are omnipresent in discussions surrounding MMIWG2S.

[47] Hunt, ibid at 33.

[48] Ibid.

[49] Doezema, supra note 5.

[50] Hunt, ibid at 33.

[51] Hunt, supra note 17 at 141.

[52] Afua Cooper, The Hanging of Angelique (Toronto: HarperCollins Publishers Ltd) at 70 [Cooper].

[53] Cooper, ibid.

[54] See R v Gladue, [1999] 1 SCR 688 at para 53, 1999 (CanLII) 679 (SCC).

[55] See Bill C-36, An Act to amend the Criminal Code in response to the Supreme Court of Canada decision in Attorney General of Canada v Bedford and to make consequential amendments to other Acts, 2nd Sess, 41st Parl, 2014 (assented to 6 November 2015) [Bill C-36], especially the amount of money and resources that went to policing and border patrol agencies; See also Doezema supra note 5.

[56] I also interviewed K.Z., a member of the Migrant Sex Workers’ Project and she talked about how Asian women are targeted by policing agencies. Once arrested, in an effort to protect them from violence, Asian women are subjected to hours of questioning, which these same women view more like torture and coercion. The police question these women for hours on end, give them an ultimatum: give us your traffickers’ name or else we will deport you. However, these women do not understand their relationship with their trafficking as simplistic as policing agencies do. Sometimes these efforts put these women at more risk of violence once they are released, with less bargaining and negotiation power with, what the police see as, their traffickers (K.Z., phone call with Naomi Sayers, April 25, 2016).

[57] Hunt, supra note 17 at 21.

[58] Hunt, supra note 17 at 21 (citing Native Youth Sexual Network and First Nations Child & Family Caring Society of Canada, 2012, Submission for Canada’s 2nd Universal Periodic Review, United Nations Economic and Social Council).

[59] Hunt, supra note 17 at 21.

[60] I attempted to review this legislation but could not locate the legislation.

[61] Yvonne Boyer, “First Nations Women’s Contributions to Culture and Community through Canadian Law” in Gail Guthrie Valaskakis, Madelein Dion Stout & Eric Guimond, eds, Restoring the Balance: First Nations Women, Community and Culture (Winnipeg: University of Manitoba Press, 2009) 69 at 77-78 [Boyer].

[62] Boyer, ibid; Indian Act, RSC 1985, c I-5 as amended by An Act to Amend the “Indian Act, 1876”, 1879 c-36, s 7; Indian Act, RSC 1985, c I-5 as amended by An act to amend and consolidate the laws respecting Indians, 1880 c-28, s 95, 96; Indian Act, RSC 1985, c I-5 as amended by An Act to Amend “The Indian Act”, 1887 c-33, s 11; Indian Act, RSC 1985, c I-5 as amended by An Act further to amend “The Indian Act, 1880”, 1884, c-28, s 96; Indian Act, RSC 1985, c I-5 as amended by An Act further to amend “The Indian Act, 1880”, 1884, c-27, s 14.

[63] Indian Act, RSC 1985, c I-5 as amended by An Act to Amend the “Indian Act, 1876”, 1879 c-36, s 7; Indian Act, RSC 1985, c I-5 as amended by An act to amend and consolidate the laws respecting Indians, 1880 c-28, s 95, 96; Indian Act, RSC 1985, c I-5 as amended by An Act to Amend “The Indian Act”, 1887 c-33, s 11; Indian Act, RSC 1985, c I-5 as amended by An Act further to amend “The Indian Act, 1880”, 1884, c-28, s 96; Indian Act, RSC 1985, c I-5 as amended by An Act further to amend “The Indian Act, 1880”, 1884, c-27, s 14.

[64] Criminal Code, RSC 1985, c C-46 as amended by An Act Respecting Criminal Law, 1892, c-29, s 190.

[65] See discussion of limited economic freedom in Robin Jarvis Brownlie, “Intimate Surveillance: Indian Affairs, Colonization, and the Regulation of Aboriginal Women’s Sexuality” in Katie Pickles & Myra Rutherdale, eds, Contact Zones: Aboriginal & Settler Woman in Canada’s Colonial Past (Toronto: UBCPress, 2005) 160 at 163 [Brownlie].

[66] Criminal Code, RSC 1985, c C-46 as amended by An Act Respecting Criminal Law, 1892, c-29, s 190, 198; Criminal Code, RSC 1985, c C-46 as amended by An Act to amend the Criminal Code, c-13, 1913, s 9; Criminal Code, RSC 1985, c C-46 as amended by An Act to amend the Criminal Code, c-12,1915, s 5.

[67] Boyer, supra note 64 at 78.

[68] Bedford v Canada, 2010 ONSC 4264 (CanLII) at para 347, aff’d 2013 SCC 72, [2013] 3 SCR 72. Note: It was suggested that I refer to Melissa Farley’s work on prostitution in Vancouver for this paper; however, I did not refer to her work given Justice Himel’s comments on Farley’s work in Bedford v Canada, 2010 ONSC 4264 (CanLII) at paras 353-356. Justice Himel found Farley’s evidence to be contradictory and problematic.

[69] Previous Amending Acts referred explicitly to Indigenous women and then later, the Criminal Code RSC 1985, c C-46 referred to women and later, persons or everyone. See especially Angela Campbell, Sister Wives, Surrogates and Sex Workers: Outlaws by Choice? (Surrey, England: Ashgate Publishing Limited, 2013) at 156-162 [Campbell].

[70] See, e.g., Canada, Special Committee on Pornography and Prostitution, Pornography and Prostitution in Canada: Report of the Special Committee on Pornography and Prostitution, vol 2 (Canada: Ministers of Supply and Services Canada 1985); See especially, Campbell supra note 72at 160; See also, John Lowman, “Deadly Inertia: A history of Constitutional Challenges to Canada’s Criminal Code Sections on Prostitution (2011) Beijing Law Review 2 at 36.

[71] Hunt, supra note 17 at 90.

[72] See especially Bill C-36, supra note 55 under heading, “Preamble.”

[73] Leslie Holmes, “Conclusions: quadruple victimization?” in Leslie Holmes, ed, Trafficking and Human Rights: European and Asia-Pacific Perspective (Northhampton, MA: Edward Elgar Publishing Inc, 2010) 175 at 176-178.

[74] Mr. Justice R A Graesser, “Instructions to the Jury” (17 March 2015) at paras 143-160 (not publicly available) [Jury Instructions].

[75] D.A., phone conversation with Naomi Sayers, April 24, 2014.

[76] Sex Workers United Against Violence et al, “My Work Should Not Cost Me My Life: The Case Against Criminalizing the Purchase of Sex in Canada” (2014) at 6-7, online: <http://d3n8a8pro7vhmx.cloudfront.net/pivotlegal/pages/615/attachments/original/1401811234/My_Work_Should_Not_Cost_Me_My_Life.pdf?1401811234&gt;.

[77] Jury Instructions, supra note 77.

[78] Brownlie, supra note 68 at 161.

[79] Ibid at 161.

[80] Ibid.

[81] Ibid at 163.

[82] Colleen Cardinal, phone conversation with Naomi Sayers, April 22, 2106.

[83] Senate, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue 19 (29 October 2014), online: <http://www.parl.gc.ca/Content/SEN/Committee/412/lcjc/19ev-51683-e.htm?Language=E&Parl=41&Ses=2&comm_id=11&gt; (Hon. Andrew Swan).

[84] Ibid.

[85] Ariel Smith, phone conversation with Naomi Sayers, April 24, 2016.

[86] John L Tobias, “Protection, Civilization, Assimilation: An Outline History of Canada’s Indian Policy” in JR Miller, ed, Sweet Promises: A Reader on Indian-White Relations in Canada (Toronto: University of Toronto Press, 1991) 127 at 133 in Tracey Lindberg, Indigenous Women and Legal Advocacy (Faculty of Law, University of Ottawa, 2016) [Tobias].

[87] Ian Peach & Kiera Ladner, “Missing Out and Missing: Connecting the Economic and Political Marginalization of Women to the Phenomenon of Disappearance” in Brenda Anderson, Wendee Kubik & Mary Rucklos Hampton, eds, Torn From Our Midst: Voices of Grief, Healing and Action from the Missing Indigenous Women Conference, 2008 (Regina, SK: Canadian Plains Research Centre, 2010) 86 at 87.

[88] Snyder et al, supra note 29.

[89] Ibid.

[90] Maria Campbell, Half-Breed (Toronto: McClelland and Stewart Limited, 1973) at 131-135 [Campbell]. Attempts were made to reach out to Elder Campbell.

[91] Ibid. When I reached out to Elder Campbell, I wanted to inquire the absence in naming these experiences. We, unfortunately, never connected. Still, I respect someone’s resistance to name these experiences in their own story.

[92] One might argue that I am imposing my own experiences onto Elder Campbell’s story but it is quite obvious to me, as someone who has engaged in selling and trading sex under a madam, that this was a similar type of arrangement. I do not want to impose my own experiences onto Elder Campbell’s stories; however, I also do not want to erase my own experiences, expertise and knowledge at the same time.

[93] Campbell, supra note 93 at 135. Also, I would have chosen to refer to the other worker as a woman or a young woman, unless of course the worker was a young girl. There can be several troubling assumptions drawn from Elder Campbell’s use of the word “girl.”

[94] Campbell, ibid.

[95] Though the focus of my paper is prostitution, I had trouble finding case law that including Indigenous women criminalized for same. I predict these troubles may be linked to the fact that an Indigenous woman’s indigeneity is rarely, if ever, the focus in case law. Thus, there may be many cases involving Indigenous women being criminalized for prostitution. However, more research would have to be done in order to fully examine case law.

[96] I researched case law on WestLaw (Canada) using various search terms (i.e., prostitution, Indian, Indian wom*n, vagrancy, vagrants).

[97] R v Patterson (1972), 9 CCC (2d) 364 at paras 11-24, 1972 CarswellOnt 28 (WL Can) [Patterson].

[98] Patterson, ibid at para 26.

[99] Sarah Burton, “The Person Behind the Persons Case”, Canada’s History (2004), online: <http://www.canadashistory.ca/Magazine/Online-Extension/Articles/The-Person-Behind-the-Persons-Case&gt;.

[100] R v Cyr (Waters) (1917), 1917 CarswellAlta 98 (WL Can) at paras 1-4, 38 DLR 601, 3 WWW 849.

[101] Montana Band v R (2006), 2006 FC 261 (CanLII) at para 160, [2006] FCJ No 334, 2006 CarswellNat 465 (WL Can).

[102] R v Atkinson (1914), 18 DLR 462 at paras 1-4, 6 WWR 1055, 1914 CarswellMan 191 (WL Can).

[103] Fitch v Murray (1876), 1876 CarswellMan 7 (WL Can) at para 16; I use the term “Indians” because that is the term the case uses.

[104] R v Veins (1970), 1970 CarswellOnt 9 (WL Can) at para 1.

[105] Ibid.

[106] Brownlie, supra note 68 at 174-175.

[107] Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society (SWUAV), 2012 SCC 45 at para 71, [2012] 2 SCR 524.

[108] R v Kimberly Mack, 1982 CarswellBC 2577 (WL Can) at para 3.

[109] Ibid.

[110] Ibid.

[111] Hunt, supra note 17 at 141, 145.

[112] Sawridge Indian Band v Michelle Ward, 33 ACWS (2d) 162 at para 3, 1985 CarswellAlta 987 (WL Can).

[113] Ibid.

[114] Ibid at para 7.

[115] Ibid.

[116] R v Barton, 2015 ABQB 159 (CanLII) at para 37.

[117] Brent Dahlseid, “Information to Obtain a Search Warrant” at para 8, 9, August 2011 (not publicly available).

[118] Ibid at para 4.

[119] Jury Instructions, supra note 77.

[120] “Bradley Barton found not guilty in death of Cindy Gladue” CBC News (18 March 2015), online <http://www.cbc.ca/news/canada/edmonton/bradley-barton-found-not-guilty-in-death-of-cindy-gladue-1.3000901&gt;.

[121] Everything Cindy did was not criminalized (See Bedford SCC, supra note 12 at para 5).  I always ask myself, what could have happened if Cindy was allowed to have safety mechanisms in place to prevent or reduce the violence Indigenous sex trade workers experience.

[122] Respondent’s Factum, Jason Rodgerson at para 18, in R v Rodgerson, 2015 SCC 38, [2015] 2 SCR 760, online: <http://www.scc-csc.ca/WebDocuments-DocumentsWeb/35947/FM020_Respondent_Jason-Rodgerson.pdf&gt;.

[123] R v Rodgerson, 2015 SCC 38 at para 14, [2015] 2 SCR 760.

[124] Tracey Lindberg, “Critical Indigenous Legal Theory” at 10, (LLD Thesis, University of Ottawa, Faculty of Law, 2007) in Tracey Lindberg, Indigenous Women and Legal Advocacy (Faculty of Law, University of Ottawa, 2016) [Critical Indigenous Legal Theory].

[125] Ibid.

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