#sexwork-er @GlasgaeLauraLee, “154 sex workers have been murdered in the United Kingdom since 1990. That stops now.”

I occupy a unique position in law school as an Indigenous woman with sex working experience and in particular, as a person with sex working experience where much of my Faculty’s professors strongly advocate for the abolition of sex work. While I know my experiences are neither welcomed nor accepted as valid and legitimate in some spaces especially in my Faculty, I remain committed to ensuring sex workers’ stories and experiences are centered when and where appropriate. Though I previously written about leaving the sex work movement, I never said I would stop writing. So, I write…

Just recently, Laura Lee, a sex worker in Ireland, brought forward an application for judicial review of the legislation which criminalizes the act of paying for sex. The law against purchasing sex came into effect last year, which is eerily similar to Bill C-36, For the Protection of Communities and Exploited Persons (“Bill C-36”).

Briefly, Bill C-36, which is now law, is the law that the previous Conservative government passed in response to Canada’s highest court’s decision to declare three prostitution provisions invalid for violating sex workers’ Charter rights. Specifically, the Court in Bedford v Canada held that the three challenged provisions violate Section 7 or the right to security of person which is not in accordance with the principles of fundamental justice.  The Court further held that these provisions were not saved by Section 1 of the Charter. Section 1 imposes “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” on such rights and freedoms guaranteed under the Charter.

Her lawyer, Ciaran Moynagh, tweeted several days earlier that there a resistance on the part of the Attorney General of Northern Ireland (the “AG of NI”) acting for the Office of First Minister and Deputy First Minister (“OFMDFM”), despite the application being the responsibility of Department of Justice (the Department of Justice is part of the OFMDFM). Thus, the initial step, to be granted standing, has been achieved earlier this week despite the AG of NI suggesting otherwise. This decision does not determine the outcome of the application.

The AG of NI attempted to argue that Laura did not identify any unlawful act and that the law provided greater protections for Laura. These kinds of positions are, again, eerily similar to the ones provided in support of Bill C-36. For instance, one of the arguments advanced as the bill passed through committees and debates was that the bill offered protection for exploited persons; yet, the bill assumes all prostitution to be exploitative and does not differentiate between exploitative situations and non-exploitative situations. I asserted at the standing committee for justice and human rights “that criminalizing clients ignores the structural issues that cause forced labour, thereby distracting from the government’s responsibility to victims of exploitation.” Even more troubling, laws that allege to end human trafficking by attacking the purchases have far reaching and dangerous outcomes for sex workers.

On her application for judicial review, Laura Lee says to me in email that the law prevents sex workers from working together in safety. This is much like the effects of Bill C-36, which prevent sex workers from working together.

Since Bill C-36 assumes all sex work to be inherently exploitative, anyone—including other sex workers—who profits or share profits obtained through selling of sexual services is benefiting from exploitation. In other words, despite the exceptions to trafficking provisions in Bill C-36, Bill C-36 prevents any sex worker from taking steps to implement safety enhancing provisions.sex-work

Laura describes the dangers with criminalizing the purchasers of sexual services, “Attackers and those who would do many other forms of harm are well aware of that situation, which makes it highly dangerous for us.” The Bedford decision also recognized this harm from people who preyed on sex workers by stating, “If screening could have prevented one woman from jumping into Robert Pickton’s car, the severity of the harmful effects is established.” Despite this holding, the Conservative government passed its harmful bill with the remaining parties voting against it (except for those members who did not vote or were not present to vote).

Wendy Lyon, a solicitor in Ireland who is not working on the application, provides context to Laura’s application when others have written that Laura’s application is based on right to privacy.

Wendy outlines, “[Laura’s] argument is actually based on the right to respect for private life under Article 8 of the European Convention on Human Rights […]. Among other things, it protects the individual’s right to be free from arbitrary or insurmountable state-imposed obstacles to the exercise of lawful activities of significance in one’s personal life [emphasis added].” Wendy correctly notes, “[The argument] is essentially the same argument that was upheld by a unanimous Supreme Court in Bedford v Canada, under the Canadian Charter’s right to security of person. Laura’s team are asserting that this same right to security of person is encompassed within the Article 8 right to respect for private life.”

Throughout the committees and the debates on Bill C-36, the Conservative government alleged that the Bedford decision, absence any legislative response, would decriminalize prostitution. The Conservative government also alleged to have read the Bedford decision. Arguably, however, if the Conservative government read the Bedford decision, it would have understood that only three prostitution provisions were challenged and declared invalid—not all of the provisions criminalizing prostitution. These challenged provisions included three provisions which resulted in many sex workers’ lives to be lost.

sex-work2

This lie is similar to other lies that were and continued to be passed around about Bill C-36. One such lie is that Bill C-36 decriminalized the sellers. Supporters of such laws also allege to claim to support the decriminalization of sex workers in an insidious effort to “ending” violence against sex workers—ignoring the fact that criminalizing the purchasers puts sex workers at risk of more violence.

Wendy stresses the effects of criminalizing purchasing sexual services when she outlines Laura’s arguments, “Laura’s legal team is arguing that the anti-sex work laws breach [Laura’s rights] by making it more dangerous for her to engage in the lawful activity of providing sexual services for pay.”

Several international organizations have recognized the harms of criminalizing sex work, including the selling and buying of sexual services. Laura reminds us all, “Decriminalization is recognized as the ideal model for harm reduction by the World Health Organization, UNAIDS, and more recently, Amnesty International.” It is important not to forget these positions by such organizations which is supported by their reports based on evidence.

Laura continues, “It’s time to recognize the true impact of these archaic laws; 154 sex workers have been murdered in the United Kingdom since 1990. That stops now.” I agree with Laura, both as a student studying law and as someone with lived experience in the very trade impacted by the harms of criminalization. In Canada, from the year 1985 to 2011, around 300 sex workers have been murdered.

These type of decisions and government’s resistance to respond to the harms caused by criminalization of sex work, including Justice Minister Jody Wilson-Raybould’s silence since my open letter to Justice Minister last year, have left me with many questions about the role of lawyers in social movements.

The sex work movement is a social movement but it is also about legal interventions to the realities faced by sex workers, including increased violence due to criminalization.

I asked Laura’s lawyer, Ciaran Moynagh, about the role of lawyers in these kinds of legal efforts and interventions. Ciaran highlighted the importance of recognizing that sex workers are experts in their own lives. Ciaran states via email, “[W]hen a potential client comes in saying they need advice and representation, whether it be about sex work, LGBT rights, obscenity or some other uncommon matter I may know very little about, I treat them as the expert and from the outset listen. These potential clients have the life experience and I will take their story, carry out research and apply the law accordingly.” While we all have different life experiences, not everyone can be experts in every life experience. Ciaran notes, “Everyone’s life experiences are vastly different and I am an expert in law but not life.” So, Ciaran believes “[I]t is essential that you accept instruction without fear or prejudice.” No argument there.

Ciaran, as a lawyer working with Laura Lee, was also kind enough to offer some practical advice when I reached out to him. Such advice included being prepared, as Ciaran explains, “for an uphill protracted battle and be prepared for ignorance to meet you at every stage.” As someone who has been attacked, harassed and stalked for my advocacy efforts, I only know this from experience. Ciaran reminds me, “Knowing this will allow you to structure you case to make it accessible as possible and base it on facts, evidence and research!” Still, because access to justice is a major problem in Canada, Ciaran also reminds me, “Another major hurdle is funding so be inventive!” You can help support Laura’s efforts by donating to her legal fund here: https://www.gofundme.com/3rikpo.

 

*****

 

Follow Laura on twitter at @GlasgaeLauraLee and contribute to her legal fund.

Follow Ciaran on twitter at @CiaranMoy and visit his firm’s website.

Follow Wendy on twitter @WendyLyon and visit her blog.

 

 

 

 

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actual tips for (#uottawa) #lawstudents

So, a while ago, I wrote a somewhat not-so-real “slash” real post on 10 tips for law students. You can take what you want from that post.

And this post? This post is a follow-up to that post with actual real fuckin tips.

  1. Read the academic regulations for your law school (uottawa folks)
  2. Read your school’s policy and regulations (because sometimes there are rules for your faculty, like uottawa)
  3. Read what is required of your degree/program and pay attention to any deadlines (uottawa folks)
  4. Read about cool options for your degree/program (uottawa folks)
  5. Read your course syllabus and talk to your professor about any specific questions

A lot of the above is pretty much common sense or self-explanatory.

However, if there is any one specific recommendation I would give to future law students or incoming law students, it would be review in detail the academic regulations as well as the policy and regulations. These are basically your rights as a student, the process and procedures attached to said rights and what your professor can or cannot do if there is any changes made throughout the term–and your rights when your professor does propose any changes. And, in case you are wondering about how important these rules are, you will learn that some of the cases in your administrative law class examines and interrogates cases involving law students such as yourself who choose to exercise their rights. It looks like a lot of information and it is. But trust me, review it, know it and help your fellow law school peers understand these policies and procedures if you can.

Also, know who your students’ rights person is and where they are located (uottawa folks).

#CindyGladue & Unchanging truths: whose story matters

Sometimes, in law, certain facts become settled as unchanging truths; these truths are brought forward as evidence to support a claim or rebut such a claim.

For Cindy Gladue, a mother, daughter, and Indigenous woman who sold and traded sex before she was found dead in a bathtub, one of those facts was that she met Bradley Barton in the context of selling and trading sex. For many, agreeing that the context Cindy met Barton as an unchanging truth brings anger and rage. Many will wonder why anyone like Cindy could resort to such activities but many will ignore why and how a jury, along with the Crown, Defence and Judge, could agree that an Indigenous sex worker consented to violence that killed her.

Therein lays the issue with the position of the Joint Intervener’s Factum, Women’s Legal Education and Action Fund Inc. & Institute for the Advancement of Aboriginal Women, which takes the position that the Crown, Defence and Judge relied too heavily on the fact that Cindy met Barton in the context of selling and trading sex.[1] While the Joint Intervener’s Factum recognizes the racist and sexist violence that Barton inflicted against Cindy[2], this is too easy of a position to take and this position ignores how and why a jury could acquit Barton in the murder of Cindy—an Indigenous sex worker who visited Barton not once but twice.

It is specifically Indigenous sex workers who continuously experience the injustice of the justice system; the justice system presents this idea that Indigenous sex workers are deserving of the violence they experience and they should at minimum expect the violence they experience.

Still, the fact Barton met Cindy in the context of selling and trading sex is neither deplorable to state nor should this fact and its context be erased. For Cindy, however, the violence in her story is manifold. First, it is through Barton’s testimony and then it is through the Joint Intervener’s Factum’s attempt to erase the fact Cindy met Barton in such context.

It is a well-established in law that nobody can consent to violence.[3] Where consent becomes muddied, but for no other reason than it is the victim’s word against the perpetrator’s word, is sexual assault. And, in this instance, Barton had the perfect victim, someone who would never tell her side of the story.

In the events described in a document to obtain a search warrant, Barton met Cindy at a hotel.[4] Barton paid Cindy for sexual favours, to later purchase drugs and share those drugs with her boyfriend.[5] On first evening Cindy and Barton met, Barton gave her boyfriend a cigarette package with Barton’s name, hotel phone number and room number written on the package.[6] On the next evening, around 10:00 pm, Cindy left to go Barton’s hotel and her boyfriend arrived shortly after.[7] Barton paid for her boyfriend’s beer and Barton and Cindy went to the room together.[8] Cindy and Barton continued drinking until about 12:40am.[9]

The document continues outlining the efforts Cindy’s boyfriend undertook to attempt to contact Barton.

When Cindy did not return home, her boyfriend called the phone number on the cigarette package around 4:00 am.[10] A male voice answered the hotel room phone.[11] He did not remember what the voice had said but he could hear Cindy “mumbling in the background prior to the phone being cut off.”[12] Next, Cindy’s boyfriend went to the hotel and knocked on Barton’s hotel room door.[13] Her boyfriend recalls he “did not get an answer despite being able to hear someone moving around the inside of the suite.”[14] At some point between knocking on the door and prior to around 7:58 am, Barton checked out of the hotel.[15] Barton was well on his way to work and expressed to his colleague, “It would be a good day unless the cops showed up.”[16] It was Barton’s colleague who recommended he “had to call the cops.”[17]

We must not forget the facts that do not make it into the courtroom. Such facts include the details outlined in the document to obtain a search warrant. Because for many Indigenous sex workers, this is their story—Having their boyfriends be a safe call (a person who they can call or who can call the client’s number in the event they do not return at a specified time), meeting their clients in hotels, and sometimes drinking with their clients. Still, these actions do not give consent to kill a sex worker especially not an Indigenous sex worker.

If justice includes relying on unchanging truths or the best evidence and the weighing of such evidence, then we must continuously ask whose truths are being told and whose stories are being erased. The case of Cindy Gladue is an attempt to erase her sex work experience while simultaneously relying on this same experience to affirm her consent. We must be honest with ourselves in how and why Courts attempt to justify such harm and why society silently agrees.

 

 

 

[1] See Factum, paras 6, 7, 9, 12, 21, 22, 23, 24-26, 53 (not publicly available).

[2] See Factum, paras 24-26.

[3] http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/784/index.do

[4] Brent Dahlseid, “Information to Obtain a Search Warrant” at para 7, 9 August 2011, (not publicly available).to justify such harm and why society agrees in silence. attmpes hing of such evidence, then we must continuously ask whose truth

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] Ibid.

[9] Ibid at para 7.

[10] Ibid at para 8.

[11] Ibid at para 7.

[12] Ibid.

[13] Ibid.

[14] Ibid.

[15] Ibid at para 8.

[16] Ibid at para 9.

[17] Ibid.

10 tips for law students

1) Look for the distraction – or as professors like to say, “spot the issue!”

Looking for the distraction is the opposite of issue spotting. The distraction will be the thing that makes you wonder if that is the issue but it really isn’t. When I do that thing, spot the issue, I prefer to start with asking myself after I read a “fact pattern”: What is the distraction? Sometimes, looking at the alternative helps me…this is what helps me.

2) Speaking of alternatives, think about what a case is NOT saying.

Sometimes it is easy to say what the case is saying…that’s easy. The professor will ask you “what is the ratio?” Note: ratio = rule but law folks like to be geeks and use special language that sometimes only other law folks understand.

3) So, use a dictionary.

I remember reading one case and seeing the word, “subterfuge.” I continued reading the case like a bad law student without understand what that word meant and as I continued reading, I didn’t really understand what was going on because I didn’t understand what subterfuge meant–okay I exaggerate, I knew a little bit about what what was happening. Anyways, subterfuge means “deceit used in order to achieve one’s goal.” It irked me to wonder why the judge didn’t just use deceit or deceitful or dishonest or whatever other word other than subterfuge.

Side note: And yeah, the language law folks use is an access to justice issue including professors who like to use other fancy words to mean something basic or cliches and idioms. Because if even I can’t understand some of the words, how do we expect the general public to understand?! Whatever, future law people…just use a dictionary or google, iphone app, whatever. And, call out the professor who uses such expressions of language (i.e., idioms and cliches); I guarantee you that someone else might not understand either. It’s like the “stupid question dilemma”–just ask.

4) Know what the case is saying.

Yeah, you still need to understand what the case stands for and why you are reading it. Otherwise, if it wasn’t important to read, your professor wouldn’t have you read it.

5) Form study groups.

study group
For me, this is giving bad advice. I don’t study in study groups. It’s just me and my style. But it does help to attend class to hear what others might say about the case. And also, sometimes the amount of readings is overwhelming.

6) Attend class.

yawn For me, this is also bad advice. I hate going to class. Class, sometimes and for me, is a waste of time. Sometimes, class is just about hearing the same people participate (i.e., the same hetero, white, cis males saying “I know this was already said but…”) and other times, it is about watching professors struggle with attempting to stimulate class participation—it’s awkward but thank god we have hetero, white, cis males… go team!

7) Participate in class.

Again, also, bad advice. I hate participating in class. I know, it’s strange, especially with my public speaking and stuff. But public speaking is different—I don’t get paid to go to class…but I get sometimes get paid to do that thing that thousands of other people dread: public speaking. Remember, thinking about what the case is not saying? This is good for participating in class.

8) Figure out what works for you.

It took me a while to understand what “the law” meant when professors kept talking about “the law” in a specific context. Truthfully, I didn’t understand how all the cases we read fit together to form “the law.” What help, though, were summaries: I saw how people fit together “the law” and suddenly it all clicked (so, don’t listen to professors when they say, “don’t use summaries” — I mean if that is the only thing you read all year, then you might want to listen to the professor).

9) With that being said, go and visit the professor.

Ask the professor how the cases fit together. Sure, you are supposed to figure it out on your own. So, at minimum, do the readings first and go prepared with questions. I rarely go visit professors because it’s just as awkward as watching them force class participation—it’s another awkward social interaction that I don’t really want to engage in but you know…for some people, they nailed this skill. I’m not one of those people.

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10) Do what’s best for you.

Listen to other people. Or, don’t listen to other people (like me). But if you already know what works for you, do it! Just run with it!

union.gifAnd generally, a lot of this stuff is just common sense. Don’t be afraid to return to the basics that got you to this point in your life. Law isn’t fancy. Don’t make it fancy–or you can (with sparkles even). But, literally, you’ve done it! Everything you ever had in you to get you to this point, you already have within you. Remember that, when things get hard (because it will). You got this!

Sincerely,

[Signed with a little bit of sarcasm].

#MMIWG: #cdnpoli responses to the HIV crisis have compounded the problem

During the then-Conservative Government in 2012, the government made $165-million-dollar budget cuts to Aboriginal and Northern Affairs Canada[1] (as it was then known). Some of these cuts led to decreased funding for health-related research programs, like the work at National Aboriginal Health Organization (“NAHO”).

The last fact sheet posted to NAHO’s site, which is scheduled to shut down in December 2017 indicates that Indigenous people “account for 16.4 per cent of AIDS cases in Canada and 7.5 per cent of HIV infections.” For Indigenous women, the picture is even more alarming: Indigenous women making up 47.3 per cent of HIV-positive test reports; meanwhile, non-Indigenous women making up 20.5 per cent of the same reports.

For the past 25 plus years, Kecia Larkin has been one of those Indigenous women living with HIV. And, the morning that I call Kecia Larkin, she is in British Columbia; she’s just making breakfast.

In April 2016, Kecia won an award for her work on educating others communities about the realities of Indigenous women living with HIV. But Kecia has always been an activist.

Kecia’s mother was deeply involved with the Red Power movement, American Indian Movement, and she remembers her mother wanting to put some roots down after attending protest after protest, all related to land and sovereignty.

“We were political,” she explains. “We never felt like it (Alberta) was home.” She describes her family as loving and attentive, but poor: The number of First Nations Children living in poverty is fifty percent.[2]

Because of poverty, though, Kecia made the decision to go into state care. During that time, she was in and out of hotels because she says, “I didn’t want to go to foster homes.” And during times when she needed help, she would go into group homes but then return to the streets, “It was a choice made out of duress, because of poverty.”

When describing her early years in state care, it was in and out of hotels versus in and out of state care. Kecia calls the hotels, “Shooting galleries, a place for tricks, to stay safe, able to do drugs rather than do drugs alone.”

However, Kecia remembers being outside more than inside: Outside of state care.

When Kecia lived in state care, she says, “It was very embarrassing…shameful for me. My mother was not a neglectful parent. My mother was not abusing us or leaving us. The only reason I went into care was because my mother couldn’t afford to send me $100.”

Kecia says, “I didn’t have a place to go where I didn’t feel safe.”

The Ministry would have care workers who would try to help keep her safe. She says, “They would take me out and try to keep my mind from the excitement of Hastings.” Hastings is the main strip in Vancouver’s Downtown East Side (“DTES”).

While living in DTES, she used drugs, but was careful to avoid intravenous ones. “Needles scared me,” she explains. One night, an older man enticed her with gifts – an episode she now recognizes as “grooming.” Kecia says, “He knew I was in care and he bought me boots.” She states further, “He used to touch my breast” and she thought, “Okay this is what friends do, they help each other.”

Kecia didn’t tell anyone.

Eventually, one evening, he invited her to lie down with him in the same bed. Soon, he sexually assaulted her. Kecia remembers what he told her soon afterwards: No one is going to believe you.

He was right.

Kecia discloses to me, “I went and told and nobody believed me.” At times, Kecia also blamed herself, “I really blamed myself because I know about sexual abuse and I figured I should have known somehow…I felt really ashamed. I felt really unloved and unwanted.” At that moment, Kecia said her time in state care solidified those negative feelings. Kecia says, “I guess being care verified that for me…how unwanted I was.”

She admits there is still healing.

The current Liberal government has released its Terms of Reference (“TORs”) for the Public Inquiry into Missing and Murdered Indigenous women and girls (“the Inquiry”).[3] There is much criticism on the TORs; however, often missing from these discussions is the erasure of the lived experiences of Indigenous women living with HIV/AIDs.

While the TORs give the Commissioners wide powers, like the power to make recommendations for “concrete and effective action that can be taken to remove systemic causes of violence and to increase the safety of Indigenous women and girls in Canada”[4], what we know is that social determinants of health already impact Indigenous women’s safety and well-being. The Canadian Aboriginal AIDS Network (“CAAN”) indicates that social determinants of health, like poverty, gender, violence, and especially racism and the “multigenerational effects of colonialism and the residential school”[5] contribute to the incidences of HIV and AIDs in Canada.

Then, in the summer of 1987, another event flipped Kecia’s world upside down.

Five men that Kecia considered friends had gang raped her. She describes the men to me, “As a bit safer than some other guys.” She doesn’t remember much but from what she remembers, she drank some alcohol, but she doesn’t remember how much—a minor detail that is beside the point. Rape is still rape.

She describes the incident, “All I remember is just getting up and this face moving away from my face, above me, on top of me and I jolted.” Waking up, she realizes her pant leg and underwear was off. One of the men in the room told her what happened. When she left the hotel, she remembers being drunk, traumatized, and crying.

Recalling her earlier assault, and knowing no one would believe her, Kecia decided to not seek out help. “I just buried it,” she shares with me. But internally, it was destroying her, “I began to mentally deteriorate.”

About eight weeks later, she approached a friend whom she knew used intravenous drugs. “I want to try it (black tar heroin),” she told the friend. “I want to use a needle.” The effects of the drug were immediate. “I thought I died and went to heaven,” she describes the first time using intravenous drugs. “The drugs just killed the pain.”

But what does it take to heal from these experiences?

In describing her own healing, Kecia says, “I learned to just accept all of the experiences as long as they don’t happen again and that is okay. That’s never happened to me again.” Kecia defines these experiences as a learning experience.” Undoubtedly, these are hard lessons that nobody should have to learn. Still, she continues, “I think learning one of my big lessons in life is to learn forgiveness, when appropriate. I think that is something that I really tried to do for myself.”

In Alert Bay, Kecia’s community, the last potlatch, which an important cultural ceremony in her community, happened just over seventy-five years ago.

At one point, the Canadian government banned potlatches under the Indian Act, a federal legislation enacted in 1867 with the intent of assimilating all Indians into Canadian society. As a part of this assimilation program, Indigenous children were forcibly removed from from their homes and communities and placed in Indian Residential Schools. During the time of these policies, Kecia states, “Our whole community just went completely upside down…backwards.” Kecia’s grandmother and mother went to Indian Residential School in Port Albert. Her father, and her patriarchal grand parents were sent to boarding schools in Alberta. The effects of the Indian Residential School are intergenerational.

Earlier in the summer of 2015, the Truth and Reconciliation Commission released its final report along side its ninety plus calls to action, and later, the actual report. The Truth and Reconciliation Commission’s (“The Commission”) six-year mandate included documenting and telling the 150-year history of Indian Residential Schools to Canadians. In that report, the Commission documents the history and experiences of some of the children who are still alive to tell their stories. Many stories are never going to be told because the children are no longer here, either they have died at the school, died trying to escape the school or died but the details were not documented—some families are still searching for the bodies of their relatives.

In recounting the abuse some of the children experienced at the school, the Commission states that the complaints were infrequent. However, the lack of frequent complaints does not mean that abuse did not take place. In fact, it means quite the opposite. The Commission reminds us, “Many students feared they would not be believed—or would be blamed for somehow bringing the abuse upon themselves.”[6] This fear of being blamed and not being believed when a traumatic event takes place is one of the many intergenerational effects of Indian Residential Schools. This is the same fear that Kecia experienced living in DTES.

After Kecia was diagnosed with HIV at a clinic in 1989, she says, “I was shocked but I wasn’t surprised – it explained a few things health wise.” She also knew it was a community issue. “I already knew people were dying.” While the news didn’t shock her, it did make her feel hopeless. She was diagnosed before September and by January the following year, Kecia says, “I was just wanting to die.”

Kecia soon went into detox following her diagnosis. From the detox, she called her mom. Over the phone, her mother told her, “Kecia, I love you and I want you to come home.”

This theme of home presents itself many times in Kecia’s life. Still, at the moment she heard those words from her mother, Kecia states, “I knew at that point I was going to be okay.”

From there, she began telling the rest of her family. “You are still our daughter, niece, granddaughter, cousin,” they told her. “It doesn’t change how we love you.” Kecia understood something powerful in these words: Being a First Nations woman living with HIV should never change how you are loved. You are still a person, a human being.

Kecia decided to begin the process of getting proper treatment for her HIV. However, she did not have medication until 1996, when medication started to become available. She tells me that it took her almost two years to find a doctor who could deal with her set of challenges.

British Columbia has no provincial or aboriginal AIDS service organization that can provide specialized services geared toward First Nation women living with HIV is difficult—an alarming reality that Kecia summarizes to me. But for the rest of Canada, the health care is not much better, and as Kecia puts it, “There is no way to measure how effective or efficient our care is.” Moreover, she adds, “We are less likely to be believed” (by healthcare professionals). This is not surprising to her. Within Canada, Kecia says “We (Indigenous women) are fighting so much on a national level just to be heard.”

For experts working on the issue, barriers to treatment are the major contributors to the disproportionate number of HIV infections among First Nations women – but the solutions are not as simple as one might imagine.

For instance, will the Inquiry even be an opportunity to be heard, especially when so many communities, including non-Indigenous communities, shame drug users and people living with HIV?

When she began her journey in HIV-related activism 1990, she was one of the few First Nations women who publicly disclosed her HIV status. In telling me what it was like to talk in schools, Kecia recalls, “Students having to get permission forms from home, signed by their parents and describes sometimes their parents wouldn’t let their kids come to school the day she was presenting.” She describes these permission forms as waivers of harm.

Dr. Mona Loutfy, who works with First Nations women living with HIV in Ontario and in the Prairies, says, “When I talk to you about what is happening, I see it first hand and it is shocking… it is a crisis.” She also states, “In Saskatchewan, the HIV incidence rate, at highest, is 5 times rest of Canada and now it is 2 and half times.” Dr. Loutfy continues, “Ninety percent of those new infections are in Indigenous individuals.”

Dr. Loutfy calls the issue of HIV among First Nations people like an iceberg. Dr. Loutfy says, “You have the colonization, at the bottom (of the iceberg) which leads to the intergenerational trauma; then you have social determinants of health like poverty; then you have mental health; then you have addictions; and then all of those are under the water.”

And, these issues only come to light once someone is diagnosed with HIV. Dr. Loutfy highlights, “Unless you look under the water and address the underlying issues, it is just going to continue.”

This is why Margaret Poitras from All Nations Hope Network which is one of the major organizations that work directly with First Nations, Inuit, and Metis people living with HIV, AIDS and Hepatitis C (HCV) in Saskatchewan describes needle exchange programs as band-aid solutions: The solutions only address the issue once someone is diagnosed with HIV and these initiatives fail to address the issues, lying underneath the water.

Still, Dr. Loutfy reminds us that it’s important to keep investing in harm reduction strategies. “If you have the (safe injection) site, you are decreasing infections, overdosing…it’s a no brainer.”

In the end, however, the gaps in accessing health care for Indigenous women living with HIV are manifold. Kecia describes the stigma in health care, including violations of privacy and human rights.

Prior to her diagnosis, Kecia and her then-boyfriend were trying to harvest copper, which they planned to sell for money to buy drugs. Her boyfriend experienced burns from the copper, which brought the couple to a local emergency room. Kecia remembers that while he was being treated for his burn, a nurse approached her and told her that he had tested positive for HIV (an act that she recognized was a breach of confidentiality). At that time, when someone was diagnosed with HIV, Kecia says, “They were called taboo.” There was a fear, pervasive across the country, around touching people living with HIV. But now, as stigma has decreased overall, the sense of HIV being “taboo” has persisted among Indigenous women with infections – an attitude that has affected how Indigenous women living with HIV are treated by the health care community.

HIV stigma also prevents Indigenous women from accessing and receiving appropriate treatment.

Poitras says, “The numbers of people who live with HIV in our communities are undetected” and “that we don’t have accurate numbers of people living and dying with HIV, including those who die by overdose.” In terms of HIV transmission among First Nations peoples, Poitras says, “The primary factor is IV drug use.” The Public Health Agency of Canada (“PHAC”) in their December 2014 report also came to similar conclusions.

PHAC also found that racism and gender inequalities worsen the effects of stigma and discrimination experienced by women living with HIV and AIDS. Dr. Loutfy describes the racism that affects the First Nations communities and First Nations women living with HIV in Saskatchewan – where HIV rates are twice as high as in the rest of the country – as pervasive. In Emergency departments, she witnessed other professionals describing Indigenous patients as drug seeking.

Kecia has similar stories, “HIV-positive Indigenous women are discouraged from having children, and that some Indigenous women are having their tubes tied.”

Kecia herself has been denied treatment by a doctor who assumed she was drug-seeking. In hospitals, Kecia says, “When HIV-positive Indigenous women ask for pain medication, doctors assume they are seeking drugs – even if they don’t have any drug-using history.”

For Kecia, her children were born in 1993 and 2001, one without HIV medication and another with HIV medication. Both live HIV free today. Kecia emphasizes, “Unless they put themselves at risk for it, they are not going to get HIV, they know now literally in the first month or two if they are positive or not and if they will remain positive for the rest of their life.”

Government responses, regardless of the party, to the HIV crisis have also compounded the problem, especially for women living in rural communities. The PHAC states that there is a “misperception that HIV is an issue only in urban environments.”[7] – a misperception that has lead to cutbacks in essential funding.[8] As a result, women who seek treatment for their HIV or AIDS are unable to access even basic medical care.

Dr. Loufty tells me an example about access to health care when she talks about the story of a couple who wanted to see her once Loufty obtained her license to practice in Saskatchewan. “It was December. It was minus forty-five degrees with snow everywhere,” she says. “They (the couple) are both HIV and hepatitis C positive.” During one of their visits, Loufty asked them, “How it is going with your medication?” The woman was pregnant and they both needed to be on anti-viral drugs (Anti-viral drugs help people living with HIV to reach “undetectable levels” which then impacts their life expectancy and enable a safe pregnancy). “We are having a little bit of problems, we sometimes get them (the medication) late,” the couple responded to Loufty’s question. Loufty outlines to me that in some instances, the couple missed their medication entirely. The place that dispenses the couple’s medication is forty-five minutes away from their home, and they had no transportation. The woman is on methadone and her partner was just released from federal prison. For some individuals, Dr. Loutfy says “The required drugs dispensed to patients for more than one day are available but legally denied to people who have been recently discharged from prison.” Despite these hurdles, Dr. Loutfy elaborates, “Some people still believe these people are doing it to themselves.”

To address these barriers, Poitras says to me that it is important to learn about the history of Indigenous peoples in Canada, including the intergenerational effects of Indian Residential Schools.  Or, “connecting the dots” as Poitras calls it.

When asked about what it means to connect the dots, Poitras says, “It amazes me that many people working helping professions don’t know the history of Indigenous people.”

Poitras suggests to others in the helping profession that we start asking ourselves about our interactions with Indigenous peoples, “Do you know the history of their family as what happened to them as a human being, what has been stolen from them as child into adult hood?” Poitras calls on all people to see what part their ancestors played and to understand that their ancestors still work in those places (prisons). She says others must ask and learn about the role their ancestors played and continue to play in these realities, “Do they know the role the ancestors played?”

After calling her mom to tell her about her diagnoses, Kecia said that she wanted to tell the rest of her family. So, they had a large family meeting. At the meeting, there was a lady present who worked for the Ministry of Health or the Medical Services Branch in British Columbia. Not long after she told her family, including how she acquired the virus, she said to her family, “I don’t now what to do but I would like to warn other young people back home about this.” She said she wanted to tell other young people because she didn’t know, “How are they going to know?”

Following this meeting, Kecia worked with another doctor, traveling to communities. Kecia says her work was so well received they just continued doing it. Eventually, she became known as the AIDS lady. Across Canada, Kecia said, “People kept hearing about this woman, this girl, going to talk about people about AIDs. It was huge.” She did an interview with CTV and she was the first Indigenous woman to publicly disclose her HIV status on television. In her travels, Kecia describes some of the people she met. She says, “I met some really beautiful people that gave me some prayers.” And some twenty odd years later, there are still some people that pray for her.

The award that Kecia won is named the Kevin Brown Positive Hero Award; she was awarded and acknowledged at the 2016 AccolAIDS Awards Gala. The award is “presented to an individual living with HIV/AIDS who is regarded with great admiration and respect for his/her contributions to the HIV/AIDS movement.”[9] Kecia takes her experiences and she instills her passion in her work. Kecia says, “My whole passion was allowing us to have dignity…let us have some family, let us belong.”

Returning to the theme of home, Kecia says, “Home is a big theme in my life…there is always a part of me (wanting) the stability of a home…I could never have that or create that until now.”

Nearly forty-five years later, she says, “It has taken forty years to heal, to come full circle.” Kecia continues, “When we talk about home, it is where I feel the safest, where I can be myself. I feel very lucky to have what I have today. I know I made home when my kids don’t wake up scared.”

 

 

 

 

[1] http://www.budget.gc.ca/2012/plan/pdf/Plan2012-eng.pdf Page 213

[2] http://www.fncaringsociety.com/sites/default/files/First%20Nations%20Child%20Poverty%20-%20A%20Literature%20Review%20and%20Analysis%202015_3.pdf

[3] https://www.aadnc-aandc.gc.ca/eng/1470422455025/1470422554686

[4] https://www.aadnc-aandc.gc.ca/eng/1470422455025/1470422554686

[5] http://caan.ca/regional-fact-sheets/

[6] http://www.trc.ca/websites/trcinstitution/File/2015/Findings/Exec_Summary_2015_05_31_web_o.pdf at 112

[7] http://www.phac-aspc.gc.ca/aids-sida/publication/epi/2010/8-eng.php

[8] http://www.budget.gc.ca/2012/plan/pdf/Plan2012-eng.pdf

[9] https://positivelivingbc.org/news-events/special-events/accolaids-2016/2016-accolaids-award-winners/

Dear #SexWork movement #PCEPA #c36 #cdnpoli

Dear sex work movement,

I am sad. I don’t know why. I was told from the beginning, “be careful.” Be careful, it’s not everything you’ve signed up for.

I am one person. But I am not the only person, the only Indigenous person, the only Indigenous woman who supports decriminalization of sex work. Yet, when I hear over and over again, “Decriminalization is the only way to end violence against sex workers,” I know we have failed. We ignore other laws that intersect into the lives of Indigenous sex workers, like child welfare legislation. And, more importantly, we ignore how decriminalization would have never saved women like Cindy Gladue.

Nothing Cindy did was criminalized and everything she did do, from having a driver, to doing outcall, to having a safety call, did not save her.

Decriminalization is not the only way to end violence against sex workers.


But it is an important and essential step to ending violence against sex workers, especially young folks and Indigenous folks who are in the sex trade.

I am writing this after being told to “be patient” after being the only Indigenous woman in the room sometimes. The only Indigenous woman to be challenging these notions that “Decriminalization will end violence against sex workers.” The only Indigenous woman to be remembering the stories shared with me from others: We must not forget about the youth and we must not forget about the trafficked, the people who do not have any choice or who would prefer not to be in sex work anymore. Or, remembering the ones who have gone missing or murdered. Or, remembering the ones who don’t call sex work a job. I am sometimes the only Indigenous woman in the room, not because I am the only Indigenous woman who has experience or who can speak to the hard issues. Rather, I am sometimes the only Indigenous woman in the room because I am privileged. I know this and I have always known this. This is the burden I carry but I am left to sit in the room, to carry it all on my own…as the only Indigenous woman in the room to survive, to carry the stories other’s share with me, to honour the stories by speaking up and speaking out. Survivor’s guilt.

I guess I wasn’t patient enough.

This letter isn’t about what has been said or what hasn’t been said. There is still lots to say but I will be stepping back from “sex work activism” forever…

Of course, I will still be writing on things publicly (and things that are available publicly – but I won’t be holding back…I’m not here for your comfortability).

Still, I feel sad because I remembering having conversations with other Indigenous folks, and Indigenous folks who I admire and look up to, early on in this journey that must come to an end. Now, I feel let down for how much trust I put into others including others who said they “valued” my opinion but turned out to be condescending/patronizing (welcome to whiteness). I feel used and obviously, not listened to despite people saying “We are listening to you.”

All the indigenous folks I had conversations with said, “Be careful.”

And, here I am, I gave too much trust and I gave too much hope into others, hoping that they would prove what I was told … as wrong.

With how the current Justice Minister has moved forward on parliamentary responses to Section 7 jurisprudence, I predict c-36 won’t change much.

But don’t let me tell you I told you so; now it’s truly your turn to prove me wrong about everything that I’ve been told about sex work activism.

The bar is set low; so, you don’t have to do too much.

Sadly, the opposition to decriminalization? This is what they want…one less indigenous woman who understands the law and politics behind it all who supports decriminalization of sex work but not supporting decriminalization as the end all and be all; rather, supporting decriminalization as an essential step to ending all violence against all people in the sex trade, regardless of their experiences, forced, coerced, consenting…publicly, openly, and wholeheartedly.

Don’t let it be one more.

kwe

#cdnpoli: Is @puglaas willing to ask the hard questions?

Justice Minister Jody Wilson-Raybould writes,

“And I challenge the critics that say it cannot be done – those, who on the one hand, say the government is not serious or sincere, and on the other, say that Indigenous peoples do not have what it will take or the resolve or that the task is too great.”

Nobody is saying that “it” cannot be done.

It being decolonization.

While I expected more from someone who has a legal background, I lowered those expectations when such comments come from someone in politics; it is all a smoke show.

Justice Minister writes and talks as if the burden should be on Indigenous nations. Specifically, she says,

“That is, how will you define yourselves as Nations? What are the structures through which you will deliver programs and services? And, then, what will your relationship with Canada, with your neighbours, and with other Indigenous Nations, look like? How will you resolve your differences between and amongst yourselves?”

These conversations have been happening for many years, if not decades before the current Liberal government—perhaps, since Confederation.

In fact, when Papa Trudeau proposed the Constitution, which she and other lawyerly types have learned about during their legal training or elsewhere (I am hoping and assuming), it was the Indigenous nations and leaders who intervened to ensure Indigenous voices were being heard at the implementation stage.

Yet, it is this same document that prevents the very things Justice Minister questions: delivery of programs; relationships with other jurisdictions (namely, Canada), and a vague reference to conflict resolution styles.

The problem is not whether “it” can be done; rather, the question is how far is the federal government willing to go to give up its power to fully and meaningfully recognize the jurisdiction of Indigenous nations?

By suggesting that the Indian Act has to go in order to solve these problems, Justice Minister (regrettably) reaches for the lowest hanging fruit. Sure, that is the most obvious solution to what Justice Minister positions as “the social and economic gaps” problem which “will never be fully closed until the foundational work of Nation rebuilding has been completed… the Indian Act gone.” But what is this “Nation rebuilding” Justice Minister speaks of? Does “Nation rebuilding” actually address the constitutional/jurisdictional issues relating to administrative structures? Delivery of programs? Relationships with Canada? Or, conflict resolution?

There is not life to be born out of Section 35; Canada’s highest court has established that the power already lies in the Crown. Perhaps, the problems lie within Canada’s alleged higher jurisdictional powers embedded within the constitution which ultimately ignore Indigenous nations’ authority to govern themselves—or, explicitly the sections that hinder decolonization.

I was proud of an Indigenous woman being named the new Justice Minister. But sadly, I am let down by the current government with parading another Indigenous woman, and other Indigenous persons, out when it conveniences them, at a moment’s notice to disregard criticism of the party’s actions.

If Justice Minister asks, “Are we ready to finish the unfinished business of Confederation?” and by that Justice Minister means, getting rid of the Indian problem—then yeah, the government is well on its way on the right track by ignoring the actual constitutional issues and jurisdictional issues (where the jurisdictional issues ultimately speak to the constitutional issues).

I had hope and optimism. As of late, I have hopelessness.

#Prostitution in the Indian Act and Criminal Code (#PCEPA and #C36)

This is part of a series where I will outline and discuss on where and how prostitution provisions read in the Indian Act, and contrast/compare with prostitution provisions in the present-day Criminal Code (primarily, amendments made under Bill C-36). Often when people talk about the Indian Act, discussions on such provisions are often erased. I am not the first to write about these provisions (you can read this essay I authored when I first wrote about these provisions and you can see the sources for such knowledge).

Both of these Acts (below) are amending Acts, meaning they change/amend legislation already enacted (i.e., Indian Act and Criminal Code). For the historic legislation, the amending Act changes the Indian Act and for the contemporary legislation, the amending Act is the Act (Bill C-36, or Protection of Communities and Exploited Persons Act “PCEPA”) in response to Canada (Attorney General) v Bedford, 2013 SCC 72. The amending Act provision changing the Indian Act provisions criminalizing Indigenous women reads,

If any person, being the keeper an any house, allows or suffers any Indian woman to be or remain in such house, knowing, or having probable cause for believing, that such an Indian woman is in or remains in such house with the intention of prostituting herself therein, such person shall be deemed guilty of an offence against this Act, and shall on conviction thereof, in a summary way, before any Stipendiary Magistrate, Police Magistrate or Justice of the Peace, be liable to a fine of not less than ten dollars, or more than one hundred dollars, or to imprisonment in any gaol or place of confinement other than a penitentiary, for a term not exceeding six months (C-34, 1879, An Act to Amend the “Indian Act, 1876”).

This provision criminalized anyone who permitted an “Indian woman” to remain in a public house who committed certain offences. The certain offence included prostitution or the intention of prostituting herself. Thus, there was no need to actually engage in prostitution; rather, there simply had to be an intention to engage in prostitution. It is unknown how someone had evidence that an Indian woman was intending to prostitute herself; yet, it is safe to assume that simply being inside a “public house” was evidence of such intention. This provision operates in a similar way to the communication provisions as well as the bawdy house provision in PCEPA (i.e., being present in an area known for prostitution).

While some people argue that the PCEPA removed the bawdy house provisions, it did not; PCEPA amended the definition of the bawdy house to remove any reference to prostitution in its definition. The bawdy house definition now reads,

(2) The definition “common bawdy-house” in subsection 197(1) of the Act is replaced by the following: “common bawdy-house” means, for the practice of acts of indecency, a place that is kept or occupied or resorted to by one or more persons (C-36, 2014, 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).

Indecency or indecent criminal conduct (which the Crown must prove beyond a reasonable doubt) is defined as the following,

  1. That, by its nature, the conduct at issue causes harm or presents a significant risk of harm to individuals or society in a way that undermines or threatens to undermine a value reflected in and thus formally endorsed through the Constitution or similar fundamental laws by, for example

    1. confronting members of the public with conduct that significantly interferes with their autonomy and liberty; or
    2. predisposing others to anti-social behaviour; or
    3. physically or psychologically harming persons involved in the conduct, and
  2. That the harm or risk of harm is of a degree that is incompatible with the proper functioning of society (R v Labaye, 2005 SCC 80 at para 62)

So, indecency has two elements: 1) “The first question is whether the conduct at issue harmed, or presented a significant risk of harm to individuals or society” (R v Labaye at para 65); AND 2) the second question is whether the “degree of alleged harm rose to the level of incompatibility with the proper functioning of society” (R v Labaye at para 71).

It appears that PCEPA tried to impose that prostitution “interferes with [a prostitutes] autonomy and liberty”; “predispos[es] people to anti-social acts or attitudes” (i.e., like “humiliating stereotypes of women as objects of sexual gratification”, R v Labaye at para 67); or contributes to physical or psychological harm to the persons involved in the conduct (R v Labaye at para 68); however, this imposition ignores how the criminal law prevents prostitutes from exercising autonomy and liberty over their own bodies; creates the assumption that prostitution contributes to harmful anti-social acts or attitudes about prostitutes/prostitution (which in turn ignores how criminalization of such acts or persons contribute to stigmatization and victimization of prostitutes or prostitution); and attempts to impose that prostitution physically or psychologically harms persons (namely, prostitutes) involved in prostitution.

On this last point (physical and psychological harm in prostitution), this imposition ignores how society’s ideas about prostitution and prostitutes contribute to the physically or psychological harm to persons involved in prostitution (i.e., that the violence prostitutes experience is deserved or their own fault). We see support for this statement (that the violence prostitutes experience is their own fault) when Senator Donald Plett disclosed the real intent of PCEPA by stating, “Of course, we don’t want to make life safe for prostitutes; we want to do away with prostitution.”

In reality, however, trying to impose an “indecency” definition into prostitution places the burden on prostitutes to try to end the violence that they experience instead of focusing on the harm that criminalization of prostitution creates in a sex worker’s life.

Others also argue that the PCEPA “allow” sex workers to work indoors; however, the PCEPA criminalizes sex workers who work indoors by preventing sex workers from implementing safety enhancing measures (i.e., security, screening mechanisms, or drivers, to name a few). In fact, PCEPA assumes all relationships with a sex worker are exploitative and it is up to the sex worker or person charged under such provisions (i.e., material benefit provisions, advertising provisions, etc) that criminalize relationships (professional or personal) with the sex worker to prove otherwise.

Any person who appears, acts or behaves as master or mistress, or as the person having the care, government or management of any house in which any Indian woman is, or remains for the purpose of prostituting herself therein, shall be deemed and taken to be the keeper thereof, notwithstanding he or she may not in fact be the real keeper thereof (C-34, 1879, An Act to Amend the “Indian Act, 1876”).

This second provision assumes any house where any Indian woman is or remains for the purpose of prostitution is such a house that is used for prostitution. A person did not have to actually be the keeper of the house in question; rather, the person just had to appear, act or behave as having the care, government or management of any house where any Indian woman is or remains for the purpose of prostituting herself.

This second provision is similar to PCEPA’s and other legislation relating to procurement. the PCEPA provision reads,

286.3 (1) Everyone who procures a person to offer or provide sexual services for consideration or, for the purpose of facilitating an offence under subsection 286.1(1), recruits, holds, conceals or harbours a person who offers or provides sexual services for consideration, or exercises control, direction or influence over the movements of that person, is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years (C-36, 2014, 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).

Both of the second provisions (in the Indian Act and the Criminal Code) assume that anyone who provides housing to an Indian woman (Indian Act) or who recruits, holds, conceals or harbours a person who offers or provides sexual services or who exercises control, direction or influence over the movements of that same person commits such an offence. So, either provision assumes that any person who provides housing or a safe indoor working space to an Indian woman, which were assumed to be prostitutes or engaging in prostitution (and arguably, these same assumptions still exist today), is providing a space for an Indian woman to prostitute herself or a person who offers or provides sexual services for consideration; the provisions assume that simply staying in the same location (i.e., working indoors with others) an Indian woman or a person who offers or provides sexual services for consideration is engaging in prostitution. Explicitly, the provisions prevent prostitutes from implementing safety enhancing measures, including working indoors, at the same location and with security, other workers or other people present.

Further discussion is in the following table:

 

Historic Legislation (pre-1972) Contemporary Legislation[1] Discussion[2]
C-34, 1879, An Act to Amend the “Indian Act, 1876”

 

cl 7 (“public houses”): “If any person, being the keeper an any house, allows or suffers any Indian woman to be or remain in such house, knowing, or having probable cause for believing, that such an Indian woman is in or remains in such house with the intention of prostituting herself therein, such person shall be deemed guilty of an offence against this Act, and shall on conviction thereof, in a summary way, before any Stipendiary Magistrate, Police Magistrate or Justice of the Peace, be liable to a fine of not less than ten dollars, or more than one hundred dollars, or to imprisonment in any gaol or place of confinement other than a penitentiary, for a term not exceeding six months.”

 

C-36, 2014, 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

 

Cl 12. (1) The definition “prostitute” in subsection 197(1) of the Act is repealed.

 

(2) The definition “common bawdy-house” in subsection 197(1) of the Act is replaced by the following:

 

“common bawdy-house” means, for the practice of acts of indecency, a place that is kept or occupied or resorted to by one or more persons;

– Does not distinguish between Indigenous women who work from their homes

– Assumes all Indigenous women in any bawdy house to be a prostitute

– Anyone who keeps a bawdy house where an Indigenous woman is present is criminalized (thus, anyone who lives with an Indigenous woman or visit an Indigenous woman is criminalized)

C-34, 1879, An Act to Amend the “Indian Act, 1876,”

 

cl 8 (“penalty for harbouring Indian prostitutes”): “Any person who appears, acts or behaves as master or mistress, or as the person having the care, government or management of any house in which any Indian woman is, or remains for the purpose of prostituting herself therein, shall be deemed and taken to be the keeper thereof, notwithstanding he or she may not in fact be the real keeper thereof.”

286.3 (1) Everyone who procures a person to offer or provide sexual services for consideration or, for the purpose of facilitating an offence under subsection 286.1(1), recruits, holds, conceals or harbours a person who offers or provides sexual services for consideration, or exercises control, direction or influence over the movements of that person, is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years – Criminalizes those who provide housing to Indigenous women and assumes all those who provide housing for Indigenous women that they are harbouring Indigenous prostitutes.

[1] I only refer to Bill C-36 since this bill is the most recent changes to Canada’s prostitution provisions. I include contemporary legislation in contrast to historic legislation to draw comparisons—there is very little change from previous provisions to present provisions.

[2] Much of the comments remain the same for many provisions/amendments since the laws’ effects (i.e., criminalizing Indigenous women’s bodies) remain largely the same.

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.

Law School, Untold truths and #TruthAndReconciliation

When he began to raise his voice, I knew that I had been here before. “Stop suggesting we are lying.” We, being the members of my University’s Senate committee. Yet, I never said or alluded to the suggestion that any of the individuals at the table were “lying.” I merely turned the responsibility back onto everyone at the table: If you are saying that you read my submission prior to coming here and you stated that I don’t have to repeat what is in my submissions because you read my submission “thoroughly”, then I expect and demand better from so-called professionals. In other words, why are you asking me questions that can be easily answered by reading my submissions?

I was at a meeting with my University’s Senate Committee over an appeal of a grade. I heard stories about nobody winning these kinds of appeals and stories about how manipulative the experience was especially for students from equity seeking groups (since these are the majority of the kinds of students using these processes).

I should have known better.

The standard to satisfy the grade review process includes, “a significant error or injustice [that] may have occurred”[1] By the very basis that the examination committee accepted my application, I demonstrated the existence of a serious error or injustice. When I proposed a different remedy, however, the examination committee suggested they were not empowered to grant such a remedy and the Senate suggested I was asking them to “change the rules.” On the contrary. I straightforwardly asked the examination committee and subsequently the Senate, to exercise their discretionary power in granting an exception to the rules–the language of the rules and the examination committee’s proposed remedy suggest such discretionary power.

My University sits and rests on unceded Algonquin territory—the nation’s capital. I applied to only two schools because of the schools’ reputation for being social justice oriented schools.[2] But also, I couldn’t afford to apply to more than two law schools and the more law schools you apply to, the more your application costs.

Currently, I am a third year law student. I am disheartened by this entire experience. This experience being the law school experience. I first noticed a downright refusal to accept the untold truths not only my school, but the majority of law schools across Canada hold in their hallways. These untold truths include the stories that myself and peers similar to me carry with them, carry on their shoulders and carry in the blankets of secrecy—the pain, the grief and the burden.

Welcome to the burden of being an Indigenous law school student in an institution designed to erase Indigenous laws and Indigenous personhoods.

Upon the release of the Truth and Reconciliation Commission’s Calls to Action, my school published a media release almost immediately[3], suggesting that they were committed to Indigenizing the school’s curriculum.

word

Their words indicate one thing but their actions tell a different story.

In the media release, the Faculty suggested that they were also “pro-actively” responding to the issue. Yet, what was the issue? The media release never states what the issue is/was, but I will suggest that it is the lack of Indigenous history, Indigenous initiatives and Indigenous intervention in my school’s curriculum.

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In the 2015 Fall Term, my then-professor talked about only two legal systems existing in Canada. It was for a class on the division of power in our government and much of the course ignored how Indigenous politicians and related leaders were at the centre of constitutional and public law interventions. And when I approached the professor about the error in his statement on the existence of only two legal systems in Canada, he denied it. Classic lawyerly response. Deny. Deny. Deny.

I approached another professor who I thought I could trust to address the comments — or lack of comments — made by the professor and the issue that arose between us: He thought I was calling him a racist, and I thought he was ignoring the issue of structural racism in legal education. As I sat in a room with two other professors who had significant power over me, the mediating professor started off with classic mediation training (hello, first year alternative dispute resolution class). The other professor focused on his own personal experiences with racism. And, I sat there in silence, holding back my tears, thinking, “This isn’t about you.” But I blurted out, “This is ridiculous.” Ridiculous because the professor thought I was personally attacking him, calling him a racist and ridiculous because the mediating professor reminded me of a first year law student roleplaying in their alternative dispute resolution class in January term.

I blame neither of these professors for their inability and lack of training to handle the issues I brought forward to them. Their response, or more accurately their inability to respond to the issue, is plainly a product of their legal education—a package full of falsehoods. Instead, I blame myself in trying to trust the same people that were a product of the fictions created by their profession, their institutions and the fictions that they must uphold, unquestionably; I should have known better.

Ever since I could remember, I have always pushed back on the things taught in classrooms and the actions of people who have power over me. It is how I reclaim the power designed to silence, dismiss and ignore my concerns about who I am, and how others like me, are treated by these systems and institutions.

I attended an elementary school where I witnessed other students being tied to chairs, being forced to sit in piss-filled bottoms, and being told to stand in corners with their elbows bent at 90 degrees with dictionaries resting on their forearms. I remember being called stupid and dumb. By a teacher. I also witnessed teachers or other employees of the school force a student’s head in between his thighs as he sat in a chair in the hallway while facing the wall. I could hear and see the child screaming to be let go. Then, the next memory is the door being shut so I could not witness these acts anymore. This is how law school deals with systemic and institutional racism in the legal curriculum: The door is always shut so others could not and cannot witness the insidious of its racism.

When I told my dad and my mom what my elementary school principal said one day in class, my mom and dad came to school the next day and sat down with the principal. Next, I remember my dad walking out of the principal’s office in frustration. My mom followed behind him. During this office meeting, the principal denied saying what she had said, what I witnessed her saying to our classroom. Despite the fact that I can’t remember what my principal said in class that one day to an almost entirely Indigenous classroom, it didn’t sit right with me. But I still remember and unfortunately, I will never forget how it made me feel.

That day, the chairperson of my University’s Senate committee suggested that I was lying by putting the responsibility back onto them. And through his indignant tone and terse words, I remember all these instances where I spoke up, spoke out and demanded better accountability for people’s actions in, and from, institutions. From elementary school to law school, nothing has changed and sadly, I don’t expect it to change…ever.

While I did claim that my law school was insincere when they advertise(d) themselves as a social justice school committed to principles of truth and reconciliation in this meeting, I also understand that you can’t expect much from institutions thriving on principles of white supremacy and colonization. What good is a law school that says it is Indigenizing the curriculum, but ignores how their institution continuously ignores the history of Indigenous interventions while also simultaneously attempting to ignore Indigenous voices/experiences (i.e., Elijah Harper anyone)? The circle never ends.

More importantly, however, the very basis of this entire process and the comments made by the Senate committee members suggest that my school is anything but social justice oriented.

In order to support my application, I had to submit all documentary evidence in my possession. During finals, I had to seek out this documentary evidence. And, this documentary evidence included supporting letters from my counsellor at the time documenting why I was seeing her (i.e., directly related to the systemic racism experienced at school and the lack of understanding from the Faculty itself). I also submitted prescription receipts documenting my use of highly addictive benzodiazepines. To think of the privacy issues related to this disclosure in order to support my application…mind boggling.

Then, when one of the Senate committee members brought up this evidence, she chose to use the word “discomfort” and I asserted that this experience was more than just a “discomfort.” The entire experience further triggered my anxiety which contributed to my inability to attend classes and hand in assignments (including for this class I originally sought a grade review for). This person’s reply to her own dismissal of my experiences? “I am sorry. English is my second language. I didn’t mean to use the word discomfort.” That is always good to know that people hearing a “final and binding decision” neither speak nor read the language of my submissions in a proficient manner.

Next, this same committee tried to suggest they were/are an “independent” committee but my experience with the Faculty’s examination committee and the Senate’s refusal to address claims of bias and lack of independence has shown me the exact opposite.

When I asked the examination committee to recuse an observing member during the committee’s deliberations, the committee replied that this member was “not a voting member” and this member simply “supported” the committee. Support the committee in what manner? As the University’s Senate suggested that they were transparent with the rules as the rules were/are posted online, this transparency does not actually mean that either the examination committee or the University’s Senate are independent or unbiased. Often times in administrative processes, the decision maker assumes transparency, unbiased decision making and independence are one in the same–if one is transparent, then they are also unbiased and independent. But being transparent is neither synonymous with unbiased and independent decision making nor is transparency the test to satisfying unbiased and independent decision making.

In light of the above, I do demand better of everyone involved. I demand that legal education stop relying on the “add Indigenous content and stir” approach when it comes to Indigenizing the curriculum. I demand that legal and related professionals stop thinking that they are being under attack by an Indigenous student who demands better from everyone involved and who has a stake in legal education/curriculum. Because, trust me, if I had any real institutional or structural power, shit would have changed looooooong ago (and if you are a legal professional reading this and the shoe fits, then so be it Cinderella).

But what can professors start doing tomorrow to help make the law school experience better for their students?

  • Start including non-legal/law related sources as sources of law;
  • Make room to question the foundation of legal principles – inside and outside the classroom;
  • Make the space to make mistakes and learn from mistakes – inside and outside the classroom, and for you, for your students and for people close to you, including your colleagues;
  • Stop taking those who question the classroom experience as a personal attack on you; institutional change is hard but it is not personal; and
  • Start taking responsibility for a commitment to excellence in legal education by not placing the responsibility on the shoulders of your Indigenous students and your Indigenous peers.

Change is hard; change is unsettling. But what change requires from everyone is acknowledging the role they played in the history and in present practice of ignoring and dismissing Indigenous voices and experiences in our legal institutions. And, most importantly, truth and reconciliation means more than just repeating the words as if that is demonstrating commitment to a call to action.

 

 

[1] https://commonlaw.uottawa.ca/en/students/academic-affairs/registration/registration-student-responsibilities/academic-regulations

[2] https://commonlaw.uottawa.ca/en/about/message-dean

[3] https://commonlaw.uottawa.ca/en/news/response-truth-and-reconciliation-commissions-call-action