Third reading of Bill S-215, An Act to amend the Criminal Code (sentencing for violent offences against Aboriginal women)Published on 12 December 2016 Hansard and Statements by Senator Lillian Eva Dyck
Hon. Lillian Eva Dyck:
Honourable senators, I rise today to speak as the sponsor at third reading of Bill S-215, An Act to amend the Criminal Code (sentencing for violent offences against Aboriginal women).
I thank the members of the Standing Senate Committee on Legal and Constitutional Affairs for reviewing and passing, on division, this bill in a timely manner.
In particular, I want to thank the critic of the bill, Senator McIntyre, who worked hard to ensure that the bill was dealt with expeditiously. I thank Senator McIntyre for his support and Senator Patterson for his supportive comments. In addition, I want to thank Senator Tannas, who rose at second reading to indicate his support for this bill.
Honourable senators, Bill S-215 amends the Criminal Code to require a court to consider the fact that when a victim of an assault or murder is an Indian, Inuit or Metis female person, this constitutes an aggravating circumstance for the purposes of sentencing. In doing so, it adds new sections immediately after sections 239 and 273 of the Criminal Code.
For brevity, I will use the term “Aboriginal,” which as you know is defined in section 35-2 of the Constitution as the Indian, Inuit, and Metis peoples of Canada.
Honourable senators, Bill S-215 is a direct response to the national tragedy of the more than 1,200 missing and murdered Aboriginal women and girls. The intention of this bill is to ensure fairness in sentencing when an Aboriginal female person is a victim of assault or murder and ultimately it aims to increase their safety.
While the Canadian Charter of Rights and Freedoms guarantees to all individuals equality before and under the law and the right to equal protection and equal benefit of the law without discrimination, it is clear that this is not the case for Aboriginal women and girls. Without a doubt, Aboriginal females do not have equal protection of the law; if they did, we would not have the national tragedy of the 1,200 missing and murdered Aboriginal women and girls.
Colleagues, there is both community and political support for this bill. The Federation of Sovereign Indigenous Nations and the Assembly of First Nations have passed resolutions in support of Bill S-215. As Vice-Chief Heather Bear, from the FSIN, stated at the Legal and Constitutional Affairs Committee last week, the chiefs from across Canada support this bill. The President of the Native Women’s Association of Canada, Francyne Joe, also supports this bill.
In addition, I have a letter of support from Iskwewuk E- wichiwitochik, a group of women in Saskatchewan who have been advocating on behalf of the families of the missing and murdered Aboriginal women and girls since 2005. I am most grateful to all of them for their support.
I will read into debates the resolution passed on July 1, 2016, at the Annual General Assembly of the Assembly of First Nations and signed by National Chief Perry Bellegarde, entitled “Support for Bill S-215”:
A. The United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration) affirms:
i. Article 22, (2): States shall take measures, in conjunction with indigenous peoples, to ensure that indigenous women and children enjoy the full protection and guarantees against all forms of violence and discrimination.
B. Indigenous women in Canada are at a higher risk of being victims of violence than non-Aboriginal females, as indicated in the 2014 Royal Canadian Mounted Police (RCMP) report Missing and Murdered Aboriginal Women: A National Operational Overview.
C. The 2014 RCMP report indicated that Indigenous women accounted for 4.3% of the overall female population in Canada but made up 11.3% of missing females and 16% of all female homicides.
D. Senator Lillian Dyck has sponsored Bill S-215, An Act to amend the Criminal Code (sentencing for violent offences against Aboriginal women) that would require a court to take Aboriginal female identity into account during sentencing of offenders to ensure that there are significant consequences for violent offenses against Aboriginal women.
And this was signed by Perry Bellegarde, National Chief.
Honourable senators, part of the sad legacy of colonization is that Aboriginal men have been over-incarcerated and at the same time Aboriginal women have become over-victimized. In a move to reduce the over-incarceration of Aboriginals, the Criminal Code was amended 20 years ago to include section 718.2(e). Similarly, Bill S-215 is meant to reduce the over-victimization of Aboriginal women.
Honourable senators, I know that this bill is novel because it focuses on Aboriginal female victims. Up to now, lawyers and judges have only had to take into consideration section 718.2(e) which states that:
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
Colleagues, Aboriginal women, just like Aboriginal men, have experienced unique circumstances that make them prone to being over-victimized in violent offences. Aboriginal women, unfortunately, can be perceived as a group about whom no one cares, and they can also be perceived as a group who are easy targets for sexual abuse and violence. Of course, not everyone holds such biased views about Aboriginal women, but recent research has verified that non-Aboriginal men do have such stereotypical attitudes.
Honourable senators, the evidence that Aboriginal women are targets of violent acts is indisputable. From the 2014 RCMP report and from the previous reports from the Native Women’s Association of Canada and Amnesty International, we know that Aboriginal females are three to four times more likely than other Canadian women to be murdered, sexually assaulted or made missing. Aboriginal women are seven times more likely to be targeted by serial killers.
In June 2016, Statistics Canada reported that for women, but not for men, simply being Aboriginal was a significant risk factor for violence. This latter fact is shocking and emphasizes the need for Bill S-215, which contains specific measures to decrease their vulnerability to violent acts, such as sexual assault.
Bill S-215 will include Aboriginal female identity as an aggravating circumstance for the various violent offences included under the assault and murder provisions of the Criminal Code.
I know that not everyone is convinced that it is necessary to create a specific category for Aboriginal females as an aggravating circumstance. However, I think the evidence of the increased incidence of assault, sexual assault and murder of Aboriginal females identified by the RCMP, the Native Women’s Association of Canada, Amnesty International and Statistics Canada compels Parliament to protect them, just as Parliament has recently done for public transit operators, such as taxi drivers.
You will recall that in 2015 we passed Bill S-221 to amend the Criminal Code to include on-duty public transit operators as an aggravating circumstance for assault.
In addition, in 2015 we passed Bill C-35, Justice for Animals in Service Act, known as Quanto’s Law. Quanto was a police dog killed while on duty. This bill created a new specific offence prohibiting the killing or injuring of a law enforcement animal, service animal or military animal. One of the provisions was to create a mandatory minimum sentence of six months for killing these types of animals.
Colleagues, as I said at second reading, if we can make special provisions to protect public transit operators such as taxi drivers and service animals such as police dogs, surely we can make special provisions to protect Aboriginal female persons.
While it may seem unfair to have different sentencing instructions for Aboriginal compared to non-Aboriginal female victims of violent offences, the reality is that there is racial and gender bias in sentencing. As of yet, there hasn’t been any academic research on the effects on sentencing of being an Aboriginal victim but there are many examples. I will give you two.
A recent example is the case wherein Judge Robin Camp asked the Aboriginal teenage victim of a sexual assault why she couldn’t just keep her knees together. The accused was acquitted, but after an appeal a new trial has been ordered. We all know what’s awaiting Judge Robin Camp: a possible dismissal as a judge.
Another example is the infamous Tisdale rape case. A 12-year- old Aboriginal girl was picked up by three Caucasian men, given beer and sexually assaulted. Only one of the three Caucasian men charged with sexually assaulting her was convicted. He was not even sent to prison. He was put under house arrest for two years. The case was appealed. The appeal court agreed with the prosecutor that a three-year prison term was more appropriate. However, only four months remained in his sentence, so the sentence was unchanged. The appeal judge noted that the house arrest was not appropriate because the offence was so serious and the punishment not harsh enough to serve as a deterrent to the offender or to others.
Colleagues, the other issue that was discussed at the committee was the interaction of Bill S-215 with the Gladue provisions under section 718.2(e) of the Criminal Code. The defence lawyers argued that Bill S-215 would be unfair to an Aboriginal offender because the offender would be sentenced to more time in prison, which would only increase the likelihood of his reoffending.
One could argue the opposite, that not holding Aboriginal men fully accountable for the violence that they inflict on Aboriginal women contributes to their likelihood of reoffending because they haven’t faced the full consequences of their violent behaviour.
Should section 718.2(e) of the Criminal Code allow for more lenient sentences for Aboriginal men who commit violent acts, such as sexual assault, against Aboriginal women? That’s a good question. The defence lawyers thought so. But that’s their job, to defend the offender and minimize any sentence if found guilty.
Colleagues, we ought to remember that section 718.2(e) of the Criminal Code was not meant just to reduce prison time; it was meant to consider alternatives to prison, such as restorative justice and rehabilitation programs, which would retrain and heal offenders and thereby decrease the likelihood of recidivism of the offender.
Under Bill S-215, a judge doesn’t have to increase the length of imprisonment; he or she could decide instead to increase the length of rehabilitation, drug treatment or other programming, which would be beneficial to the offender and to the community to which he would be returned.
It is true that the application of Bill S-215 might increase the length of the sentence decided upon by the judge, but that possibility depends on how the aggravating circumstance of being an Aboriginal female interacts, in the judge’s assessment, with the myriad of other aggravating and mitigating factors in any particular case.
Furthermore, while the defence lawyers were concerned that Bill S-215 would have a negative impact on Aboriginal offenders who assault or murder an Aboriginal female, it is debatable as to whether section 718.2(e) should even apply for such serious offences. The Supreme Court ruling in Gladue notes that for serious offences, separation, denunciation and deterrence are relevant and that in some instances there may not be any reduction in imprisonment for Aboriginal offenders. I will read into the record two paragraphs from the Gladue decision:
78. In describing the effect of s. 718.2(e) in this way, we do not mean to suggest that, as a general practice, aboriginal offenders must always be sentenced in a manner which gives greatest weight to the principles of restorative justice, and less weight to goals such as deterrence, denunciation, and separation. It is unreasonable to assume that aboriginal peoples themselves do not believe in the importance of these latter goals, and even if they do not, that such goals must not predominate in appropriate cases. Clearly there are some serious offences and some offenders for which and for whom separation, denunciation, and deterrence are fundamentally relevant.
79. Yet, even where an offence is considered serious, the length of the term of imprisonment must be considered. In some circumstances the length of the sentence of an aboriginal offender may be less and in others the same as that of any other offender. Generally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non- aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing.
Colleagues, I believe these arguments counter the concerns that the defence lawyers expressed about Bill S-215 having an undue negative impact on the mitigating effects of section 718.2(e) for Aboriginal offenders. The impact of Bill S-215 will be variable. The application of Bill S-215 does not necessarily mean that Aboriginal offenders will be imprisoned for longer times. They may instead be sentenced to a longer period of rehabilitation. The application of Bill S-215 would not necessarily impact the effect of section 718.2(e) if it is even deemed applicable to the particular case.
In sentencing, surely a balance must be struck between the rights of the offender to a fair sentence and the rights of the Aboriginal female victim to have the harms done to her be assessed fairly. Both Vice Chief Bear and President Francyne Joe also commented that a balance had to be struck between protecting the offender and protecting the victim. Unfortunately, the committee did not hear from a prosecutor who would have argued the case for the victims’ rights.
Honourable senators, in my testimony to the committee last week, I spoke about two recent court decisions which support the view that the Aboriginal identity of the female victim is a factor that ought to be considered during sentencing for the violent offences of sexual assault and manslaughter.
In R. v. Peter 2014 in the Nunavut court, the judge noted in paragraph 108:
. . . that aboriginal men attacking and killing aboriginal women are no more entitled, in my view, to consideration than non-aboriginal men are for attacking any woman. Put another way, aboriginal women are entitled to protection just as much as any other woman, perhaps more due to their cultural circumstances.
Similarly, in R. v. Neashish, in the Quebec court in 2016, the judge noted in paragraphs 134 and 135:
While the Gladue report dealt at length with the accused’s Aboriginal origins, the Court must not fail to consider the situation of the victims, who are also Aboriginal. They were affected by the same historical factors and years of upheaval and economic development experienced by the community. In addition to being victimized by the accused, they are victims of systemic discrimination. They are also likely to have suffered the same painful consequences of relocation, and according to the Gladue report, some of them, unlike the accused, are economically and socially disadvantaged.
The defence lawyers in their testimony at the committee review last week thought that these two cases obviated the need for my bill. I disagree.
While these two court cases indicate that these two judges, at least, are aware of the historic and systemic discrimination against Aboriginal women, this does not mean that the majority of judges think similarly. I could just as easily argue that there are likely many more judges who are not so aware of the double discrimination and unique circumstances that Aboriginal women and girls face and thus would not factor their identity into crafting an appropriate sentence.
It is important to emphasize, however, that these two cases illustrate that the judges did not agree with the defence lawyers in these two cases who argued for more lenient sentences for the offenders.
In the R. v. Peter 2014 decision, the judge notes in paragraph 163:
Defence counsel says that the accused is aboriginal. Well, so is the deceased. And then he admits a number of things that minimize the Gladue factors — the offender’s family is intact except for one possible suicide; he was not specifically affected by any of the residential school issues in the family. Defence counsel says you can’t change the past. Well you can’t change the past, but you can try and change the future and that is what the role of this Court is to do for this offender and for other offenders, therefore, the eight year sentence is rejected.
Honourable senators, the judge in this case delivered a sentence of 15 years rather than the 8 years asked for by the defence counsel.
Colleagues, I humbly ask for your support to pass Bill S-215. I realize that this bill alone is not a magic solution that will end the violent victimization of Aboriginal females, but it will create a ripple effect that will counteract systemic discrimination within the justice system. Under the provisions of this bill, the decisions made by judges will take into account the unique circumstances of Aboriginal females; and listening to the judge’s reasoning, lawyers, police officers and court workers will begin to examine their own belief systems and see Aboriginal female victims from a different perspective. Combined with the work of the national inquiry into the missing and murdered Aboriginal women and girls, which is continuing to raise public awareness, this bill will take specific action to increase the safety of Aboriginal women and girls.
I draw your attention again to the national crisis of missing and murdered Aboriginal women and girls and to the recent Statistics Canada report on Aboriginal victimization. This report confirmed something that many of us knew intuitively, that simply being Aboriginal for a woman is a risk factor for violence. Bill S-215 is meant to address this risk by making Aboriginal female identity an aggravating factor in sentencing offenders found guilty of assault or murder.
Let me remind you that we recently passed legislation to protect public transit operators, such as taxi drivers. We also passed legislation to protect service animals, such as police dogs. Surely we also ought to pass Bill S-215, a similar bill that protects Aboriginal female persons.
Lastly, honourable senators, Canada is signatory to the United Nations Declaration on the Rights of Indigenous Peoples. Last week, Prime Minister Justin Trudeau said that his government is working towards implementing Article 22.2, which reads:
States shall take measures, in conjunction with indigenous peoples, to ensure that indigenous women and children enjoy the full protection and guarantees against all forms of violence and discrimination.
Honourable senators, I believe that Bill S-215 works to achieve Article 22.2 of the United Nations declaration. I ask for your support to vote to pass Bill S-215 at third reading and send it to the other place for their consideration.