An Indigenous Senator who is trying to change how perpetrators of violence against Indigenous women are sentenced in Canada says a soon to be released report shows that courts are more lenient to people who kill Indigenous women and girls than to those whose victims are not Indigenous.
Cree Senator Lillian Dyck shared some of the report’s findings with APTN News.
The co-authored paper analyzed data from around 800 cases involving violence against women between 1980 and 2013.
The cases were selected because they reveal the ethnicity of both the victim and the perpetrator, Dyck explained in a phone interview.
Among the researchers’ starkest findings is a disparity between the punishments for those who kill Indigenous women and those who kill non-Indigenous women.
“Even though with murder there is very little wiggle room [with convictions], we did find that if you looked at the type of convictions by the victim’s race, when it was an Indigenous victim most often it was second-degree murder or manslaughter. If it was a non-Indigenous victim it was more likely first or second-degree murder,” Dyck said.
First degree murder convictions are more likely to be given to those who killed a non-Indigenous woman–33 per cent–compared to perpetrators who killed an Indigenous woman, at 20 per cent.
For second degree murder convictions, the rates were 39 per cent in cases where the victim was Indigenous, versus 46 per cent when the victim was not Indigenous.
In contrast, the researchers found 39 per cent of manslaughter convictions in cases where the victim was Indigenous, versus 21 per cent when the victim was non-Indigenous.
“That shows there’s something going on. It doesn’t prove there’s a racial bias, but it’s an indication that you should look into it further.”
Dyck and her collaborators also found that in some homicide cases Indigenous male perpetrators “got a much higher sentence” in cases where the victim was not Indigenous, compared to cases where the victim was Indigenous, Dyck explained, adding the number of such cases was “not very high” but enough to warrant further investigation into the matter.
The researchers found that non-Indigenous offenders received roughly “the same number of years before parole” regardless of their victims’ race.
“But it was very different for the Aboriginal perpetrators if it was a non-Indigenous victim. He has to wait many more years before he got parole,” Dyck said.
The Senator said in most homicide cases involving non-Indigenous female victims, the perpetrator was an intimate partner.
But in cases where the victim was Indigenous, “usually it’s an acquaintance.”
According to the study, 32 per cent of perpetrators or accused offenders were not known to Indigenous victims, while 12 per cent were unknown to non-Indigenous victims.
“Contrary to the widespread belief that Indigenous women are only killed by persons known to them, this data shows the significant role of persons not known to Indigenous victims,” the report reads.
The research also substantiated claims by former federal Indigenous Affairs Minister Bernard Valcourt and former RCMP Commissioner Bob Paulson in 2015 that upward of 70 per cent of female Indigenous homicide victims were killed by Indigenous men.
Valcourt came under fire from First Nations leaders after he told Alberta chiefs of the unpublished RCMP statistic during a meeting in Calgary.
Paulson later confirmed Valcourt’s assertion.
But Dyck said those claims haven’t been corroborated with evidence until now.
“Before colonization women were not seen the way they are now — there was respect for women,” she said.
“And that respect has been eroded through centuries of colonization, through the residential schools, and so on.”
By contrast in the authors’ findings, only two per cent of those accused in homicide cases involving non-Indigenous women were themselves Indigenous.
“This data disputes stereotypical beliefs that non-Indigenous women should be most fearful of Indigenous men,” Dyck and her co-authors write in the study.
Dyck said 92 per cent of the offenders in the study were male.
The authors say the findings reveal a “racialized dimension” to the homicide of women.
They say Indigenous women are targeted by both Indigenous and non-Indigenous killers, while non-Indigenous women are targeted “almost exclusively by non-Indigenous perpetrators.”
Bill S-215 pushes for legal reform
Dyck’s partial release of her research results coincided with the second reading of her Senate Bill S-215 in the House of Commons Monday.
The proposed legislative change would require courts, in cases of violent offences, to consider the fact that a victim is an Indigenous woman as an aggravating factor when sentencing offenders.
Effectively, those accused of crimes like sexual assault, aggravated assault, manslaughter or murder could face stiffer sentences for harming or killing an Indigenous woman than if the woman was not Indigenous.
At the very least, the Senator hopes, judges will be compelled to address the vulnerability and disproportionate targeting of Indigenous women in their decisions and sentencing.
Having already passed three readings in the Senate, the bill was sponsored on Monday by Indigenous Liberal MP for Winnipeg Centre Robert Falcon-Ouellette, who said S-215 will “rebalance the scales of justice.”
He said the cases of Indigenous women and youth like Tina Fontaine, Cindy Gladue and Helen Betty Osborne are proof that “the combination of being Aboriginal female and living in a colonial society has devalued and dehumanized our women, and they are seen as inherently less worthy than other women.”
He referenced the Canadian justice system’s “so-called subtle discrimination against Aboriginal women and girls” and said Dyck’s proposed legislative changes would “increase the likelihood that the consequences of assaulting or murdering an Aboriginal woman or girl are appropriate and meaningful.”
Dene NDP MP Georgina Jolibois also supported the bill, admitting it’s “not a catch-all solution for the problems Indigenous women face in the justice system,” but that it’s “an opportunity for us to examine and question the belief systems judges, lawyers, police officers and court workers have and calls on them to see indigenous women from a new perspective.”
But the bill isn’t receiving support from some MPs in the Liberal and Conservative caucuses.
Conservative MP Michael Cooper questioned the bill’s constitutionality and suggested it might contradict the Gladue principle in sentencing.
He asked if S-215 would violate Section 15 of the Charter, which guarantees all Canadians equal protection and benefit under the law without discrimination.
“What the bill would do with respect to the Criminal Code is quite novel from the standpoint of aggravating circumstances,” he said, “because it would create a special class of victim, namely indigenous women.”
Cooper said race, gender and vulnerability can already be considered aggravating factors in sentencing.
He said under Dyck’s proposed legislative changes “it would not even matter if the offender knew that the victim was an Indigenous woman.”
Cooper was joined by colleague and Conservative Crown-Indigenous Relations Critic Cathy McLeod, and Liberal MP Randy Boissonneault, in his concerns about the bill’s potential contradiction of the Gladue principle, which compels judges to consider all reasonable alternatives to jail when sentencing Indigenous offenders.
“There would certainly be some litigation and some degree of uncertainty around sentencing,” Cooper said, in situations where a judge may be compelled to consider a victim’s Indigeneity as an aggravating factor while also considering alternative sentencing for Indigenous offenders.
If S-215 were passed into law, “a judge could be under contradictory obligations both to lengthen the sentence for an Indigenous offender’s criminal conduct against an Indigenous woman and, at the same time, to consider alternatives to incarceration and reduce the sentence because the offender themselves has an Indigenous background,” Boissonneault said.
Jolibois said Monday under Bill S-215 “the practitioners of violence would still get the punishment the law calls for, even with the aggravating circumstances the bill would put in place.”
She said the Supreme Court has ruled that for serious offences, there may not be any reduction in imprisonment for Aboriginal offenders.
Dyck said the Gladue provisions as they currently exist have “created a situation of unfairness” for Indigenous women “whereby [they’re] worth less than the man.”
“Really what you’re saying to Aboriginal offenders is that you’re going to get special provisions and that maybe your crime of sexually assaulting someone—maybe even your spouse—is not that serious because of the circumstances of your life — which I understand. But those same exact factors are what made the Indigenous women vulnerable to that.
“Indigenous women are seen as the lowest. In terms of racial hierarchy, we’re on the bottom.”
Dyck said she is open to amendments of the bill and had previously considered making it applicable to all women, “with special consideration given to First Nations, Inuit and Metis women.”
But there’s an urgent need for the reform, she adds.
“The longer we wait the more Indigenous women and girls go through the court system and don’t get a fair deal — 30 to 40 a year, 450 I think in the last three years,” she said.
“We could be making a difference for them rather than sitting and waiting. It’s certainly frustrating seeing it happen, to know the families are wanting this.”
With endorsements from the Assembly of First Nations, the Native Women’s Association of Canada and the Federation of Sovereign Indigenous Nations, it remains to be seen if the bill will garner enough support in the House of Commons.
But Falcon-Ouellette suggested Monday that if Conservative and NDP members “decided to support the bill, I suspect there might be enough members on this side of the House, whether the government supports it or not, to move it forward.”
Dyck said “it’s hard to know” if her bill would deter offenders.
She said if the bill is passed and a judge decides to hand down a harsher sentence to an offender who has killed an Indigenous woman, the impact could be that people’s views “gradually start to change.”
“It’s not going to be instant; it’s going to take time.”