Warrior Life Studios

Pam Palmater

Tag: justice system

  • Overincarceration of Indigenous peoples nothing short of genocide

    Overincarceration of Indigenous peoples nothing short of genocide

                                                                                        (Public domain image)

    Canada’s colonial objectives have always been to clear the lands for settlement and development by whatever means necessary.

    After signing peace treaties in the 1700s, clearing the lands meant laws offering bounties on the heads of Mi’kmaw men, women and children. In the 1800s, clearing the lands meant ethnic cleansing on the Prairies – laws, policies and practices that confined native peoples to reserves

    and gave them insufficient rations to survive. In the 1900s, clearing the lands meant the theft of thousands of native children to be forced into residential schools where thousands died from abuse, torture and starvation. In the 2000s clearing the lands means the mass incarceration of Indigenous peoples in prisons paving the way for the extractive industry.

    The overincarceration of Indigenous peoples in federal, provincial and territorial prisons in Canada today is nothing short of genocide.

    On Jan. 21, 2020, Dr. Ivan Zinger, who heads the Office of the Correctional Investigator, issued an urgent statement about the rates of Indigenous peoples in federal prisons being at historic highs. While Indigenous peoples only make up five per cent of the Canadian population, they represent more than 30 per cent of those in federal prisons. Those statistics are even worse for Indigenous women who now make up 42 per cent of the prison population. A Statistics Canada report released in 2018 shows that almost half of all youth in corrections are Indigenous as well. This is all happening at a time when incarceration rates for the rest of Canada continue to decline. Why is this happening? Zinger states that federal corrections is “impervious to change” – a well-founded conclusion given the decades of commissions, inquiries and reports highlighting both racism in the justice system and the devastating impact it has on Indigenous peoples.

    In 1989, Chief Justice Thomas Hickman issued the final report of the Royal Commission on the Donald Marshall, Jr., Prosecution (Marshall Inquiry). Donald Marshall was a Mi’kmaw man from Nova Scotia who had been wrongly targeted by police and convicted of murder, spending 11 years in prison. The Marshall Inquiry found that the criminal justice system had failed Marshall “at virtually every turn” due “to the fact that Donald Marshall Jr., is a Native.” The report provided numerous recommendations to ensure more equitable treatment of native peoples in the future.

    A decade later, the Aboriginal Justice Inquiry of Manitoba released its report in relation to the

    murder of Helen Betty Osborne whose assailants had not been brought to justice; and John Joseph Harper, an unarmed native politician shot dead by Winnipeg police. Murray Sinclair, co-commissioner for the justice inquiry and chair of the Truth and Reconciliation Commission, made similar findings to the Marshall Inquiry: “[t]he justice system has failed Manitoba’s Aboriginal people on a massive scale.” His report also made numerous recommendations in relation to addressing racism and discrimination against Indigenous peoples in the justice system and beyond.

    In 2004, the Saskatchewan Commission on First Nations and Metis Peoples and Justice Reform found that racism was a major issue in police forces in their dealings with native peoples. This came on the heels of the Commission of Inquiry into Matters Relating to the Death of Neil Stonechild, also in 2004. This was an inquiry that investigated “Starlight Tours,” the arbitrary detention of native peoples by police who are driven out of town to freeze to death at night. Both reports offered recommendations, but like the other reports, most were largely ignored.

    In 2007 came the Ipperwash Inquiry in Ontario and most recently, in 2019 came the Final Report of the National Inquiry into Murdered and Missing Indigenous Women and Girls, which found Canada guilty of both historic and ongoing genocide. Racism in the justice system is a common theme in all of these reports and the Office of the Correctional Investigator has been raising the alarm for the overincarceration of Indigenous people for two decades.

    The statistics clearly show a steady rise in Indigenous incarceration from 17.5 per cent in 2000 to 30 per cent in 2020. But these represent the national statistics and, like rates of murdered and missing Indigenous women and girls, and Indigenous children in foster care, the provincial rates can be double the national rates.

    In Manitoba, more than 80 per cent of prisoners are Indigenous — the same province where 50 per cent of all women murdered and missing are Indigenous and 90 per cent of all children in foster care are Indigenous. In Saskatchewan, 76 per cent of prisoners were Indigenous, the same province which has more than 55 per cent of women murdered and missing as Indigenous and 85 per cent of children in foster care are Indigenous. We also know that more than two-thirds of Indigenous prisoners have been impacted by the foster care system. This is exactly the kind of colonial legacy that the Supreme Court of Canada in R. v. Gladue [1999] 1 S.C.R. 688 and R. v. Ipeelee 2012 SCC 13 cases meant to address when they instructed judges to find alternatives to prison for Indigenous peoples. Is no one listening?

    From the evidence, it is clear we have a direct pipeline from foster care to prison that seems to clear the way for pipelines on native territories. What the statistics don’t show is the history of thenRCMP and other police forces as an integral part of colonial settlement and development policies that have created this current crisis.

    From the RCMP’s Project Sitka to its massive military-style operation on Wet’suwet’en territory right now, native lands continue to be cleared by Canada’s laws, policies, practices, actions and omissions. The overincarceration rates will continue to increase unless we address these genocidal policies once and for all.

    While I agree with Zinger’s call for “bold and urgent action,” cultural programming and Indigenizing the prison will not get us there. We must confront racism against Indigenous peoples head on and prevent incarceration in the first place. This means addressing racism in federal and provincial laws and policies, as well as rampant racism in policing. In the meantime, we must begin the urgent process of decarceration for Indigenous women and children; Indigenous peoples with mental health issues; and Indigenous men languishing in prisons for little more than navigating poverty.

    This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc on January 30, 2020. https://www.thelawyersdaily.ca/articles/17658

  • Justice system still not protecting Indigenous women and girls

    Justice system still not protecting Indigenous women and girls

    (Picture by Pam Palmater, Rally for Justice for Murdered and Missing Indigenous Women and Girls in Winnipeg)

    This article was originally published in The Lawyer’s Daily on May, 28, 2019.

    “Her life mattered. She was valued. She was important. She was loved.”

     R. v. Barton [2019] S.C.J. No. 33.

    Cindy Gladue was an Indigenous woman originally from Alberta, where she grew up with her four siblings and extended family. She was also the mother to three daughters and her family described her as both a loving mother and caring auntie. She had close friends and always dreamed about being the first in her family to go to university. Cindy Gladue loved and was loved. She did not deserve her violent death in 2011 nor the indignity done to her body after. 

    She is now one of the many thousands of murdered and missing Indigenous women and girls in Canada — a growing crisis that represents grave human rights violations. The trial of the man who admittedly committed this act of violence against Cindy is an example of how defective Canada’s justice system is when it comes to Indigenous women victims and how negligent Canada has been in ensuring the basic human rights of Indigenous women and girls are met.

    In this column, there will be no details about Cindy’s appearance, what she wore the night she was killed, where she was killed, whether she knew her killer, her level of education, her health status, or what she did for a living — because none of the facts is relevant to her death. Cindy is not to blame for her death. Cindy did not kill herself. Cindy did not engage in a dangerous knife fight or try to kill someone.

    Regardless of which version of the story is accepted by the next trial judge — that she was killed by a male trucker who violently cut an 11-cm gash in her vagina, or that she died from a tear from his violent, but unarmed interaction with her — she still died as a result. According to the SCC quoting from evidence at trial, the trucker then tried to hide evidence, change the crime scene and lie about his involvement. His name doesn’t deserve to be said aloud, nor does he get to hide behind any of the racist or sexist excuses he used at trial to defend himself. None of the evidence referred to at trial or the SCC indicates that he should be believed. Cindy’s life story does not get to be narrated by the man who admits to committing this violence against her.

    Sexualized violence against Indigenous women and girls in Canada has been allowed to continue in plain sight by government officials, police officers, lawyers and judges who have treated Indigenous women and girls as though they are less worthy of life. In fact, were it not for the lengthy and persistent advocacy of Indigenous women and their allies, Canadians would still be unaware of the crisis.

    However, awareness of the crisis only gets us so far. The court proceedings which followed Cindy’s death show just how deeply engrained racism and sexism against Indigenous women still is in Canadian society, especially the justice system. In R. v. Barton [2019] S.C.J. No. 33, Justice Michael Moldaver, writing for the majority, allowed the accused’s appeal in part and sent the matter back to trial, but only on the charge of the unlawful act of manslaughter. The dissent would have dismissed the accused’s appeal entirely. Justices Rosalie Silberman Abella and Andromache Karakatsanis writing for the dissent (Chief Justice Richard Wagner concurring) agreed with the Alberta Court of Appeal that the matter be ordered back for retrial on both charges of first-degree murder and manslaughter. 

    The majority made some important points about the extent to which racism is still widespread in the justice system. At para.199, the majority explained: “Furthermore, this Court has acknowledged on several occasions the detrimental effects of widespread racism against Indigenous people within our criminal justice system. For example, in Williams, this Court recognized that Indigenous people are the target of hurtful biases, stereotypes, and assumptions, including stereotypes about credibility, worthiness, and criminal propensity, to name just a few. … In short, when it comes to truth and reconciliation from a criminal justice system perspective, much-needed work remains to be done.”

    They went on to say that the criminal justice system and all of its participants must take reasonable steps to address these biases — especially against Indigenous women. To this end, they directed that, on a go forward basis, trial judges ought to provide express instruction to juries to counter the well-known prejudice against Indigenous women. While there is no set text, trial judges should instruct juries about Indigenous women and girls having been subjected to a long history of colonization and systemic racism and then dispel myths about Indigenous women and those who are exploited for sex. These stereotypes were outlined in para. 202:

              – Are not entitled to legal protections;

              – Not deserving of respect, humanity and dignity;

              – Are sexual objects for male gratification;

              – Are available for the taking and no consent needed;

              – Assume any risks associated with “sex work”;

              – Are less credible than other people.

    The majority further stressed that, as a matter of respect, both the Crown and the defence counsel should have referred to her as Ms. Gladue instead of “Native girl” during the trial. These are important points and the SCC made many important clarifications in the case in relation to the many problems surrounding sexual assault cases.

    However, there is a downside to the majority’s decision. Their logic and reasoning around the impact of racism and bias in this case did not follow through to their ultimate finding. The majority allowed the accused’s appeal in part, by limiting the charge for which the killer could be retried — manslaughter only. The dissent pointed out that racism doesn’t work that way and can’t be so easily compartmentalized. They explained that there was no “filter” on the victim’s prior sexual history and no warning by the judge to the jury to avoid making stereotypical assumptions about Indigenous women.

    They also argued that this created an image of Cindy “that was unfair and would have permeated the whole trial and the jury’s deliberations on both murder and manslaughter” (para. 214). The dissent further emphasized, “He [trial judge] provided no specific instructions crafted to confront the operative social and racial biases potentially at work. This rendered the whole trial unfair” (para. 215).

    While the dissent did go further than the majority, they too missed an important opportunity to speak to the indignity committed against Cindy’s body after her death when segments of her vagina were brought into court as an exhibit. Cindy was a life-giving mother of three girls. Her body and her life-giving parts had already suffered a gross violation which led to her death. There was no necessity — in an effort to prosecute her killer — to remove her life-giving parts and put them on display in a courtroom. They could have used the coroner’s testimony, animated illustrations of the extent of the cut or tear, and worst-case scenario, pictures. Putting her life-giving parts on display served to further dehumanize her before the judge and jury. 

    Even though the SCC made some important findings in this case, their caution that the justice system has a lot more work to do applies equally to them. We need more than the “important step forward” they commended themselves for — we need a wholescale change. That won’t happen if the highest court in the land cannot call out and end the kind of indignity committed against Cindy — which represents the many indignities committed against Indigenous women and girls since contact. 

    This article was originally published in The Lawyer’s Daily on May, 28, 2019 – link below:

    https://www.thelawyersdaily.ca/articles/12605/justice-system-still-not-protecting-indigenous-women-and-girls-pamela-palmater-?category=opinion

  • Public Inquiry Needed to Address Sexualized Violence in Policing and Corrections System

    *Originally published in Lawyer’s Daily on November 6, 2017 (edited to include links)

    The integrity of Canada’s policing and corrections system has been called into disrepute from the sexualized violence committed by its police and corrections officers against Indigenous women and girls, female prisoners and even their own female colleagues.

    Recently, officials at Edmonton’s maximum security prison suspended seven employees — including managers — for allegations of sexual harassment and sexual assault. The male guards are now under investigation not only for the sexual harassment and assaults but also for their retaliatory actions against their female colleagues who tried to report the harassment. In some cases, it is alleged that protocols were breached risking the safety and security of the female prison guards including using inmates as weapons of intimidation.

    http://www.cbc.ca/news/canada/edmonton/prison-guards-accused-of-using-inmates-as-weapons-to-cover-up-alleged-sexual-harassment-1.4378784

    While many would like to believe that this is an example of “a few bad apples,” the number of similar complaints across the country points to a much deeper problem in corrections. Earlier this year, in another maximum security prison in Agassiz, B.C., the sexual assault of a female prison guard by her male colleague was actually caught on camera. Far from an isolated incident, the union representing various locals in B.C. say they regularly assist female corrections employees in similar harassment cases.

    http://www.cbc.ca/news/canada/british-columbia/female-prison-guard-sexually-harassed-1.4299400

    The widespread sexually abusive actions by corrections officers is not limited to female colleagues. In 2012, prison guards at Ontario’s Grand Valley Institution for Women were accused of sexual abuse of female prisoners by trading tobacco and drugs for sexual acts. This was not news to the Correctional Service of Canada (CSC). The Canadian Association of Elizabeth Fry Societies, which represents women and girls in the justice system, has filed many reports on such incidents calling for an external review and for the CSC to stop using male guards in women’s prisons.

    http://www.cbc.ca/news/canada/prison-guard-accused-of-trading-drugs-for-sex-1.1211354

    Prison advocates also made calls for surveillance cameras in all institutions after surveillance videos captured numerous incidents of prison guards beating prisoners in Ontario and Quebec prisons in 2013. Several videos depict prisoners cowering in fear in what some lawyers have referred to as absolute “terrorism” committed by prison guards. The Office of the Correctional Investigator responded that not only that video surveillance procedures failed 70 per cent of the time, but that “it’s probably not a coincidence that some alleged prison beatings occur in spots where there’s no surveillance cameras.” The importance of surveillance cameras cannot be overstated. It was surveillance footage that showed Vancouver police dragging an unconscious Mi’kmaw man, Frank Paul, out of a jail cell and into an alleyway where he died of hypothermia in 1998.

    http://www.cbc.ca/news/canada/prison-beatings-caught-on-video-at-ontario-and-quebec-jails-1.2426904

    Who are the arrested, detained, or imprisoned supposed to call when they have been beaten or sexually abused by corrections officers? There is a major power imbalance between corrections and prisoners, and the police are part of the same abusive system that protects its own before protecting those in their charge. The RCMP have been inundated with class actions and public complaints about their long-standing racism, sexism, abuse and harassment against the public and its own members.

    Though not admitting any wrongdoing, this year, the RCMP recently settled a class action suit against it for the long-standing sexual harassment and assault of thousands of female RCMP members. In 2016, a second class action suit against the RCMP — this time male members — allege harassment and bullying. Also in 2016, another complaint alleges RCMP bullying and unwanted sexual touching and nudity at their own police college run by the RCMP in Ottawa. This is all on top of the 2014 report which documented hundreds of cases of corruption, involving hundreds of officers in the RCMP.

    The deep-rooted problem of racism, sexism and abuse in policing and corrections is not new in the male-dominated system. The Royal Commission on Donald Marshall Jr.’s wrongful imprisonment highlighted police racism back in 1989. The 1991 Report of the Aboriginal Justice Inquiry was instigated at the failure by police to properly investigate the sexual assault and murder of Indigenous woman Helen Betty Osborne and the police shooting of unarmed Indigenous leader J.J. Harper. The report highlighted the fact that the police do little to protect Indigenous peoples, especially women and girls.

    The 2012 Missing Women Commission of Inquiry from B.C. found “blatant failures” and systemic bias against the victims and their families, many of whom were Indigenous. One of the most damning reports comes from Human Rights Watch in 2013 on abusive policing in B.C. which documented reports of RCMP physical and sexual abuse of Indigenous women and girls.

    Both CSC and RCMP have both been implicated in the bullying, harassment, physical assaults, sexual assaults and/or deaths of female officers, female civilian employees, fellow male officers, male and female prisoners, and Indigenous women and girls. The class actions against the RCMP should have been a wakeup call for Public Safety Minister Ralph Goodale to take immediate remedial action. The 2017 CSC survey which reported that 40 per cent of CSC had been a victim of workplace harassment — 60 per cent of cases from their own CSC co-workers. The survey also showed that the problem is getting worse — having increased by over 30 per cent since 2014. Even the Canadian Human Rights Tribunal has noted that sexual harassment “continues to take place in organizations with a historical male dominance.”

    The very fact that the terms of reference for the national inquiry into murdered and missing Indigenous women and girls excludes a review of police conduct is yet another example of the resistance of Canadian officials to address the problem. The knee-jerk reaction of governments to protect their police forces at all costs, may well cost them the loss of public confidence in policing and corrections.

    The fact that the federal government chose a commissioner, Qajaq Robinson, for the national inquiry whose husband is a RCMP officer who pleaded guilty to beating Indigenous prisoners in 2009, begs the question as to whether PM Trudeau and his cabinet had any real intention of getting at the truth — which so far, all points directly at racism, sexism, abuse and corruption in policing and corrections.

    One would have thought with a self-professed feminist prime minister and an experienced minister like Ralph Goodale, there would have been some immediate and substantive actions over the last two years since they took office. But, much like the perpetually absent Minister on the Status of Women Maryam Monsef — there are very few federal voices willing to tackle the monumental problem of racism, sexism, abuse and corruption in policing and corrections in Canada. It is hard to imagine a minister on the Status of Women as willfully blind on such high profile incidences of sexism and sexual abuse as Monsef.

    When those entrusted to serve and protect serve only their own interests and abuse those in their care, the system will inevitably start to unravel — becoming a national crisis. Trudeau ought to use the revelations about sexual abuse in the Edmonton’s maximum security prison to dismantle this broken system of male dominance and sexualized violence in government institutions and restore public safety.  

    *Link to the article originally published in Lawyer’s Daily on November 6, 2017: 

    https://www.thelawyersdaily.ca/articles/5055/public-inquiry-needed-to-address-sexualized-violence-in-justice-and-corrections-system-pamela-palmater?category=columnists Please check out my a related video on my Youtube Channel: https://www.youtube.com/watch?v=5o1PCzjhhno&t=14s