Inter-American Commission on Human Rights
Attention: Dinah Shelton, Rapporteur on the Rights of Indigenous Peoples
Dear Professor Shelton:
Re: IACHR: Canada – Vanished and Missing Aboriginal Women – Investigation
I am a Canadian lawyer, a former judge and a member of Kellogg College, University of Oxford (Mst. International Human Rights Law 2010). I have thirty years experience in criminal justice and human rights, including working with aboriginal persons and issues in British Columbia. I am also currently the criminal law duty counsel for the Haida Gwaii (formerly Queen Charlotte Islands), islands off the northwest coast of British Columbia. Due to the small population and remoteness of the islands, the islands are served by a circuit court that is held one week each month. I end up dealing with perhaps 90% of the criminal law cases that come before the court on Haida Gwaii.
My purpose in writing is the draw your attention to serious issues that affect aboriginal persons, including especially women who come before the criminal justice system, and their vulnerability along the “Highway of Tears” of northwestern British Columbia.
Many of the persons who come before the criminal courts live with poverty, addiction or disabilities. This may include those with mental health needs, Fetal Alcohol Syndrome Disorder, and especially Aboriginal persons, who are disproportionately over-represented among Canada’s prison and criminal justice population.
Canada has been governed by the Conservative Party led by PM Stephen Harper since 2006. A major platform of the Conservative government has been a “law and order” agenda, with more than thirty criminal law bills having been passed since coming to power, the intention of which without exception has been on harsher and mandatory jail sentences. These legislative changes have been the most extensive in more than 40 years of criminal law legislation or reform. The changes have been driven by ideology and politics; not based on evidence and contrary to the views of most criminal law experts – they also are contrary to the general trend in most western countries.
These criminal law amendments have taken a heavy toll especially upon aboriginal offenders, indigenous families and communities. The general hardening of attitudes has also permeated the judiciary, including approach to sentencing. Broadly speaking, Aboriginal offenders have borne the brunt of these legislative changes and mandatory minimums.
The judges that regularly sit on Haida Gwaii are generally sensitive to over-incarceration of aboriginal offenders, but their hands are tied by the mandatory minimums or lack of suitable local facilities. Nationally and provincially the picture is bleak; too many judges are either unwilling or incapable of properly considering alternatives to incarceration for Aboriginal offenders, despite critical rulings from Canada’s highest court.
For example, if you are arrested on Haida Gwaii, the sheriffs will fly from the mainland to collect the arrested person, fly the person back to the mainland (City of Prince Rupert) and then transport him or her 800 kilometers, if they are denied bail or imprisoned, to Prince George where the nearest provincial jail is located. Upon release, the person must then make their way 800 kilometers back to Prince Rupert and catch the ferry from the mainland that departs for Haida Gwaii twice a week. That person, if she is female, will make this 800 kilometer trip back to her reserve via the “Highway of Tears” — where Aboriginal women have gone missing over the years.
For many minor offences, mandatory minimum jail sentences can be as low as 14, 30, 60 or 90 days. Alternatives to incarceration are either not legally available because of the mandatory minimums or due to the general hardening of attitudes within actors of the criminal justice system. In most communities, a sentence of less than 90 days may, with judicial recommendation, be served at the local police station on weekends – this is particularly effective with persons who have employment or family responsibilities. This option is not available on Haida Gwaii because the police (RCMP) take the position they cannot afford to pay the overtime costs required to watch weekend prisoners. The government does nothing to alleviate this disparity and the result is all sentenced offenders on Haida Gwaii must serve their incarceration at the Prince George Regional Correctional Centre. Visits from family members are prohibitive due to the distance and costs involved.
Mandatory minimum sentences are not only expensive and bureaucratic, they create huge consequences for affected persons, such as disruption and government ministry removal of children from single parents because their sole caregiver has been arrested, loss of home, loss of job, or loss of ability to provide food derived from hunting and fishing for families. We have a very sad and disturbing history of neglect and abuse of aboriginal children in government foster care.
After serving their sentence, offenders are given a bus ticket by the British Columbia Correctional Service to make their own way home, including along the “Highway of Tears” of northern British Columbia. Women are highly vulnerable and open to prey. They spend hours in small town bus stations along the way often with little or no money – that is if they do not hitchhike. When they do make it to the coast, at Prince Rupert, they must sometimes wait for the twice-a-week ferryboat to take them back to Haida Gwaii. Some persons do not have a place to stay and are again vulnerable. Some are breached on probation orders for failing to comply with curfews, reside in an appropriate place, or for consuming alcohol or drugs – this only compounds and increases their criminalization and more jail time. The impact upon communities and families is only more pronounced when longer and more punitive sentences are imposed for more serious offences.
A further compounding factor is the police culture or tendency of too often seeking the pre-trial detention of person’s accused of a crime. Since the Haida Gwaii is remote and only served once monthly by a circuit court, all arrested persons are subject to a bail hearing – usually conducted by police officer with a Justice of the Peace, via telephone to suburban Vancouver. Unless the accused is sophisticated and able to line-up a defence counsel via telephone, they go it alone and are highly disadvantaged. I also am surprised at how often the Justices of the Peace, who reside hundreds of kilometers away in a large city, lack understanding or knowledge of the distances and lack of facilities available to such persons. Too many accused persons are detained pre-trial (estimates are 50-60 % of all provincial prisoners are on remand). Poor people are at risk of pre-trial detention at higher rates because they lack the financial resources to, for example, post monetary bail or lack suitable housing or employment. Aboriginal persons are disproportionately affected by these factors.
My main purpose is to emphasize that Aboriginal women are especially vulnerable, as they travel back home along the “Highway of Tears” upon custodial release. Canada has a sad record of missing or vanished aboriginal women.
There is also the aspect of systemic and racist discrimination. The harsh and punitive legislative changes passed by Canada impact most greatly the poor, mentally ill, those suffering from addiction, and certain racial minorities – especially Aboriginal persons. For many such persons daily life is already a struggle. Poverty and lack of employment are very real problems. The impact of the legislative changes is causing extreme hardship and it is unjust. And, most significantly it places Aboriginal women at increased risk of harm and predation. It risks making an unsolved problem, even more problematic.
Although, I have referenced the example of Haida Gwaii based on my work experience on the circuit court, the issue and concerns are of much wider application. Canada has a naive and self-serving narrative of a progressive leader on human rights and racial equality. Denial of racism is entrenched in the national narrative and culture. I submit, that the criminal justice system is infused with racial bias and underlying the law and legal system is an entrenched and hidden racism. Canada has failed in its human rights and constitutional obligations to its Aboriginal peoples. It’s criminal law and justice system is imprisoning Aboriginal men and women at a disturbing rate. And, in its worst aspects, it risks or results in the death and disappearance of aboriginal women. Indifference can also be a breeding ground for injustice and harm.
I humbly thank you for your consideration and sincerely hope that my letter will be of assistance in adding context and perhaps a different perspective to your investigation and considerations.