Canada’s Aboriginal Women
A domestic violence issue: that is how Aboriginal Affairs Minister Bernard Valcourt characterized the crisis of missing and murdered Aboriginal women. Implicit in this characterization is that this is an Aboriginal problem of which Canadians and the Canadian government can wash their hands. The very premise is fallacious, and the consequences could not be more dangerous.
Unlike non-Aboriginal women, Aboriginal women are just as likely to be assaulted or sexually assaulted by a stranger as by an acquaintance, partner, or family member. They are three times more likely than non-Aboriginal women to be sexually assaulted, and almost three times as likely to experience some form of violence.
Aboriginal women represent four percent of the overall Canadian population, yet they account for sixteen percent of the murder victims in Canada each year. With 1811 Aboriginal women missing or murdered already, at what point will we be prepared to act?
It is shameful that the government has not reacted more swiftly and decisively, despite the urging of dozens of NGOs and stakeholder groups. Indeed, even the roundtable held on February 28 resulted in little more than hand-wringing.
The government has a constitutionally-enshrined fiduciary duty towards Aboriginal people, and the case law suggests that this duty can extend beyond land claims. Moreover, while fiduciary duties normally arise only where action has been taken, other cases suggest that, generally, a duty and its correlative obligations can arise from the decision not to act. Therefore, in neglecting to act, the government, it can be argued, is in breach of its fiduciary duty.
Yet another suggestion that the government must act comes from tort law. While true government policy will usually be exempt from judicial scrutiny, the operation of a policy does not enjoy the same protection. It may be politically costly and difficult to acknowledge the wrongs as well as make concrete commitments, but it is morally wrong not to do so.
By denying its own complicity and leaving the matter solely in the hands of band councils who scarcely have the resources to deal with the problem, the federal government is making a statement about the value it attaches to the lives of Aboriginal women. To be clear, Aboriginal communities must have a voice in the matter and should be deferred to, but the government and its agents must also be at the table—and we should not have to drag them there.
Interestingly, the government’s very reason for rejecting the need for an inquiry evinces its urgency. The government cites the dozens of studies already conducted and claims that now is the time for action, not for further inquiries. However, with little action and nearly all the recommendations from the earlier studies left unimplemented, that excuse rings hollow.
Among the recommendations not implemented is better transportation along a stretch of road in British Columbia referred to as the Highway of Tears, where many Aboriginal women have been taken. The highway remains a constant reminder of the system’s failure to address this pressing issue.
Aboriginal communities know all too well why their women are murdered or go missing. They do not need an inquiry; we do. The rest of Canadian society has yet to understand the roots of the problem and what can be done to solve it. The solution will necessitate political and societal will, and yes, money. It will also require us all to ask some very uncomfortable questions.
Aboriginal women are born at risk. The abject poverty which runs rampant in many Aboriginal communities and is neglected by the federal government allows these cases to float under the radar. Poverty, a dearth of adequate resources and services, discrimination, and the ongoing legacy of colonialism all collude to deprive Aboriginal women of their security.
Aboriginal women make easy prey for predators like Robert Pickton, whose name sends a chill up my spine as I write it. These women are often escaping abuse or are forced by circumstance into “high risk” lifestyles in order to survive. One should not, however, jump to the conclusion that all or even most of these women were sex workers or addicted to alcohol or drugs. Helen Betty Osborne was studying to be a teacher; she was sexually assaulted and murdered by four white men, only one of whom was brought to justice sixteen years after the fact.
More importantly, their “lifestyles” are irrelevant. These women were human beings, and nothing can justify—legally or morally—what was done to them. Their assailants tried to rob them of their humanity, and every day without resolute action is another day of complicity.
As future lawyers, we must examine the role the justice system has played in perpetuating the problem, and the role it can play in its solution. Stereotypes of Aboriginal women are alive and well in our jurisprudence; Justice Michael Bourassa characterized sexual assault against Aboriginal women as different from cases involving white women because Aboriginal women were supposedly more likely to be “drunk or passed out,” and the perpetrator could not be blamed for “help[ing] himself” to a “pair of hips.” Relying on prejudicial notions of Aboriginal women (and women in general) is not only distasteful; it is an error of law and the wilful misleading of the court. Even those cases that do go to trial often end in acquittals or with sentences that are far below par.
Sometimes, the complicity in the justice system is more direct and extreme; the late former judge David Ramsay sexually assaulted and brutalized several young Aboriginal sexual assault complainants after presiding over their cases. Recently, an RCMP officer arrested an Aboriginal woman whom he later “took home to pursue a personal relationship.” There have been cases of police officers sexually assaulting Aboriginal women and more often than not, police do not believe Aboriginal complainants. Police must be a part of the solution, but we must acknowledge that they have been a part of the problem.
Each of these women loved and was loved. The next time you find yourself on the second floor of the law building, take a moment to visit the Faceless Dolls project and learn a few of the names of the missing and murdered Aboriginal women, lest they be forgotten.