Hello and boozhoo, honourable senators.

I first want to honour the fact that, yesterday, people across Canada joined the Sisters in Spirit campaign of the Native Women’s Association of Canada, or NWAC, to hold vigil for all those missing and murdered Indigenous women, girls — MMIWG — and gender-diverse people and their families. Bill C-48 and the ongoing MMIWG genocide have an important intersection which NWAC wishes to explore with you today.

Bill C-48 is a measure of criminal law reform, and I want to position my remarks today within this larger effort at systemic reform and reconciliation for two reasons: one, Indigenous women are disproportionate victims of family violence; and, two, Indigenous women are over-incarcerated. Today, when I refer to Indigenous women, I include in that the girls, two-spirit, trans and gender-diverse people whom NWAC represents.

NWAC supports Bill C-48’s attempts to use the criminal law to protect Indigenous women from intimate partner violence, IPV, but suggests amending the bill’s wording to reflect Indigenous women’s over-incarceration is necessary. This committee must account for the intersection of gender and indigeneity when amending the reverse onus provisions of the Criminal Code.

Issue one: Bill C-48 includes a preamble recognizing that Indigenous women are over-incarcerated. This committee has heard data and anecdotes on bail delays and the increased likelihood that Indigenous people are remanded rather than released. This means Indigenous women are separated from their families, children, work, homes, communities and healing practices. This perpetuates colonial harms.

The Supreme Court of Canada decisions in Gladue and Ipeelee provide clear guidance already for judges to interpret background factors when making any decision that may deprive an Indigenous person of their liberty, including at sentencing and bail. But what we know today is that when Gladue reports are presented for a judge’s consideration, bail is often denied because judges can view systemic Gladue factors as risk factors instead of the government-created states of being that they are. Gladue case law and Bill C-48 create tension when we’re balancing Indigenous rights at bail. Hanging in that balance are Indigenous women who risk structural violence in the criminal justice system and family violence at home.

That brings me to issue two: 6 in 10 Indigenous women experience family violence in their lifetime. Of those, 4 in 10 experience physical abuse from an intimate partner. This risk is even higher if an Indigenous woman belongs to other marginalized groups, such as identifying as LGBTQ2S+ and women with disabilities.

MMIWG Calls for Justice 5.3, 5.6 and 5.14 create a responsibility for legislators to approach criminal law reforms about IPV through a holistic, enhanced and comprehensive approach using Indigenous feminist legal perspectives.

This committee is asked to reconcile the competing realities of Indigenous over-incarceration and high IPV rates within a bill seeking to create more stringent rules for those accused of violence within an intimate partnership. In fact, these competing realities often come to a head to doubly disadvantage Indigenous women through the practice we have been discussing called dual charging. This committee heard testimony and reviewed materials about this. The National Inquiry into MMIWG heard from witnesses that police had threatened to arrest Indigenous women for drug possession, public intoxication or breach of parole conditions when they reported IPV, and they also fear having their children taken away. Bill C-48 must account for this reality when seeking to reform the criminal law.

Because Canada enacted the United Nations Declaration on the Rights of Indigenous Peoples, known as the UNDRIP Act, in June 2021, this committee has a responsibility to provide a report that meaningfully considers whether this bill is consistent with the UNDRIP. The UNDRIP affirms Indigenous women’s unique and gender-specific entitlements to be protected from violence at Article 22.2. NWAC suggests rewording the proposed amendments to sections 515(6)(b.1) and 515(13) to better reflect Indigenous women’s realities. These wording suggestions are included in NWAC’s written materials.

NWAC also supports the recommendation of the Canadian Civil Liberties Association, the CCLA, to include a requirement that applies Gladue principles through engaging Criminal Code section 493.2.

NWAC asks this committee to leave Indigenous women with more than preamble, with more than words. NWAC asks this committee to meaningfully consider how to balance Indigenous women’s disproportionate representation among IPV survivors and within our jails.

Thank you. Meegwetch.

[Translation]

Thank you for your question, and I will qualify that though I wrote that article, it was not in representation of NWAC, who I am here on behalf of today, but I can certainly speak to that.

We know and the National Inquiry into MMIWG tells us that Gladue is not being used the way we intended and the way it has potential to redress some of the colonial harms that it’s meant to. But that doesn’t mean we stop trying. It’s used in a limited sense at bail. By “limited,” I mean it faces the same supply-and-demand crises that affect the Gladue report provision at all stages, like at sentencing.

What we do know from researchers, lawyers and academics is that oftentimes these reports are prepared in a more rushed fashion, if I can characterize it in that way, because bail is much more immediate than preparing for a sentencing hearing. The information that’s made available is often presented with the intention that it will help mitigate the likelihood that the person will be kept in custody, but judges demonstrate that they are interpreting those factors as risk factors of why they should not be released. Then we get ourselves in a circular kind of argument where the very factors that are keeping them in jail on remand are the same factors that NWAC thinks operate to convince a judge that they should be allowed to be returned to their community.

I want to be careful to characterize that I’m striking a balance in my position today representing NWAC in that Indigenous women want and deserve to be protected from intimate partner violence, and in that way NWAC supports what Bill C-48 is trying to do. But on the other side of that coin is the need to make sure that we’re not over-incarcerating Indigenous women, and that’s where the operation of that dual charging kind of sticks in. I’ll sort of frame my response with that reminder.

There are several factors — not just being able to access a surety, but housing, employment, reliability, homelessness — that all disproportionately impact Indigenous women and Indigenous people to their disadvantage. That’s the connection between why we are going to see more people over-incarcerated at the remand stage that are Indigenous than not.

Thank you for your question and I’m glad to use this opportunity to provide clarity that indeed NWAC supports the CCLA’s recommendation to include language specifically referencing the obligations under section 493.

They use the language of proactive, and I liked that because if we are to make an amendment that includes imperative language, then it’s not just a box-ticking exercise. It’s a measure of transparency, and what that leads to is building trust with the Indigenous community and Indigenous women.

Any instance of intimate partner violence and the intersection with law enforcement requires a high level of trust. It takes a lot of courage to ask for help in those situations when you’re an Indigenous woman, and if there’s double charging, if you’re the accused, you’re the victim.

When there is a requirement to explain —

The requirement to be transparent about how you included the Gladue factors in your decision, not just that you have, is what’s important in building trust.