Incarcerating the victim: Indigeneity, gender and the Canadian legal system’s treatment of ‘Angela Cardinal’

Earlier this week, I posted a long thread on twitter about state processes relating to ‘Angela Cardinal’.  The original thread can be seen here.  This post gathers my tweets into a single place, edits them for clarity and format, provides more links, and expands a bit on some of the discussion I provided.

Cardinal is a pseudonym for an Indigenous woman who was the victim of a kidnapping and aggravated sexual assault committed by Lance Blanchard.

You may know her as the woman who was shackled and imprisoned, ‘ostensibly to ensure that she provided testimony’ at Blanchard’s preliminary hearing.  Canadian media reported this story in mid-2017 (warning: this link contain photographs of Cardinal’s injuries) for example here.

Justice Macklin (2016 ABQB 706) described Cardinal’s treatment by the justice system as ‘appalling’.  Complaints were filed with the Alberta Judicial Council (‘AJC’) against the preliminary hearing judge (complaints reported here).

Two important things happened in this case in late February 2018.  First, an independent investigator released a report on the incarceration of Angela Cardinal.  Second, the AJC issued a press release stating that it had concluded ‘that there was no misconduct’ on the part of the preliminary hearing judge.  This release was not posted on a government website, so far as I can tell, but I obtained a copy of it from the AJC and it formed the basis of media reports such as this and this.

The Report documents failures of the Alberta Legal System and makes recommendations about matters such as improving victim support services in Edmonton.  The AJC press release is shorter.  The AJC release and the Report are at odds with one another in two respects.

The legal and factual basis for Ms Cardinal’s incarceration

First, the Report states that Ms Cardinal’s detention ‘was not contemplated by any section of the Criminal Code’ including s 545 (which was relied upon in court).  The AJC release asserts that ‘There was a factual and legal foundation for the remand order made by Judge Bodnarek.’

The AJC release does not state what the factual or legal basis for Ms Cardinal’s detention was – it merely asserts that one exists.  I asked the AJC (by email) to explain the basis it had identified. The reply from legal counsel to the Provincial Court of Alberta said in part:

‘The Judicial Council has, in summary form, set out its findings and reasons in the press release. This is an unusual step, taken solely because of the intense media interest that has occurred. It is clear that the Council’s decision is at odds with some of the statements made in the Campbell report. The Council will not speculate as to the basis for the statements made in the Campbell Report.

Given that this matter is still before the Courts, the Judicial Council will not be providing any further comment.’*

* My understanding is that the portion of the Blanchard matter which is still before the Court is the Crown’s application for a dangerous offender order in respect of Mr Blanchard.

The judicial deprivation of any person’s liberty is the most serious step available to Canadian law and is rightly subject to Constitutional protections. The deprivation of Angela Cardinal’s liberty was astonishing – as she said herself ‘I’m the victim and look at me. I’m in shackles.’

Particularly in light of the Report’s conclusion, there is a genuine public interest in understanding what legal and factual basis the AJC identified for Cardinal’s incarceration.

For me, the AJC’s assertion raises troubling questions such as:

  • Are other sexual assault victims at risk of similar orders if they have trauma responses to the experience of testifying?
  • Is the AJC endorsing the judicial incarceration of sexual assault complainants to secure their testimony?

The role of Indigeneity, gender and class in Ms Cardinal’s treatment

The second discrepancy relates to this paragraph from the independent Report, which appears on p16:

Screenshot 2018-02-27 17.13.09

(The submission made by IAAW and LEAF which is referenced in the above paragraph can be read here.)

The AJC release states that ‘There is no evidence whatsoever that the gender or aboriginal status of the complainant influenced any of Judge Bodnarek’s rulings in this case.’

This one requires a little more unpacking.

Trying to adopt a generous reading, I take the AJC’s statement to be a conclusion that Judge Bodnarek’s reasoning was not based – explicitly or implicitly – upon the discriminatory stereotypes against which much SCC and Court of Appeal case law warns.

But it may also be the case that Ms Cardinal’s gender, Indigeneity and class were important to a judicial understanding of this case.  The CJC Ethical Principles for Judges state at p23:

Screenshot 2018-03-01 14.00.06

The commentary on this principle explains a little further what the CJC intends:

Screenshot 2018-03-01 14.01.01

The SCC and Courts of Appeal have, of course, made similar statements about the importance of substantive equality and the value of ensuring that legal processes – particularly those related to sexual violence – accord substantive equality, including to Indigenous women.

It is inherent to substantive equality that identifying differences between people and considering the relevance of those differences may be necessary in order to secure substantively equal outcomes.

I interpret this ethical principle to be an invitation to Canadian judges to consider whether and how factors such as Ms Cardinal’s Indigeneity, gender and homelessness may be relevant to a case in which she participates as complainant.

Viewed from this perspective, the AJC’s conclusion that Ms Cardinal’s Indigeneity and gender did not influence Judge Bodnarek’s rulings (including his decision to incarcerate Ms Cardinal) seemingly fails to engage with the expectation set out in the ethical principles.

Why does it matter that the AJC release implicitly adopts a formal equality benchmark – asserting the irrelevance of race and gender – to the rulings in this case?

We know very well that Indigenous women disproportionately experience sexual assault and interpersonal violence.

We know that colonialism and state policies such as the taking of land and imposition of residential schooling have inflicted poverty and intergenerational trauma on many Indigenous people and fractured many Indigenous families.

We know that widespread racism against Indigenous people has translated into systemic bias within the Canadian criminal legal system.

We know that Ms Cardinal was homeless when she was assaulted and at the time of the preliminary hearing.

These and other factors are considered further in the IAAW and LEAF submission to the independent investigation.

If Ms Cardinal had been on trial, as an Indigenous person she would have been entitled to have these matters considered under s. 718.2(e) of the Code, Gladue and Ipeelee.  As a victim in this case, one might hope that she would – at a bare minimum – be accorded equivalent consideration.

Context and circumstance

Judge Bodnarek faced an extremely difficult situation in the preliminary trial and he seems (based on the facts found by Macklin J at trial) to have acted in part on the basis of factual misinformation from lawyers.

The AJC release states that the panel was ‘acutely aware’ that Ms Cardinal ‘was a person, an individual with a name, history and heritage.’  It calls upon ‘all participants in the justice system’ to strive to ensure that’ victims of crime – particularly Indigenous victims – are treated with respect.  This paragraph seems to be in tension with the proposition that Judge Bodnarek acted properly when he acted without regard to Ms Cardinal’s gender and Indigeneity.

The bare assertion that Ms Cardinal’s race and gender did not influence the rulings in this case raises more questions than it answers.  It is at odds with the Report’s conclusion that systemic bias played a role in how the case unfolded, and particularly with the  statement in that Report that ‘To ignore this aspect of Ms Cardinal’s case is to ignore the broader problems facing the criminal justice system, and the troubling statistics concerning its treatment of Indigenous women.’

Having reviewed the transcript of the preliminary hearing, IAAW and LEAF also reached a quite different conclusion from the AJC about the role of stereotypes in this case:

Screenshot 2018-03-01 14.41.38

and:

Screenshot 2018-03-01 14.56.33

The IAAW and LEAF submission and the independent Report both provide justifications, based on a careful reading of the relevant transcripts and other documents, for their conclusion that systemic bias played a role in the incarceration of Angela Cardinal.  Read against the background of these documents, the AJC press release feels unconvincing and it raises real concerns for me in its lack of clarity about the law relating to the incarceration of victims of sexual violence.

The AJC release does state that ‘media reports do not fully reflect the difficult circumstances of the proceedings’.

Given its view that the media reporting so far has been incomplete, it seems a shame that the AJC has not taken the opportunity to correct the public record and thereby to explain the basis on which they concluded that Judge Bodnarek had a legal and factual basis for ordering the incarceration of Angela Cardinal.

Under s. 34(5) of the Alberta Judicature Act, the AJC had no obligation to make any part of its deliberations public.  It’s good that they responded to public interest by providing some information.

It must also be said that even if the AJC’s conclusions on the points I have canvassed were different, this would not necessarily lead to a conclusion that the Judge committed misconduct.

However, required by the AJC’s process to rely on the press release alone, I am concerned that both the AJC and Judge Bodnarek may have fallen into the context-blindness against which the independent Report warns.

Concluding thoughts

As I write this lengthy post, I am extremely conscious of a broader socio-legal context.  The reports and recommendations about the Blanchard case were released on the heels of the not-guilty verdicts in the Stanley and Cormier trials.  Readers who want to know more should follow Indigenous voices on twitter (here’s a good list to start with) and read some of the brilliant scholarship being produced by Indigenous academics (for example here, here, and here).

I am tremendously grateful to the Institute for the Advancement of Aboriginal Women and LEAF National for the leadership they have shown in studying and drawing attention to the enormous problems that persist within the Canadian legal system’s treatment of Indigenous women.  Their work has given form and shape to the Canadian principle of substantive equality, pushing against an institutional current that pulls insistently towards denying the relevance of gender, race and other characteristics.

I was hesitant to post these reflections here because I do not yet have a teaching plan or any real suggestions about how we might draw on these materials in our teaching.  I’m grateful to Rebecca Johnson for suggesting that I should document these thoughts, and I invite others to share ideas about how we might build upon them in working towards a #reconciliationsyllabus.

Relationship disclosure

I am now a member of LEAF’s Legal Practice Board, however I was not a member of that board when LEAF and IAAW prepared their submission to the Independent review, and nor did I play any part in the preparation of that submission.

 

 

 

 

 

Advertisements

One thought on “Incarcerating the victim: Indigeneity, gender and the Canadian legal system’s treatment of ‘Angela Cardinal’”

  1. Thanks so much for this, Emma. I have been so conscious over the last weeks of the need for us (law folk) to have a space to share our preliminary ideas without fear. It feels very much like we are in the middle of a storm, and while I think there is value in spending time (in parts of our work) in trying to produce polished and well-structured teaching plans, I think there is also value in making space for us to share the gatherings and fragments of our thoughts with each other, hoping that those fragments can be of use to both us and our students as we work at the leading (bleeding?) edge of some of these very real traumas. Thanks again for bravery as well as insight and generosite. I think all of these are required of us in these times.

    Liked by 1 person

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

w

Connecting to %s