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.

 

 

 

 

 

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Learning and listening

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Several years ago, I made a mistake.  In return, I received an invaluable gift.

Teaching jurisprudence for the first time, I assigned Margaret Davies’ wonderful book Asking the Law Question.  That was not the mistake! In fact, I love that text and teaching from it was a joy.  Davies combines a deep knowledge of legal theory with a narrative voice that brings the salience and joy of ‘doing theory’ to life.  The book includes considerable attention to Indigenous legal theory by scholars who live and work in the country we know as Australia, the country where I grew up and received my first legal education.  I was glad to have that content (and context) to share with my students at UBC, because I felt it would offer them some sense of how Indigenous scholars elsewhere have grappled with and made sense of colonialism, neo-liberal governance, and violence.

My mistake was to overlook the importance of offering students an Indigenous take on these issues that came from their place and their context.  When I taught Australian Indigenous theory to my students, and talked to them about The Ranger Uranium Mine and Jabiluka and about The Aboriginal Tent Embassy, I hoped to open conversations about the similarities and differences between settler colonialism and Indigenous resistance as it played out in Australia and in Canada.  However, many of my students – at a time before UBC had implemented its Aboriginal constitutional law module – lacked the context and the history of Canadian colonialism that would have made these comparisons meaningful.

More importantly, for my Indigenous students, studying Indigenous legal theory and examples that originated in Australia was deeply frustrating: they had looked to this course as an opportunity to read and discuss some of the brilliant work by Indigenous scholars who belong to Indigenous communities in Canada and work in this space.  They also wanted to read work by non-Indigenous scholars who have written thoughtfully and knowledgeably about Indigenous people and the Canadian legal system.

The gift I received was that three of my Indigenous students decided to discuss their concerns with me.  They explained why they felt frustrated by the reading and discussion we’d had under the umbrella of “Indigenous legal theory”.  They asked me to reconsider for the following year.

I will always be grateful to those students for having the courage to speak to me.  It is not an easy thing to challenge one’s professor.  Even less so when the thing you are challenging them about is something that is fundamentally important to you.

In preparation for the coming year, I have been reading Sheila Cote-Meek, Colonized Classrooms: Racism, Trauma and Resistance in Post-Secondary Education.  This book, and a recent article in This (The Canoe and the Ship) have reminded me that post-secondary education is too often an exclusionary experience for Indigenous students.  My reading makes me value my students’ willingness to engage in dialogue with me even more.

I can only hope that in my response to them, I acknowledged their courage and the gift they were giving me by reaching out to me.

After their visit, I pulled books from my shelves and articles from my database.  Anyone who has taught will understand the care with which we select the one or two pieces we ask students to read, and the dismay with which we set eight or ten pieces aside for every one we set.  After much mulling, I decided to defer the planned syllabus for two classes and to ask students to read two pieces:

John Borrows, Creating an Indigenous Legal Community

Sherene Razack, Gendered Racial Violence and Spatialized Justice

The conversations we had about these two pieces were some of the best we had all term.  We all learned a great deal that week – perhaps me most of all.

Reconciliation is a hopeful word.  A word that promises a way of doing things that will bring people together with shared respect and a sense that we all have much to learn.  It is a word that challenges those of us with relative power – professors and teachers – to adjust our way of doing and being educators.

As we begin a new academic year, and seek to enrich and deepen the #Reconciliationsyllabus, my reconciliation includes being open to hearing from those who have the courage to make things better, and being open to changing course in response to what I am learning.

Reflecting on the #Reconciliationsyllabus in Evidence law

2015-12-14 17.36.31.jpgI write this post from Tofino, on the unceded territory of the Nuu-Chah-Nulth First Nations.  In truth, I am taking a break from grading my evidence law exam papers, each of which contains a student’s answers to two questions predicated on an Aboriginal title claim.  It feels like a good moment to reflect on the steps I have taken this year and in previous years to integrate attention to reconciliation within my course on evidence.

When I first started teaching evidence law, Christine Boyle warned me that one of the perennial challenges of this course was the difficulty students have in identifying which rule is triggered by a given fact pattern.  About six years ago, I decided to tackle this challenge with a new approach:  I shifted my classroom teaching around to spend as much time as possible on a case-based learning approach.  (Case-based learning is not the same as problem-based learning, but it’s also different from the case method.  Essentially, students are asked to work in small groups on a fact pattern that develops as the term proceeds.  That way, they can become immersed in an unfolding scenario and have a chance to apply the rules they are studying more or less immediately. In my class, the case-based learning is not assessed, but I (tell my students that I) carefully design my final exam to resonate with themes they have encountered in the case-based learning exercises.)

This year, I set students to work on two files: one criminal (based on the Australian case of R v Conway, a police officer charged with conspiracy to murder his ex-wife), and one based on Halalt v District of North Cowichan (ie a file which required students to engage with the distinctive evidentiary context of s. 35 rights).  I updated my materials on the evidentiary dimensions of s. 35 claims to incorporate the SCC decision in Tsilqhot’in (which had been decided since I last taught the course).  I also integrated some of the insights of the TRC Executive Summary, to strengthen the observations made in Delgamuukw about the importance of ensuring that the adverse effects of colonization on Indigenous communities should not act as a bar to success through a facile application of Eurocentric notions of proof and reliability.

This is the first year since teaching the course in this format that I have had a class comprised entirely of students who have completed a compulsory constitutional law module on s. 35 rights and title.  The difference in their understanding of the substantive law and the context of reconciliation was striking – it made my job so much easier.  This seems to me to constitute tangible evidence of the value of making such modules compulsory.

When I first adopted the case-based learning method, my hope  was that working with the evidentiary rules in the context of case files would help students to see the purpose behind the rules, and thereby improve their capacity to identify which rule to use at a given time.  This hope has largely been fulfilled, but the unanticipated benefit that case-based learning has also offered is that it has made classroom discussions about how the politics of knowledge and power can be traced throughout evidence law much richer.

This year, in the session I always run near the start of term on the challenges of building an evidentiary record in a s. 35 claim, we talked a great deal about the impact of residential schools on community memory and the preservation of traditional knowledge.  One of the things that often emerges from this class is that students turn to research to learn what they don’t know about a given Indigenous culture (in this case, the Halalt First Nation).  I find I have to remind many of them – I try to do it gently – that when representing a First Nation, they have the gift of working with those who know the culture best, and who are best placed to educate them.  I talk to them about Pooja Parmar’s wonderful work (http://www.cambridge.org/ca/academic/subjects/law/socio-legal-studies/indigeneity-and-legal-pluralism-india-claims-histories-meanings?format=HB) which conceptualises of lawyers in Indigenous rights claims cases as translators, with an ethical responsibility to try to understand and communicate Indigenous perspectives, not just to fit legal problems into legally cognizable categories.

I picked up on the theme of residential schools in the final exam, with an elder whose traditional education had been interrupted by his removal to residential school and a Province that argued that his knowledge should therefore be given little to no weight. (The character in my fact pattern was based on the evidence and biography of an elder who testified in Coachiching FN v AG Canada, 2014 ONSC 1074.)  My students have dealt sensitively with this fact pattern, including the residential school dimension.

While I feel this term has been a good one in terms of further integrating the #ReconciliationSyllabus into evidence, I have lingering worries.  I worry about asking my Indigenous students to learn about a system of rules that – for all its rhetoric about and (I think often genuine commitment to) avoiding Eurocentric reasoning, ultimately takes its authority from and is beholden to the authority of a colonial Crown.

In my mid-term feedback, many students expressed appreciation for my attention to s. 35 cases but a few asked for something “more practical”.  I try to explain why s. 35 litigation is crucial for practice in BC – real estate, commercial, resource, environmental, administrative, criminal law all engage with s. 35 – but in responding to this resistance, I also try to argue that all Canadian lawyers have an ethical responsibility to understand and do justice to Indigenous perspectives and to recognise the contemporary effects of colonialism (the TRC helps me to do this).  I know that they won’t all leave my course persuaded, but hopefully the first time they encounter these arguments outside law school, they’ll feel more informed.  I’d love to incorporate something deeper about Indigenous law and an example of evidentiary practices within the law of a BC First Nation, but I haven’t found the right example yet.

I haven’t seen my teaching evaluations yet, of course, but I had a thoughtful and generous group of students this term.  Their openness and sensitivity made it possible to explore the #ReconciliationSyllabus more deeply, and I believe that has translated into their work throughout the term.

Criminal law & procedure

For my first subject-specific post, I’ve chosen to talk about teaching criminal law to first year students.

This coming year, I’ll be using Roach et al Criminal Law & Procedure (11th ed) for the first time – in the past, I have used custom materials that were first prepared by Isabel Grant but have more recently been kept up to date by Christine Boyle, Janine Benedet and myself.  There are trade offs to both choices.

I like very much that the Roach casebook foregrounds the troubled relationship between the Canadian criminal legal system and Indigenous people, in part through its extended use of the Donald Marshall Jr wrongful conviction as a case study (ch 4).  Prof Roach is coming to speak to our students about Marshall in October.  But I’d like to make sure that they are introduced to some of the difficult issues before then.  In September, I will ask them to read the extracts from the Report of the Aboriginal Justice Inquiry of Manitoba and from Dr Mary Ellen Turpel (LaFond)’s 1993 paper ‘On the Question of Adapting the Canadian Criminal Justice System for Aboriginal People’s: Don’t Fence Me In’ (both contained in chapter 4 of Roach et al).  Alongside these texts, I will set pages 211 – 215 and 217 – 228 of the Summary of the Truth and Reconciliation Commission Report (http://www.trc.ca/websites/trcinstitution/File/2015/Findings/Exec_Summary_2015_05_31_web_o.pdf).

I considered inviting students to read an extract from Jane McMillan’s excellent recent article on the Marshall Inquiry: L Jane McMillan, ‘Still Seeking Justice: The Marshall Inquiry Narratives’ (2014) 47:3 UBC Law Review 927 – 991 (http://ubclawreview.ca/issues/volume-473/l-jane-mcmillan-still-seeking-justice-the-marshall-inquiry-narratives/), but I think that the sheer amount of reading and the complexity of the issues risks overwhelming students who will still be in their first month of law school.  Ditto Sherene Razack’s piece, ‘Gendered Racial Violence and Spacialized Justice’ from Razack’s edited collection Race, Space and the Law (a copy is online here: http://web.uvic.ca/~ayh/104%20Razack%20WS104.PDF).  But both are excellent resources and worth mentioning to students who are interested in pursuing these questions.  As I will post in a future update, I use the Razack chapter in my jurisprudence course.

One challenge I have experienced in teaching classes regarding Indigenous people and the criminal legal system is that our students vary widely in their past exposure to and understanding of Canada’s colonial history and present, and the impact of that history and present on Indigenous people.  The TRC Summary offers a very helpful resource for students who have less understanding of this history.  My plan for these classes will be to take things slowly and to adopt Tracey Lindberg’s extremely helpful principles for pedagogy when teaching students who are encountering Indigenous perspectives and Indigenous culture for the first time (http://www.cbc.ca/radio/q/post-show-notes-shad-s-week-seven-highlights-1.3106456).  In fact, I will post these principles (with due credit, of course!) into my syllabus and invite students to discuss them early in the term.  I would appreciate hearing from others about how you handle this challenge, and whether you have resources you can share to help with this.

The Canadian criminal legal system is and has historically been a source of enormous harm to Indigenous Canadians.  I find it difficult to teach classes about Indigenous encounters with the Canadian criminal law because I want to:

a.  ensure students have a sense of the magnitude of over-representation of Indigenous Canadians in most aspects of the criminal legal system (as victims, in prisons, as children, as women, …) and the relative under-representation of Indigenous Canadians as judges and lawyers (and, Kokepenace reminds me, as jurors); but also

b.  resist reinforcing pejorative stereotypes of Indigenous people as leading disordered lives of addiction and violence.

I think the TRC will help me do this, but I am interested to hear ideas from others about how to walk this line.

I will seek to return to the principles introduced in these classes throughout the year.

Towards the end of the year, we reach a module on sentencing. Gladue and Ipeelee present teaching challenges of their own, as does the increasing reliance on mandatory minimum sentences and the restrictions on conditional sentences.  I will put up a separate post on these issues.

General principles of reconciliation syllabus

I really love Rebecca’s idea to use local reference points to introduce the reconciliation syllabus to JD students.  At UBC, we are blessed to be located on unceded Musqueam land in close proximity to the Musqueam reserve and to have a cohort of Musqueam, Tsleil-Waututh & Squamish students, not to mention wonderful Indigenous faculty members.  So much of the Canadian law on Aboriginal rights and titles has come from right here – R. v. Sparrow [1990] 1 SCR 1075 and R. v. Guerin [1984] 2 SCR 335 are, of course, the biggest examples.  We can and should do more to make these connections between place and curriculum alive for our students.

Once one expands into BC as a whole, of course, the connections (and the legal histories) become even richer and more vibrant.  T’silqhotin explodes the concept that Aboriginal title is confined to postage stamp reserves, and we need to interrogate the implications of that recognition for other parts of BC and Canada.  I really like Cole Harris’s book Locating Native Space because it demonstrates just how historically contingent the BC reserve system was, and how it could very easily have been otherwise.  It shows that our colonial forebears were well aware of what they were doing when they stripped First Nations of their land and property – this is, I think, an important antidote to the anachronistic concept that we are, somehow, more enlightened in our dealings with First Nations than the colonial governments of first contact.  (To compare and contrast the tactics of the early BC governors around reserve allocation with the tactics of current federal and provincial governments in the NEB process re Northern Gateway would, for example, be a fascinating exercise.)

The UBC Museum of Anthropology and Musqueam have collaborated on an exhibition (c̓esnaʔəm, the city before the city) to examine Musqueam identity and worldview.  It offers lots of information – including oral histories and so on – but just as importantly, it aims to emulate Musqueam ways of teaching.  It’s only scheduled to remain in the physical space until January 2016, but I believe that the content will be archived online and will remain available (http://www.thecitybeforethecity.com)

One concern I have is about how to incorporate Indigenous perspectives, Indigenous elders and Indigenous teaching into our curriculum without making overwhelming demands on Indigenous leaders and Indigenous colleagues and without cultural appropriation or misrepresentation.  Any ideas that others can share on that question would be extremely helpful to me.

Another thing that I want especially to raise and discuss is the TRC recommendation that inter-cultural conflict resolution should be taught in law schools.  I love this idea, and I am really not certain about how to advance it.  Do others know of good resources that might assist us to tackle this recommendation?

A further thing I wonder and worry about is how especially to support our Indigenous students as they are learning law.  Changing the curriculum to ensure that Indigenous law and Indigenous perspectives are foregrounded with great respect is important – but so too is the material context in which our students study.  Recognising that law school presents financial, emotional and other challenges to many students, I suspect that these challenges are especially acute for Indigenous students.  Easing these challenges seems an important part of the #reconciliationsyllabus.

My next task is to be a bit less introspective, and a little more instrumental, by posting some of the readings I actually use and discussions I lead in various courses.  These could, I’m sure, be improved and added to and, yes, critiqued – please add your thoughts!

This is my first blog post.  And this is such a sensitive and important topic.  Please give me feedback on whether I have understood the format correctly, and expressed myself in a helpful way!