On February 28, the Indigenous Law Students’ Association, the Aboriginal Law Club, and the Feminist Law Students’ Association held a panel discussion on the terms of reference for the National Inquiry into Missing and Murdered Indigenous Women and Girls (“the Inquiry”).
The panelists were Pam Palmater, a Mi’kmaq lawyer and an Associate Professor and Chair in Indigenous Governance at Ryerson University, and Mary Eberts, founder of the Women’s Legal Education and Action Fund (LEAF) and litigation counsel to the Native Women’s Association of Canada (NWAC). The panel was moderated by Ronda Bessner, a Visiting Professor at Osgoode who has been Senior Legal Analyst at five public inquiries in the past.
The discussion canvassed a number of topics, including the wording in the terms of reference, the powers of the commission conducting the inquiry, and issues of standing, examination, and cross-examination of witnesses.
Terms of reference, Professor Bessner explained, are drafted by governments when they call public inquiries; they are guidelines that govern the operation of an inquiry, including its mandate, its purpose, and what powers it will have. Terms of reference also name a commissioner, or commissioners, to carry out an inquiry.
According to Professor Bessner, the language used in the terms of reference for this Inquiry is relatively broad; the terms are also unique in that they came out of consultation across the country and took months to draft. She noted that this contrasts with inquiries like Walkerton, which was called and completed so quickly that the commission did not pay much attention to the terms.
During the discussion, the panelists expressed three main concerns about the terms of reference.
First, there had been a lot of pressure for the Inquiry to be given a specific mandate to use a human rights lens in investigating the violence—particularly since that was the approach taken in the Stolen Sisters report by Amnesty International, the release of which brought the issue of missing and murdered indigenous women in Canada to the public’s attention for the first time. Despite the pressure, the Commission was not directed to use any particular lens. However, Ms. Eberts pointed out that the Commission can voluntarily adopt a human rights lens in its investigation.
Second, the terms of reference contain what families of victims and activists have called a “police off-ramp”: it states that the Commissioners are to remit any information regarding misconduct to the authorities. This limits what the Commission can do—particularly as there won’t be any investigation of specific cases where police negligence or misconduct has contributed to the perpetuation of violence, according to Eberts. Where the Commission is stymied by its terms of reference, she said, activists will have to provoke review by other bodies in order to have particular cases, and not just systems, looked at. Professor Palmater felt similarly, saying that the root of the problem is that police do not investigate complaints—that these women’s police files are empty, or that the police themselves can be the abusers—so the direction to remit any concerns about police misconduct to the police just reinforces the problem.
The third concern was a lack of protection for witnesses. The terms of reference set out the importance of cultural supports and counselling for witnesses who will be testifying in front of the Commission; however, it isn’t clear what happens after the fact, or what sort of protection witnesses will have from retaliation. Professor Eberts pointed to the Val-d’Or Inquiry, during which seventeen police officers were investigated for physical and sexual abuse of native women but only two were ultimately charged. After this, everyone in the community became afraid to speak to the investigators. Given that the time period set for the inquiry is September 1, 2016 to December 31, 2018, the Commission is already well into its mandate. But, according to the panelists, very little has yet been said about procedures for reaching out to victims and families, nor about getting them the information and support they need to come forward and tell their stories.
Overall, the panelists felt that there needed to be more specificity regarding procedures by which witnesses will gain standing, representation, and protection, and also with regards to how the inquiry itself is conducted. According to Professor Palmater, the focus should not be on these women’s circumstances, poverty, or vulnerability, because these are topics that have been covered. The focus, she said, needs to be on the sources of the violence, sources that include the police: “If we just do the systemic stuff, you can just cut and paste RCAP, just cut and paste TRC… If we’re just going to do a paper on the sociology of Canada and poverty in Canada, it won’t be worth the paper that it’s written on.”