Lecture highlighted the injustices Indigenous women in Canada face and proposals for reform
On Monday, November 18, 2024, Senator Kim Pate visited the University of Toronto’s Centre for Criminology & Sociolegal Studies to deliver the annual John Ll. J. Edwards Memorial Lecture, in which she discussed her recent report, “Injustices and Miscarriages of Justice Experienced by 12 Indigenous Women”.
As Professor Kelly Hannah-Moffat, a long-time friend of Senator Pate, said in her introduction to the lecture, “Kim’s not keen on starting with the accolades of her accomplishments.” But they are numerous. A member of the Order of Canada, she has also received the Governor General’s Award in Commemoration of the Persons Case, the Canadian Bar Association’s Bertha Wilson Touchstone Award, and six honourary doctorates. Echoing the sentiments of other introductory speakers, Professor Hannah-Moffat said, “[Pate] tirelessly defends rights in the places that no one is looking—such as in prison or correctional facilities—the places where people actually need to exercise their rights.”
Senator Pate began where the report begins: observing the problem of mass incarceration of Indigenous women in Canada. As the report states, Indigenous women remain Canada’s fastest growing prison population, representing only 4% percent of the Canadian female population but more than 50% of all women in Canadian prisons. This results in Indigenous women having a greater likelihood of ending up in prison than in post-secondary education. This is the reality in spite of efforts to reform the Canadian criminal system. Senator Pate said this shows “the reform and the attempt to Indigenize the system has not worked. … If we continue on this trajectory to try to change the system to look more positive for Indigenous people … then what we are likely to do is actually exacerbate the problem.”
The report identifies 10 systemic factors contributing to miscarriages of justice for Indigenous women. These factors include the genocidal colonial policies of forced removal of Indigenous women from their traditional lands, the institutionalization of Indigenous women through residential schools and child welfare programs, and the victimization of Indigenous women through physical and sexual violence.
These systemic factors show up in the lives of the 12 women featured in Senator Pate’s report. One woman, R.A., stated that her experience in the Saskatchewan penitentiary, where the majority of women were Indigenous, “was akin to the residential schools that so many of our people endured for decades.” All of the women in the report had experienced what Senator Pate referred to as the “so-called child welfare system,” as well as physical and/or sexual violence.
Another key systemic factor emphasized in Pate’s lecture was the legal system’s inadequate contextualization of racism, sexism and violence in legal defences of Indigenous women. Senator Pate referenced how Jamie Tanis Gladue, who Pate visited and worked with, was portrayed in her now famous case (R v Gladue, [1999] 1 SCR 688).
Pate said, “Jamie is described in the case as a jealous wife who stabbed her husband because he was having an affair. … The night Jamie stabbed [Reuben Beaver], [Beaver] first had beat her up, he had then gone next door, broken through the bedroom door, raped her sister, came back out, told Jamie about it, and when Jamie stabbed him, he was trying to get back in through the front door of the unit where her sister was. Now I ask you, does that sound like an adequate contextualization to say she was a ‘jealous wife who stabbed her husband because he was having an affair’? Or does that sound like someone who is defending, at the very least her sister, and possibly herself, from further rape and abuse?”
To respond to the systemic problems it identifies, the report calls for “not merely … well-intentioned (but thus far ineffective) criminal law reform, but … reconciliACTION.” The action proposals include a review and exoneration of the 12 Indigenous women referenced in the report, as well as an elimination of all mandatory minimum penalties, mandatory periods of parole ineligibility, and restrictions on the use of conditional sentences.
The report calls for an end to these penalties because they prevent judges from respecting section 718(2)(e) of the Criminal Code, which requires courts to consider “all available sanctions, other than imprisonment … with particular attention to the circumstances of Aboriginal offenders.” The report observes that, “[b]ecause they require judges to impose a prison sentence … mandatory minimum penalties are a significant reason why judges are unable to do their duty to consider alternatives to incarceration, ‘effectively denying judges the ability to adequately take into account specific background as a mitigating factor.'”
These problems, Senator Pate reiterated, require collective action and a desire to “dream big.” She concluded that “we need to stop being comfortable just tinkering around with these systems. Because it is only if we actually insist that those resources go into the community, and stop continuing to put them into prisons, that we will manage to decarcerate ultimately. … We’ve got to get something different happening in this country.”
This event was presented by the Centre for Criminology & Sociolegal Studies and co-sponsored by Woodsworth College and the Faculty of Law.