First-de­gree mur­der charges rec­om­mended

MMIW chief com­mis­sioner makes rec­om­men­da­tion for au­to­matic charges

The Sudbury Star - - CANADA - MAURA FOR­REST

The chief com­mis­sioner of OT­TAWA the na­tional in­quiry into miss­ing and mur­dered In­dige­nous women is rec­om­mend­ing the jus­tice sys­tem be tougher on peo­ple who com­mit crimes against In­dige­nous women, girls and LGBT peo­ple, say­ing the govern­ment must prove their lives are val­ued.

In a taste of what’s to come when the na­tional in­quiry re­leases its fi­nal re­port next month, Mar­ion Buller told a par­lia­men­tary committee this week that homi­cides in­volv­ing In­dige­nous women must be treated au­to­mat­i­cally as first-de­gree mur­der. She also said that in crim­i­nal cases where the com­plainant is an In­dige­nous woman, judges must con­sider that fact as an ag­gra­vat­ing fac­tor when sen­tenc­ing the of­fender.

“Noth­ing less than that is go­ing to pro­tect the safety of In­dige­nous women, girls and mem­bers of the 2SLGBTQQIA com­mu­ni­ties,” she told the Sen­ate committee on le­gal and con­sti­tu­tional af­fairs, which is study­ing Bill C-75, the Lib­er­als’ wide-rang­ing jus­tice re­form bill. “Oth­er­wise, the crim­i­nal jus­tice sys­tem is seen to fur­ther devalue their safety.”

In an in­ter­view Thurs­day with the Na­tional Post, Buller wouldn’t con­firm that these par­tic­u­lar rec­om­men­da­tions will ap­pear in the na­tional in­quiry’s June 3 fi­nal re­port, which is in­tended to ad­dress the root causes of vi­o­lence against In­dige­nous women, though she said “there will be some over­lap.” But she said her rec­om­men­da­tions to the committee were based on con­cerns the com­mis­sion­ers have heard from In­dige­nous peo­ple across the coun­try, and the fi­nal re­port will rec­om­mend changes to sev­eral laws, in­clud­ing the Crim­i­nal Code.

“We’re look­ing at many pieces of leg­is­la­tion, and not just fed­eral, but pro­vin­cial and ter­ri­to­rial as well,” she said. “We’re also look­ing at band gov­er­nance un­der the In­dian Act.”

In her tes­ti­mony on Wed­nes­day, Buller ap­plauded a pro­vi­sion of Bill C-75 that would al­low higher max­i­mum penal­ties in cases of do­mes­tic vi­o­lence, though she said the def­i­ni­tion of such vi­o­lence should be broad­ened to en­com­pass vi­o­lence be­tween fam­ily mem­bers, not only to­ward in­ti­mate part­ners. “In other words, the net hasn’t been cast far enough,” she said.

But it was her three fi­nal rec­om­men­da­tions that es­pe­cially stood out. First, she said courts must con­sider whether vic­tims are In­dige­nous women be­fore grant­ing bail to those they ac­cuse. “Too of­ten … we heard from fam­ily mem­bers and sur­vivors that an ac­cused in­di­vid­ual was re­leased back into the com­mu­nity with­out proper pro­tec­tion for the com­plainant and her fam­ily,” she said. Se­cond, when vic­tims are In­dige­nous women, that must be an ag­gra­vat­ing fac­tor dur­ing sen­tenc­ing, Buller said. And fi­nally, the killing of In­dige­nous women must au­to­mat­i­cally be treated as first-de­gree mur­der. “It’s to rec­og­nize the im­por­tance of the in­di­vid­ual who has been killed and the im­por­tance of their life,” she said. “That tells all of Canada that if you kill one of these women, it’s mur­der in the first de­gree, the strong­est penalty and the strong­est of­fence that we can im­pose.”

First-de­gree mur­der charges, which can lead to the sever­est sen­tences, nor­mally re­quire proof that a killing was “planned and de­lib­er­ate.” Un­der the Crim­i­nal Code, how­ever, the mur­der of a po­lice of­fi­cer or prison em­ployee re­sults in an au­to­matic first-de­gree charge — the only cat­e­gory of peo­ple whom the law cur­rently sets apart in this way. The code also de­crees that killings in the course of sex­ual as­sault, aircraft hi­jack­ing, kid­nap­ping or hostage-tak­ing come with au­to­matic first-de­gree charges, as do mur­ders re­sult­ing from ter­ror­ist or or­ga­nized crim­i­nal ac­tiv­ity, or in the con­text of crim­i­nal ha­rass­ment or in­tim­i­da­tion. Speak­ing to the Post, Buller said the rec­om­men­da­tions aren’t in­tended to level harsher pun­ish­ments against those who com­mit vi­o­lence against In­dige­nous women, but to level the play­ing field in a so­ci­ety where crimes against In­dige­nous women are of­ten treated more lightly than those against non-In­dige­nous peo­ple. “Let’s make it eq­ui­table in terms of sen­tenc­ing,” she said.

How­ever, Tony Paisana, a Van­cou­ver-based de­fence lawyer, raised con­cerns about Buller’s rec­om­men­da­tions, ar­gu­ing the Crim­i­nal Code should not be “pick­ing and choos­ing which com­mu­ni­ties are more im­por­tant.”

“I think that’s a slip­pery slope that’s quite danger­ous when con­sid­er­ing the ap­pro­pri­ate penalty for mur­der,” he told the Post.

Paisana, who ap­peared be­fore the Sen­ate committee last week on be­half of the Cana­dian Bar As­so­ci­a­tion, said that in many cases, the per­pe­tra­tors of vi­o­lence against In­dige­nous women are In­dige­nous men, and that Buller’s rec­om­men­da­tions could lead to stiffer pun­ish­ments for a pop­u­la­tion that’s al­ready over-rep­re­sented in Cana­dian pris­ons.


Mar­ion Buller, Chief Com­mis­sioner of the Na­tional In­quiry into Miss­ing and Mur­dered In­dige­nous Women and Girls, speaks in Van­cou­ver, in 2017.

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