Inquiry into missing and murdered Indigenous women brings hope and challenges

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On December 8, 2015, the federal government announced that it was launching a national inquiry into missing and murdered Indigenous women. The announcement followed repeated calls for action by human rights advocates and Aboriginal women's groups who have reported an overrepresentation of Indigenous women amongst Canada's missing and murdered women. While the RCMP estimated that 1,012 Indigenous women were missing or murdered between 1980 and 2012, the number is expected to be higher than 1,200, and possibly as high as 4,000.

Since the government's announcement, many have expressed high hopes for the inquiry. A recent headline in the Toronto Star went so far as to state that the inquiry, properly conducted, "could heal decades-old wounds and perhaps begin to restore trust in the justice system." To be sure, the inquiry represents a departure from the Harper government's reductive characterization of the issue of missing and murdered Indigenous women as a familial issue, rather than one borne of poverty, marginalization and systematic racism towards Indigenous peoples, and girls and women, in particular.

But is the public's faith in the healing powers of the inquiry justified? What tangible changes will it bring about? And what challenges may the commission face in carrying it out?

The form of the inquiry

National inquiries are commissioned pursuant to the Inquiries Act, RSC 1985, c. I- 11, a piece of legislation that allows the federal cabinet to establish a national inquiry whenever it is deemed "expedient." As one law professor explains, a public inquiry is "somewhere between the internal government investigation and the trial."

There are several key distinctions between an inquiry and a trial: unlike a judge, a commissioner has extensive powers to investigate and make findings of fact, including the ability to summon witnesses and require them to give evidence orally or in writing, under oath, and demand the production of documents that are necessary for a full investigation into the matter. The Act does not prescribe a particular process for the inquiry, allowing flexibility with respect to the approach taken. Notably, however, a commissioner cannot impose liability or sentences on any party following the investigations.

The Act states that the Governor in Council shall appoint a commissioner. In his 2007 address, Justice O'Connor who presided over the Arar Inquiry, notes that, sitting judges are frequently appointed to this position. The mandate for the inquiry is typically selected by the government.

Potential challenges

While the inquiry's mandate has not yet been announced, summaries of the government's cross-country consultations, held between December 2015 and February 2016, give insight into its likely scope, and some of the challenges that may arise.

a) Jurisdiction: Provincial vs. federal

Police misconduct and bias in law enforcement agencies rank high on the list of priorities identified by participants in the government's consultations. As the President of the Native Women's Association of Canada has stated, "policing and corrections are a significant contributor to the lack of safety for Aboriginal women and girls."

To what degree can a national commission direct law enforcement agencies, including those that fall under the jurisdiction of the province? The commission can investigate and make recommendations with respect to the Royal Canadian Mounted Police; indeed, in the 2006 inquiry launched to investigate the extradition of Syrian Canadian Maher Arar, Justice O'Connor made damning findings about the RCMP's failure to ensure the accuracy of intelligence it provided to the United States, and wrongful perpetuation of the view of Arar as a threat to national security, even after his release from prison in Syria. 

Policing in certain provinces is contracted out to the RCMP, whose actions could be the subject of investigation, and who could fall within recommendations prescribed by the commission. In other provinces, however, policing is carried out by municipal and provincial forces. Notably, however, a number of provinces have undertaken their own investigations into cases of missing and murdered Indigenous women; the recent announcement by the Quebec government of the suspension of eight police officers for assaults committed against Indigenous women in the mining town of Val D'Or, and community discussions initiated by the B.C. government to discuss the disproportionate murder and disappearance of Indigenous women along the "Highway of Tears" suggests that there may be room for a provincial-federal partnership in examining bias in law enforcement with respect to Indigenous women, and implementing a joint strategy to address it.

b) 'Dusting off cold cases'

The Minister of Indigenous and Northern Affairs recently stated that part of the commission's work will be to "dust off cold cases." The minister's comment raises the question of whether the commission will have adequate resources to undertake the arguably mammoth task of re-opening possibly thousands of criminal cases. It also raises concerns about the length of the inquiry, if this is, indeed, part of its scope. As stated above, however, the commission does not function as a "trial," and the commissioner would not have the ability to prosecute offenders; thus, the "dusting off" of cases will likely involve an investigation into the police response -- or lack thereof -- to reported incidents.

c) No guarantee on the implementation of 'recommendations'

Finally, while a commission can make recommendations, it has no power to implement them. This is ultimately the government's decision. Unfortunately, Canada's history includes more than one instance of government failing or refusing to follow through with commitments to Indigenous communities. Perhaps most notable is the 1996 report by the Royal Commission on Aboriginal Peoples, which charted the tenuous relationship between Aboriginal and non-Aboriginal peoples in Canada, and mapped out a 20-year strategy to repair and rebuild that relationship. Of some 440 policy recommendations, which ranged from the creation of an Aboriginal parliament to various initiatives to address the social, education, health and housing needs of Indigenous peoples, few were implemented by the government.  

Going forward

One of the critiques of inquiries is that they can be used by government to deflect attention from critical issues; they can give the false impression of action when, in fact, none is occurring. In that sense, it falls to the public to continue to shed light on this issue through art, music, and media, and to demand that our government take action to address systemic biases, racism and violence done to Indigenous communities, and women and girls, in particular. Certainly, this inquiry is a step in the right direction; but it should be approached with cautious optimism, and continued calls for action.

Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities and socially-minded small business and individuals in Ontario.

Pro Bono provides legal information designed to educate and entertain readers. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. While efforts are made to ensure the legal information provided through these columns is useful, we strongly recommend you consult a lawyer for assistance with your particular situation to obtain accurate advice.

Submit requests for future Pro Bono topics to probono@rabble.ca. Read past Pro Bono columns here.

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