Judges urged to speak up after Anishinaabe woman faces misogyny, racism during Winnipeg court hearing
'We need to be clear such racist, sexist language has no place in our public services,' retired judge says
Warning: This story contains disturbing language.
An Anishinaabe mother of four suffered repeated racist and misogynistic verbal attacks during a trial, triggering calls from a justice expert for courts to reform how they handle abusive comments.
"If she wants to go and whore around and be a slut, that's her problem," said a 51-year-old witness testifying against the woman, whom CBC is calling Kate. CBC is not naming the woman so as not to retraumatize her.
"She's known as a rez dog. She's the [reserve's] bicycle. Everybody's had a ride," said the witness, who at another point described himself as like a grandfather to Kate's children.
Manitoba provincial court Judge Samuel Raposo presided over the April 2021 hearing where Kate, 29, was accused of assaulting the paternal grandmother of her children.
The judge did not intervene or address the repeated slurs at any point during the half-day hearing.
At a sentencing hearing months after the witness testimony, Kate's lawyer, Joshua Rogala, said his client was looking for some condemnation of the racist language used to describe her.
"Terms like 'rez dog,' they have a highly, highly, deeply racist, sexist meaning. A term like 'slut,' of course, is deeply disempowering to women," Rogala said in court.
This is a very troubling example of racism, and it's not the only one I've heard of or seen.- UBC law professor Mary Ellen Turpel-Lafond
At one point during the trial, he did challenge the witness making derogatory comments. The witness responded with "I'm just telling you what she is," and continued the insults.
"This is a very troubling example of racism, and it's not the only one I've heard of or seen," said University of British Columbia law professor Mary Ellen Turpel-Lafond, or Aki-Kwe, who served as a Saskatchewan provincial court judge for 20 years.
Turpel-Lafond, who is a member of Muskeg Lake Cree Nation in Saskatchewan, said racism is not uncommon in any part of government, including in courts, but judges and others must not tolerate it.
"They need to be called out, and people can't be a bystander to this. They need to speak up," she said.
A Manitoba court spokesperson said a judge cannot be asked to respond to questions about a specific case, because their comments are reserved for open court.
However, generally speaking, a judge may be reluctant to interrupt a witness as it could be perceived as influencing or interfering with evidence, the spokesperson said in a written statement.
Turpel-Lafond agrees a witness must be able to relay their story, but says the court or lawyers should intervene when their testimony goes beyond presenting evidence.
"We need to be clear such racist, sexist language has no place in our public services in Canada, including in the administration of justice," said Turpel-Lafond.
Judges can even acknowledge the hurt caused by such remarks, she said.
A judge could, during sentencing, denounce racist comments made against an accused and also make it clear that didn't affect their decision, she said.
Client felt 'very dehumanized': lawyer
In the end, Judge Raposo convicted Kate of assaulting her children's grandmother, uttering threats and unlawfully entering a dwelling.
The man who delivered the testimony in question told the court Kate had delivered repeated blows to the grandmother's head.
Court heard the victim declined to see a doctor, stating the injury "was not severe enough to require medical attention at the time," according to the testimony of a police officer sent to the scene.
Kate could not be reached for comment on this story.
Her lawyer declined an interview, but at the sentencing four months later, Rogala raised questions about the treatment of his client.
He said he felt compelled many times during the trial to object to the witness's offensive language, but decided against it.
"Ultimately I decided not to, because I think it was just simply telling of the way that [Kate] has been treated throughout the relationship that she's had with her [children's grandparents]," he said in court.
Rogala said Kate told him the experience will stay with her.
"The trial process made her feel very dehumanized. She told me that her experience was that of a man calling her a slut and a whore over and over, when she had no power to stop it," the court heard.
Conditional discharge would send message: defence
As part of the pre-sentencing submission, Rogala recounted the difficulties that Kate has experienced as an Indigenous person.
She's been discriminated against and had greater difficulty finding work and housing, he said, and her family history is "really a reflection of Canadian history."
In what he called an unusual request, the defence lawyer asked for a conditional discharge, which would erase the conviction from a criminal record in three years if certain conditions are followed.
That would serve as condemnation of a court process that allowed the witness to denigrate Kate, said Rogala.
"It would also allow the court to distance themselves from the language that was used in court — the kind of language that has effectively perpetuated generational trauma against Aboriginal people in Canada," he said.
Kate was sentenced to 75 days time served, with 12 months supervised probation.
In the sentencing hearing, Judge Raposo acknowledged his application of Gladue principles in determining her sentence.
A 1999 Supreme Court decision known as the Gladue ruling requires that when sentencing, judges must consider the ways colonization has oppressed Indigenous people.
The insults were neither addressed nor denounced by Judge Raposo.
Kate has not filed an application for appeal with the Manitoba Court of Appeal.
'A duty on the judges'
Turpel-Lafond said she'd like to see a complaint filed in a case like this, preferably not putting pressure on the individual experiencing the racism to do so.
Manitoba's chief judge takes complaints about judges from the public, as does the Human Rights Commission.
In a written statement, Manitoba provincial court Chief Judge Margaret Wiebe says judges are firmly committed to reconciliation.
Finding the "delicate balance between preserving the respect and dignity of the courtroom and its participants, and recognizing when an intervention may be appropriate … is a challenging and difficult task that becomes clearer with gained experience," she said in a statement.
Raposo heard Kate's case about six months after he was appointed as a provincial court judge. Prior to serving on the bench, he spent more than a decade as deputy executive director, and then executive director, of Legal Aid Manitoba.
His appointment was announced in a provincial press release, which said Raposo has represented and assisted hundreds of Indigenous people and other oppressed groups, such as social assistance recipients and people with disabilities.
The Crown must be very cautious to avoid the perception it is interfering or interrupting during cross-examination of a witness by defence lawyers, a spokesperson from the provincial government said in a written statement.
"Not only could it impact a trial strategy and intrude on the accused's right to make full answer and defence, but it could also appear to be trying to protect or rehabilitate a witness inappropriately," said the spokesperson, who did not give their name or identify the government department for whom they were speaking.
Turpel-Lafond says she wants to see judges take action.
"You need to be attentive to the way in which an Indigenous woman has been demeaned with racist and sexual comments," she said.
"The conduct of the courtroom requires judges to intervene and respond. It's a duty on the judges. It's a duty on all the officers of court."
Read Chief Judge Margaret Wiebe's full statement: