The Current

Bill to curb violence against Indigenous women could hurt those it aims to protect, warns lawyer

Senator Lillian Dyck is proposing harsher sentences for those who commit violent crimes against Indigenous women, such as sexual assault, manslaughter or murder. But some advocates argue that Bill S-215 could have unintended consequences that actually harm those it seeks to protect.

Promise Holmes Skinner says Bill S-215 could inadvertently target Indigenous women

Liberal Saskatchewan Sen. Lillian Dyck is proposing stronger sentencing for people who commit violence against Indigenous women, but not everyone agrees her bill will do what it is meant to. (CBC News)

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An Anishinaabe criminal lawyer is concerned that a bill promoting harsher sentences for people who commit crimes against Indigenous women may actually end up hurting the group it's trying to protect.  

Promise Holmes Skinner says she's seen many cases in which assaults are committed by one Indigenous woman against another, and worries that if the bill passes, they'll face more and longer jail time for minor offences.

"The young women — who are on a day-to-day basis finding themselves in conflict with the law because they lack tools and resources — they are the ones who are going to suffer, when they are the ones that we are trying to protect with this bill," said Holmes Skinner, a lawyer based in Toronto. 

Sask. Senator Lillian Dyck first introduced Bill S-215 in 2016, arguing that if a victim of violent crime is an Indigenous woman, that should be taken into account by judges as they contemplate a sentence.

Race, along with factors like whether a victim is a minor or the offence involved the abuse of a position of power, is already considered an aggravating factor in sentencing in Canada.

Female Aboriginals are more likely to be victims of violence, and using that as an aggravating factor will, I believe, tend to offset that vulnerability.- Senator Lillian Dyck

But Dyck says Indigenous women, who find themselves "at the bottom of the heap" in Canadian society, need to be specifically mentioned

"We know for sure that female Aboriginals are more likely to be victims of violence, and using that as an aggravating factor will, I believe, tend to offset that vulnerability," said Dyck, Canada's first female First Nations senator.

Bill could create 'contradictory obligations'

The bill has now passed the senate and is in its second reading in parliament. 

Criticism from other advocates has included concern that Indigenous men will be similarly over-penalized, saying that the bill goes against the Gladue Principle in the Canadian Criminal Code — a requirement that judges consider a person's background when deciding on a sentence, and avoid a jail sentence whenever possible.

The Current contacted Jody Wilson-Raybould, the Minister of Justice, who said in a statement that "our Government agrees with the commendable objective of Bill S-215, which is to denounce and deter violence against Indigenous women and girls; however, the proposed approach may have unintended consequences."

"Combined with Bill S-215, a judge could be under contradictory obligations to both lengthen the sentence for an Indigenous offender's criminal conduct against an Indigenous woman and, at the same time, to consider alternatives to incarceration," the statement said.

The statement concluded that the "the government will continue to advance a multifaceted approach, within and outside of the criminal justice system, to meaningfully address this complex issue of violence against Indigenous women and girls."

Lawyer Promise Holmes Skinner has concerns about Indigenous offenders facing stiffer penalties under Bill S-215. (CBC)

Avoid minor offences to spare young women

Holmes Skinner is concerned that the bill includes minor offences, questioning whether it should be changed to apply only to murder cases.

"I think at the very least if we make this only about murder … about 92 per cent of the people murdering Indigenous women are other men, then you're certainly minimizing the issues as it relates to women who are offenders," she said.

Dyck argued that individual judges were able to recognise minor assaults for what they were, and could recommend appropriate remedial action to address underlying issues, such as alcohol abuse or anger issues.

Click 'listen' near the top of this page to hear the full conversation.

Produced by Winnipeg network producer Suzanne Dufresne.