Do MMIW Recommendations Stand Up to Scrutiny?

Commentary, Aboriginal Futures, Brian Giesbrecht

The Missing and Murdered Indigenous Women and Girls (MMIW) report declares that violence against Indigenous women is genocide.  Already, the Senate committee is at work dealing with some MMIW’s 200 plus recommendations. This as part of the Senate’s study of an omnibus criminal justice bill, Bill C-75. But, does MMIW recommendations stand up to scrutiny?

One of MMIW’s most controversial recommendations, and addressed in Bill-75, would make sentences for men convicted of abusing Indigenous women harsher than in the case of non-Indigenous women. The chief commissioner of the MMIW, adds that men convicted of murdering Indigenous women be charged with first degree murder, even in situations where they would be charged with a lesser offence if the victim was not Indigenous. Both recommendations should not proceed.

Basing a criminal charge on the race of the victim is wrong. Both suggestions are the exact opposite of what the law is now supposed to be doing – working against the “over incarceration” of Indigenous men. 

MMIW was mandated to deal not only with murdered and missing women, but with the much larger issue of abuse to Indigenous women generally. An Indigenous woman is at least ten times as likely as a non-Indigenous woman to be abused or murdered, with the overwhelming majority of men who abuse or murder Indigenous women being Indigenous. The effect of the “Gladue principles” is to reduce the sentences of Indigenous men who commit crimes, including the murder of Indigenous women.  But, the Senate’s current consideration appears to negate any reduction of sentence that Gladue would give. 

The Gladue case itself is quite controversial. The Supreme Court (in 1999) decided the case in an effort to lower the alarming numbers of Indigenous men in jails and penitentiaries – up to 90% of the men in some jails are Indigenous. The court required sentencing courts to use special procedures at the request of a convicted Indigenous person to have the effect of lowering or vacating jail sentences that would otherwise be ordered.

Gladue has not succeeded in its stated purpose. Over incarceration rates for Indigenous men are worse now than they were in 1999. There are anecdotal indications that, within the community of Indigenous men who are frequently involved with the law, Gladue is treated as a joke. Knowing that their sentences will be lightened – or even eliminated – Gladue simply encourages more criminal activity. 

Since that criminal activity so often takes the form of the physical or sexual abuse of Indigenous women or girls, the overall effect is that the law not only makes Indigenous women’s abuse more likely, but also treats female Indigenous victims differently than it does non-Indigenous female victims. In effect, Gladue tells Indigenous women and girls that they are worth less than non-Indigenous women and girls. The excuses frequently offered up for the effect of Gladue by misguided advocates and politicians are that Indigenous male violence is related to “colonialism”, “residential schools” etc., thereby perpetuating the violence, and adding to the perception that the lives of Indigenous women are worth less than others.  

Gladue was a bad idea from the start.

It is this very perception – that the lives of Indigenous women are worth less than the lives of other women – that the chief commissioner of the MMIW and the Senate committee are trying to correct, but they are going about it the wrong way.

The chief commissioner’s idea that anyone who murders an Indigenous woman should automatically be charged with first degree murder is a very bad idea, as is the idea that anyone charged with assaulting an Indigenous woman should receive a harsher sentence based simply on the victim’s race.  

It is time to rethink all bad ideas, eliminate all race-based laws, and replace them with one set of laws for everyone. 

If it is accurate to say – a claim lacking substance – that Indigenous women are facing a genocide, it is largely a genocide at the hands of Indigenous men. The MMIW Inquiry seems to defeat its own message by offering excuses for the behaviour of – and suggesting gentler sentences for – abusers and murderers.