Kim Pate is among a group of senators who want 12 criminal cases to be reviewed for possible miscarriages of justice owing to race and gender.Colin Perkel/The Canadian Press
Two sisters have been imprisoned since 1994 for a murder another person confessed to.
A woman forced her way into a school to flee an abusive father and ended up going to prison for breaking and entering.
Another woman confessed to murdering a fellow inmate, whose death correctional staff and fellow prisoners continued to believe was actually a suicide.
These are just four of 12 Indigenous women profiled in a new report from a group of Canadian senators who want the cases to be reviewed for possible miscarriages of justice owing to racial and gender bias.
In the report, which was released on Monday morning, Senators Dawn Anderson, Yvonne Boyer and Kim Pate call for the 12 women to be exonerated. The senators say all of them endured discrimination, inequality and violence within the criminal justice system.
“All of them had some kind of child welfare involvement. All of them either attended residential schools or their parents did. All have histories of abuse,” Ms. Pate said. “There’s a litany of failures.”
Their demands land on Justice Minister David Lametti’s desk at a critical moment for the criminal justice system. The federal government is overhauling its conviction review process while also working to contain soaring rates of Indigenous incarceration.
Correctional Investigator Ivan Zinger told The Globe and Mail earlier this month that Indigenous women now make up half of the female population in federal penitentiaries, even though just 4.9 per cent of women in Canada are Indigenous. For all Indigenous prisoners, men and women, the rate stands at 32 per cent.
The issue took on additional poignancy after the death on Sunday of David Milgaard, who spent more than two decades in prison for a murder he did not commit and later became one of Canada’s best known advocates for wrongfully convicted people. The report is dedicated to Mr. Milgaard and C.D., one of the 12 Indigenous women, who died in April. She, like all the other women referenced in the report, is identified only with initials.
The 34-page report outlines each woman’s circumstances. Four of the women remain in prison. Others are on parole, on conditional release or living in the mental-health care system.
For the first time, Indigenous women make up half the female population in Canada’s federal prisons
One woman, S.D., survived residential school only to become an accomplice to an abusive drug dealer husband, the report says. In prison, she pleaded guilty to murdering a fellow inmate who had debilitating health issues. Staff and prisoners believed the death was a suicide despite S.D.’s admission, according to the report.
She spent 30 years in prison, much of that time in isolation. At the time of her 2020 release, she was the longest-serving female prisoner in Canada, according to the report.
T.M. first landed in prison for taking shelter at her school to escape sexual abuse at home. She was convicted of breaking and entering and ended up being convicted of other crimes while she was incarcerated. She was in prison for more than 10 years, most of that time in segregation, where she developed isolation-induced schizophrenia, the report says.
Two sisters, O.Q. and N.Q, were charged with the murder of a residential school caretaker, who they said made sexual advances toward them. Their 14-year-old cousin confessed to the killing, but the sisters were convicted of second-degree murder in 1994 and remain in prison.
Although the report does not give the sisters’ full names, the case details closely align with the story of Nerissa and Odelia Quewezance. Before his death, Mr. Milgaard was among a growing number of advocates working to overturn their convictions.
“The system is broken for Indigenous people,” said Kim Beaudin, national vice-chief of the Congress of Aboriginal Peoples, who is working closely with the Quewezance sisters. “Lametti shouldn’t take his time addressing this.”
The senators recommend that the government conduct a group review of the cases. They also make broader recommendations, including that the government remove all mandatory minimum sentences, establish an independent conviction review process that recognizes “racism, class bias and misogyny,” and eliminate the overrepresentation of Indigenous people in prisons by focusing on community-based alternatives to incarceration.
“We advocate that their cases be reviewed as a group in order to enable a more fulsome identification and analysis of the intersections and patterns of systemic inequality and violence experienced by each woman prior to and while navigating the criminal legal system,” the report says.
Mr. Lametti told The Globe earlier this week that he expects incarceration rates for Indigenous people to decline once the government implements the United Nations Declaration on the Rights of Indigenous Peoples and passes Bill C-5, which would remove 20 mandatory minimum sentences that disproportionately affect Black and Indigenous people. The move would give judges more ability to be lenient with sentencing for certain crimes related to firearms and drugs.
Even if C-5 passes, 53 mandatory minimum sentences will remain on the books. Lower courts have declared a number of them unconstitutional.
“The idea that we’re repealing only some, and we’re leaving in place this patchwork of penalties across the country and not allowing judges the ability to do their job, I think is unconscionable,” Ms. Pate said.
The request to re-examine the 12 cases poses a significant test for Canada’s conviction review process, which is fated for a major retooling under Mr. Lametti. Last year, he tapped Harry LaForme, the first Indigenous lawyer on an appellate court in Canada, and Juanita Westmoreland-Traoré, Quebec’s first Black judge, to report on how the government could create an independent commission to review miscarriages of justice.
Under the current system, anyone who has exhausted the court appeal process has to apply directly to the justice minister for a case review. In their report, the two former judges said the minister’s office has received 186 applications since 2003 and ordered 20 new trials or appeals. All the successful applications came from men. One was Indigenous and one was Black.
Mr. Lametti said on Monday that he had personally assured Mr. Milgaard that an independent review body would be established to prevent the kind of wrongful conviction that led to the advocate’s 23-year imprisonment. “I was profoundly saddened by the fact that he would not live to see this,” Mr. Lametti said.
Mr. Lametti could not say when the new commission would be created, but he said he wants it running before his mandate ends.
“Adding this kind of commission is one way of fighting systemic racism and systemic inequality in our criminal justice system,” he said. “In terms of timeline, it’s critical to get this right.”
Our Morning Update and Evening Update newsletters are written by Globe editors, giving you a concise summary of the day’s most important headlines. Sign up today.
Patrick White