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Brian GiesbrechtThe Missing and Murdered Indigenous Women and Girls (MMIW) report declares that violence against Indigenous women is genocide. But do the recommendations stand up to scrutiny?

Already, a Senate committee is at work dealing with some the report’s 200-plus recommendations, as part of the Senate’s study of an omnibus criminal justice act, Bill C-75.

One of the most controversial recommendations, and addressed in Bill-75, would make sentences for men convicted of abusing Indigenous women harsher than in cases of abuse of non-Indigenous women.

The chief commissioner of the inquiry further suggests 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.

Neither recommendation should proceed.

Basing a criminal charge on the race of the victim is wrong. Such suggestions are the exact opposite of what the law is supposed to do – work against the over incarceration of Indigenous men.

The inquiry 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 10 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 themselves.

The effect of the Gladue Principle is to reduce the sentences of Indigenous men who commit crimes, including the murder of Indigenous women. Courts are required to take into account cultural considerations in assessing the case of Indigenous accused.

But the Senate’s considerations appear to negate any reductions of sentences that the Gladue Principle would give.

The Gladue case itself is quite controversial. The Supreme Court in 1999 made the ruling in an effort to lower the alarming numbers of incarcerated Indigenous men – up to 90 percent of men in some jails are Indigenous. The Supreme Court required sentencing courts to use special procedures – at the request of a convicted Indigenous person – to lower or vacate standard sentences.

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

Since that criminal activity often takes the form of physical or sexual abuse of Indigenous females, the effect is that the law makes such abuse more likely. And it treats female Indigenous victims differently than it does non-Indigenous female victims.

In effect, the Gladue Principle tells Indigenous women and girls that they’re worth less than non-Indigenous women and girls. The excuses frequently offered for this by misguided advocates are that Indigenous male violence is related to colonialism, residential schools, etc.

But that simply perpetuates the violence and adds to the perception that the lives of Indigenous women are worth less than others.

It’s this very perception – that the lives of Indigenous women are worth less than those of other women – that the chief commissioner of the MMIW and the Senate committee are trying to correct. But they’re 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 very bad. So is the idea that anyone charged with assaulting an Indigenous woman should receive a harsher sentence based simply on the victim’s race.

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

Indigenous women face violence largely at the hands of Indigenous men. The inquiry seems to defeat its own message by offering excuses for the behaviour of – and suggesting gentler sentences for – these abusers and murderers.

Brian Giesbrecht, a retired judge, is a senior fellow with the Frontier Centre for Public Policy.

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