Pernicious and Unfair Assumptions Around Colonial Genocide

In 1991, the Supreme Court of Canada in R. v. McCraw reviewed the threat of a criminally accused to inflict bodily harm, and discussed how rape is an act of violence, and not just a sexual act,

It is difficult if not impossible to distinguish the sexual component of the act of rape from the context of violence in which it occurs. Rape throughout the ages has been synonymous with an act of forcibly imposing the will of the more powerful assailant upon the weaker victim. Necessarily implied in the act of rape is the imposition of the assailant’s will on the victim through the use of force. Whether the victim is so overcome by fear that she submits or whether she struggles violently is of no consequence in determining whether the rape has actually been committed. In both situations the victim has been forced to undergo the ultimate violation of personal privacy by unwanted sexual intercourse. The assailant has imposed his will on the victim by means of actual violence or the threat of violence.

Violence and the threat of serious bodily harm are indeed the hallmarks of rape. While the bruises and physical results of the violent act will often disappear over time, the devastating psychological effects may last a lifetime. It seems to me that grave psychological harm could certainly result from an act of rape.

Canada is reeling right now with the conclusions of The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG) of a collective act of rape and violence towards a distinct population, which they characterize as a genocide. The term has raised enormous controversy, as it appears to go beyond the conclusion of the Truth and Reconciliation report of a “cultural genocide.”

The MMIWG Report acknowledges disagreements about the precise nature of the term genocide, but points to definitions that illustrate that it need not be accomplished by immediate destruction of a nation. The objectives could include an attack on the political and social institutions of a group, including their culture, language, religion, economic existence, health and dignity. In this context, they point to a new understanding of how genocide can occur, and describe a colonial genocide, one which has “Indigenous women, girls, and 2SLGBTQQIA people … being targeted from all sides, from partners and family members, acquaintances, and serial killers.”

The Report was released immediately after the Court’s decision in R. v. Barton, dealing with a criminally accused charged with first degree murder of an Indigenous woman found dead in his bathroom. She was a sex worker and the cause of death was the loss of blood.

The decision centered around Section 276 of the Criminal Code dealing with the admissibility of evidence of the complainant’s prior sexual activities. The majority held that the trial judge failed in complying with these mandatory requirements, which affected the accused’s defence of honest but mistaken belief in communicated consent. Although they ordered a new trial, they indicated it should be a restricted on manslaughter alone, as the acquittal on the murder charge was not tainted by reversible error,

[166] First, the Crown’s case on first degree murder hinged on a relatively straightforward factual question: Did Mr. Barton cut Ms. Gladue using a sharp object? Indeed, the Crown stressed in its closing submissions to the jury that “[t]he major determination for you in this case is whether Mr. Barton used a knife” (A.R., vol. V, at p. 222). If he did, then the only question was whether he had the requisite mental element for murder, and keeping in mind the common sense inference that a person generally intends the natural and probable consequences of his or her actions (see DaleyR. v. Walle2012 SCC 41 (CanLII)[2012] 2 S.C.R. 438, at para. 3), the trial judge rightly noted that “it [would] not be much of a stretch to conclude that there was an intention to harm or injure her” (A.R., vol. I, at p. 137). However, if the jury was not satisfied that Mr. Barton cut Ms. Gladue, then the charge of murder could not be sustained, a point conceded by the Crown at trial.

[168] The Crown made a tactical choice to focus its efforts on developing its theory that Mr. Barton cut Ms. Gladue using a sharp object. Absent evidence of a “murder weapon”, the Crown’s murder case turned primarily on its expert evidence that Ms. Gladue’s fatal wound was a cut. Evidently, the jury was not persuaded. This can perhaps be explained by defence counsel’s success in casting doubt on the Crown experts’ opinion during cross-examination and pitting that evidence against the opinion of his own expert, which contrasted starkly with that of the Crown experts. In short, on the factual question of whether Mr. Barton cut Ms. Gladue, the Crown lost in a battle of experts.

[169] Second, and relatedly, the Crown has provided no plausible explanation for how the jury could have used prior sexual activity evidence to improperly reason its way through the first degree murder charge.

[170] Third, the Crown acknowledged in the court below that the only ground of appeal implicating the murder charge was the motive issue. However, as I have explained, the motive instructions were not tainted by reversible error. Accordingly, the Crown has not demonstrated any error spilling over into the murder charge.

The dissent emphasized that the trial judge allowed the deceased complainant to be referred to repeatedly “as a Native prostitute without providing any instruction to guard against potential prejudicial reasoning based on these descriptions.” Without further context, the jury would likely fill informational gaps with stereotypical and prejudicial information that would render the whole trial unfair,

[225] The devastatingly prejudicial effects of this error cannot be said to be confined to the included offence of manslaughter, but may also have had a material bearing on the jury’s reasoning on the charge of first degree murder. The prejudicial impact of Mr. Barton’s detailed testimony — without either the screening required by s. 276 or any limiting instructions — necessarily infected the whole trial and the entirety of the jury’s fact-finding process. The admission of this evidence, in contravention of s. 276, may have tainted the jury’s view of the deceased and its assessment of the evidence tendered by the accused about the nature of the sexual activity, including his testimony that he did not use a sharp object. In short, there was a real risk that the profound prejudice caused by the trial judge’s error contaminated the jury’s broader fact-finding function, including on murder.

[231] The undisputed biases against sex-trade workers and against Indigenous peoples can be “as invasive and elusive as they are corrosive” (R. v. Williams1998 CanLII 782 (SCC)[1998] 1 S.C.R. 1128, at para. 22). Indeed, as compellingly explained by the Alberta Court of Appeal in this case, because Ms. Gladue was in effect labelled a “Native prostitute”, “the jury would believe she was even more likely to have consented to whatever Barton did and was even less worthy of the law’s protection” (2017 ABCA 216 (CanLII)354 C.C.C. (3d) 245, at para. 128). These references introduced a risk that the jury’s reasoning might be tainted by conscious or unconscious racial prejudice or reliance on racist stereotypes.

[italics in original]

This dissent echoed the Alberta Court of Appeal’s decision in this matter, which had also ordered a new trial on all counts. The opening statement in that decision was as follows,

[1] The jury system is probably the most familiar symbol and manifestation of the Rule of Law in this country. It is enshrined in our traditions, values and the words of our foundational law, the Constitution of Canada. The verdict of a jury is the product of the reason and collective human experience of people taken from their busy lives to work together in an unfamiliar, yet vital, enterprise. But juries, consisting of 12 lay persons, cannot properly discharge their duties if the instructions they receive on the law are incorrect, inconsistent or non-existent on key legal issues of decisive significance. Nor is there any reasonable chance for jurors to discharge their duties impartially if trial judges fail to warn them about relying on improper myths and stereotypes when jurors have been implicitly or explicitly invited to do just that. This is especially so in trials involving sexual offences. Despite our society’s recognition of individual autonomy and equality, there still remains an undeniable need for judges to ensure that the criminal law is not tainted by pernicious and unfair assumptions, whether about women, Aboriginal people, or sex trade workers. Failing to meet that need can undermine the jurors’ ability to apply the law objectively and correctly. Regrettably, in this case, the jury charge was deficient in all these respects.
[emphasis added]

The MMIWG Inquiry were themselves intervenors in the case, and in their factum they indicate that greater judicial notice should have been taken on the “widespread racism against Indigenous peoples in
Canada and how this has translated into systemic racism within the criminal justice system.” They also state,

It follows that judicial notice can be employed to recognize that the history of colonialism translates into higher rates of victimization, racial bias, stereotypes and assumptions that result in Indigenous women being viewed as less than worthy victims or less believable. Indigenous women suffer the same racism, prejudice and systemic bias within the criminal justice system as a victim as do Indigenous people accused of offences.

A person who is viewed as less worthy as a victim may also be possibly viewed as less worthy of the protections of society, including the expert evidence adduced by the Crown on the mechanism of injury. The persuasion of a jury on this evidence is not strictly technical, especially in the presence of highly prejudicial information devoid of context.

The MMIWG Report traces the stereotypes around Indigenous and First Nations people to the Indian Act, which not only tied identity to the husband, but allowing decades of misconduct including rape and murder to go unpunished, and often justified through assumptions of prostitution. Central to the apathy of the justice system to their plight is a form of victim-blaming that occurs, specifically for sex workers who are unworthy of proper investigation and follow-up. As stated in the dissent,

[197] Trial judges, as gatekeepers, play an important role in keeping biases, prejudices, and stereotypes out of the courtroom. In this regard, one of the main tools trial judges have at their disposal is the ability to provide instructions to the jury. Bearing in mind this Court’s admonition that “it cannot be assumed that judicial directions to act impartially will always effectively counter racial prejudice” (Williams, at para. 21), such instructions can in my view play a role in exposing biases, prejudices, and stereotypes and encouraging jurors to discharge their duties fairly and impartially. In particular, a carefully crafted instruction can expose biases, prejudices, and stereotypes that lurk beneath the surface, thereby allowing all justice system participants to address them head-on — openly, honestly, and without fear.

[198] Trials do not take place in a historical, cultural, or social vacuum. Indigenous persons have suffered a long history of colonialism, the effects of which continue to be felt. There is no denying that Indigenous people — and in particular Indigenous women, girls, and sex workers — have endured serious injustices, including high rates of sexual violence against women…

There was plenty in the Barton investigation that raised credibility issues, including numerous false stories by the accused, apparent attempts to cover up the scene and flee, and providing contradictory exculpatory explanations to others. He admitted to lying as part of his testimony.

Yet the trial judge did not inform the jury that they could use this after the fact conduct for credibility, including his admitted lies, when evaluating the accused’s credibility. This was central to the case, because as the dissent stated,

[226] In our view, it cannot be said that the murder charge was decided merely on a battle of expert evidence as to whether a sharp object was used. Unless otherwise cautioned, juries are entitled to consider all the evidence they heard at trial in their deliberations. The unfiltered admission of Mr. Barton’s testimony, which included extensive details of his sexual encounters with Ms. Gladue in contravention of s. 276, likely tainted the jury’s view of Ms. Gladue, and would have been the lens through which the jury assessed what happened. This was especially true since the only other witness to the events was dead.

[234] Trial judges have an important role to play in instructing juries so that they can recognize and set aside racial and other biases, including those against Indigenous peoples and sex-trade workers. Not only did that not happen here, the opposite occurred: inflammatory terminology was frequent, and was gratuitously used without any corrective intervention by the trial judge.

[emphasis in bold added; italics in original]

In responding to the MMIWG Report, Heidi Matthews of Osgoode Hall writes in Maclean’s,

All political communities hold within them dark histories of violent oppression against marginalized groups. These stories are not about moral mistakes. Instead, they remind us—uncomfortably—that the authority to govern is often built, literally, on the demonization and destruction of group-based identity.

In a sense, the genocide finding does constitute a statement of collective blame. But it is also much more than that. At root, genocide is a political crime…

It is difficult to think of a political and legal strategy that could put truth to the lie of the picture of Canadian liberal tolerance more directly than a finding of genocide. Thinking about Canada’s past and present through the lens of Indigenous genocide questions the foundations of Canadian sovereignty in a way that, until now, the Canadian people and its government have been unwilling to do.

If this is the potential impact on our political institutions, it may also be a reminder to the justice system to adjudicate in a manner they have also been unwilling to do but might start doing, as we think further about Canada’s past and present even more.


  1. This is a solid analysis of systemic, societal degradation of people by group affiliation. The MMIWG had a broad focus and heard thousands of witnesses in an attempt to understand violence in the aboriginal community. The systemic denigration it found and called genocide can be attacked on several accounts. None more compelling than the self-assessment of the report itself.

    The report divided the aboriginal community into an unprecedented number of groups. The great pains the report goes to in order to be inclusive comes up short by at least a half. Not only were no boys or men mentioned as victims, but none of their families were invited nor allowed to testify to the inquiry. The evidence is clear that the number of boys and men who have been murdered, or the number of boys and men who have gone missing, outnumbering the rest of the finely divided groups in the same time period.

    Is there any clearer evidence of denigration than refusing to even look into the causes or attempt to find remedies to half of the community?

    If the term genocide is correctly applied by the report, genocide applies to the intent of the inquiry as well.