A Search for the Forgotten and Forsaken: National Inquiry into Missing and Murdered Indigenous Women and Girls
National inquiries have historically been reserved for the gravest matters of public concern. Since 1980, the RCMP has reported 1,181 homicides and long-term disappearances of Indigenous women in Canada. Some advocates believe the number to be as high as 4,000―that is 4,000 women that have been killed, or lost, or both.
This past August, the federal government unveiled their plan to address the ongoing tragedy of violence against Indigenous women in Canada. The plan consists of establishing the National Inquiry into Missing and Murdered Indigenous Women and Girls (“National Inquiry”) to examine both the systemic causes of, and institutional responses to, the violence. For decades, victims’ families and advocacy organizations have been demanding answers in the thousands of unsolved homicide and abduction cases collecting dust in police departments across Canada. These individual demands have also been matched by calls to use the National Inquiry to reform the system and legislate preventative measures against the violence. The National Inquiry, which hopes to do so much for so many, will undoubtedly face incredible obstacles before it can provide any answers to anyone.
One of a Kind
While the National Inquiry certainly meets the historical threshold of “grave public concern,” many of its facets are unique. The overall goals remain to seek and uncover truth and to encourage reform―the classic purposes of a public inquiry. The powers assigned to the National Inquiry in meeting those goals, however, are novel and worth exploring further.
The first unique quality in the National Inquiry’s Terms of Reference (“Terms”) concerns the appointment of commissioners to design and oversee the process. Usually, the government hires one commissioner to be a trusted and independent agent of the state (e.g. a judge) that will then be tasked with designing and overseeing the public inquiry’s mandate. In August, the federal government appointed five Commissioners, only one of whom is a sitting judge. The other four Commissioners are prominent legal advocates in the Indigenous community, three of which are themselves Indigenous. On the surface, this arrangement challenges the requirement that commissioner(s) must be independent of all the actors affected by the inquiry. Given the breadth of the issue in this case, the connection to and knowledge of the problems experienced by Indigenous peoples is in fact an asset and will allow the Commissioners to develop and conduct an inquiry process that is as fair and thorough as historically required.
The number of commissioners appointed is also inextricably linked to the second unique quality contained in the Terms: the National Inquiry’s incredibly broad and ambitious mandate. The Commissioners are tasked with inquiring and reporting on “systemic causes of all forms of violence―including sexual violence―against Indigenous women and girls in Canada.” Usually an inquiry explores a specific act or a series of acts of violence. The exploration of all acts and systemic causes naturally involves macro factors such as racism, poverty, addiction as well as micro factors such as insufficient public transit and the overrepresentation of Indigenous children in the child-welfare system―to name a few. The government’s broad framing of the National Inquiry’s mandate could be interpreted as a signal that its ultimate goal is enhancing public confidence in institutions across the country, as opposed to resolving cold cases. In light of this broad and ambitious mandate, the five Commissioners will have to agree on setting boundaries on the huge undertaking prior to designing a fair process of any sort.
The broad mandate grants the Commissioners a corresponding broad discretion in conducting the National Inquiry. This discretion is amplified by the third unique quality in the Terms: enhanced coercive powers. These powers allow the Commissioners to seek out individuals with relevant information, subpoena individuals, request and secure documentary evidence, and allow victims’ families to participate in hearings. In an additional, unprecedented move, provinces and territories have signed the Terms of the National Inquiry, bringing provincial services under the mandate of the Commission. This empowers the Commissioners to compel witness testimony from municipal and provincial police officers and refer any information that may emerge concerning cold cases to the appropriate authorities. These coercive powers are integral to maintaining a thorough and independent inquiry and putting force behind any recommendations that the inquiry makes. Once again, the federal government seems adamant on strengthening public confidence in the overall system by establishing the National Inquiry.
Problems on the Horizon
Despite the federal government’s efforts to empower the National Inquiry with unique terms, and despite unprecedented cooperation from provincial and local entities, the Commissioners will have to design a process that responds to a myriad of demands that have been made since the Inquiry was established.
The main theme underpinning the demands is something I’ve already touched upon: whether the National Inquiry’s primary purpose and goal should be to resolve individual problems or systemic problems. Many victims’ families are seeking individual justice for their loved ones. The families believe that the Commissioners should use their coercive powers to compel police officers and individuals to provide answers that will lead to prosecutions and convictions. The criticisms that stem from these demands for individual justice are that the National Inquiry is (1) too broad, and (2) not equipped with enough coercive powers. For example, the families expected the National Inquiry to review specific files and probe police conduct in relation to those specific files. However, the Commissioners cannot make findings of wrongdoing, recommend prosecutions, or order the re-opening of cases even if an admission of misconduct or discrimination occurs.
The problem here is that an extension of coercive powers would severely undermine procedural safeguards that all participants of the National Inquiry are entitled to. Due to the public nature of the National Inquiry, the individuals who take part in the inquiry are usually afforded derivative use immunity. This immunity protects the individuals testifying by disallowing their public inquiry testimony to be used as evidence in future criminal proceedings. Getting rid of this immunity would infringe the individuals’ Charter rights under section 7 (the right not to self-incriminate) and section 11(d) (the right to a fair trial). It would also set a dangerous precedent for using a public inquiry to circumvent legal protections.
Other families and advocacy groups believe that the National Inquiry should mainly concern itself with investigating and finding ways to resolve systemic problems. Some families, for example, express concern with the Commissioners’ power to pass on relevant information obtained from the Inquiry hearings to relevant investigating authorities. These families point to allegations of systemic discrimination faced by Indigenous women in those same investigating authorities. Remitting information to authorities in such cases, therefore, would further deepen the power imbalance between the families seeking information about their loved ones and the government institutions holding this information. These families see the violent crimes as being part of a sociological phenomenon that involves government institutions. The criticism stemming from this outlook is that the National Inquiry should be entirely public and focused on seeking truth and answers instead of individual convictions.
The second part of this criticism it that the National Inquiry should use all the information they glean from hearings and engagement sessions to make forceful recommendations. These forceful recommendations would then form the foundation for establishing and developing a federal act to end violence against women. Critics also note that the Inquiry should consider and base their recommendations on previous studies like the Truth and Reconciliation Report, the Forsaken Report, and the Stolen Sisters Report to combat systemic problems. This way, the creation of a federal act on the basis of the National Inquiry’s recommendations would also ensure that many actions items are funded at once. Moreover, it can be argued that a truly public inquiry would facilitate greater public knowledge and outrage that would then fuel an expectation of government action. By driving focus away from securing individual convictions, therefore, the National Inquiry has the potential to provide preventative measures that may stop similar tragedies from happening to others in the future.
No Easy Solutions
The most difficult task for the National Inquiry and its Commissioners, perhaps, will be aligning process design with the demands of the Indigenous community and ensuring that the Inquiry’s recommendations deliver on those demands. To do so the Commission has to reconcile the various demands that are in tension with each other and in tension with the general purpose and functioning of a public inquiry.
Some possible solutions have already been proposed. For example, the federal government has offered $16.17 million for all provinces to establish liaison units. These units would complement the work of the National Inquiry by supporting families seeking information and victim support services from government institution like the police, prosecutors, coroners, and child protection services.
Another tangible solution could be to adopt the English practice of guaranteeing testifying witnesses immunity from criminal prosecutions only―not civil prosecutions. This way individual families can prosecute individuals in civil court for torts like negligent investigation and obtain badly needed funds. Any recommendations are still two years away, but in designing the process, the Commissioners will have to strike a workable balance between catharsis and assigning moral blame.