Hon. Marion R. Buller
National Inquiry into Missing and Murdered Indigenous Women and Girls
Judges Chambers, Unit J
2620 Mary Hill Road
Port Coquitlam, BC, V3C 3B2
Dear Chief Commissioner Buller:
Re: National Inquiry into Missing and Murdered Indigenous Women and Girls
On behalf of the Ontario Human Rights Commission (OHRC), I congratulate you on your appointment as Chief Commissioner of the National Inquiry into Missing and Murdered Indigenous Women and Girls (National Inquiry).
I am writing today to encourage you to adopt a broad human rights interpretation of the National Inquiry’s Terms of Reference and to offer our support as you pursue your important mandate.
In particular, the OHRC calls for a broad interpretation of terms (a)(i) and (ii) of the Terms of Reference to include an examination of systemic discrimination in the child welfare and justice systems (including failures to diligently investigate and prosecute alleged violence against Indigenous women and girls). In our opinion, an analysis of systemic discrimination is a necessary prerequisite to identification of best practices and recommendations.
The OHRC is the provincial statutory agency responsible for promoting and advancing human rights, and preventing systemic discrimination in Ontario. The OHRC has several functions and powers under Section 29 of the Ontario Human Rights Code (Code), including public education, policy development, public inquiries, Commission-initiated applications to the Human Rights Tribunal of Ontario (HRTO), and interventions in legal proceedings. The OHRC also monitors and reports on issues related to the state of human rights in Ontario. This includes reviewing legislation, regulations and policies for consistency with the intent of the Code.
Supporting the call for a national inquiry
Since 2013, the OHRC has added its voice to the call for an independent national public inquiry into missing and murdered Indigenous women and girls.
We wrote to the Minister of Justice and Attorney General of Canada as well as the Minister of Indigenous and Northern Affairs soon after they were appointed to offer our support and assistance.
We also wrote to the Premier of Ontario to support the province’s call to establish a national inquiry, and drew particular attention to two key international documents referenced in the National Inquiry Terms of Reference. These ground-breaking reports from the UN Committee on the Elimination of Discrimination against Women and Inter-American Commission on Human Rights support adopting an intersectional perspective to best understand how and why Indigenous women and girls have experienced and continue to experience unacceptably high levels of violence. They also outline how violence against women is analyzed in international human rights law, the obligations of governments when women experience violence at the hands of non-state actors, and draw upon the real-life experiences of Indigenous women and girls in Canada.
We also raised concerns with respect to policing and the failure to protect Indigenous women and girls, as well as the need for support and cooperation from provinces and territories in areas of provincial jurisdiction including law enforcement, education, healthcare and employment. This cooperation is essential in order to address the socio-economic factors that have led to the historic disadvantage that is at the root of the issues facing Indigenous women and girls today.
We have asked the Premier to consider drafting an Order in Council that would authorize the National Inquiry Commission to access all necessary information and compel testimony from provincial bodies, especially those involved in policing, child welfare and corrections. We believe that to fulfill its important mandate, it is essential that the National Inquiry Commission have access to all necessary primary source data, including but not limited to police investigation and child welfare case files.
OHRC’s work to address systemic discrimination in relevant sectors
Institutionalized or systemic discrimination, including racism, is an ongoing concern to the OHRC as it continues to cause significant damage to many communities across Ontario. It has a profound negative impact on Code-protected groups such as Indigenous peoples. As such, the OHRC has acquired substantial expertise in identifying, characterizing and eradicating many forms of discrimination relevant to the National Inquiry’s mandate.
As you know, racism is a belief that one group is superior to others. Racism can be openly displayed in racial jokes, slurs or hate crimes. It can also be more deeply rooted in attitudes, values and stereotypical beliefs. In some cases, people don’t even realize they have these beliefs. Instead, they are assumptions that have evolved over time and have become part of systems and institutions, and also associated with the dominant group’s power and privilege.
Racial discrimination is the illegal expression of racism. It includes any action, intentional or not, that singles out persons based on their race, and imposes burdens on them and not on others, or withholds or limits access to benefits available to other members of society, in areas covered by the Code. Race only needs to be one factor in a situation for racial discrimination to have occurred.
Racial discrimination can result from individual behaviour as well from the unintended and often unconscious consequences of a discriminatory system. This is known as systemic discrimination. Systemic discrimination can be described as patterns of behaviour, policies or practices that are part of the structures of an organization that create or perpetuate disadvantage for persons based on race or other Code grounds.
Assessing and tackling systemic discrimination can be complex since it requires considering how the “normal way of doing things” may have a negative impact on racialized persons. The OHRC has set out three considerations that may help the National Inquiry Commission identify and address systemic discrimination against Indigenous women and girls in relevant sectors:
- Numerical data: Numerical data such as statistics may show that Indigenous women and girls are not being equally treated by or within an organization. Numerical data alone isn’t likely to be proof of systemic discrimination. However, it serves as an indicator or a “red flag” that there is a problem.
- Policies, practices and decision-making processes: Formal and informal policies, practices and decision-making processes can result in disparate, negative impacts on Indigenous persons. The use of informal or highly discretionary approaches are particularly problematic, as there is more room for subjective considerations, differing standards and biases to come into play.
- Organizational culture: Organizations can have their own internal cultures which, if not inclusive, can marginalize or alienate Indigenous persons.
The failure of the police and justice system to adequately protect Indigenous women and girls from violence and to respond diligently, in a culturally appropriate, bias-free manner, has been identified by Indigenous communities and many expert reports as a central concern requiring the National Inquiry’s specific attention.
Police bias is reportedly “reflected in the use of demeaning or derogatory language towards Indigenous women and in stereotypical portrayals of Indigenous women as prostitutes, transients or runaways and of having high-risk lifestyles.” These glaring examples of institutionalized racism and discrimination have resulted in some reports of missing and murdered Indigenous women and girls not being taken seriously and/or not being properly investigated.
In the OHRC’s recent submission to the Ontario Ministry of Community Safety and Correctional Services (MCSCS) on its review of the Police Services Act, we highlighted particular concerns about racism and sexism through under-policing in investigations of missing and murdered Indigenous women and girls. The Ontario Provincial Police and municipal police services mostly conduct these investigations, and the concerns likely reflect discrimination contrary to the Code.
Beyond our recent submissions, I would also encourage you to review OHRC materials that may be helpful to you, including our Policy and guidelines on racism and racial discrimination, manual entitled Human rights and policing: Creating and sustaining organizational change, and our 2003 inquiry final report entitled Paying the Price: The human cost of racial profiling.
- Child welfare
Racial discrimination extends beyond policing to other public institutions, including the child welfare system. As a result, the child welfare sector has also been identified by Indigenous leaders as requiring the National Inquiry’s specific attention.
We believe that racial discrimination is an important factor in the overrepresentation of First Nations, Métis and Inuit children in care. As Cindy Blackstock of the First Nations Child and Family Caring Society points out, “even if a non-Aboriginal family has these same factors [poverty, poor housing, caregiver substance abuse], the Aboriginal child is still more likely to go into child welfare care. So, race has continued to play a role in child removal.” Moreover, research also shows that there is a link between child welfare involvement, sexual exploitation and the sex trade.
The OHRC has taken up the Truth and Reconciliation Commission of Canada’s (TRC) call to action for all governments in Canada to commit to reducing the number of Indigenous children and youth in the child welfare system. In December 2015, the OHRC initiated a public inquiry, pursuant to section 31.1 of the Code, to examine this issue more closely.
As a first step, we have written to Ontario’s 47 children’s aid societies (CASs) requesting disaggregated data and information on policies, programs and procedures, to help us understand who is in care, as well as the data and data collection practices CASs use to monitor and support children, youth and their families in the system.
We have received a significant volume of submissions and are currently analyzing them. We plan to engage with experts from Indigenous communities as well as other partners to discuss next steps and the best way forward.
- Data collection
Deficiencies in the systematic collection of accurate race-based data across Canada’s criminal justice system has been identified as contributing to an undercounting of the true number of missing and murdered Indigenous women and girls in Canada.
The OHRC is committed to data-driven solutions wherever possible. The OHRC’s guide, Count me in! Collecting human rights-based data, discusses how proper data collection can help organizations more effectively monitor potential discrimination, identify and remove systemic barriers, address historical disadvantage, and promote equity in employment, service delivery, housing and other areas.
We believe that governments also have a responsibility to monitor, measure and report on the human rights situation of disadvantaged groups, including Indigenous communities, to ensure accountability for progress on realizations of rights.
In policing, we have consistently recommended that the provincial government require police services to establish permanent data collection and retention systems to record and report on human rights-based data on all civilian stops and use of force incidents.
In our submission to Ontario’s Ministry of Children and Youth Services (MCYS) Review regarding the Child and Family Services Act (CFSA), we called upon the Ministry to monitor how the CFSA is applied, collect aggregate data and report on the extent that child and family service agencies are separating Indigenous children from their families, or otherwise not meeting their needs, and reflect any needed changes in its Indigenous Children and Youth Strategy.
National Inquiry Terms of Reference
The OHRC calls for a broad interpretation of terms (a)(i) and (ii) of the Terms of Reference to include an examination of systemic discrimination in the child welfare system, policing, and the justice system (including failures to diligently investigate and prosecute alleged violence against Indigenous women and girls).
We also strongly recommend that Commissioners apply term (a)(ii) to inquire into and report on the extent to which institutional policies and practices amount to systemic discrimination and contribute to violence against Indigenous women and girls in Canada.
I would be pleased to speak further with you and the other Commissioners about how the OHRC could support your work. If you would like any additional information or have any questions, please do not hesitate to contact me.
Renu Mandhane, B.A., J.D., LL.M.
Ontario Human Rights Commission
— The OHRC (@OntHumanRights) August 24, 2016
Copy: Michéle Taïna Audette, Commissioner, National Inquiry Commission
Brian Eyolfson, Commissioner, National Inquiry Commission
Marilyn Poitras, Commissioner, National Inquiry Commission
E. Qajaq Robinson, Commissioner, National Inquiry Commission
Hon. Kathleen O. Wynne, Premier of Ontario
Hon. Carolyn Bennett, Minister of Indigenous and Northern Affairs
Hon. Jody Wilson-Raybould, Minister of Justice
Hon. Patty Hajdu, Minister of Status of Women
Hon. David Zimmer, Minister of Indigenous Relations and Reconciliation
Hon. Tracy MacCharles, Minister Responsible for Women's Issues
Hon. Yasir Naqvi, Attorney General
Hon. David Orazietti, Ministry of Community Safety and Correctional Services
Hon. Michael Coteau, Ministry of Children and Youth Services
Marie-Claude Landry, Chief Commissioner of the Canadian Human Rights Commission
 See: Human Rights Watch, Those Who Take Us Away: Abusive Policing and Failures in Protection of Indigenous Women and Girls in Northern British Columbia, Canada (2013), online Human Rights Watch www.hrw.org/report/2013/02/13/those-who-take-us-away/abusive-policing-and-failures-protection-indigenous-women
CEDAW Report, supra, note 1 at 29.
 See: Human Rights Watch, Those Who Take Us Away: Abusive Policing and Failures in Protection of Indigenous Women and Girls in Northern British Columbia, Canada (2013), online Human Rights Watch https://www.hrw.org/report/2013/02/13/those-who-take-us-away/abusive-pol....
 CEDAW Report, supra, note 1 at 29.
 Most of the Ontario cases of missing and murdered Indigenous women in the Native Women’s Association of Canada’s database were handled by the OPP (40%), followed closely by municipal police services (38%). 18% of cases were found to involve multiple jurisdictions/a joint operation—usually between a First Nations police service and the OPP. 4% of cases were handled solely by a First Nations police service. Native Women’s Association of Canada, Missing and Murdered Aboriginal Women and Girls in Ontario (2010), online: Native Women’s Association of Canada www.nwac.ca/wp-content/uploads/2015/05/2010-Fact-Sheet-Ontario-MMAWG.pdf.
 McKay v. Toronto Police Services Board, 2011 HRTO 499 (CanLII) at para. 102.
 National Welfare Council, First Nations, Métis and Inuit children and youth: Time to act. (2007), online: Government of Canada Publications http://publications.gc.ca/collections/collection_2007/hrsdc-rhdsc/HS54-1-2007E.pdf at 87-88.
 Native Women’s Association of Canada http://publications.gc.ca/collections/collection_2007/hrsdc-rhdsc/HS54-1..., What Their Stories Tell Us: Research findings from the Sisters In Spirit initiative (2010), online: Native Women’s Association of Canada https://nwac.ca/wp-content/uploads/2015/07/2010-What-Their-Stories-Tell-Us-Research-Findings-SIS-Initiative.pdf at 10.
 See: CEDAW Report, supra, note 1 at 33; Native Women’s Association of Canada, Fact Sheet Missing and Murdered Aboriginal Women and Girls (accessed August 8, 2016): online: The Native Women’s Association of Canada https://nwac.ca/wp-content/uploads/2015/05/Fact_Sheet_Missing_and_Murdered_Aboriginal_Women_and_Girls.