The Commission’s work has been severely hampered. Key groups have been denied funds for lawyers. Participating groups have withdrawn from the process because they believe that the commission’s capacity to give all parties a fair hearing has been compromised. There have been accusations that procedures were compromised and fast-tracked, with hearings that were part of the Inquiry becoming biased towards the police and the B.C. province. Critics say the result will be diminished scrutiny of what actually happened.  

For years, Aboriginal groups, women’s groups, and other Canadian civil society organizations, have called for an inquiry into why there has been so much violence against Aboriginal women and girls in Canada. The Missing Women Commission of Inquiry in British Columbia (the Commission) was at least in part a response to those calls.

The Commission was set up to inquire into the police investigations that were conducted between January 23, 1997 and February 5, 2002 respecting women reported missing from the Downtown Eastside of the city of Vancouver. The two main issues can be summarized as: 1) Did police properly investigate the cases of missing and murdered women in Vancouver? 2) Was it right for the B.C. Criminal Justice Branch to stay charges in 1998 that had been brought against the serial rapist and killer Robert Pickton for attempted murder?

Groups granted standing

One of the first steps by the Commission was to determine who would have the right to appear before it at the hearings. Organizations and individuals who obtain this right are given what is called “standing.” Before giving a person or organization standing at the inquiry, the Commission considered three things: Would the person or organization’s interests be affected by findings, and to what extent? Would the person or organization’s participation further the inquiry? Would the person or organization’s participation contribute to the fairness of the inquiry? (Public Inquiry Act, s11(4))

Based on these tests, in May 2011, Commissioner Oppal granted standing to several groups. The Native Women’s Association of Canada (NWAC) was granted full standing.

Commissioner Opal also granted ‘participant standing’ to groups and coalitions that he believed would help expose the realities of systemic violence against Aboriginal women. The groups with participant standing included Amnesty International Canada, the Union of B.C. Indian Chiefs, the Coalition of Sex Worker-Serving Organizations, the Assembly of First Nations, the Women’s Security & Equality Coalition, the BC Civil Liberties Association and Pivot Legal Society, as well as advocacy organizations from Vancouver’s Downtown East Side neighbourhood.

Even before its work got under way, the Inquiry succeeded in putting a spotlight on Canada’s national problem of missing and murdered Aboriginal women. But this spotlight was quickly overshadowed by funding and procedural problems.

Funding inequalities

Given the complexity of the issues that commissions of inquiry investigate, legal representation is a must. Mr. Oppal recommended that the British Columbia government provide funding to the organizations that had been granted standing so that no group in need of financial assistance would be denied counsel due to lack of funds. In his ruling, he wrote:

“[the groups] would not be able to participate in the hearing portion of the inquiry without funding. I therefore recommend … that these applicants receive financial assistance to pay for legal counsel to facilitate participation appropriate to the extent of their interest.”

In July 2011, the B.C. government refused to provide funds for lawyers to any of the Aboriginal and social justice groups mentioned earlier.

The decision was anomalous in Canadian practice with respect to commissions of inquiry, since normally, standing decisions are accompanied by funding for counsel.

In contrast, the British Columbia government provided public funding for the Vancouver Police Department, the RCMP and the B.C. Criminal Justice Branch, as well as individual current and former police officers.

The B.C. government also provided funding to the legal team representing the families of the missing and murdered women who wanted to testify at the Inquiry. However, their legal team is small, and has the large task of representing 25 families. This legal team, together with the legal team that works directly for the Commission, have the formidable task of wading through hundreds of thousands of documents disclosed by police and justice officials, and probing the explanations given for government and police behaviour.

Consequences of funding inequalities

Human rights experts have emphasized that “funding is what gives reality to standing.”  This means that without the funds to retain lawyers, the decision to grant standing is meaningless.

Lawyers are required to cross-examine witnesses and to bring forward evidence before the Commission. The support of counsel is also essential to enable affected organizations and individuals to begin to grasp the full untold story that is held within hundreds of thousands of pages of documents. Only trained experts have the capacity to effectively search through and analyze those documents.

The second consequence of the B.C. government’s refusal to fund the groups was that the conduct of the police and the government will receive a diminished level of scrutiny.

Independent counsel appointed instead

After Commissioner Oppal’s efforts to get the B.C. government to provide funding for counsel failed, he appointed two “Independent Counsel” to appear before the Commission, one to deal with Downtown East Side matters and the other to focus on Aboriginal issues.

However, by definition, these “independent” counsel have no clients. They do not represent any of the groups at the Inquiry, including Aboriginal women, as they do not formally take direction from, nor are they accountable to, any of the organizations or individuals they purport to represent. In August 2011, Commissioner Oppal also named two prominent Vancouver lawyers, Mr. Bryan Baynham Q.C. and Mr. Darrell Roberts Q.C., to participate pro bono in the inquiry in support of one of the independent Counsel, Ms. Gervais.

The use of independent counsel is rare in Canada. One of the only other comparable situations in Canada is the Special Advocate appointed to represent individuals accused of posing a security threat, such as potential terrorists in hearings under the Immigration and Refugee Protection Act.

Participants withdraw

In July 2011, because of the lack of funds, the Native Women’s Association of Canada (NWAC) completely withdrew from the Commission’s proceedings. NWAC was one of the key organizations with standing, and could have significantly contributed to the Commission’s understanding of what happened.

Sources within NWAC acknowledge that the Commission had eventually suggested that it could establish a process to allow NWAC to examine documents without counsel. But the fact that such examination of documents would have been completely unfunded meant that NWAC would not have had the human resources to undertake this work in any case.

NWAC was already reeling from the funding cuts made by the federal government in 2010 to the documentation project on missing and murdered women, called Sisters in Spirit.

In September 2011, a dozen experts on inquiries in Canada and on human rights sent a letter to the Attorney General of British Columbia, Shirley Bond, expressing "shock and concern" about the government's decision to not provide funding for legal counsel to the groups granted standing at the Commission.

By October 2011, most of the groups that had been granted ‘participant standing’ announced their intention to withdraw from the Inquiry because they had been refused funding that would have made their standing effective.

These groups included Amnesty International Canada, even though Amnesty had not sought funding to participate in the Inquiry, as it has a policy of not accepting any money from governments. In a press release, Amnesty pointed out that Commissioner Oppal had ruled in favour of participation by the groups, and had recommended support so they could participate, but the government chose to snub these findings, “lavishing all its resources on one side, that of the police and bureaucrats.”

Procedures gone sideways

The hearing portion of the Inquiry was designed so that lawyers could cross-examine witnesses. However, the Commission’s own lawyer decided to group witnesses together to hurry things along. Mr. Oppal reportedly authorized the procedural change because he believed that this change would allow the inquiry to finish its proceedings before the deadline for submitting the Commission’s final report and findings.

Such questioning of witnesses in groups, instead of one by one, reduces the scope of cross-examination. It is more difficult to ask specific and targeted questions to any given individual, and to be sure that the answers from one person do not affect answers from others in the group. The net effect is that lawyers cannot properly cross-examine witnesses.

Police witnesses are also less likely to criticise the actions of their fellow officers in a group context, according to Cameron Ward, who is counsel to the 25 families of missing and murdered women.

International reaction

Canada has ratified the United Nations Convention on the Elimination of all Forms of Discrimination against Women (CEDAW). Under this Convention, organizations from a ratifying country can ask a special Committee under CEDAW to conduct an international inquiry into issues of discrimination against women in their country.

Until 2011, only one such inquiry had ever been launched by CEDAW: an independent inquiry into the disappearance and murder of women in and around the Mexican city of Ciudad Juarez. That inquiry has been credited as an important factor in pushing the Mexican government to undertake measures to address the issue of violence against women.

In January and September 2011, NWAC and the Feminist Alliance for International Action (FAFIA), asked the UN Committee under CEDAW to conduct an international inquiry into Canada’s national problem of missing and murdered Aboriginal women.

The CEDAW Committee agreed to hold a formal inquiry, according to an announcement by NWAC and FAFIA in December 2011. However, the Harper government interpreted the CEDAW Committee’s response differently. The Minister responsible for Status of Women Canada said the CEDAW Committee had sent a communication, but had not advised of its intention to conduct an inquiry.

The Commission’s final report is due on June 30th, 2012

Relevant Dates

• January 27, 1998:  The British Columbia Criminal Justice Branch decides to enter a stay of proceedings on charges against Robert William Pickton of attempted murder, assault with a weapon, forcible confinement and aggravated assault.  
• December 2007: Robert Pickton is sentenced to life imprisonment for six counts of murder. The victims disappeared from Vancouver's Downtown Eastside. Their remains were found on his farm.
• September 27, 2010: The Lieutenant Governor in Council of British Columbia calls for the Missing Women Commission of Inquiry (Commission).
• March 28 2011: Commissioner Oppal establishes a study commission that will undertake research and consultation activities to gather the information required to make effective recommendations for province-wide change.
• April, 2011: After a full public hearing as to which individuals and groups shall be given standing at the Committee, Commissioner Oppal grants full standing to NWAC, and ‘participant standing’ to several human rights groups, Aboriginal groups and women’s groups, including Amnesty International Canada and the BC Civil Liberties Association (BCCLA). Groups with ‘participant standing’ have limited rights to ask questions during the inquiry. These groups have reported that no similar restrictions were put on any of the participating police forces or individual police officers, all of whom were granted full standing.
• July 22, 2011: Barry Penner, then Attorney General of British Columbia, refuses to fund thirteen groups that were granted standing.
• September 7, 2001: Human rights experts send a letter to the B.C. Attorney General Penner, objecting to his decision to refuse funding.
• July to October 2011: Numerous civil society groups withdraw from the Inquiry. NWAC withdraws in July, followed by the Downtown Eastside Women’s Centre and the Women’s Memorial March Committee, and later by Amnesty International Canada and the B.C. Civil Liberties Association.
• December 12, 2011: The House of Commons Standing Committee on the Status of Women tables its report “Ending Violence against Aboriginal Women and Girls.” Amnesty International believes that the report offers no real solutions to the widespread threats to the lives of Indigenous women in Canada.
• December 13, 2011: NWAC announces that the United Nations CEDAW Committee has agreed to hold its own inquiry into murdered and missing Aboriginal women in Canada. Status of Women Canada says that there has been no communication of the decision to hold an international inquiry.
• December 31, 2011: The original date for the final report from the Commission of Inquiry, which is delayed due to difficulties in securing witnesses and due to procedural problems. A six-month extension is granted. The government sets a new deadline of June 30, 2012.
• February 21, 2012: The Commission of Inquiry releases four reports as part of its study commission mandate, examining why police in British Columbia had failed to stop serial killer Robert Pickton from killing so many women from that neighbourhood, many of whom are Aboriginal.
• April 30, 2012: The new date scheduled for termination of the hearings of the Missing and Murdered Women Commission of Inquiry.
• June 30, 2012: The new date scheduled for the final report of the Missing and Murdered Women Commission of Inquiry.