Justice system repeatedly failed 'Angela Cardinal,' legal experts say

Alberta's justice system repeatedlyfailed to protect the rights of a homeless Indigenous women who was jailed each night after testifying against an attacker accused of sexually assaulting her, lawyers and legal scholars say.

The Edmonton woman was shackled each day in court during a preliminary hearing, then sent to a remand centre each night to ensure she would return to give further evidence.

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The Crown prosecutor in the case, citing a sectionof the Criminal Code, requested that the woman be jailed for the duration of her testimony. That request was granted by provincial court Judge Raymond Bodnarek.

The section of the Criminal Code cited in the case, Section 545(1),did not appear to apply in this case, said Nate Whitling, vice-president of the Edmonton-based Criminal Trial Lawyers' Association.

"It really doesn't make too much sense at all, as to why she would have been detained," said Whitling. "Given that, it seems, she had never failed to attend court or otherwise absconded."

Whitling said the particular section of the Criminal Code cited requires an actual refusal on the part of the witness, which did not happen in the case of Angela Cardinal, whose real name is protected by a publication ban.

'It's really quiteunprecedented'

Months after the June 2015 preliminary hearing ended, and months afterCardinal was killed in an unrelated shooting, Justice Eric Macklin found her attacker guilty of aggravated assault, kidnapping, unlawful confinement, aggravated sexual assault, possession of a weapon and threatening to cause death or bodily harm.

In his ruling, Macklin noted that the victim went to police headquarters two days before the preliminary hearing began and stayed in a hotel that night. The next night she stayed with her mother.

During her first appearance at the preliminary inquiry the next day, Cardinal was "clearly distraught," Macklin wrote in his ruling, and "somewhat belligerent."

Though "there had not been any incident of her failing to attend when required to do so," Macklin wrote,Cardinal was taken to the Edmonton Remand Centre at the end of that first day, where she spent five nights in custody.

"She was remanded into custody on the mistaken belief that she was 'a flight risk' and that 'she was simply incapable of participating properly in the Court proceedings,' " Macklin wrote in his ruling. "No one canvassed the possibility at that time of having her monitored by a victim support worker ... or a police officer."

That's exactly what should have happened, said Lise Gotell, a professor of women and gender studies at the University of Alberta.

"I don't know of another case like this," Gotell said. "Where someone who is a sexual assault complainant, having suffered a horrific assault, finds herself remanded. It's really quite unprecedented.

"The provision under which she was remanded is one used when you have a witness who refuses to testify. And that was not the case here. It would have been cheaper if the court had assigned a support worker to stay with her for the night, so that the person could ensure that she would return. There was no need to treat her as if she were a criminal."

In a postscript to his ruling, Macklin called Cardinal's treatmentby the justice system "appalling" and said "she is owed an apology."

But by the time that ruling was handed down, Cardinal was dead.

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Whitling said he was surprised the Crown requested that Cardinal be detained, and surprised that the judge granted the request.

"There were alternatives that were open, and they had been used on previous nights," he said. "It seems that they didn't really want the police to have to keep an eye on this person for the five or six days. But that's not an excuse for jailing her, or imprisoning her, for all this time."

'She was a very good witness'

Based on transcripts of the case, Macklin appeared to see Cardinal as a reliable witness, Gotell said.

"He talked about her as being an intelligent person, a creative, artistic person. He said she gave cogent, clear, coherent testimony. So she was a very good witness."

Gotell, who serves as national chair of the Women's Legal Education and Action Fund, said the case, which will now be subject to an investigation ordered by Justice Minister Kathleen Ganley, illuminates problems within the justice system, including the way Indigenous women are treated by the courts.

"I think that Indigenous women are singled out for severe forms of mistreatment by the criminal justice system," she said.

Often "dehumanized" by the justice system, Indigenous women face rates of sexual violence three times that of other Canadian women, Gotell said.

The way they are treated by the courts may be a reflection of the way they are seen by society in general, she said.

"We tend to see violence against Indigenous women as somewhat of a naturally recurring phenomenon. We treat it with a huge amount of social and legal indifference. It is often quite difficult for us to see them as being legitimate victims."