Lack of movement in judicial complaint frustrates leaders

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A number of Aboriginal leaders have come together to repeat their call for action against a Quebec Superior Court Judge who they claim discriminated against an Aboriginal women during his handling of a case to decide custody of her twin daughters.

The complaints against Judge Frank Barakett were lodged in October 2000 by the Assembly of First Nations, the Quebec Native Women's Association, Listuguj Mi'gmaq First Nations Government, the Native Women's Association of Canada, and the Secretariat of the Assembly of First Nations of Quebec and Labrador.

The complaints were submitted to the Canadian Judicial Council (CJC) in response to the judge's handling of the custody case, and claim that the judge had discriminated against the mother-a Mi'gmaq woman from Listuguj Mi'gmaq First Nation-because she is Aboriginal.

In their complaints, the Aboriginal leaders claimed Judge Barakett displayed insensitivity, ignorance and bias regarding his view of First Nations culture, which affected his decisions in the case.

The original complaints allege the judge made questionable comments during the proceedings, suggesting that if the mother wanted her children to be happy, she should "just put them on heroin, they'll be happy all the time."

The complaints also allege that Judge Barakett made statements in his judgement describing the girls' life on reserve with their mother as having them "brainwashed away from the real world into a childlike myth of powwows and rituals."

The girls were born in California in 1988, and lived there with their parents until the couple separated in 1995. At that time, the father was given interim custody of the girls, but the mother allegedly abducted her daughters later that year, bringing them back to her home on the Listuguj reserve, where they remained until March 1999.

Other complaints lodged by the First Nations leaders allege that, in awarding custody of the girls to their non-Aboriginal father, the judge "virtually ignored" the fact that the father had six convictions for assault causing bodily harm involving assaults against the girls' mother and grandmother, and the fact that he had signed false affidavits in previous custody proceedings.

The complaints also allege that the judge made statements critical of the mother's parenting abilities, saying she "has absolutely no idea or ability" regarding what "is best for her children", despite expert evidence to the contrary.

Michele Audette is president of the Quebec Native Women's Association, which has been working to assist the mother in her attempts to gain custody of her children. According to Audette, the justice system has repeatedly failed the woman, whose case has been rejected twice by the Superior Court of Quebec, and once by the Quebec Court of Appeal.

In her first appearance before a Superior court judge in 1996, Audette explained, the woman was not represented by a lawyer, even though she was entitled to representation by a legal aid lawyer. The judge made his decision within an hour, and ignored the father's assault convictions in his decision to award him custody of the girls.

"And then she went back with a lawyer the next time, with a two week process with the judge, and during that two weeks, the judge, Justice Barakett made strong comments against Aboriginal people, and on Aboriginal women," Audette said. "So she came to us, and we helped her."

It was then that the Native organizations issued their joint complaints against Judge Barakett. Audette said the hope was that as a result of the complaints, Barakett would either admit he had been wrong in the statements he had made, and would then have to take training to learn about Aboriginal issues and women's issues, or that, if he failed to admit he'd made a mistake, he would be pulled off the bench.

Neither of those things has happened, as the CJC has yet to make a decision regarding the complaints.

"The only thing they said to us is that we're looking at it, and w're still looking at it," Audette said. "It's 14 months that we've been waiting for that."

In the time since the original 10 complaints were lodged, the case has gone before the courts again, this time before a panel of three judges in the Quebec Court of Appeal, where the woman's appeal of the previous decisions was denied. That decision was reached in April 2001.

"And then we got really disappointed and surprised, because for us women, when we go to court, it's because we hoped we will be listened to and understood, and also that we will see justice at the end," Audette said.

In response to the Appeals court decision, another 12 complaints were lodged with the CJC. The council, however, refused to accept the second set of complaints, saying they would just consider the original complaints against Judge Barakett, Audette explained.

"They responded and they said, 'no, we will just look at the one with Justice Barakett, because we don't believe that those three judges were wrong also.' Well, how can they not be wrong if they're just accepting what the other judge said? So that's where we are at right now," she said.

"The main objective with the press conference was to ensure that the council appropriately disciplines Quebec Superior Court Judge Frank Barakett for judicial misconduct, and also to publicly urge the council to reverse its decision about the further complaints against the three Appeal Court judges. And also to highlight to the public that the council does not have an adequate range of powers to effectively discipline judges. And, of course, that we should improve the complaints procedure, because we've been waiting for 14 months, and that's long for a mother and two children. Really long," Audette said

Audette is hopeful that a favorable decision by the Canadian Judicial Council might make it possible for the woman to see her girls. The mother has been prevented from visiting her daughters, who are living with their father in California, because he has been charged with kidnapping the girls under U.S. law, and therefore cannot enter the U.S.