Take it from a human rights lawyer: the system screwed up in seeking justice for 'Angela Cardinal'

Few things should rattle a human rights lawyer. Work in this business long enough, and you'll think you've seen everything. But I was legitimately horrified reading about the callous disregard for Angela Cardinal's basic human rights when she was shackled, jailed and made to testify against the man who brutally attacked her.

The case dates back to June 2014, when according to CBC's report, Cardinal (which is a pseudonym her name is protected by a publication ban) was homeless and sought refuge inside an Edmonton apartment building. That's where the 28-year-old Cree woman was attacked and assaulted by convicted sexual predator Lance Blanchard, who had tied her up and stabbed her repeatedly by the time police arrived.

When Cardinal faced Blanchard at a preliminary hearing a year later, she was still living on the streets. She was upset and panicked in her testimony, and the public later learned that her anxiety was exacerbated by the judge mistakenly referring to her using the name of her assailant. So Cardinal the victim, remember was detained under section 545(1)(b), which allows a judge to detain a witness for up to eight days for "refus[ing] to answer the questions that are put to him."

Cardinal had initially attended that preliminary hearing without the force of subpoena, and there had been no issues around her failure to attend court when she was required to do so in the past. In short, she understood both the importance of her testimony and her obligation to attend court. Her only indiscretion, then, was her failure to testify effectively on her first day in court.

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For that, Cardinal was remanded and forced into court in shackles. She was made to ride to court with the very man who terrorized her, forced to stay in a cell close to hisduring court adjournments and perhaps most disturbingly, ignored when she begged to stay with her mother for the duration of the hearing.

The court refused to entertain her pleas, and in its deplorable criminal-like treatment of her in open court, she was victimized a second time. Then, seven months after the preliminary hearing, Cardinal was killed in an unrelated shooting capping off her saga in the most tragic way.

Treatment of Indigenous victims

While the public often hears about the overrepresentation of Indigenous people tangled up in Canada's criminal justice system, we don't hear enough about the treatment of Indigenous victims of crime within the justice system, particularly when those victims are women and the crimes are sexual and violent in nature.

In my view, the judge's use of rarely invoked section 545(1)(b) of the Criminal Code, allowing the arbitrary detention of an individual, was an infringement on the witness's individual rights to liberty.

Arguably, the section itself is overly broad there is not much legal narrative on how and when it can be appropriately used and in Cardinal's case, it appears it was not used appropriately by the court. The section (as far as it may have applied to Cardinal) would have allowed detention where the witness was refusing to answer questions after being sworn. But Cardinal was not refusing to answer questions:shewas having difficulty testifying.

Edmonton woman shackled and jailed while testifying against her attacker

7 years ago

Duration 1:25

Alberta justice minister apologizes for 'appalling' treatment of sexual assault victim which included transporting her to trial in the same van the accused

Cardinal, sadly, didn't live long enough to challenge the justice system over the way she was treated. If she did, shecould've explored the possibility of filing a human rights complaint against the police and/or court staff.

Filing a human rights complaint (under the enumerated grounds of race and sex), would have forced a probe of how the court system works with Indigenous women, potentially shedding light on the lack of cultural education among non-Indigenous courtroom and police staff. There would have also been the option to sue the police in the civil courts for the negligent infliction of mental suffering, arguing they breached their duty of care to Cardinal by failing to protect her from continued exposure to her attacker (remand order or not).

Getting some answers

There are no real remedies against the individual judge or the court now, as both are protected by "judicial immunity." Nothing stops the legal community, however, from filing a complaint against the judge, which could result in later discipline.Cardinal's family can certainlydemand some answers, too.

And they have every reason to: the system screwed up in seeking justice for Cardinal. It egregiously undermined both her integrity and her credibility. Anyone sitting in the courtroom watching Cardinal testify should have seen her hearing for what it was: an absurd and cruel farce.

This column is part ofCBC'sOpinion section.For more information about this section, please read thiseditor'sblogandourFAQ.