Complaints lodged

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Five First Nations organizations have come together to lodge official complaints against a Quebec Superior Court judge who they say discriminated against an Aboriginal woman in his handling of a case to decide custody of her two children.

On Oct. 13, the Assembly of First Nations, the Quebec Native Women's Association, Listuguj Mi'kmaq First Nations Government, Native Women's Association of Canada and Secretariat of the Assembly of First Nations of Quebec and Labrador lodged 10 formal complaints against Judge Frank Barakett, charging his conduct during the case was insensitive and discriminatory.

The case dealt with the question of custody of twin daughters, the names of those involved are withheld so as not to identify the children. The girls were born in California in December 1988. In March 1995, the parents separated, and the father was given interim custody. In October 1995, the mother allegedly abducted the girls, and brought them back to her home on the Listuguj reserve, where they remained until March 1999.

The judge's ruling, made in August 1999, awarded custody of the girls to their father.

"The attitudes, statements and comments made by Judge Barakett are shocking and flagrantly discriminatory," the organizations stated in a joint press release. "They speak volumes about the treatment that First Nations and Aboriginal citizens receive at the hands of Canada's judicial system."

Among the complaints lodged against Judge Barakett was that he "virtually ignored" the fact that the father had been found guilty of six charges of assault causing bodily harm against the mother and her mother.

The complaint alleges the judge suggested the assault against the mother was committed "by accident," and the assault on the 68-year-old grandmother was something he himself would have done if he had thought the woman had kidnapped his child.

The complaints also says the comments made by Judge Barakett demonstrate insensitivity to First Nations people. In his judgement, Barakett said that, by keeping her children on the reserve, they had been "brainwashed away from the real world into a child-like myth of powwows and rituals quite different from other children on the reserve who had regular contact with the outside world." Barakett went on to state that "the best interest of these children is that they should be in the custody of their father and that they rediscover the world outside the reserve for at least the upcoming school year."

The complaints also allege other comments made by the judge during the proceedings, such as his suggestion that the mother should "just put [the children] on heroin. They'll be happy all the time." He also described the girls as "blonde, freckled twins," and refused to recognize them as Aboriginal because they had less than 50 per cent Indian blood.

The complaints also question the judge's conclusions regarding the mother's abilities as a parent. In his judgement, Judge Barakett said he "found the mother to be a loving and caring mother with little or no ambition for herself and in need of her children for her own self esteem and material well being. She wants what is best for her children, but has absolutely no idea or ability about how to achieve this goal."

This conclusion, the complaint states, was made despite expert evidence from two independent psychologists to the contrary.

"Judge Frank Barakett's ignorance, insensitivity and discrimination towards Aboriginal peoples and, more specifically, towards Aboriginal women, cannot be tolerated. Furthermore, the little importance that he attaches to violence against women is evidence of his inability to do justice. Judge Frank Barakett's ruling, which is riddled with stereotypes and contempt towards Aboriginal peoples, definitely undermines the Aboriginal women's trust in the Canadian judicial system," Quebec Native Women's Association President Michele Audette stated in the written release.

"He presumed that the mother is not capabe to be a mother because she has no vision. She has no goals. She was from a violent relationship. How could you have goals? The only thing you had is to run away from that relationship, to bring your children to have a better life," Audette said.

Audette and her organization first got involved about a year ago when the mother sent a fax to the association's office requesting help. The mother was invited to the association's general meeting to present her case.

"Right after her speech, the assembly said 'We won't let you down. You won't be alone any more in that case,'" Audette said.

Audette wrote letters to other Canadian Native organizations that came forward with their support, as well as with financial contributions to assist in the case, raising close to $30,000.

"The money wasn't for her, but it was for the case, that it's creating a precedent amongst Aboriginal people. It's affecting all of us. So if we let it go, it's going to affect all the other people who are in court right now with the justice system that is in place," Audette said.

The girls are currently in the custody of their father, and haven't seen their mother in 14 months. Although the mother has been granted visitation rights and the father has been ordered to cover her expenses for travel to California to see the girls, she has been unable to see them. As Audette explained, the mother won't be allowed entry into the United States because she was charged with kidnapping her children under U.S. law.

Barakett's decision is under appeal.