Reconstruction 7.1 (2007)
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Colonial Constructs and Legally Sanctioned Sexually Violent Consequences in R V Edmondson / Nicholas Bonokoski
Abstract: What kind of a system or process would portray a twelve-year-old girl from the Yellow Quill First Nation as a sexual threat to three twenty-something white men, who promising her a ride home, picked her up and got her drunk? The answer: The Canadian legal system. In R v Edmondson a twelve-year old Aboriginal girl, who was sexually assaulted by Dean Edmondson, Jeffrey Brown, and Jeffrey Kindrat from Tisdale Saskatchewan, was portrayed by the judge as a "sexual aggressor". This paper focuses on the trial of Dean Edmondson in which, according to Judge Kovatch, the girls "sexual aggression" led to an "unusual and tragic" circumstance where three men violated a "child's sense of trust" (Law Society of Saskatchewan). In this paper, I draw on the work of Giorgio Agamben, Michel Foucault, Doreen Massey, Elizabeth Furniss, Radhika Mohanram and Sherene Razack to theorize the ensemble of colonial relations and constructs that allowed Saskatchewan's legal system to reduce a twelve-year old Indigenous girl to "bare life", life that is solely biological as opposed to human, through her association to the "camp", a space where the state of exception becomes the state of rule.
Introduction
What kind of a system or process would portray a twelve-year-old girl from the Yellow Quill First Nation as a sexual threat to three twenty-something white men, who promising her a ride home, picked her up and got her drunk? The answer: The Canadian legal system. In R v. Edmondson a twelve-year old Aboriginal girl, who was sexually assaulted by Dean Edmondson, Jeffrey Brown, and Jeffrey Kindrat from Tisdale Saskatchewan, was portrayed by the judge as a "sexual aggressor". This paper focuses on the trial of Dean Edmondson in which, according to Judge Kovatch, the girls "sexual aggression" led to an "unusual and tragic" circumstance where three men violated a "child's sense of trust" (Law Society of Saskatchewan). In this paper, I draw on the work of Giorgio Agamben, Michel Foucault, Doreen Massey, Elizabeth Furniss, Radhika Mohanram and Sherene Razack to theorize the ensemble of colonial relations and constructs that allowed Saskatchewan's legal system to reduce a twelve-year old Indigenous girl to "bare life", life that is solely biological as opposed to human, through her association to the "camp", a space where the state of exception becomes the state of rule.
<2> This construction of the colonized within the colonial project relies on the mobilization of the normative white male classed subject. It is the colonial normative subject who populates the community of represented "victims" in this "tragic encounter" in R v. Edmondson. Through the legal normalization of the white male subject, and the permission/normalizing of violence committed against the colonized by the legal system, the young Aboriginal girl is dehumanized and deterritorialized. This is possible because throughout the legal proceedings, and based on dominant cultural constructs which support the colonial legal system, the young girl from the Yellow Quill First Nation is framed as a sexual threat, through her portrayal as the "sexual aggressor," to the normative white colonial community and the normative white male colonial subject. Positioned outside of the normative white colonial "community," and distilled through a white supremacist patriarchal colonial narrative, she is reduced to "pure life": she is made "camp".
Academic Writing and Violence
<3>This paper is not accessible. This comes out of the fact that I am just starting to grapple with the theories and ideas that are present in the paper. So I don't really know how to use clear language to write about, what are for me, difficult concepts. The lack of accessibility speaks to whom academic writing is for. It is not simply for me, and it is not simply for my professors, academia gets too much funding to pretend inaccessibility is simply a matter of course content or institutional constraint. The question is: what does academic analysis of violence do? This paper is about how knowledge about the First Nations girl came to be produced through the legal process initiated by the sexual violence inflicted on her by Dean Edmondson, Jeffrey Brown, and Jeffrey Kindrat.
<4> Having examined how that racist sexist process produced knowledge of the girl that marked her as "deviant," "threatening" and therefore, violable, I feel it is important to look at how my own work, inside the academic world of knowledge production, marks the girl. As a minor her identity was supposed to be protected in the trial. This did not happen. Her identity is not the topic of this paper. However, her body is in this paper. This paper is about how the sexual violence done to a twelve year old First Nations girl was legally sanctioned in the legal process in R v. Edmondson. This sexual violence was done by Dean Edmondson, it was normalized by the Judge Kovatch, and it was protected from any meaningful consequences by every single level of the Judiciary.
<5> The problem of academic writing on violence is this: what do privileged spaces of knowledge production, whether they be legal, academic, or medical, do with violence? These spaces produce more information and knowledge about violence, but what is done with that information, with that knowledge? Knowledge produced in these places is constitutive of and constituted by circuits of power present in both dominant and subaltern spaces. It is important to point out that circuits of power have differing effects and that we must disrupt narratives that would equate the violence done in sexual assault with violence done through academic representations.
<6> This paper is part of the work I do as a middle class white heterosexual man to challenge racism, sexism, class oppression, and colonialism. I do not pretend that this is a 'said and done' type activity. This work is ongoing and requires reflection and action; it requires praxis.
<7> This paper is part of me working out how I feel and think about how colonial constructs work in institutions, organizations, groups, and bodies, in the Canadian settler state. I need to understand the effect of these colonial constructs on me, and how I in turn affect situations personally, so that I can work on challenging colonial constructs in institutions, organizations, society, and myself. Many people, with differing or similar subject positions and/or positions of privilege based on their race, gender, or class within the Canadian settler state are thinking and working along similar lines towards anti racist, feminist, class conscious ends. Hopefully, this paper can contribute to a dialogue about challenging white supremacy and patriarchy within the Canadian settler state.
R v. Edmondson
<8> A twelve year girl from the Yellow Quill First Nation was sitting outside a bar in Chelan, Saskatchewan (Canadian Press NewWire; Buydens 1). As a minor, her name was unreleased and consequently will not appear in this paper. Three men (all over the age of 20), Dean Edmondson, Jeffrey Brown and Jeffrey Kindrat, left the bar and offered her a ride (Buydens 2). One of the men assured her, "don't worry you can trust us" (Prober 1). While in the car the girl was repeatedly offered beer until she accepted (Canadian Press Newswire). After this the complainant testified that Edmondson, Kindrat and Brown
Took her to a bar in another town for more drinks. After buying more beer they drove to a lonely road and in their drunken state all tried to have sex with her on the hood of the vehicle. Edmondson went first and then he held her for the others (Prober 1).
<9> The Saskatchewan Court of Appeal has ruled on the case and the Supreme Court of Canada has refused to hear an appeal (French A3):
Dean Edmondson ("Edmondson") was charged with being a party to the offence of sexual assault with two other men contrary to s. 272(1)(d) of the Criminal Code. He was tried before a court composed of a judge and jury. The presiding judge was the Honourable Mr. Justice F. J. Kovach. Edmondson was convicted of the charge on May 20, 2003, and on September 4, 2003 was sentenced to a conditional term of imprisonment of two years less one day. Edmondson has appealed the conviction (CA673), and the Crown has applied for leave to appeal sentence (CA703) (Eberts 1).
Edmondson's sentence was served in the community with a set of conditions that amounted to house arrest in his parents home, electronic monitoring, being barred from the consumption of non-prescription drugs, establishments that served alcohol, and reporting to a probation officer once a week (R v. Edmondson para 118).
<10> Importantly, though Saskatchewan Court of Appeal (SKCA) upheld the conviction against Edmondson, they replaced the charge of "being a party to sexual assault with the charge of sexual assault because the trial judge erred in some of his instructions to the jury" (The Law Society of Saskatchewan). The replaced charge is a less serious offence. The decision of the court of appeal states:
The trial judge acknowledged that prison terms in the range of three years have often been imposed for offences such as these. He did not think the circumstances called for a term of that length, however, noting that the circumstances were unusual and tragic (R v. Edmondson, para 116).
<11> The SKCA discusses the effect of these "tragic" and "unusual" circumstances on the girl:
Mr. Edmondson took advantage of the desperate and vulnerable circumstances in which this young girl found herself. Her person, her dignity, her intrinsic worth, and her child's sense of trust were badly violated and, as might be expected, she was profoundly shaken by the experience (R v. Edmondson, para 124).
This is the only point in SKCA decision where the complainant is mentioned. "Tragic" and "unusual" circumstances are portrayed as isolated incidents as opposed to the products of systemic and colonial violence against aboriginal women and girls. The portrayal of these circumstances as 'tragic' neglects or ignores the extent to which Aboriginal women suffer systemic and colonial violence.
<12> "Stolen Sisters", an Amnesty International 2004 report on discrimination and violence against Indigenous women in Canada, looks at the systemic violence aboriginal women in Canada face everyday. The report cites the Native Women's Association of Canada who estimate that hundreds Aboriginal women and girls have gone missing over the last twenty years in circumstances involving violence (Amnesty International 6). The report states, "Amnesty International's research underscores the fact that the lives of Indigenous women in Canada continue to be placed at risk precisely because they are Indigenous women" (Amnesty International 7). Warren Goulding argues "whether it was one hundred or five hundred [missing Aboriginal women], it was clear that something like an epidemic was raging virtually undetected in Western Canada" (Goulding 33).
Statements from Judge F.J. Kovach
<13> R v. Edmondson and R v. Brown and Kindrat are not the first cases involving white men and a First Nations woman that Judge F.J. Kovach was involved in. While a lawyer, Kovach served as defense council for Alex Ternowetsky, a white college student who was convicted of manslaughter for the murder of Pamela George (Razack, "Gendered Racial Violence and Spacialized Racial Justice", 125). Pamela George, a Salteaux and Ojibway woman, was raped and murdered by Alex Ternowetsky and Steven Kummerfield in a field outside of Regina on April 17, 1995 (123). Pamela George was criminalized for engaging in prostitution throughout the trial by the prosecution and the defense (151). Such criminalization is illustrated in Kovach's closing remarks to the jury in which he stated that George, Ternowetsky and Kummerfield "out in the country doing what happens on that road on a regular basis" and as far as the murder was concerned "she wasn't stabbed forty times...there wasn't a hanger used" (150).
<14> This statement is one that normalizes violence against an Aboriginal woman. Pamela George was portrayed throughout this legal process as a prostitute engaged in illegal acts, in a dangerous space. In a racist, sexist, and classist narrative she was portrayed as both selling sex, and thereby "asking" for sexual assault. The judge argued that the fact that Kummerfield said he would kill George if she didn't perform sex acts had to be contextualized by the fact that he hired her for sex acts (152). Some white middle class "boys" (both were adults) far removed from the spaces of prostitution in Regina, SK were portrayed by the defense as having done "some pretty darn stupid things" (124). A normalization of racist/sexist violence against Aboriginal women is required to equate murder and gang rape with stupidity or tragedy instead of systemic racist/sexist violence. The focus on Pamela George's prostitution, this legal obsession with her sexuality, was so intense that her sister Denise said "it felt as if she was on trial because she was a prostitute" (155).
<15> Both cases illustrate how the legal system criminalizes Aboriginal women and girls respectively though the trial of Turnowetsky and Cummerfield and the trial of Edmondson were in two different places and for two different crimes. The fact that the defense lawyer for Turnowetsky, who used statements to normalize the rape and murder of Pamela George, was the Judge in Dean Edmondson's case is indicative of how the systemic racist sexism of Saskatchewan's legal system operates. While Pamela George was on trial for being a prostitute, the complainant in R v. Edmondson was criminalized and sexualized using all possible colonial constructions to frame her as a sexual threat to Dead Edmondson, the normative white male colonial subject.
<16> We see how the complainant is framed as a sexual threat through the Judge framing her as the "sexual aggressor". In the Native Women's' Association of Canada's Factum on the R v. Edmondson case the sentencing remarks of Judge Kovach receive a substantial amount of warranted attention [1]. Judge Kovach found a number of things troubling (all of which deserve deconstruction but that is not possible in a paper of this size). I will focus on Kovach's emphasis on the testimony of Dr. McKenna, the DNA evidence of the girls' father's semen on her underpants, the statement of Ms. Piocza that the complainant had complained of sexual abuse, and primarily the conclusion he drew from these sources that allowed the portrayal of the complainant as "sexual aggressor".
<17> Dr. McKenna testified a "12-year-old child that has suffered trauma, such as sexual abuse, would be capable of unpredictable action" (Eberts 14). Dr. McKenna's testimony " did not deal specifically with this complainant at all. Nor did she directly address the credibility or truthfulness, in general, of children who have been sexually abused" (14). In addition to this, the testimony was "out of step with the psychological literature, which suggests sexual acting out, seen only in a minority of victims, is much less common than underdeveloped sexual desire as an outcome of abuse. In this sense it cannot be described as 'usual' at all" (Buydens 1). Regardless, Kovach found Dr. McKenna's testimony "very troubling" (Eberts 4). Judge Kovach felt the combination of the history of alleged sexual abuse, and the testimony of Dr. McKenna "support Edmondson's position that the complainant was not only a willing participant, but indeed, the aggressor" (4). Based on this purported sexual aggression, Kovach concludes "there is certainly a doubt in my mind in that regard as a result of that evidence", and this "should, in fairness, be taken into account for sentencing purposes" (4). There are numerous problems with these remarks. For the purposes of this paper it is most instructive to point out that the reasoning is illegal.
<18> Mary Eberts points out in the Native Women's Association of Canada factum that:
Using this evidence as a reason to provide a warning runs the risk of incorporating the discriminatory myth that 'unchasteness' is relevant to the complainant's credibility or character. This myth was specifically rejected by Parliament with the enactment of s. 276 of the CriminalCode, prohibiting the use of evidence of prior sexual activity to support an inference that a complainant is less worthy of belief (14).
Even considering the illegality of the consideration of alleged prior sexual assault one must go outside the realm of the law to understand how an intoxicated twelve year old Aboriginal girl could be the sexual aggressor, a.k.a. a sexual threat, to three twenty-something white males in a truck.
How the Legal System Scripts the "Squaw"
<19> Sherene H. Razack has argued that the memory of the white settler state is "deeply racially inflected" (Razack, Dark Threats and White Knights, 17). One of the raced and gendered inflections of white settler states is the myth of the "squaw" (Acoose; King). Rayna Green argues that the "squaw" is the "darker twin" of the Indian Princess: "squaws share the same vices attributed to Indian Men - drunkenness, stupidity, thievery, venality of every kind" (Green, qtd in King, 4). However, the "squaw' is "sexualized" doing "what White men want for money and lust" (4). Bea Medicine states the term "squaw" is "a very derogatory term for Indian Women as it equates them with sexuality and perpetuates the stereotype that Indian women are loose and promiscuous" (qtd in 4). C. Richard King theorizes
The use of the term squaw reinscribes the violence and terror of conquest in small moments and intersubjective encounters. It endows (largely Euro-American) imperial agents with routinely unrecognized privilege, or worse with the power and pleasures associated with dehumanizing others, while literally marking the lives and bodies of indigenous women (4-5).
The narrative of the over-sexed 'squaw' is a colonial construct within dominant Canadian cultural production.
<20> Janice Acoose examines this narrative in her book Neither Indian Princess nor Easy Squaw. Acoose focuses on two popular and influential authors of disparate political/cultural positioning - W.P. Kinsella and Margaret Lawrence. Acoose illustrates how the constructed images of Aboriginal women in Canadian fiction "perpetuate unrealistic and derogatory ideas, which constantly foster cultural attitudes that legitimize rape and other types of violence against [Aboriginal Women]" (Acoose 71). One can see the violent force of these constructed images in Jeffrey Brown's statement, "I thought Pocahontas was a movie", which he made before they picked up, intoxicated, and gang sexually assaulted the complainant (R v. Edmondson, factum of the respondent para 114 qtd Eggerman 1).
<21> The complainant was sexualized throughout the trial as "very attractive" and looking older than her age because she was "past puberty". This was done in the testimony of Dr. McKenna, the remarks of Judge Kovach, and reports in the media (Buydens, p. 2). The sexualization of the body of this young girl had severe legal consequences: she had to be sexualized to be portrayed as a sexual threat to Edmondson. We can see how the stereotypes of Aboriginal women in cultural production affect the 'knowledge' produced by the legal process in this case. The young girl is sexualized and portrayed as a threat. This framing and portrayal relies on the racist 'squaw' construction. Through the combination of racialization and sexualization the girl is framed as a threat to the men who sexually assaulted her.
<22> We see the effects of representation in legal practices as well as cultural ones. What happened in this case took place in a particular territory of a white settler state. In a colonial state the consequences of past/present colonization are lived. This case, the case of Pamela George, the "starlight tours" in Saskatoon, where police placed Aboriginal people outside of Saskatoon in freezing temperatures, indicate how the legal machinery is part of the systemic violence that Aboriginal people in Saskatchewan face. How is this violence sanctioned?
<23> Edward Said points out that Europe's colonial project "accumulated experiences, territories, peoples, histories; it studied them, it verified them...above all it subordinated them by banishing their identities except as a lower order of being, from the culture and indeed the very idea of white Christian Europe" (Said 32). This derision of the identities of occupants of stolen lands is necessary for the colonial project because anything productive done on, with, or for, the land prior to colonization had to be denied. Colonized land is rendered 'empty' in a colonial project.
<24> Ideas of white supremacy and ideas of empty space facilitate "the imperial man claiming the territories of others for his own" (Razack "When Place Becomes Space" 12). This imperial subject becomes "the inventor of terra nullius" (12). The construction of colonized space as terra nullius, unclaimed land that can be taken, has violent consequences for those who occupy, or are constructed (legally or otherwise), as belonging to "empty" lands. Andrea Smith brings an anti-racist feminist analysis to conceptualizations of colonial space. She argues the colonial project is inseparable from "the project of colonial sexual violence" which "establishes [the] ideology that native bodies are inherently violable and so are their lands" (Smith 12).
The Frontier and Anachronistic Space
<25> The sexual violence that victimized the "complainant" took place in a specific area of Saskatchewan. Edmondson, Brown, and Kindrat, from rural Tisdale, Saskatchewan, lured the "complainant" into the vehicle in Chelan, Saskatchewan. This section of the paper will examine how violence against aboriginal men and women in Saskatchewan, as a space constituted by both rural and urban areas, occurs within circuits of power informed by the 'frontier cultural complex'.
<26> In The Burden of History: Colonialism and the Frontier Myth in a Rural Canadian Community, Elizabeth Furniss applies the work of Richard Slotkin on the 'Frontier Complex' - "one of the most important cultural myths for understanding the history of European colonization and Settlement in the United States" - to her ethnography of Williams Lake, a small town in rural British Colombia (Furniss 17). Furniss argues that in small rural cities and towns across Canada "residents" everyday world is permeated by the values and identities of a selective historical tradition that celebrates European expansion, settlement and industry" (53). This selective historical tradition relies in no small part on the frontier cultural complex. Furniss theorizes that the Canadian version of the frontier cultural complex portrays colonization and colonialism as "conquest through benevolence" wherein the Mounties "do not inflict violence, they impose peace, order, and good government, on aboriginal and non aboriginal people alike" (Furniss 63). In the frontier narrative the frontier is a regional identity involving small towns on the "periphery of mainstream society surrounded by natural wilderness 'free' for the taking" (17). The frontier complex' pedagogical implications for Canadian whiteness manifests itself in the construction of a binary opposition "in which Indian and white are mutually exclusive and oppositional and in which Euro-Canadian cultural superiority, material privilege, and political authority are taken as unquestioned truths" (17).
<27> Anne McClintok's notion of anachronistic space is helpful for examining how the colonized are constructed by the binaries present in the frontier complex:
The agency of women, the colonized, and the industrial working class are disavowed and projected onto anachronistic space: prehistoric, atavistic and irrational, inherently out of place in the historical time of modernity (40).
This projection and dehumanization is one process that makes the frontier cultural complex possible. Focusing specifically on the effects of anachronistic space in constructions of the colonized in the frontier complex we see how it is possible to have the presence of an entire people and their culture framed as unproductive and harmful to the efforts of the colonizer within the frontier. The frontier is made productive through colonial actions and the presence of the colonized threatens and hinders this "new" frontier when the colonized are framed as static.
<28> The instructive function of the frontier complex that erases the violence of colonization is not the only Canadian colonial myth. It works in a circuit of colonial representations of past and present that relies on the terra nullius construction mentioned earlier as well as dehumanizing constructions of Aboriginal men and women, such as the 'squaw,' that are present in legal processes, systems, and representations of Aboriginal men and women. The presence of all these dehumanizing portrayals and constructions make the frontier a site of legally sanctioned colonial violence by white men, and specifically white state agents.
<29> Two cases that further demonstrate white male violence against Aboriginals include the practice of "starlight tours", which involve police removal of Aboriginal men to the outskirts of town only to have them walk back to town in the cold without appropriate attire [2], and trial of John Michael Crawford in 1996 for the murder of three Aboriginal women [3]. All these cases demonstrate the frontier is a violent place. The trial of Turnowetsky and Kummerfield for the murder of Pamela George, the inquiry into the death of Neil Stonechild, who died as a result of a "starlight tour", and the police response to the outcome of that inquiry and the investigation of John Michael Crawford illustrate that violence against Aboriginal people today is filtered through the frontier complex and other colonial constructions that serve to erase the violence, or legally sanction it. This has the same effect of the erasure of the violence that is a necessary element of the colonial process. The same racist, sexist colonial narratives that allow our current legal system to be portrayed as unbiased make it is possible for Pierre Berton to portray the Canadian settler state's history as a benevolent one (Berton 31 qtd in Furniss 63).
<30> The frontier cultural complex and anachronistic space can be better understood by examining the work of Doreen Massey and Radhika Mohanram. Massey argues that place is viewed as "bounded, as in various ways a site of authenticity, as singular, fixed, and unproblematic in its social identity" (Massey 5). This theorizing of the dominant notion of place demonstrates how the frontier is coded by the cultural complex through the "progress" instilled in it by the cultural, economic and social production of the colonial community. The notion of "Williams Lake" or "Saskatoon" or "Tisdale" as productive nuanced communities as opposed to portrayals of First Nations lands and places as "terra nullius" is indicative of a process wherein 'progress' is sourced exclusively to colonial subjects. This is indicative of a colonial process wherein "the spatial organization of society [which] is integral to the production of the social and not merely its result" (4) is legitimized by framing reserves, Aboriginal peoples, and lands as static, which facilitates colonial myths that rely on obscuring complex social relations and denying historicity.
<31> Radhika Mohanram implicates place in social relations by arguing, "subjects have a close relationship with the landscape that surrounds them, a relationship which shapes their bodies and perceptions, forms their knowledge, and informs their sense of aesthetics" (xii). Mohanram argues "our bodily relationships to our landscape is repressed so that we may come into coherence via the Nation" (7). The frontier cultural complex, and the colonial construction of "the squaw," rely on "anachronisitic space" to attach certain bodies to landscape, the bodies of the colonized, and thereby deny them access to space through an attachment to place. Using this analysis, with Mohanram's insights on repression of landscape as an element of colonial nation building and coherence-making, we see that the colonizers access to the colonial nation is facilitated through a binary opposition. The colonizers impact on colonized places allows them to produce the colonial space through the national process that underpins the colonial settler state while the colonized are denied impact on place, and a place in the nation, through their portrayal as ahistoric.
<32> Massey points out "the particular mix of social relations which are thus part of what defines the uniqueness of any place is by no means all included within that place itself" (Massey 5). However, certain bodies are tied to the land, or the environment, while others are not. Mohanran asserts that "whiteness has the ability to move" and "the ability to move results in the unmarking of the body" (4). In R v. Edmondson we see how the "complainant" is marked through the "squaw" script, and therefore, her body became violable through Judge Kovach's portrayal of her as "sexually aggressive". The case of R v. Edmondson indicates that white men can continue the colonial project of sexual violence against Aboriginal girls legally. This forces us to consider Nicholas Blomley's argument that "legal violence is sanctioned violence" (Blomley 130).
<33> How does this violence become legally sanctioned? Giorgio Agamben challenges us to:
Investigate carefully the juridical procedures and deployments of power by which human beings could be so completely deprived of their rights and prerogatives that no act committed against them could appear any longer as a crime (Agamben 171).
Agamben raises this point in relation to his theorization of 'the camp.' For him camp has several conceptualizations, he argues, "the camp is the space that is opened, when the state of exception becomes the state of rule," (168-9) "the camp is the hybrid of law and fact in which the two become indistinguishable," (170) and the camp is the "most biopolitical space ever to have been realized, in which power confronts nothing but pure life without any mediation" (171).
The "Squaw" and The Camp
<34> Agamben's theorizing requires elaboration and his use of the 'biopolitical' as well as how he uses 'law' makes Foucault instructive. For Foucault, biopower:
Needs continuous regulatory and corrective mechanisms. It is no longer a matter of bringing death into play in the field of sovereignty, but of distributing the living in the domain of value and utility. Such a power has to qualify, measure, appraise and hierarchize...it effects distributions around the norm (144).
Biopower represents a shift from "the ancient right to take life or let live" to "a power to foster life or disallow it to the point of death" (138). Foucault frames biopower as a "taking charge of life" which enables a whole host of practices, including legal practices, to become regulatory ones. Biopower also allows for the attachment of power to individual bodies through populations (147). His work in regards to biopower and the law is important to this paper. While looking at Agamben's work and the work of Foucault we see the camp as a place that can be embodied. When Agamben discusses the camp as a place where law and fact become hybrid and inseparable it speaks to Foucault's notion of a regulatory law that functions for a population.
<35> This construction of 'community' is a concrete example of how biopower appraises and hierarchizes. In the legal system Edmondson's participation in the colonial frontier community invests his body with a right to access to colonial spaces. The Aboriginal girl is criminalized and dehumanized by this same legal process; she becomes rooted to a specific place. By distributing bodies in legal processes into a legally protected community/population and a "domain beyond it" in Saskatchewan's rural "frontier" those legal processes make some bodies violable (Razack, "Gendered Racial Violence and Spacialized Racial Justice" 154). This is how biopower in the legal system of the Canadian settler state creates bare life, life that is solely biological as opposed to human.
<36> How does "camp" function in the Canadian settler state and in Saskatchewan as a region of that state? The Canadian state, from its inception, has confined the collective Aboriginal ownership of land to reserves. The frontier complex serves to naturalize this access to the reserve as place for Aboriginal peoples by framing colonialism as a "benevolent" practice. This frames the reserve, borrowing a formulation of Mohanram's, as the place where First Nation's peoples "belong" (xiii).
<37> What are the consequences of being in the "domain beyond" law? This portrayal of a twelve year old girl as a sexually aggressive "squaw," excluded from the colonial community, becomes understandable as the result of scripts mobilized through colonial constructions, rather than tragic, when we look at it through Agamben's concept of "the camp". Camp happens when "the state of exception becomes the state of rule" (Agamben 168-169). We see this in how alleged prior sexual assault should not be considered, but Judge Kovach did just that. Thereby making an exception to the rule, and by doing so in the legal system, making the exception the rule.
<38> Agamben's theorization of "the camp" indicates how bodies are tied to places through the process of embodiment. Through her relationship to the camp, and being of the camp, the colonized subject is removed from the legally protected/valued community in Saskatchewan's legal system. The violence done to her is sanctioned by removing her from the "community" of colonial subjects who are protected by the law.
<39> We see here that Agamben's view of the camp as "the most biopolitical space to have been realized, in which power confronts nothing but pure life without any mediation" (171) is useful. The colonial subject is "camped" as a pure life. Marked as immobile, tied to and at the same time denied mobility through space and outside/without time she is denied access to "community". This is integral for the biopolitical nature of camp because when she is denied the protection of population/community her health, her life can be disallowed.
<40> How are First Nations peoples represented in the legal system when they are outside of their assigned bounded place? In the trial of R v. Edmondson we see that the focus of the trial is not the accused, it is the complainant. The trial functions as a normalizing project for the colonizing subject, and an exclusionary violent regulatory practice for the complainant, who through the legal process is denied her legal rights - her subjecthood is effaced. This legal process appraises and hierarchizes. The legal onus shifts from the provision of evidence against the accused to the criminalization of the complainant - a shift from evidence to evident.
<41> This is a fusing of law and fact. She is evident so the process focuses on her. She becomes subject to the law (it is directed against her) while Edmondson is the subject of the law (it exists for him). Through this observation we see the accuracy of Frantz Fanon's assertion that "it is the colonist who fabricated and continues to fabricate the colonized subject" (Fanon 2). In the legal realm this happens because "the colonized subject is always presumed guilty" (16) and this is possible because "objectivity is always directed against" (37) the colonized subject. The findings of the appellate court make this perfectly clear:
It is only necessary to recall the trial judge's account of the personal circumstances of the offender, bearing in mind that a fit sentence is one that fits not only the offence but the offender. As the trial judge pointed out, Mr. Edmondson was 24 years old at the time of the occurrence giving rise to his conviction and was a first time offender. He was single, living at home, and gainfully employed, with a very supportive family. What he had done on this occasion appeared to the trial judge to have been an isolated criminal act, fuelled in very significant part by excessive alcohol consumption all round. The trial judge went on to observe that many members of the community had come forward to express their confidence in Mr. Edmondson and assure the court he posed no risk of further harm to anyone (R v. Edmondson, SKCA 51, supra note 114).
We see here how Edmondson's personal relationships, his work life, and the support he receives from his community essentially 'unmark' Edmondson's "isolated criminal act" whereas the "complainant" is marked as "squaw" and her personal life enters the legal process only in ways that serve to sanction the sexual violence done to her.
<42> It becomes clear who the legal process is for and who it is against. Judge Kovach's remarks during sentencing as to the "tragic" nature of the encounter that led to the sexual assault indicate the legal script that dehumanizes the complainant. Above, I argued the illegality of entering past sexual abuse into the trial to question the complainant's credibility. Kovach summed these illegal parts into a portrayal of the 'tragic' encounter. The 'tragedy' is not what happened to the complainant. The 'tragedy' is the fact that she was so "sexually aggressive" that three men sexually assaulted her. This assertion allows the young woman to be victimized, sexualized, and marked as violable.
"Community" v "Camp"
<43> The theorizing around space by Massey, Mohanram, and Furniss is useful to unpack how the mobilization of community in R v. Edmondson is about a racialized, classed, and gendered demarcation of colonial space. We have already seen how whiteness codes mobility across boundaries. Mohanram urges her reader to recognize that "the nation is always embodied, and the idealized body within any nationalistic discourse is always gendered" (Mohanram 59).
<44> This idealized body is also racialized and classed in the national project Canadian settler state. The racialization of the ideal national subject happens through a "right" to travel across a naturalized colonial space and legally sanctioned access to certain gendered and racialized bodies. The 'squaw' construction provides for access of the unmarked and white male class working class subject to the body of an aboriginal girl. He does not have to be middle class to have access to colonial bodies. He asserts white male supremacy through sexual violence. The actions of his working class body hold up the violent colonial foundations of the classed, raced, and gendered hierarchy within the colonial settler state. Edmondson was not middle class but his white maleness grants him mobility and subjecthood in the legal system. The colonial construct of the frontier "community" is not threatened by his violence against the aboriginal girl, and as this is specifically sexual violence we can see how this genders the notion of violence in and against this colonial community.
<45> How does Edmondson come to be portrayed as unthreatening to his community? This happens by him being constructed as an asset. This assertion does not rest solely on Edmondson's qualities in particular but is tied into a whole range of his relationships within the community. As cited earlier Judge Kovach took into consideration Edmondson's employment and his supportive family (as opposed to how the complainants entire set of family relationships were marked by the alleged sexual abuse of her father) (R v. Edmondson, SKCA 51, supra note 114) during sentencing. In this case, Edmondson is viewed as an asset to the community based on the fact he "is not a threat to anyone".
<46> The white colonial community requires the subjectivity that Edmondson embodies. Edmondson is obviously a threat to somebody, he was convicted of being party to a sexual assault. For Edmondson to be portrayed as not threatening to his colonial community the complainant, and First Nations women and girls who are racialized and sexualized by the same colonial constructs, must be both excluded from the colonial community as well as portrayed as the source of the sexual violence that is inflicted upon them. By sourcing the "tragic encounter" between Edmondson and the complainant in the complainant herself by marking her as a sexual aggressor the Judge, and the legal system who allowed this reasoning to go unchallenged, made the complainant a sexual threat to Edmondson to the extent that her body is what threatens Edmondson, and his community.
<47> Massey notes that "uneven class relations are organized spatially" (87). If we expand this framework to Saskatchewan as a specific region of the Canadian settler state, we see that power relations are also organized spatially. It is not simply Edmondson's (working) class status that grants him mobility. Edmondson's whiteness, his maleness, and his participation in making his frontier community a productive one, through his employment, invest him with mobility through the frontier. Edmondson's white male working class body is what makes the frontier a productive location through his labour, and his work and himself are what separates the frontier from terra nullis.
The Normative White Male Subject and "Universal" Rights
<48> In both the trial of R v. Edmondson, and in the decision of the court of appeal the focus is on a 'tragic' encounter between a young aboriginal girl constructed as a sexually aggressive 'squaw' and three men, one of whom has been legally defined as not being a threat to the white colonial community (Jeffrey Brown and Jeffrey Kindrat were acquitted though the case is going to appeal). The sexual assault trial proceedings criminalize the colonized subject. This colonized subject is static and immobile, confined to certain places, and therefore she can be scripted.
<49> In contrast, the colonial 'community' has access to the legal machinery that guarantees 'universal' rights through legal documents like the Charter of Rights and Freedoms. It is this universalizing of a community that needs to be addressed. According to Margaret Kohn "the universal is actually a rhetorical device that serves to disguise the self interest of the dominant group and to delegitimize other experiences or ideas as parochial or irrational" (506). Mohanram formulates the universal as suggesting "a subject who is able to take anyones place" (15). Thus the universal constructs a normative subject because the term itself, and the ensemble of relations that produced the term and its mobilization, requires the normative subject. The legal system is one space where the normative subject is mobilized, protected, and relied upon.
<50> This analysis of R v. Edmondson and constructions of colonial space in the Saskatchewanian frontier demonstrates that this normative subject is white and male. In the legal process, the 'universal' rights of the white male normative subject to do violence to aboriginal girls are maintained, asserted, and respected. The 'community' to whom he belongs is protected. This 'community' protects him from further 'tragic' encounters with a 'sexually aggressive' 12 year old Aboriginal girl. This constructed 'community' removes him from the possibility of any other 'tragic circumstances' by biopolitically excluding the sexually threatening Aboriginal girl from the community.
Conclusion
<51> When we look at the relationship of colonizer to colonized, the colonial process, the process of settlement and state, as one that creates and embodies camp we see that violence is a constant possibility for bodies not simply when they are in spaces that make them violable, but that these bodies are spaced as violable terrain - wherever they are, deviancy and violence against the deviant colonized subject is sanctioned by legal systems. We must remember that the idealized and universal normative national subject in a colonial settler state, or in a colonial settler region like Saskatchewan, requires access to all space in colonized territories. In the colonial narrative there is no room for colonial peoples with similar mobility and access to space they are placed. The colonial situation is so infused with violence that violence is always a possible response for immobile subjects who have crossed borders that demarcate bounded places. It is this colonial space making that must be disrupted, it is this violence to people through space that needs to be addressed, or else inquiries and appeals will address nothing but "tragic circumstances".
<52> Colonial narratives that project the colonized onto an anachronistic frontier, where they are denied space, constructed as timeless or outside of time; narratives that sexualize Aboriginal Women or girls in ways that mark them as violable, rapable; these processes produce bodies, and as simply bodies, they are made bare or pure life. What does this do in legal systems, or cultural representations? It creates legal situations where it is impossible for Aboriginal people to be anything other than criminalized. The only aspects of their life that come into the legal arena are those that serve to decriminalize the colonial violence. It is an intense biopolitical process that very clearly indicates who the colonial legal system is for, who it is against, who is allowed to be in the colonial community, and who is denied access to it.
<53> We see in the case of R v. Edmondson that 'pure life' cannot be violated. Pure life excuses colonial crimes and victimizes colonized subjects. Bodies tied to places are denied access to space. When borders are crossed by peoples associated with places, people who are not granted the mobility of whiteness, we see the legal system as a starkly racist and sexist disciplinary space of the Canadian settler state. We see this system for what it is: colonial violence. Until this racist reality is admitted, until work is done to dislodge the normative influence of the white male middle class heterosexual able bodied subject, what will this legal system do? It will continue colonial violence apace and as such it must be stopped.
<54> There have been enough inquires into violence against Aboriginal people in this country to prove our legal system is racist. Yet nothing is done. Why? Perhaps nothing is done because Aboriginal people are not the problem, yet they are framed as such in legal proceedings. Colonialism, and therefore, the colonizer is the problem. Inquiries are a sorry excuse for decolonization. Until the legal system moves from inquiries that focus on First Nation's peoples solely as bodies, to inquiries that focus on how white people have historically been shielded from any meaningful consequences for violent acts against Aboriginal people, until the system itself comes under inquiry, and this inquiry is directed and undertaken by Aboriginal people themselves, until colonialism is problematized, the systemic violence will not stop.
<55> Inquiries that go nowhere are part of a wide array of colonial processes which confirm Andrea Smith's observation that "Indian identity itself is under the control of the colonizer, and subject to challenge or eradication at any time" (Smith, p. 12). This possibility of eradication is constant because the land has been defined as "ours". This eradication is permitted through 'scripts' that rely on racist/sexist colonial narratives. These scripts ensure that in any encounter in the judicial system the colonized can/will be marked as deviant against the white male normative subject. The narrative that defines land as empty is a great violence to the descendants of those who lived on 'our' stolen land. It is violence that is acted out on a day to day basis as Amnesty International has reminded us, and as the legal machinery of R v. Edmondson makes clear.
56> What is the source of this violence? Systems that produce 'pure life' or 'bare life' are systems that excuse violence, systems that both dehumanize and deterritorialize. When violence against people is sanctioned and excused, that violence becomes more constitutive of oppressive systems, not simply a side effect. The violence that is done to the bodies of Aboriginal women is indicative of violence that is not solely sexual, racist, or colonial, it is a necessary element of a colonialism that is white supremacist, patriarchal, capitalist and violent. We see this in the case of R v. Edmondson where a Judge, and a Court of Appeal, framed an intoxicated twelve year old girl from the Yellow Quill First Nation as a sexualized threat to the three white men, Edmondson, Brown, and Kindrat, who intoxicated and sexually assaulted her. In order to do this a wide array of racist and sexist colonial representations were used. We must remember that as long as we allow dehumanizing representations to be mobilized through our legal system those systems will continue to produce bare life and bare law.
Works Cited
Acoose, Janice/Misko-Kisikawihkwe/Red Sky Woman. Iskwewak Kah'Ki Yaw Ni Wahkomakanak/ Neither Indian Princesses Nor Easy Squaws. Toronto: Women's Press, 1995
Agamben, Giorgio. Homo Sacer: Sovereign Power and Bare Life. Stanford: Stanford University Press, 1998.
Amnesty International 2004. "Stolen Sisters: Discrimination and Violence Against Indigenous Women in Canada." <http://www.amnesty.ca/campaigns/resources/ amr2000304_summary.pdf>.
Blomley, Nicholas. "Law, Property, and the Geography of Violence: The Frontier, the Survey, and the Grid." Annals of the Association of American Geographers 93.1 (2003): 121-141.
Buydens, Norma. "The "Melfort" Rape and Children's Rights: Why R v. Edmondson Matters to All Canadian Kids." Saskatchewan Notes 4.1 (2005): 1-4.
"Sask. Girl testifies she never consented to sex with 3 men when she was 12." Canadian Press NewWire. 19 June. 2003
Eggerman, Sonia, "Radical Reform: Specialist Sexual Assault Courts and Postmodern Ajudication." Unpublished University of Saskatchewan Term Paper. April, 2005.
Fanon, Frantz. The Wretched of the Earth. New York: Grove Press, 2004.
Foucault, Michel. The History of Sexuality: An Introduction. New York: Vintage Books, 1990.
French, Janet, "Sexual assault sentence stands: Supreme Court refuses to hear appeal in Tisdale assault case." Saskatoon Star - Phoenix. 21 Oct. 2005: A3.
Furniss, Elizabeth. The Burden of History: Colonialism and the Frontier Myth in a Rural Canadian Community. Vancouver: UBC Press, 2000.
Grace, Wendy., and Alec McHoul. A Foucault Primer: Discourse, power and the subject. New York: New York University Press, 1993.
Goulding, Warren. Just Another Indian: A Serial Killer and Canada's Indifference. Calgary: Fifth House Ltd., 2001.
King, Richard C. "De/scribing the Squ*w: Indigenous Women and Imperial Idioms in the United States." American Indian Culture and Research Journal 27.2 (2003): 1 - 16.
Kohn, Margaret. "The Power of Place: The House of the People as Counterpublic." Polity 33.4 (2001): 503 - 526.
McClintock, Anne. Imperial Leather: Race, Gender and Sexuality in the Colonial Context. New York: Routledge, 1996.
Massey, Doreen. Space, Place, and Gender. Minneapolis: University of Minnesota Press, 1994.
Mohanran, Radika. Black Body: Women, Colonialism, and Space. Minneapolis: University of Minnesota Press, 1999.
News Archives - April 2005. The Law Society of Saskatchewan, April 20, 2005. <http://www.lawsociety.sk.ca/newlook/archive/Archive05Apr.htm>.
Prober, Rosalind. "What No Child Should Endure: R. v Edmondson, Kindrat and Brown." Beyond Borders Newsletter 3 (2003): 1-2. <http://www.beyondborders.org/Publications/newslrFall03b.pdf>.
R v. Edmondson. ( Mary Eberts' Factum for the Intervener Native Women's Association of Canada). <http://www.nwac-hq.org/EdmonstonNWACFactumFinalEnglish. pdf>.
R v. Edmondson. 2005 Saskatchewan Court of Appeal (SCPA) 51. <http://www.canlii.org/sk/cas/skca/2005/2005skca51.html>.
Razack, Sherene H. Dark Threats & White Knights: The Somalia Affair, Peacekeeping, and the New Imperialism. Toronto: University of Toronto Press, 2004.
---. "Gendered Racial Violence and Spacialized Racial Justice: The Murder of Pamela George." Race, Space, and the Law: Unmapping a White Settler Society. Ed. Sherene H Razack. Toronto: Between the Lines, 2002. 121-156.
---. "When Place Becomes Space." in Race, Space, and the Law: Unmapping a White Settler Society. Ed. Sherene H Razack. Toronto: Between the Lines, 2002. 1-20.
Said, Edward W. Culture and Imperialism. New York: Vintage Books, 1992.
Reber, Susanne, and Robert Renaud. Starlight Tour: The Last, Lonely Night of Neil Stonechild. Random House Canada, 2005.
Smith, Andrea. Conquest: Sexual Violence and American Indian Genocide. Boston: South End Press, 2005.
Theweleit, Klaus. Male Fantasies vol 2: Psychoanalyzing the White Terror. Minneapolis: The University of Minnesota Press, 1989.
Notes
[1] I was not able to get a hold of these remarks so R v. Edmondson, ( Mary Eberts' Factum for the Intervener Native Women's Association of Canada ) was an invaluable resource. [^]
[2] "Starlight tours", widely publicized during the inquiry into the death of Neil Stonechild, involved police driving Aboriginal men and women outside of Saskatoon in freezing cold temperatures and leaving them to freeze. This practice was recognized by the legal system through the inquiry into the death of Neil Stonechild, an event that took place fourteen years after his death, and by calls for an RCMP investigation into the deaths of Lawrence Wegner and Rodney Nastius whose bodies were found on the outskirts of Saskatoon. The inquiry into the death of Neil Stonechild came about due to resistance to the practice of the 'starlight tours' in Saskatoon after Darrel Night was placed outside of Saskatoon by two police officers. Darrel Night had to walk back to Saskatoon in freezing temperatures. He filed a complaint about the police violence. The two officers found responsible for placing Darrel in a deadly position: Dan Hatchen and Ken Munson, received sentences of 8 months in jail for their actions. They were both released early (Reber and Renaud). [^]
[3] John Michael Crawford was convicted of murdering Eva Taysup, Shelley Napope, and Calinda Waterhen in 1996. Crawford murdered these women in three separate instances on the outskirts of Saskatoon. He received three life sentences. These were not the first Aboriginal women Crawford murdered. He plead guilty to manslaughter for murdering Mary Jane Serloin in Lethbridge, Alberta in 1982 and received a sentence of 10 year (Goulding). [^]
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