Aboriginal Justice Implementation Commission
Two of the Aboriginal Justice Implementation Commission's key priorities are the need to focus on children, youth, and the family, and the need to prevent young people from becoming involved with the justice system. Dealing appropriately with young people who come into contact with the justice system is essential to prevent re-involvement and long-term problems.
The Commission believes that recommendations based on the Young Offenders chapter of the Report of the Aboriginal Justice Inquiry are appropriate. The Commission believes that many of the recommendations suggested by the Inquiry may be implemented without the expenditure of new funds.
Aboriginal Justice Inquiry Recommendations
In the Young Offenders chapter of its report, the Inquiry made recommendations aimed at both the provincial government and the federal government. The recommendations aimed at the federal government dealt, for the most part, with amendments to the Young Offenders Act. The Commission is aware that a new Youth Criminal Justice Act is before the Parliament of Canada and that the proposed Act was, and continues to be, the subject of extensive debate across the country. The Commission does not propose to comment on that aspect of the Inquiry's work, as the Commission's mandate requires it to make recommendations addressing those areas for which the Province of Manitoba is responsible and accountable.
In the chapter on Young Offenders, the Inquiry endorsed the following approaches:
The Department of Justice advises that steps have been taken and programs have been put in place to attempt to address the issue of overrepresentation of Aboriginal young people in jails. The Commission was advised, for example, that in 1993, 25 percent of the young people in custody were from northern Manitoba, while the current figure is 8 percent. In addition, the Department of Justice has established a Youth Bail Management program in Winnipeg in an effort to keep young people out of custody in inappropriate situations such as, for example, where a young person has no place to spend the night. Finally, the department has expanded the number of youth justice committees from 32 in 1987 to 66 currently.
However, the issue continues to grow. According to the Inquiry, on October 1, 1990, Aboriginal young people accounted for 64 percent of the inmates of the Manitoba Youth Centre and 78 percent of the inmates at Agassiz Youth Centre. As of September 6, 2000, the male and female, sentenced and unsentenced, Aboriginal young people in-custody population was 77 percent at the Manitoba Youth Centre and 85 percent at Agassiz Youth Centre. Manitoba also has the highest percentage of admissions of young people to remand in Canada. In Manitoba, 70 percent of the young people admitted to custody are admitted to remand, which means they are waiting for a court hearing or sentencing. The vast majority of these young people would be persons who have been denied bail while awaiting trial. They are in custody notwithstanding that they have not been found guilty of an offence.
In summary, the important points to note are:
Based on the findings of the Inquiry and on the Commission's consultations and research, the Commission supports the recommendations made to Manitoba in the Inquiry's chapter on Young Offenders. The Commission supports the least interference, and a proportionate, incremental approach to the involvement of young people in the justice system, as outlined by the Inquiry. The Commission notes this approach is also supported in The United Nations Convention of the Rights of the Child, which Canada has ratified. Article 37 states:
Parties shall ensure that:
(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time. (Convention of the Rights of the Child, page 18)
The Commission recognizes that public safety will require the incarceration of some young people, but also believes it is important to recognize that the inappropriate jailing of a young person can cause more harm than good. For example, it is no credit to a society that a young person is kept in jail because he or she has no place to sleep, or because there is no one to take responsibility for the young person, or because his or her lawyer is unable to appear at a bail hearing that day. The Commission believes we as a society can do better than that.
The justice system is made up of many individuals who are required to make many discretionary decisions. The Inquiry laid out an approach for police, Crown attorneys, youth justice committees, and chiefs and council that encourages a proportionate, incremental response, starting with diversion from the court system as much as possible. In schedules A and B to this chapter, the Commission repeats, for the consideration of appropriate authorities, the approach and alternatives to custody that the Inquiry suggested police, Crown attorneys, and judges consider.
The Inquiry commented upon the disproportionate impact on Aboriginal young people of the "normal" and "ordinary" approaches that Justice personnel take. It said,
It is well known that Aboriginal communities have long been isolated by culture, geography, poverty and deprivation, and so have been overlooked, ignored and excluded by the rest of society. This can be seen clearly in northern and remote Aboriginal communities. But what may not be well understood is the impact these conditions have had upon decisions made about their lives in the criminal justice system.
In deciding whether to grant bail, whether to consider a custody sentence or whether to release a young Aboriginal person from custody, criminal justice officials will frequently consider factors such as whether the young person has a job or is involved in an education program. The court considers whether the young person's parents are employed. It considers the perceived "stability" and resources of the family and the community, the presence of alcohol or drug problems, whether the youth or the youth's parents have a fixed address and, if so, how long they have lived at that address. Decisions made on the basis of these types of factors discriminate against Aboriginal people, because those factors are linked directly to the marginal social, cultural and economic place of Aboriginal people in society." (AJI, Volume I, page 586)
The Commission believes this is an important point that should be remembered by all, especially in dealing with the situation of the very high number of young people in custody on remand, a very high proportion of whom are Aboriginal young people.
The high number of young people in pretrial detention is of concern to many in the justice and child welfare system. The Commission heard many possible causes and suggestions for improvement, including:
What may be lacking is recognition of the seriousness of the issue and a committed and concerted effort to ensure that pretrial detention is used only in appropriate cases, primarily where the issue is one of public safety.
The Aboriginal Justice Implementation Commission recommends that:
As there are many possible causes for the high number of young people in pretrial detention, there is also a need for a variety of solutions. One of the more promising partial solutions is improvement and expansion of the Youth Bail Management program. The Commission suggests the government give careful consideration to this approach.
The Inquiry made a number of recommendations in support of its overall approach to the treatment of young people by the justice system. The Commission believes these recommendations support a least interference, proportionate, and incremental, approach and recommends the following to the government of Manitoba. Specifically, the AJIC recommends the implementation of the following AJI recommendations:
One caution the Commission wishes to make is that careful attention must be paid to the issue of a proportionate response and least interference. The lowest sanction possible and appropriate should be used in order not to "net widen," or use greater resources than necessary to address an issue. It is of no benefit to use probation, a family group conference, or appearance before a youth justice committee, when a simple warning will suffice. The resources used to supervise probation, or to conduct a family group conference or a youth justice committee in that situation are resources that are not then available for a more serious case. As much as possible, intervention needs to be targetted to the needs of the young person.
The Inquiry made other recommendations on which the Commission wishes to comment. The Inquiry recommended that accused young people who must be held in pretrial detention be held in detention facilities in their own communities. The Commission believes pretrial detention should be used as a last resort for young people and that all other options should be considered before pretrial detention is used. The Commission was advised that one factor in the reduction in the number of young people from the North involved in the justice system may be the strong and effective stand in managing child welfare issues taken by Aboriginal child and family services agencies in the North. It has been suggested that, with a community-based response, young people who previously would have been charged with offences and be sent to custody are now handled more appropriately by local child service agencies.
The Commission is loathe to recommend the construction of detention facilities in all Aboriginal communities, and recommends that if no other option is available, the Justice department contract with local operators to provide open custody services. Secure custody facilities for pretrial detention should be kept to a minimum.
The Inquiry also recommended that youth probation for Aboriginal young people be made part of the responsibility of Aboriginal child and family service agencies. The Commission believes that the effect of its recommendations that child and family services for Aboriginal people, and probation services for Aboriginal people, be delivered by Aboriginal-controlled agencies should result in closer coordination of youth probation and child welfare services.
An issue arising out of pretrial detention is the transportation of young people out of their own communities, either from the north to the south and back, or from a First Nation or Métis community to a northern urban centre. The Commission has been advised that this practice has decreased but is still of concern to the Department of Justice. The Commission believes that public transparency might aid the effort to find a solution to this problem.
If the department finds, for example, that a high percentage of the young people transported originate in one or two areas, and that they are regularly released on appearance before a judge and transported back to their home, the department would have cause to investigate. Publication of the statistics will give those who have questions for the department information to formulate appropriate queries.
In its chapter on Young Offenders, the Inquiry also made recommendations for Aboriginal participation at all levels in the youth justice system and the need for crime prevention approaches. The Commission addresses both of these issues in subsequent chapters of this report.
The Commission wishes to restate its view that its preferred approach to the issue of young people involved with the justice system is to focus on approaches that will help ensure they are not involved with incidents that will bring them into contact with the justice system. Those approaches involve supporting early childhood development, strong ties to family and community, and sports and recreation activities, and encouraging education.
Consideration of the Use of Diversion
Report of the Aboriginal Justice Inquiry, page 579
Those involved in the justice system should give strong consideration to the use of diversion whenever an inappropriate act of a young person is brought to their attention.
The Police. When an offence has been committed, the police are contacted and are usually the first representatives of the justice system to examine the circumstances. It is the police who decide if the youth should be charged and, if so, what charge is to be laid.
Police authorities should be directed by the Minister of Justice to consider whether some diversionary program is available and appropriate, rather than immediately laying a criminal charge. They should consider speaking to and, if necessary, lecturing the youth. A letter to the parents, warning of the youth's conduct, might be of value. A meeting with the youth, the parents and the band chief, or a member of a youth justice committee, might be all that is necessary to indicate the unacceptable nature of the conduct and to discourage repetition. If the police do not want to remain involved, referral to a justice committee might be appropriate. This is more likely to happen if community-based policing is being practised.
The Crown Attorney. The Crown attorney should proceed in a manner similar to that which we propose for the police. If the police bring a matter to the Crown attorney and charges have been laid, or are being considered or recommended, the Crown should consider whether the case can be diverted from the court process. If the Crown attorney is not aware of any services available in a certain community, people from that community, such as the chief or the justice committee, should be consulted to see if they would be willing to try to deal with the problem.
It should be Department of Justice policy that diversion be carefully considered before a criminal charge is laid or proceeded with.
Youth Justice Committee. These committees should do whatever is necessary to make sure that police, lawyers and the court are aware of their existence and the services they provide. They should also keep records to show the results of their efforts. It is important for others involved in the justice system to know which programs have been of value.
Chief and Council. The chief and council, as representatives of their community, should support diversion programs and should encourage the establishment of youth justice committees and other support groups within their community. In this way, they can assume more control over what happens to youth from their community. A continuing and supportive dialogue should take place between the chief, the police, lawyers and judges serving their community.
Report of the Aboriginal Justice Inquiry, page 580
The Inquiry suggested that police, Crown attorneys and judges consider alternative measures in every case. Some of the alternative measures the Inquiry thought should be considered are: