The Justice System and Aboriginal People
The Aboriginal Justice Implementation Commission
Aboriginal Peoples in Manitoba
The justice system has failed Manitobas Aboriginal people on a massive scale. It has been insensitive and inaccessible, and has arrested and imprisoned Aboriginal people in grossly disproportionate numbers. Aboriginal people who are arrested are more likely than non-Aboriginal people to be denied bail, spend more time in pre-trial detention and spend less time with their lawyers, and, if convicted, are more likely to be incarcerated.
It is not merely that the justice system has failed Aboriginal people; justice also has been denied to them. For more than a century the rights of Aboriginal people have been ignored and eroded. The result of this denial has been injustice of the most profound kind. Poverty and powerlessness have been the Canadian legacy to a people who once governed their own affairs in full self-sufficiency.
This denial of social justice has deep historical roots, and to fully understand the current problems we must look to their sources. We attempt to provide some of that context in the first part of this report. The mandate of this Inquiry is to examine the relationship between Aboriginal people and the justice system, and to suggest ways it might be improved. In this report we make many recommendations about how existing institutions of justicethe police, the courts, the jailscan be improved. But far more important than these reforms is our conclusion that the relationship between Aboriginal people and the rest of society must be transformed fundamentally. This transformation must be based on justice in its broadest sense. It must recognize that social and economic inequity is unacceptable and that only through a full recognition of Aboriginal rightsincluding the right to self-governmentcan the symptomatic problems of over-incarceration and disaffection be redressed.
The problems are daunting and our proposals are far-reaching. But we believe that in the interests of justice, the process of transformation must begin immediately. TOP
The Aboriginal Justice Inquiry was created in response to two specific incidents in late 1987 and early 1988.
The first of these was the November 1987 trial of two men for the 1971 murder of Helen Betty Osborne in The Pas, Manitoba. While the trial established that four men were present when the young Aboriginal woman was killed, only one of them ultimately was convicted of any crime. Following the trial, allegations were made that the identity of the four individuals who had been present at the killing was known widely in the local community shortly after the murder. Both the chief of The Pas Indian Band and the mayor of The Pas called for a judicial inquiry that would examine that and other questions related to the murder, including why it had taken 16 years to bring the case to trial.
On March 9, 1988 J.J. Harper, executive director of the Island Lake Tribal Council, died following an encounter with a City of Winnipeg police officer. The following day the police department exonerated the officer involved. Others, particularly those in the provinces Aboriginal community, believed that there were many questions which had been left unanswered by the police departments internal investigation. In this case as well, numerous individuals requested the creation of a judicial inquiry.
These two incidents were seen by many as troubling examples of the manner in which Manitobas justice system was failing Aboriginal people. The evidence of this failure has been apparent and abundant. While Aboriginal people comprise 11.8% of Manitobas population, they represent at least 50% of the provinces prison population. Recidivism is common and there are few signs that rehabilitation programs are producing the desired result. Court services in Aboriginal communities are limited and occasional, beset by delay and misunderstanding. Aboriginal relations with police forces in all parts of the province are marked by mutual suspicion. Aboriginal criticism of the justice system generally has been harsh and pervasive. The need for change was becoming increasingly apparent.
On April 13, 1988 the Manitoba government created the Public Inquiry into the Administration of Justice and Aboriginal People, which we refer to as the Aboriginal Justice Inquiry, by Order-in-Council. The Order-in-Council was replaced later by a statute, subsection 3(1) of which provides:
The Schedule provides:
It was decided from the outset that the Inquiry would employ a variety of approaches. For the Osborne and Harper matters, we needed to examine the specific details and the conduct of particular individuals. These individuals might have their personal interests affected by this examination. As a result, we decided to proceed in a formal way, ensuring that all interested parties were represented by counsel, that all witnesses could be cross-examined, that their rights would be respected and that all testimony was given under oath.
The Inquiry faced a number of legal challenges launched by the Winnipeg Police Association. In 1989 the work of the Inquiry was delayed when one of these challenges led the Manitoba Court of Appeal to rule that Orders-in-Council establishing the Inquiry were invalid because they were passed in English only. The Inquiry was re-established subsequently by an Act to Establish and Validate the Public Inquiry into the Administration of Justice and Aboriginal People.
For the general questions about how the justice system dealt with Aboriginal people, we decided it was critical to hear directly from Aboriginal people. In order to do this, we travelled to the Aboriginal communities of this province: from Roseau River in the South to Tadoule Lake in the North, from Little Grand Rapids and Shamattawa in the East to The Pas and Sioux Valley in the West. Our Inquiry visited over 36 Aboriginal communities, approximately 20 of which were accessible only by winter roads and air travel. We also held hearings in seven other Manitoba communities, including extensive hearings in the city of Winnipeg. We held hearings in five provincial correctional institutions.
Non-Aboriginal persons also were encouraged to make presentations and many, including representatives of various governments, police forces and social agencies, did so. All the presentations we heard were crucial in coming to an understanding of the problems and in shaping our findings and recommendations.
All the community hearings were open to the public. Those who appeared before us were invited to express any and all of their concerns with the justice system. They were not required to submit written presentations, were not examined by Commission counsel, were not cross-examined and were not required to testify under oath.
We took this approach after considerable deliberation. We believed that Aboriginal people already were alienated from, and intimidated by, the formal court system. We wanted to utilize a process that would encourage frank and open expressions of opinion.
In these hearings we did not attempt to make determinations of "fact" about individual incidents and injustices that were related to us. Our primary concern was to learn how the legal system was working, what people felt about the system and if people were being well served by it. Approximately 1,000 people made presentations at our community hearings. These presentations have been transcribed and indexed, and form a permanent record of the proceedings.
In addition to the hearings, we conducted research projects covering a wide range of subjects. Some of the research was done by our own research staff, including a survey of inmates at seven correctional institutions, a survey of Crown and defence lawyers, and a survey of members of the judiciary. We also commissioned experts in various areas to prepare background papers for us. We combined this information with our own experience and the presentations made to us during community hearings to come to the conclusions we have reached.
To expand our understanding further, we visited a number of tribal courts in the United States, conducted a symposium on tribal courts and sponsored a conference of Aboriginal elders. In total, we received more than 1,200 presentations and exhibits, held 123 days of hearings, travelled more than 18,000 kilometres in Manitoba alone and accumulated approximately 21,000 pages of transcripts (including exhibits but not including research papers, library materials or written presentations). The communities we visited and the names of those who made presentations are listed in the Appendices. To those people, we owe a great debt of appreciation for their efforts and contributions.
During the community hearings, tribal court symposium and elders conference, we had an opportunity to learn how Aboriginal people feel about Manitobas justice system. In the dozens of communities and jails we visited, we heard Aboriginal people speak eloquently about their experiences with the various institutions of justice. Those experiences are overwhelmingly negative. Hundreds of presenters told us that the justice system is foreign, insensitive and often oppressive.
Whether they live in remote northern communities or in the city of Winnipeg, Aboriginal people spoke of their alienation from a justice system which arrests them, convicts them and incarcerates them in disproportionate numbers.
They spoke of policing which is at times unresponsive and at times over-zealous, usually insensitive and often abusive. They spoke of a system of laws and courts which ignores significant cultural factors, and subjects them to incomprehensible proceedings and inordinate delays in the disposition of their cases. They spoke of a penal system which is harsh and unproductive. They spoke of parole procedures which delay their release from the penal system. They spoke of child welfare and youth justice systems which isolate young people from their families and their communities. They spoke too of historic wrongs, of betrayals and injustice, and of a vision for restoring social harmony to their communities.
We wish to offer special acknowledgement to the presenters who appeared before us. Their presentations were often disturbing and often poignant. They told us more about the state of the justice system and its effects on Aboriginal people than we could ever hope to have learned by any other means. Their words and their concerns provide the compass for our discussion of the issues. TOP
Aboriginal Peoples in Manitoba
In this report we have accepted the terms as found in the Constitution Act, 1982. The Aboriginal people of Canada include the Indian, Metis and Inuit people. That does, however, lead us inevitably to a consideration of what or who are Indians, Metis or Inuit. For our purposes, when we refer to Indians, we will be talking about the Aboriginal people who are entitled to be registered as Indians pursuant to the Indian Act of Canada. (S.C. 1985 c. 16) Metis people are those Aboriginal people of mixed blood, Aboriginal-white ancestry who are, and who consider themselves as being, neither Indian nor Inuit, or who regard themselves as Metis. Inuit people are those Aboriginal people who were known formerly as Eskimos.
Status Indians are those people recognized as Indians under the Indian Act and are entitled to be registered as such in the Indian Register maintained by the Department of Indian Affairs in Ottawa. That is why they are referred to sometimes as "registered" Indians.
"Non-status Indian" is a term which has been applied to people of Indian ancestry who are not, for one reason or another, registered under the Indian Act. TOP
There are a number of distinct nations or tribal groupings of Aboriginal people in Manitoba. Most of these peoples were present in Manitoba many centuries before Europeans arrived. The Aboriginal people of Manitoba are the Chipewyan (or Dene) in the northernmost parts of the province, the Cree in the North (with the Swampy Cree in the northwest and the Oji-Cree of Island Lake in the northeast), the Ojibway (or Saulteaux) in the central and eastern regions, the Dakota (or Sioux) in the South and western regions, and the Metis throughout the province. Each of these groups has a distinct history, culture, economy, language and political organization. In addition, by virtue of treaties, the Constitution and the Manitoba Act, Aboriginal peoples have a legal status that is unique among all other Canadians.
Because many Aboriginal people boycotted the 1986 census, it is difficult to reach an accurate determination of how many Aboriginal people there are in Manitoba. Although there are other sources to turn to, such as the Department of Indian Affairs and Northern Development, the Department of Northern Affairs and the Manitoba Metis Federation, problems exist with the assumptions on which the reports of each of these agencies are based.
We engaged a statistical analysis firm to review various studies and produce an estimate for our Inquiry.1 On this basis we have estimated the Aboriginal population of Manitoba in 1991 to be 130,000 and the non-Aboriginal population to be 969,300, of a total Manitoba population of 1,099,300. This means that Aboriginal people represent 11.8% of Manitobas population. By contrast, the 1986 census estimates that only 85,000 Aboriginal people live in Manitoba (or 8.1% of the total population).
According to these estimates, there are 77,000 registered (status) Indians in Manitoba, 47,000 Metis and 6,000 non-status Indians. We estimate there are 49,000 Aboriginal persons living on reserves and 81,500 Aboriginal persons living off reserves. This means that 37% of Aboriginal people live on reserves and 63% live off reserves. Approximately 63% of status Indians in Manitoba live on reserves, which is one of the highest proportions of on-reserve residencies in Canada.
We estimate that 41,000 Aboriginal people (or 36% of the provinces Aboriginal population) live in the North, where they constitute 61% of that regions population of 76,517.
In southern Manitoba, excluding the city of Winnipeg, we estimate that there are 42,500 Aboriginal people (or 33% of the provinces Aboriginal population). They constitute 10.7% of that regions population of 396,500.
We estimate that 41,000 Aboriginal people (or 31% of the provinces Aboriginal population) live in the city of Winnipeg. They constitute 6.5% of Winnipegs population of 626,232.
Manitobas status Indians are organized in bands or, as they have come to refer to themselves, First Nations. Most First Nations have lands reserved exclusively for them under the Indian Act. There are 61 First Nations in Manitoba. Because some bands have more than one land reserve, these 61 First Nations live on a total of 102 land reserves. There are a number of claims still outstanding about the designation of reserves.
Manitoba First Nations generally are small, with approximately 40 of them having populations of less than 1,000, and approximately 25 with populations of less than 500.2 Of all the regions in Canada, Manitoba has the highest proportion of its band population living in remote areas; for nine or 10 months a year, approximately 20 Aboriginal communities are accessible only by air. On the other hand, Manitoba has the lowest proportion of bands in urban locations in Canada.3 This is in sharp contrast to Manitobas non-Aboriginal population, more than half of whom live in one central location: Winnipeg.
The 1986 census reported that 28% of all Manitobas Indian population had an Aboriginal language as the first language spoken as a child and still understood the language. It was reported that 84% of reserve residents retained their Aboriginal languages in the homes, compared to 34% of off-reserve residents. Nationally, 18.5% of Canadas Indians are reported by the census as having retained their mother tongue.4 TOP
Aboriginal people face greater socio-economic problems than does any other segment of Canadian society. Because official statistics generally report only for status Indians, these are the figures we present. We believe the conditions of all Aboriginal people in Manitoba have strong similarities, although there are some significant differences between life on and off reserves.
Aboriginal people living on Manitoba reserves experience the most crowded housing conditions in Canada.5 The majority of homes on reserves are heated by cook stoves and space heaters. Less than half of on-reserve homes in Manitoba have indoor plumbing.6
Indians are twice as likely as other Manitobans to have less than a grade nine education, three times less likely to complete high school and six times less likely to receive a university degree.7 The unemployment rate for Indian people is four times higher than for non-Indian people.8 These statistics greatly underestimate the true state of Aboriginal unemployment, since they only consider those persons actively looking for work. Because there is so little employment available, many Aboriginal people do not "actively look" for what is not there and, therefore, are not calculated in the official unemployment rate. Manitobas Indian population has among the highest rates of welfare dependency in Canada, at close to 80% for reserve residents.9
The people who appeared before us did not fail to pass judgment on these social inequalities.
The Indian death rate for persons between 25 and 44 years of age is five times the non-Indian rate. The average age of death for Indian men is 25 years younger than for non-Indian men. The average age of death for Indian women is 28 years younger than for non-Indian women. Tuberculosis, known as a disease of poverty, occurs seven times more frequently in Manitobas Indian population.10
As we noted earlier, a similar picture is presented when one examines the provinces prison population. In 1965, 22% of prisoners at Stony Mountain federal penitentiary were Aboriginal. In 1984 this proportion was 33%.11 In 1989 the superintendent of the institution told our Inquiry the figure was now 40%.12
The situation is even worse in provincial jails. In 1983, 37% of all admissions to the Headingley Correctional Institution were Aboriginal.13 In 1989 the Manitoba Department of Justice told the Inquiry that 47% of Headingleys population were Aboriginal. In fact, the department told the Inquiry that 55% of the total provincial jail population were Aboriginal.14
We visited most of the provinces jails, witnessed dehumanizing conditions and heard inmates talk about the cultural isolation they experienced behind bars.
Many presenters spoke of the severity and the ineffectiveness of the corrections system, and demanded that the whole conception of sentencing be changed to meet the needs of Aboriginal offenders.
Jail figures and projections are even worse for Aboriginal youth and Aboriginal women. Sixty-one per cent of all admissions to the Manitoba Youth Centre and the Agassiz Youth Centre in 1989 were Aboriginal. On October 1, 1990, 64% of the Manitoba Youth Centres population and 78% of Agassizs population were Aboriginal youths. At the Portage jail for women, 67% of all admissions in 1989 were Aboriginal.
Aboriginal over-representation extends into the child welfare system, as well. For 198990, 32% of the children in care in Manitoba were registered Indians. This percentage undoubtedly would be higher if Metis and non-status Indian children were included.
As disturbing as these figures are, they may worsen. In 1971 more than half of Manitobas Indian population were under 15 years of age. This compared to 22% in the non-Indian population.15 Further, the Indian birth rate was twice as high as the non-Indian birth rate, and this too is expected to continue as more Aboriginal youth enter their child-bearing years.16
As well as the relative ages of Aboriginal people in Manitoba compared to non-Aboriginal people, the large proportion of Aboriginal people living in rural areas, particularly on reserves, is another way in which Aboriginal circumstances are very different. Further, Aboriginal socio-economic problems are of an entirely greater magnitude than those of any other segment of Canadian society. TOP
Manitobas justice system is founded on laws written in the English and French languages. It is a complex system whose practitioners must undergo years of training. It has many specialized terms, so that even a person relatively well conversant in English or French likely will not understand the subtleties of the law and legal proceedings.
The justice system operates through a complicated mix of governments, agencies and individuals. The federal government is responsible for Indians and reserves, the Criminal Code, the Young Offenders Act, penitentiaries (for the most serious offenders), the National Parole Board, the RCMP, the Divorce Act among other statutes, and appointments to Court of Queens Bench and the Court of Appeal.
The provincial government is responsible for the prosecution of offences, administration of courts, the Child and Family Services Act, hunting and fishing laws and other legislation, correctional institutions (for less serious offenders), probation services, child welfare agencies, regulation of the police (other than the RCMP) and appointments to the Provincial Court of Manitoba. Municipalities are responsible for choosing the police service they want and contributing a portion of the cost, and for municipal by-laws. First Nation governments are responsible for band by-laws and the provision of a very wide array of services on reserves. First Nation responsibilities are considerably different from those of municipal governments.
Numerous agencies, many funded by governments, provide services in the justice system, including Legal Aid Manitoba, agencies to assist offenders, agencies to assist victims, and so on. In addition, private individuals, particularly lawyers, make their livelihoods helping people use the justice system.
It is a costly system. By our estimate, taking into account Manitobas share of federal expenditures on justice, the Manitoba Department of Justice, municipal police forces, conservation officers, the child welfare system, and non-government agencies and expenditures, approximately half a billion dollars are spent each year on justice in Manitoba. With Manitobas Aboriginal population representing 12% of the total population of the province and more than 50% of the jail population, it is clear an enormous amount of money is being spent dealing with Aboriginal people.17
It is for many Manitobans an awe-inspiring and revered system, one which links them to a centuries-old struggle for the right of people to be ruled by laws. To Aboriginal people it appears in a very different light.
The police forces of Manitoba are the first point of contact with the justice system for most Aboriginal people. The relationship is clearly an uneasy one. We heard many complaints about insensitivity and abuse.
The courts also were accused of insensitivity. In particular, residents of remote Aboriginal communities complained about the circuit court system which administers justice on a periodic, fly-in basis. Many people who spoke to us felt that court personnel did not understand community problems and had no comprehension of cultural differences.
The related problems of unfamiliar language and unfamiliar concepts of justice pose serious problems to those who come before courts.
The result of all the efforts of the Inquiry is this report. This volume begins by placing the position of Aboriginal people and the Canadian justice system in an historical context, laying special emphasis on Aboriginal concepts of justice and the development of Aboriginal and treaty rights. We examine the roots of Aboriginal over-representation in the provinces correctional institutions, looking at both the causes of criminal behaviour and the role of systemic discrimination in the justice system. We then discuss proposals for a separate Aboriginal justice system, placing the concept in the context of the right of Aboriginal self-government and already existing Aboriginal courts in other jurisdictions.
Other sections of this volume examine the existing justice system and the ways in which it adversely affects Aboriginal people. We look at the role of the police and the courts, the appropriateness of current sentencing practices and the level of employment of Aboriginal people throughout the justice system. Of particular concern to us are the nature of court services throughout the province and issues of family violence and child welfare; each of these matters is dealt with in a separate chapter. We end with a discussion of how our recommendations can be implemented.
The second volume of the report deals specifically with the cases of Helen Betty Osborne and J.J. Harper. Both these cases are reviewed in detail in that volume and specific recommendations are made on each case.
In addition to the written reports, we have produced a video presentation of the major points of the general report. This video has been produced in English, Cree, Ojibway, Island Lake dialect, Dakota and Dene. We decided to produce a video so that the report could be more accessible to the majority of Aboriginal persons, particularly in their own languages. TOP
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