| The Justice System and Aboriginal People The Aboriginal Justice Implementation Commission |
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| Report of the Aboriginal Justice Inquiry of Manitoba
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Young Offenders TOP Introduction We are failing to meet the needs of Aboriginal young people in the youth justice system just as surely as we are failing to meet the needs of adult Aboriginal people in the adult justice system. We know adult Aboriginal people are grossly over-represented in the adult justice system, but we find even higher proportions of young Aboriginal people in the youth justice system. We found that, in a count of inmates on October 1, 1990, Aboriginal youth accounted for 64% of the inmates at the Manitoba Youth Centre and 78% of the inmates of the Agassiz Youth Centre. This is particularly disturbing since many Aboriginal young people will “graduate” to more serious crimes later in their lives. These studies also show that Aboriginal youth, like Aboriginal adults, will be victimized by systemic discrimination at every stage in the justice system. Particular concern has been expressed about the impact of the Young Offenders Act upon Aboriginal youth. In fact, some observers argue that the deficiencies of the Act are so significant that even the guiding principles should be modified to take into account the special needs and concerns of Aboriginal youth.1 Compared to non-Aboriginal youth, Aboriginal youth:
These problems are not new; it has long been known that these conditions are an everyday fact of life for too many young Aboriginal people. They testify to the fact that the justice system is not working fairly or effectively for Aboriginal youth. The Canadian Research Institute for Law and the Family, for example, in a study commissioned by our Inquiry, summarized the current state of affairs as follows:
In this chapter, we examine the youth justice system in detail, the historical approaches to the treatment of youth crime and the factors that gave rise to the current system. We provide an overview of the Young Offenders Act, [R.S.C. 1985, c. Y-1], and we discuss how the Act has been implemented in Manitoba. We examine the current inequities that characterize the treatment of Aboriginal youth and we propose reforms that we believe will reduce costs, improve effectiveness and, perhaps, even restore the tarnished reputation of the youth justice system in Aboriginal communities. TOP
Historical Approaches to the Problem of Youth Crime TOP The late 19th and early 20th centuries were a period of rapid social change in Canada. The twin engines of immigration and industrialization gave birth to, among other things, city slums, homelessness, the breakdown of the extended family unit, increased juvenile delinquency and increased crime. It was no coincidence that many of the elements still seen in today’s justice system first appeared during this period, as governments organized, established and expanded their police forces, courts and jails. During the period of rapid development, particularly towards the end of the 19th century, the inability of the emerging social order to effectively accommodate young people became a matter of growing social concern. Disruptive behaviour, such as crime, sexual immorality and truancy, began to increase and commentators began to condemn what they called a “youth problem.” Social reformers pressed governments to pass legislation that would ensure children received better treatment by society, both at home and in the workplace. This reform movement in the late 1800s led to the establishment of privately operated children’s aid societies with “the objective of helping orphaned, abandoned and neglected children.”3 This eventually led to new laws restricting the exploitation of children in the workplace, requiring children to attend school and giving the societies broad legal powers, “including the right to remove neglected or abused children from their homes and become legal guardians for such children.”4 By the beginning of the 20th century, social reformers considered young people to be victims of their social environment, and their sometimes erratic or aberrant behaviour was seen as symptomatic of larger social ills. Young people were not seen to be completely responsible for their actions. And yet, young people who came into contact with the criminal justice system were often subjected to the same laws, the same adjudication process and the same penalties as were adults. In the years after Canada’s first penitentiary was built at Kingston in the 1830s, for example, the institution housed both young people and adults of both sexes. As one author notes:
Reformers of the day pointed to the intolerable living conditions in the adult jails. They believed that young people should be treated differently, more humanely, by the law. They also felt that housing young offenders in the same institutions as adult criminals made rehabilitation less likely, since many of those adults had committed serious crimes. Furthermore, they felt the justice system should reflect the change in social attitudes towards youth, the justice system and rehabilitation. These social reformers believed the state could correct wayward youth by enacting new criminal laws specifically for youth and by authorizing a separate youth justice system. The Juvenile Delinquents Act, [R.S.C. 1908], was the culmination of this reform process. The Juvenile Delinquents Act (JDA) brought about a dramatic departure from earlier practices. The Act created a new legal status: a “delinquent.” It defined a new category of acts: “delinquencies.” It established separate courts and correctional programs for youth, and it articulated a new legal philosophy that differed in important respects from the philosophy of the adult criminal justice system. The JDA defined a “delinquent” very broadly to include not only those who had committed criminal offences, but also those who exhibited a variety of other “vices.” Specifically, the JDA defined a delinquent as
Children who were seven years and older were believed to be sufficiently mature to come under the jurisdiction of the JDA. The upper age limit, however, was allowed to vary from 16 to 18, at the option of each province. The JDA was based on a “child welfare philosophy” which held that the criminal justice system should act in the “best interests” of the child. It gave enormous discretionary powers to judges, the police and probation officers to do what they considered to be best for the child’s welfare. In fact, the JDA was quite explicit:
The JDA did not distinguish between “neglected” and “criminal” children because the “child welfare” philosophy of the time held, in effect, that children who broke the law did so because they were neglected. Delinquent youth who broke laws were simply showing the symptoms of their neglect and were products of desperate social conditions. Believers in this philosophy argued that the state could reform these wayward youth by meeting their underlying needs with discipline, guidance and education. In order to accomplish this, the JDA gave the police, the courts and the child welfare authorities very wide latitude to do almost whatever they felt was in the child’s best interests. There was, for example, no need to equate the seriousness of the child’s acts with the court’s disposition, since the purpose of the proceedings was “to help” and not “to punish.” In addition, rights that normally would have been extended to adults, if charged with similar offences, were not felt to be necessary in proceedings dealing with youthful offenders. The JDA remained in force with very few amendments for 76 years. During that time, society changed and so did people’s attitudes towards youth, child welfare and the justice system. Increasingly, the JDA was criticized for a number of reasons.8 The most sweeping criticism of the JDA was that its philosophy was flawed. It presumed that the state always acted in the best interests of the child and that this approach had been effective. But critics of the JDA said the Act had not prevented delinquency and that it was time for other initiatives to be tried. One of the most vocal advocates for changing the JDA was Judge Omer Archambault, who wrote:
By adopting the role of a caring parent, critics pointed out, the state was overlooking the basic rights of young people. Young people, they argued, were denied rights to due process, to be represented by a lawyer, to appeal, to cross-examine witnesses, to be informed about charges against them and to participate in legal proceedings. Moreover, they said, those in authority had too much discretionary power. Critics saw little connection between the dispositions handed out and the seriousness of the acts committed by young people. In fact, young people did not have to commit a criminal act to come under the jurisdiction of the juvenile court. Young people could run afoul of the JDA because of vague allegations relating to a variety of non-criminal behaviours. The JDA was also considered to be out of date in terms of its categorization of offenders by age. Judge Archambault, one of the architects of the Young Offenders Act, argued that:
The JDA was also criticized for failing to provide a consistent legal framework for responding to youthful crime across Canada. For instance, the JDA allowed the maximum age to vary from province to province. TOP
The Young Offenders Act TOP Provisions of the Young Offenders Act After considerable discussion and consultation, the Young Offenders Act (YOA) was passed by Parliament in 1982 and came into effect in 1984. The Juvenile Delinquents Act was repealed that same year. The major features of the YOA are as follows: Principles and Philosophy The Act is based on four key principles:
The Declaration of Principles at the beginning of the Act mentions in particular that young people have the right to participate in deliberations that affect them, a right to the least interference with their freedom that is compatible with the protection of society, their own needs and their family’s interests, and a right to be informed about their rights and freedoms. Consistent with the principle of “least interference” is a scheme of “alternative measures,” defined by the Act, that can be used to divert young offenders from formal court processing. In addition, it allows officials to do nothing in certain circumstances if the situation warrants. Age Uniformity The Act creates uniform maximum and minimum ages for determining those to be dealt with in the youth justice system. Only those who have attained the age of 12 can come under the jurisdiction of the Youth Court. Those under 12 are deemed to be incapable of fully forming the intent necessary to be held criminally responsible for their acts. Instead, they are to be dealt with pursuant to provincial child welfare legislation. In terms of the maximum age, the YOA stipulates that those under 18 years of age will be treated as young offenders. Those over 18 are subject to the provisions of the adult system. Narrowed Jurisdiction While the JDA dealt with violations of the Criminal Code, other federal and provincial statutes, municipal by-laws and other “vices,” the YOA is more clearly concerned with criminal law. It covers only those young people charged with specific offences in the Criminal Code and certain other federal laws. The “catch all” offence of “delinquency” has been abolished. Rather, under the YOA, young people must be charged with a specific offence, and the same rules of evidence apply as in adult court. It is left to each province to decide how it will deal with offences involving provincial statutes and municipal by-laws. Manitoba allows such youth to be dealt with in the same manner as adults. Range of Dispositions The YOA stipulates and restricts the range of dispositions that are available to the Youth Court. These include: an absolute discharge; a fine of up to $1,000; compensation to the victim in terms of a monetary payment, an “in kind” payment, or the performance of personal services; a community service order; a treatment order; probation for up to two years; committal to intermittent or continuous detention in either “open” or “secure” custody for a period not exceeding three years; and any additional conditions that the judge considers to be in the best interests of society or the young offender. Each province is responsible for ensuring that the necessary programs are made available to the Youth Court. “Custody” is a term meaning a situation where a person has some restraint placed upon his or her liberty or freedom of movement. “Open” custody is defined as “a community residential centre, group home, child care institution, or forest or wilderness camp,” while “closed” or “secure” custody is “a place or facility designated by the Lieutenant Governor in Council of a province for the secure containment or restraint of young persons, and includes a place or facility within a class of such places or facilities so designated.”12 The intent appears to be to have “open” custody in a place without bars or locks. “Secure” custody is custody in a jail. This distinction becomes more important to our discussion later in this chapter, since in Manitoba some facilities have been designated as both open and secure custody facilities. Other Provisions The Act addresses numerous aspects of the administration of the youth justice system that were not previously the subject of legislation. For example, the YOA deals with such matters as: the creation, retention and destruction of records; the identification of young offenders by the media; guidelines on the photographing and fingerprinting of young offenders by the police; and access by the public to youth court proceedings. Despite the increased standardization that was brought about by the Act, provinces have been left with wide discretion to determine how the Act will be implemented and administered. Each province, including Manitoba, decides which court will hear young offenders’ cases, which facilities will be designated for the purposes of providing pre-trial detention and custody, which facilities are “open” or “secure,” which officials will perform the various duties that must be performed under the Act, and whether key programs, such as alternative measures and youth justice committees, will be established. Because of the manner in which the Young Offenders Act has been implemented, it appears that the repeal of the Juvenile Delinquents Act merely replaced one set of problems with another. We believe that certain elements of the JDA’s approach remain valid, and we will be calling for certain amendments to the YOA to reflect these concerns. At the same time, we believe that governments must also implement the YOA in the spirit in which it was intended. TOP
Youth Involvement with the Justice System under the YOA TOP The most recent figures on the operations of the Young Offenders Act in Manitoba have been provided by the Canadian Centre for Justice Statistics. CCJS data13 indicate that there were 10,476 Criminal Code charges laid against 3,834 youth in Manitoba during 1989–90. Although nearly half of the youth had only one charge, the average number of offences was 2.7 per person. More than half of the young people were 16 years of age or older at the time of their charge. Fewer than 20% were female. In Manitoba, of the 10,476 charges heard by youth courts, four cases were transferred to adult court, 3,703 guilty decisions were registered, 27 not guilty decisions were registered, 80 charges were dismissed and 29 charges were withdrawn. Proceedings were stayed in 2,507 cases. The CCJS also compiled statistics on the most serious crimes committed by these youth. About 20% had been charged with crimes against the person, usually assault. More than half had committed property crimes. The CCJS also analysed the cases by most significant disposition. Of the 2,387 young persons who were found guilty (some young persons were found guilty of multiple charges), 242 young offenders, or about 10% of the total number of cases, were sentenced to secure custody. Two hundred and twenty-three young offenders, or about 9% of the cases, were sentenced to “open” custody. The most frequently imposed sanction was probation. Probation was used in 1,104 cases, or nearly half of all the dispositions. The court ordered 377 young offenders (16%) to pay fines. It ordered 235 young offenders (10%) to perform community service. An absolute discharge was issued in fewer than 120 cases, or less than 5% of the total dispositions. The average term of “open” custody was four months. The average term of “secure” custody was five and a half months. On average, young offenders were sentenced to 10 months of probation. The average fine was a little more than $200. While the CCJS does not attempt to find out why nearly half of all these charges were stayed, a study completed for the Manitoba Attorney General’s department in 198614 may provide some clues. In examining a sample of cases coming before the youth courts in Winnipeg, the study found that about 40% of stayed cases employed alternative measures, usually after some court work had been done. The other 60% involved cases that were either stayed absolutely or stayed while more serious charges were considered. Overall alternative measures were employed only in about one-fifth of the cases. The study concluded that “too many young people become too involved in the criminal justice system for relatively minor offences.”15 TOP
Aboriginal Youth and the Young Offenders Act TOP The Young Offenders Act is a relatively new law and it remains controversial. It has already been the subject of amendments, and there is a significant and growing number of court challenges to the Act and to the way provincial governments have applied it. We believe the Young Offenders Act, as it is currently being implemented, is not serving Aboriginal young people well. There is little question that a more punitive approach has been adopted towards young offenders in Manitoba. As a result, more young Aboriginal people are being incarcerated. For example, our analysis of Provincial Court study data concluded that Aboriginal young offenders received open custody sentences that were, on average, twice as long (242 days vs. 109 days) as those given to non-Aboriginal young offenders. In addition, 18% of Aboriginal offenders received closed custody sentences, compared to 11% of non-Aboriginal offenders. Many observers and critics of the way the YOA is implemented have expressed concerns that the facilities and programs are inadequate, and that the Province is not devoting the resources needed to deal with young offenders. More young people are being put into custody in Manitoba. This has led some observers to conclude that provinces like Manitoba are adopting a punitive approach to young offenders, in part because the justice system demands more emphasis on “youth accountability.”16 We consider the legal protections afforded to young people under the YOA as being positive developments. Any youth accused of breaking the law is entitled to have that allegation dealt with in accordance with criminal justice standards. One important option that is no longer available to the courts is the ability to make a youth a ward of a child welfare agency, rather than incarcerating the youth. By taking this power away from the courts, we believe Parliament “threw out the baby with the bath water.” When sentencing young offenders, judges should be able to include any solution that appears to be in the “best interest of the youth,” providing that cultural concerns are taken into consideration when the best interests are being determined. In Winnipeg, for example, a dramatic increase in the use of custody following the implementation of the YOA has been documented:
In other words, the number of custody admissions in Winnipeg went up about 12% between 1983 and 1984, and more than doubled between 1984 and 1985, the year after the YOA was implemented. We believe that the Young Offenders Act provides a chance for new opportunities and more effective and innovative programming. However, we are concerned that these new opportunities are not being pursued in Manitoba. TOP
Failure to Implement the Principles of the YOA TOP Young Aboriginal people are not being dealt with according to the principles expressed in the Young Offenders Act. In particular, the statistics show the youth justice system does not deal with Aboriginal youth in a way that allows the “least possible interference”18 with their freedom. On the contrary, it appears the Act has been used to bring about a more intrusive and punitive system than the one that existed under the old JDA. We are concerned that the police, Crown attorneys, lawyers and judges are not using alternative measures enough.19 The Act gives officials the discretionary power to take no legal action whatsoever when the situation warrants, but they rarely exercise this discretion. Section 3(1)(d) of the Young Offenders Act gives the police the discretion to lay charges, depending on the circumstances and the “best interests” of the young person. We are concerned that most police officers are not using this discretion and that they resort to charging Aboriginal young offenders in most instances. This has been confirmed in at least one study of the Manitoba youth justice system.20 It appears the police feel that a young offender’s rights are more than adequately protected by the Charter of Rights and Freedoms and by the Young Offenders Act. Police also seem to believe that young people they charge will be “screened out” by the judicial process, through the use of alternative measures programs, after charges have been laid. As a result, the police lay charges in most cases, including many minor cases that could be dealt with more appropriately at a community level. Although consultation with the Crown prosecutor may be warranted in some instances, we believe the law fully empowers the police and, in fact, encourages them to exercise pre-charge discretion. We believe it is essential that they exercise this discretion, where appropriate, in favour of not laying charges. Once Aboriginal young people are in the justice system, Aboriginal communities and parents are most frequently left out of the picture and Aboriginal youth are subjected to the discriminatory impact of the system. While we know that alternatives to charging are sometimes pursued, we believe these options are not given enough attention by the police. Instead of arresting young people and automatically laying charges, we believe the police should consult with the community to see if there are alternatives to pressing charges. In some cases, a simple warning might suffice. In other cases, a parent or a knowledgeable community leader might be able to suggest a better approach. It also has been suggested the police might send warning letters explaining the behaviour of some young people to their parents. This system has been adopted in a number of jurisdictions, including British Columbia, apparently with some success. Many police officers appear to be ill-equipped to deal with young offenders, particularly with Aboriginal youth. Part of the problem appears to be organizational. Larger police departments in urban areas have separate youth divisions. Smaller detachments, like the one in Norway House, should have one or more youth specialists. None does. Special training should be provided to all officers dealing with Aboriginal youth. Reorganization and training, however, will not provide an adequate response to the problems we have observed. As we discuss more fully in Chapter 16, which deals with policing, there is also an urgent need to recruit more Aboriginal people to serve as police officers. We believe a new philosophy of policing is required, particularly where young people are concerned. In our view, the police have abandoned their traditional role as peacekeepers in a community and, instead, have adopted a much narrower “law enforcement” role. In doing so, they have missed important opportunities to serve Aboriginal communities. All too often they have applied “the letter of the law,” whether or not this is in keeping with the community’s interests. An approach that attempts to discover and deal with the cause of unacceptable behaviour, and to restore harmony to the community, should be adopted. TOP
Failure to Involve Aboriginal People in the Administration of the Youth Justice System TOP There has been little or no attempt to involve Aboriginal communities in the implementation of the Young Offenders Act, even though the Act provides many opportunities for community involvement. Further, as in the adult system, there are very few Aboriginal staff employed in the youth justice system. We are not aware of any Aboriginal staff in senior planning or administrative positions, and only very few full-time, paid staff, either Aboriginal or non-Aboriginal, work in Aboriginal communities. We question whether the youth authorities are adhering to the principles ensuring parental involvement. Phillip Dorion of The Pas told our Inquiry this story:
The parents or guardians of Aboriginal young offenders must be informed and involved at every step in the judicial process. It is not only police officers who overlook the parents. Lawyers, Crown attorneys, judges and probation officers should not only be consulting or informing parents or guardians, but they must be including the parents whenever decisions are made concerning their child. Section 56 of the YOA allows young people to sign a document giving up their rights to have their parents or some other adult present when making a statement to the police. We believe this section allows for a dangerous intrusion into the rights of a young offender. It certainly violates the rights of parents. The parents of young offenders, or some other responsible adult, should be present at all times when their children make statements to the police. We recommend the waiver provision be removed from the Act. In R. v. James in 1990, Chief Justice Dickson of the Supreme Court of Canada rejected the admissibility of a statement made to the police without parental or guardian supervision:
We also believe that the questioning of a youth should take place at home, in the presence of the parents, rather than at a detachment. We recommend that:
Bail and Pre-Trial Detention TOP Aboriginal young offenders are not provided with the earliest possible opportunity to obtain bail and are frequently denied bail. According to our analysis of Provincial Court study data, 59% of non-Aboriginal youth who spent time in pre-trial detention were released in less than three days, while the comparable figure for Aboriginal youth was 35%. Only 16% of non-Aboriginal youth spent more than 28 days in custody. For Aboriginal youth this figure was more than double: 34% of Aboriginal youth spend more than 28 days in pre-trial detention. It is shocking to learn that more than 90% of female young offenders held on remand were Aboriginal. Half of the male young offenders held on remand were Aboriginal. These problems occur for a number of reasons:
We believe the present practice of detaining Aboriginal youth prior to trial is disgraceful. We believe it violates some of the rights of young offenders under the Charter of Rights and Freedoms and is contrary to the intention of the Young Offenders Act. For example, section 515 of the Criminal Code requires a person to be released unless the Crown establishes that his or her detention is necessary. Section 515(4) of the Criminal Code states that the judge must be satisfied, first, that the person’s detention is necessary to “ensure his appearance in court.” If the judge is satisfied that the person does not need to be detained for that reason, then the judge must consider whether the detention is in the public interest, “having regard to all the circumstances including any substantial likelihood that the accused will, if he is released from custody, commit a criminal offence or interfere with the administration of justice.” If a judge is not satisfied that the detention is necessary on one of these grounds, the youth must be released. Section 7.1(1) of the Young Offenders Act provides that a young person may be placed in the care of a responsible person instead of being detained in custody if a youth court judge or a justice is satisfied that:
While that section permits a judge to release a detained youth to a “responsible person,” the only time a judge can consider doing so is once the decision has been made to deny bail. In other words, a youth who is denied bail for any reason can still be released to a responsible person. We question whether these sections are applied properly to Aboriginal young offenders. We suggest that the vast majority of Aboriginal young offenders do not need to be detained while awaiting trial. Considering that the majority of Aboriginal youth are held in custody for property offences, it is hard to imagine that there is a social need to lock them up to protect society. We have noted the positive impact Aboriginal child welfare agencies have had upon the quality of care being provided to Aboriginal children caught in the child welfare system. We suspect that many youth now being incarcerated could be kept out of, or released from, custody. These problems are illustrated best by the cases of Aboriginal youth from the North who are held at the Manitoba Youth Centre in Winnipeg while awaiting trial. They are held in custody with others who have committed crimes that range from the most trivial to the most serious. There is little doubt that the experience in both Agassiz and the Manitoba Youth Centre is not rehabilitative, but, instead, is destructive. In our view, early detention worsens the attitudes of Aboriginal young people. Aboriginal youth are held in custody before trial for inexcusable periods of time, sometimes until bail assessment reports are prepared, or until it is convenient for lawyers and others operating within the system to bring their cases to trial. We have heard, for example, that youth court judges are sometimes reluctant to grant bail without the preparation of a bail assessment report. To use bail assessment reports as an excuse for a delaying a bail application is not acceptable. The youth who is held in custody is entitled to bail at his or her first appearance. At that time, it is up to the Crown to show why the young person should be detained. If the Crown cannot satisfy a judge that the youth should be detained in custody, then the youth should be released when the application for bail is made. If, however, there is a strong probability that the judge will deny a bail application by a young person based on the information available to him or her, and if defence counsel can persuade the judge that additional information might allow bail to be granted, only then should a bail assessment report be ordered. It should be recognized that the preparation of bail assessment reports can be the cause of inordinate delay, and their ordering should be done only in those situations where bail would likely have been denied in their absence. We question whether bail assessment reports are always necessary or of assistance to the court in the way they are presently being used. While the YOA requires young offenders to be held in facilities separate and apart from adults, this does not, in our view, require sending youth hundreds of miles from their homes. Nor does it require a totally separate building. In The Pas, for example, young offenders can be kept in a separate part of the institution and have no contact with adult prisoners. In addition, we note that section 7 of the Act provides that adults and young persons do not have to be held in separate facilities if there is no place of detention for young people available within a reasonable distance. We suggest that a more innovative approach to the use of existing facilities could greatly reduce the current disruption in the lives of Aboriginal young people. We suggest that holding young people and transporting them around the province like so much cargo is contrary to the intent and the principles of the Young Offenders Act, particularly subsections 3(1)(f),(g) and (h), which ostensibly protect young offenders from undue interference and restrictions. Presently, these young people must be transported by commercial or government aircraft, and they are accompanied by escorts at all times. Not only is the process expensive, insensitive and short-sighted, but it is probably unlawful. The experiences of detention and release before trial are only marginally better for Aboriginal youth living in Winnipeg than for northern youth. They too are denied the right to a speedy bail hearing in disproportionate numbers and they too experience numerous delays in obtaining release. Alternatives to detention can be provided by community-based Aboriginal organizations. The Ma Mawi Chi Itata Centre is a good example of such a program. Ma Mawi Chi Itata Centre, as part of its youth program, operates a Judicial Release Supervision Program. It works with Aboriginal youth and court authorities to develop bail conditions. If bail is set, it monitors the youth. The bail supervision program has a staff of three Aboriginal workers whose objective is to have youth released from custody, rather than being kept on remand at the Manitoba Youth Centre. If the youth fails to abide by the conditions that are agreed upon, that youth’s bail may be cancelled. In addition to making sure the youth respects the bail conditions, Ma Mawi Chi Itata tries to rehabilitate the young person by encouraging further education and training, and by helping that person find a job. Unfortunately, the centre is understaffed and underfunded. We endorse the Ma Mawi Chi Itata Centre’s program and recommend that it be expanded and adequately financed. We believe, as well, that this type of program should be expanded throughout the province, both as an aid to the granting and supervision of bail and for the additional assistance it provides to young people. This type of Aboriginal agency, in our opinion, can fill a need not met now by the traditional probation services. We also believe it could provide diversion and alternative measures programs. In Chapter 8, which deals with court reform, we recommend that bail hearings be conducted in the community where the offence is committed, that communities be equipped to conduct assessments and to suggest alternatives to pre-trial detention before an accused person is removed from the community, and that community-based bail supervision programs be established. In our chapter on correctional facilities (Chapter 11) we recommend that short-term holding facilities be established in remote and rural Aboriginal communities, that accused persons be released on bail in their home communities whenever possible and that the Manitoba Youth Centre and the Agassiz Youth Centre not be used as open custody facilities. The adoption of these policies would end the current practice of transporting young people around the province and would also decrease the number of young Aboriginal people held in institutions. The following recommendations further address problems of pre-trial detention in the case of young offenders. We recommend that:
Transfer to Adult Court TOP The YOA allows some youth who have been charged with more serious offences to be transferred to adult court. They are then dealt with in the adult court system in the same manner as adults. If incarcerated, they serve their sentence in an adult correctional facility. Many of these transfers appear to occur where the Crown attorney intends to ask for a greater penalty than the three-year maximum provided for by the YOA. In our opinion, there is no need to transfer prosecutions under the Young Offenders Act to the adult courts. Judges of the Youth Court are perfectly capable of trying any type of charge. They have an advantage that other judges do not have. They deal regularly with the sentencing options available under the YOA and know how they can be applied in individual cases. They are familiar with the various youth correctional institutions and their services, and have experience in dealing with youth. If Parliament is of the view that longer sentences should be applied to youth who are convicted of certain offences, we suggest that more options be made available to youth court judges. If a concern is that Youth Court is too private, we suggest that judges be given the authority to open a trial to the public and to permit the reporting of proceedings and the naming of names. We consider these options preferable to transferring youths to trial in the adult criminal system and, when there is a conviction, incarceration in an adult institution. We believe it is in the interests of society and youth to have young people dealt with in the specialized Youth Court. We recommend that:
Custody TOP As in the adult system, Manitoba youth courts place too much reliance on custodial sentences. Like their adult counterparts, Aboriginal youth are incarcerated disproportionately. Moreover, institutional programs for Aboriginal youth are insensitive to Aboriginal culture and discriminate against Aboriginal youth. We believe that custody is not required in the vast majority of youth cases. Judges should make greater use of alternatives to incarceration. The Minister of Justice should ensure that alternative sentencing programs are made available to the courts. The present system of dealing with Aboriginal young offenders, by removing them from their communities, warehousing them and then returning them to their communities, is both ineffective and inconsistent with the principles of the YOA. Young offenders should be left in their home communities, except in the most extreme situations. Efforts should be directed to determining the reason for their unacceptable conduct, and at helping the youth and the parents to deal with the reason for the offence and to avoid any repetition of it. The main objective should be to restore harmony in the community. Most Aboriginal young offenders in Winnipeg who are detained in open custody end up at the Manitoba Youth Centre (MYC) in Winnipeg. The MYC is, we believe, a totally inappropriate place for the incarceration of youth on open custody sentences. Open custody should be in a facility without bars. At the MYC, however, there is little difference between open and secure custody. MYC, without question, is unsuitable for youth in open custody. To be blunt, it is a jail. Section 24.1 of the Young Offenders Act clearly indicates that Parliament intended open custody to be different and distinct from secure custody. Open custody is defined as:
It is hard to justify the use of the MYC, or of Agassiz for that matter, as an open custody facility, given the existing bars at the MYC and the nature of its staffing, policies, programs and thrust. It was suggested to us that the reason the MYC is used in place of regional facilities is purely economic. We find such reasoning abhorrent. The Province should never have designated the MYC or Agassiz as open custody facilities in the first place. The federal government should amend the law to prohibit provinces from mixing closed and open custody facilities. Young people should not be mistreated by the justice system because of a lack of resources. There is a responsibility on the part of legislators to ensure that appropriate resources are provided to properly carry out the intent of the laws they enact. It is also the responsibility of those charged with implementing the Act to do so as the Act intended. While it is understandable, in hard economic times, that tough decisions have to be made about how to do many tasks with fewer dollars, we note that the MYC and Agassiz were designated as open custody facilities from the onset of the Young Offenders Act. We suggest that the MYC and Agassiz be limited to secure custody, and that young people be sent there only as a last resort and only when they pose a danger to society. Unfortunately, judges have no say as to the facility to which a sentenced youth is to go. This is in the hands of the provincial government. We suggest, as we do for the adult system, that judges be entitled to designate the place of custody. When a judge is sentencing someone, the judge will want to have the youth receive appropriate treatment. The judge will have assessed the youth and the offence. Some youth may benefit from counselling; others, from a work preparation program. The judge will be familiar with the various programs available at different facilities and will be aware of the best facility for a particular youth. We recognize that those who operate a youth facility may conclude later that a youth should be moved, or the youth may not be able to be accommodated in a particular institution. In those circumstances, it would be understandable if the judge’s direction could not be followed. We suggest, however, that much more attention be paid to the opinion of judges. Judges should also exercise more control over placement by using the provisions of the Act that allow the court to name an individual to take charge of a youth. Aboriginal youth are not now receiving culturally relevant programs or training and assistance. MYC is making efforts in this direction but the atmosphere of the institution makes any chance of success unlikely. In addition to the jail-like atmosphere of the MYC, we found the overcrowding to be deplorable. While the staff tried to make light of the situation, equating it to camping, we found many young women were forced to sleep on the floor in their overcrowded rooms. We would be surprised if health authorities would approve of this type of accommodation for anyone. Recreation at the Manitoba Youth Centre, when we were there, was limited to one hour in the gymnasium every day. Admission to the weight room was limited and apparently depended on the youth’s conduct. Skates that were once available in the winter have been removed. We believe there is a need for considerably more recreational programming. The Agassiz Youth Centre at Portage la Prairie has good programs and deals with Aboriginal youth as well as might be expected in a non-Aboriginal institution. But the programs would function better if young offenders were counselled and directed by people from their own culture and their own communities. It too is another institution to which young people are sent from all over the province. In spite of the old buildings, we found the programs at Agassiz far superior to those at the Manitoba Youth Centre. Agassiz operates on the peer pressure principle called “positive peer culture therapy.” A great deal of time is spent in group discussions talking about personal problems and, in particular, the reason the youth got into trouble with the law. Residents receive lectures and view videos dealing with alcoholism, drug abuse and other issues. The residents are encouraged to work in the neighbouring community on a volunteer basis. Neither institution takes Aboriginal culture into consideration. The educational programs are the standard fare offered in public schools, with their pro-European cultural bias. These types of educational programs have been shown recently to be the cause of much of the alienation among Aboriginal youth. At the time of our visits, there were no Aboriginal cultural programs for youth at either the MYC or Agassiz. We believe that culturally appropriate programming for Aboriginal people must be an essential feature of any correctional facility. This is true especially for young Aboriginal people, since many of them have suffered from negative stereotyping or a lack of positive cultural models in non-Aboriginal school systems and other social institutions. We did not detect any awareness that such programs are needed, much less any commitment to their development in the future. Nor was there any appreciation of the rehabilitative potential of cultural programming. The fact that existing correctional facilities are situated far from Aboriginal communities is a problem. Successive governments have refused to consider establishing appropriate facilities for youth who reside in northern Manitoba. Most young people from the North have no contact with their family or friends during their incarceration. Because of distances and cost, these young people do not have the opportunity to visit their homes and to prepare for their eventual release. This creates a problem when Aboriginal young people try to reintegrate into their communities upon release. This is a lesser problem for Aboriginal families in the South, but even they have trouble visiting family members who are in custody. The number of young people from the North who are incarcerated clearly shows the need for better programs and facilities in the North. We think it is absolutely essential that young people be dealt with in, or as close as possible to, their own communities. Many northern Aboriginal youth we saw at the Manitoba Youth Centre and the Agassiz Youth Centre could benefit more from supervision at home or in foster home settings in their own communities. Others could be housed in custodial facilities in their own communities so they might go to school or perform community service during the day. Even the more troublesome youth, who have to be removed from their communities, could live in a camp setting not too far from their homes. We recommend the use of wilderness camps for Aboriginal youth. These camps should be staffed by Aboriginal people and should offer a combination of work, education, recreation and counselling. The education component should include Aboriginal culture and life skills courses. The work should be geared to providing skills to enable the youth to obtain employment upon their release. In our opinion, these camps would be less costly to establish and operate than traditional jails. Similar wilderness camps might be established in southern Manitoba. In a brief to our Inquiry, the Ma Mawi Chi Itata Centre recommended that custody homes be established in Winnipeg to reduce the number of young people being held in secure custody before and after their trial. The custody homes would permit youth to find work or to continue their education during the day and to return to the homes at night. While we believe the use of any form of custody can be reduced substantially, the type of program advocated by Ma Mawi would be a significant improvement over the types of custody programs that are now being used. Elsewhere in our report, we recommend that incarceration should only be used in instances where the offender poses a threat to an individual or the community, or where any other sanction would not sufficiently reflect the gravity of the offence or penalize an offender for wilful non-compliance with the terms of any other sentence that has been imposed. We also recommend that correctional institutions introduce policies which guarantee Aboriginal inmates the right and the opportunity to exercise their spiritual beliefs, and that institutions offer Aboriginal inmates culturally appropriate education, trades training and counselling programs. We believe these recommendations must be implemented in correctional institutions for young people, as well as in those for adults. We recommend that:
Finally, we are concerned about the youth older than 18 years who remain part of the youth justice system. Presently, the Act allows young people up to the age of 21 to serve their sentences in youth custody facilities. They may have committed their crime before the age of 18, or they may have had their sentence extended beyond their 18th birthday. This creates two problems. First, the older youth do not have access to programs that are appropriate to their age and interests. In fact, they tend to stand out because they are much older than most of the other youth who are in custody. Secondly, some of these young adults appear to be a bad influence on the younger offenders. We strongly urge correctional administrators to use their discretion to bring such cases to the attention of the court. Consideration can then be given to transferring these older offenders to more appropriate adult facilities. Section 24.5 of the Young Offenders Act already permits the transfer of young offenders to adult camps or correctional programs. Great care, of course, will have to be exercised in assessing the needs of those whose transfer is being considered. TOP
Youth Justice and Child Welfare TOP Aboriginal young people have not been well served by the separation of the child welfare and the youth justice systems, a separation that has been accentuated by the Young Offenders Act. When family support systems fail, young Aboriginal people may resort to unacceptable conduct merely to call attention to their predicament. They may try to escape from their homes to find a more secure environment. We have heard of young people breaking the law so they could be sent to the Manitoba Youth Centre for that very reason. In these cases, we do not believe it is always appropriate for the criminal justice system to respond by treating them as criminals. Yet, that is what happens now. As we discuss more fully in Chapter 14, which deals with the child welfare system, many Aboriginal youth who become involved in the justice system are products of a failed child welfare system. This failure is often signalled by a breach of the law, but it starts much earlier. At present, if a youth in the care of an agency is charged, agencies appear to walk away from the youth, surrendering the child to the youth justice system. The agency may be relieved to lose a client, but the criminal justice system is ill-equipped to provide help for those young people with primarily social, cultural or family problems. Aboriginal young persons are often abandoned and left to their own resources, sometimes for years, while the criminal justice system tries to react in a narrow, legalistic fashion, resulting in social dysfunction. There is an unfortunate lack of cohesion between family service agencies and the youth court system. Aboriginal youth involved in crime are often simply in need of additional and appropriate support services from social service agencies. In many cases, these types of services would be sufficient to keep the youth out of trouble with the law. Instead, because agencies refuse to get involved with a youth charged with an offence, the full and inappropriate force of the criminal justice system is often applied. Many of the cases we are referring to could be diverted from the criminal justice system by the police, by the Crown prosecutor and by judges. When such cases must be dealt with in court, youth court judges should involve family service agencies where their services might be more appropriate than the correctional ones. The Juvenile Delinquents Act had a provision that allowed judges to involve child welfare or family service agencies. It stated that “the court may, in its discretion ... commit the child to the charge of any children’s aid society”22 or to the superintendent of a municipality in cases where there was no such society. There is no similar provision in the Young Offenders Act. We recommend that:
We do not recommend a total return to the approach of the Juvenile Delinquents Act, but a better balance between the concerns of the JDA and the Young Offenders Act. It is disheartening to see a criminal justice system trying to deal with what are essentially problems of families and communities in crisis. Appropriate dispositions do not always flow from an adversarial criminal justice system, but can, we believe, flow better from a process which takes into account all options that serve the best interests of young people and their families. The “criminal justice” orientation of the dispositions now available under the YOA has proven to be inappropriate where the misdeeds of the youth stem from his or her response to a poor or negative family situation. While we recognize that it is undesirable to have a youth justice system completely dominated by a child welfare philosophy, the current “criminal” approach is equally inappropriate. What is needed is to have the justice system and the child welfare system develop a coordinated and cooperative approach to the problems of young people. They should be working in unison, and not at arm’s length, the way they have for many years. We leave others to consider whether there should be unification of certain parts of each system. Youth with problems should receive assistance from both services. We also note that a more holistic approach, with family service agencies and youth courts working together for young people, was intended by the tripartite Indian Child Welfare agreements that were negotiated in the early 1980s. Article 4 of the Canada-Manitoba-Indian Child Welfare Agreement states, in part, that the agreement would be the basis for the integration of Indian child welfare, related family services and Indian juvenile probation services. These services would be transferred to the eventual control of Aboriginal communities and their institutions. The provincial position, however, was that probation should not be confused or integrated with a child welfare-oriented service. Therefore, the young offender component has not been transferred, except in the case of the programs provided by the Dakota Ojibway Tribal Council. We disagree with the opposition of the Province of Manitoba to the transfer of these services. We are satisfied that Aboriginal communities suffer from a lack of probation services. This invariably results from the lack of commitment of adequate resources by provincial government departments, and a belief on the part of provincial officials that such programs, particularly in Indian communities, are the responsibility of the federal government. As a consequence, Aboriginal youth placed on probation suffer from lack of supervision. They do not see their probation officers often—if at all. Moreover, the probation worker is usually from a southern community, sometimes hundreds of miles away, and lacks important information about available resources, the community dynamics affecting the youth’s behaviour, and many other important factors. To overcome the problems we have identified will require a lot of work and cooperation on many fronts. In Aboriginal communities, Aboriginal child and family service agencies have been working for a number of years and are well accepted by Aboriginal communities. These agencies should have their mandates expanded so they can also deal with young offenders and their probation. They should be in a position to accept referrals from the courts and others. In addition to probation, they could establish bail supervision programs. They could provide the counselling and programs needed by young people. They will need additional resources, and these should be provided. These agencies, we believe, are in the best position to bring about the change in philosophy and approach that we think necessary. While we hope and expect that many cases will be kept out of court if the recommendations we have proposed are adopted, we know that there will be some cases that will proceed to court. In Aboriginal communities, both child welfare and young offender cases should be dealt with by Aboriginal justice systems. We also deal with some alternative measures later in this chapter. In non-Aboriginal communities, and in Aboriginal communities where Aboriginal courts are not yet developed, other changes will have to be made. We believe it will be necessary to unify the courts so that young offender and child welfare matters can be dealt with in one court with appropriate support services. In Winnipeg, where separate courts hear these matters, delays can occur because a case handled by one court may have to wait while the other court deals with a related situation. Elsewhere, we recommend the amalgamation of the Court of Queen’s Bench and the Provincial Court of Manitoba. We believe the courts should have a range of options available to them in both the child welfare and youth justice systems dealing with young people. The unification of the courts would make this possible. We recommend that:
Diversion and Alternative Measures TOP As we have seen, the current youth justice system is neither effective nor fair as far as Aboriginal youth are concerned. While we have proposed a number of specific reforms throughout our discussion, it would be misleading to leave the impression that anything short of fundamental change is required. In particular, we believe that:
Perhaps most important of all, we believe that the administration of youth justice in Aboriginal communities should be vested in the governments of those communities. This should ultimately include the establishment of Aboriginal youth courts and the appointment of Aboriginal judges. We see the youth justice system as an important part of the Aboriginal court systems which we discuss in Chapter 7. In non-Aboriginal communities, and in Aboriginal communities where Aboriginal courts are not established, it is our assessment that a significant expansion of diversion and alternative measures programs represents the best hope to achieve the fundamental restructuring of the youth justice system. These programs, we believe, offer the potential to radically alter the way we deal with youth. We see the opportunity for significant benefits, not only to young people, but also to their families and society as a whole. It is for this reason that we provide an extensive review of diversion and alternative measures programs in this section. In Aboriginal communities where an Aboriginal justice system is established, formal alternative measures programs may not be needed. Aboriginal justice systems will undoubtedly incorporate traditional and customary Aboriginal practices. Provided that Aboriginal communities themselves manage and are accountable for those systems, we expect the philosophy will be based on their own customs and traditions that seek the restoration of peace and harmony in the community. In effect, “alternative measures” will be considered in just about every case. TOP
The Purpose of Juvenile Diversion and Alternative Measures TOP The juvenile justice systems we discussed earlier were established first in the late 19th century to remove youth from the harshness of the adult system and to treat them in a manner which would more likely rehabilitate them. The creation of a juvenile justice system, distinct from the adult system, was an improvement over previous practices. During the 1970s, in both Canada and the United States, there was a gradual move toward “diverting” some youth from the traditional justice system. The concept of “diversion” became very broad and was used to describe a wide array of distinct, but loosely related, types of programs and policies. While there are some similarities between the terms “diversion” and “alternative measures,” we will attempt to separate the two for the purposes of our discussion and to give each a distinct meaning. We will speak of “diversion” to indicate any plan or program that is intended to keep a youth out of the court system altogether. Diversion programs can be used instead of laying a charge. As a result, the court would have no involvement with the youth. Whether a charge might have to be laid in the future might depend on the success or failure of the diversionary efforts. “Alternative measures,” on the other hand, will refer to programs or options for dealing with young offenders once they are charged with an offence and within the court system. The term “alternative measures” is dealt with in some detail in the Young Offenders Act. The court has some continuing involvement in that a charge hangs over the youth until the alternative measures prescribed by the court are complied with. There are a number of related rationales for diversion and alternative measures, including: a concern that young people not be turned into or branded as criminals; a desire to rehabilitate rather than “warehouse” them; an interest in having greater community and victim involvement; and, ultimately, a reduction in youth criminal activity. Young people who fall into the juvenile justice system come to see themselves, and to be seen, as offenders. They are labelled as “bad kids” and they come to think of themselves in that way. This greatly increases the risk of reinvolvement in the justice system. Their involvement in the justice system frequently exposes them to more serious offenders who may actually encourage their “graduation” into more serious crime. Once they have become involved in the system, the youth are likely to be responded to by authorities and others in a variety of ways that reinforce this negative self-image. Diversion may help reduce this labelling effect. The traditional youth court setting is not as helpful as many hoped it would be, and often is harmful, particularly for Aboriginal youth. It is difficult to establish a meaningful dialogue with a young person in a formal court setting, where the judge is expected to be an impartial arbiter. Diversion offers a greater promise of overcoming this inherent problem within the legal system. It keeps the youth out of the courtroom altogether. Diversion and alternative measures programs provide the opportunity for victims to play a more important role than that accorded to them by the criminal justice system. The role of the victim in our present system is still limited largely to being a witness in court proceedings. In Aboriginal communities, victims often can be close relatives or members of the extended family of the offender. They typically receive very little information about the cases in which they are involved, and often express bitterness about the lack of sensitivity of the criminal justice process toward them. Diversion and alternative measures programs have tended to be more sensitive to the needs of victims. Many programs employ victim-offender reconciliation and restitution. This type of reconciliation is preferable in Aboriginal communities where the restoration of harmony is the goal. Diversion and alternative measures programs involve the community. They are designed to ensure that program decision makers and administrators are members of the same community as the offender. This allows community values and traditions to be accommodated. This is often difficult to achieve in the formal criminal justice system. Moreover, communities can be given a measure of responsibility for their own offenders. Traditional adversarial models of juvenile justice have proven to be slow, expensive and cumbersome. Diversion and alternative measures programs can operate, we believe, in a more efficient and expeditious manner. TOP
The Young Offenders Act, Alternative Measures and Diversion TOP The YOA’s Declaration of Principles makes explicit reference to alternative measures, as well as to broader notions of minimal intervention. According to the Act, “alternative measures” includes “diversion.” The Act says:
Section 4 of the Act establishes a legal framework for the operation of alternative measures programs. Although this section gives substantial flexibility to governments and program operators, it is careful to protect the rights of young persons. For example, the young person must acknowledge responsibility for the act and consent to the specific alternative measures that are being proposed. In addition, the young person has the right to consult a lawyer and the right to have the case proceed to court. The YOA has made possible a wide array of diversion and alternative measures programs across Canada. While, in theory, there is no limit on the types of offences or offenders which can be dealt with by diversion or alternative measures, most programs deal with first offenders or those charged with less serious offences. Youth Justice Committees One of the most promising delivery agencies for diversion and alternative measures programs are youth justice committees. In Manitoba, a number of community-based organizations operate diversion and alternative measures programs. Most of these organizations have developed as youth justice committees under section 69 of the YOA. The section states:
There are 10 Aboriginal youth justice committees currently operating in Manitoba. They become involved with youth in one of two ways. If a youth is causing trouble in the community, the band constable or another police officer, a member of the band council, the parents or any concerned person can ask the youth justice committee to become involved in the case before a charge has been laid. If a charge has been laid, the youth can still be referred to a youth justice committee by the Crown attorney or, later in the process, by a judge. Once a young person agrees to participate, the youth justice committee meets with the youth to discuss the problem and the options that are available. These might include writing an essay, making restitution to the victim, performing community service work, participating in a recreation program, or seeking some form of counselling. The range of measures is limited only by the resources and imagination of program administrators and the consent of the youth. Some youth justice committees provide bail supervision, others supervise probation orders, while still others are involved in victim-offender reconciliation and other forms of alternative dispute resolution. Some make representations to the court on behalf of young offenders. We believe these committees perform an important service and should be expanded, not only in urban centres, but also in rural and Aboriginal communities. Aboriginal communities, which tend to be more remote, are not being encouraged to pursue or expand such programs at this time. Provincial guidelines and funding priorities must be adjusted to rectify this problem. We do not understand why youth justice committees, some of which are becoming quite sophisticated, should be required to operate without the financial and administrative support that is accorded to other components of the justice system. Nor do we understand why section 69 of the YOA stipulates that members of youth justice committees must serve “without remuneration.” Some examples of successful youth justice committees include: • The Island Lake / St. Theresa Point Youth Justice Committee. During the course of our hearings in the Island Lake area, residents of the St. Theresa Point Indian Band told us about the workings of their youth justice committee. Several parents lobbied for the establishment of the committee in hopes of dealing with a growing number of young people who appeared to be engaging in gas sniffing and truancy. The committee was established by the community and is based on the traditions and customs of the tribe. The committee began calling young people who were sniffing gasoline and not attending school to appear at meetings where they were lectured by elders about their inappropriate behaviour. Generally, the rebuke took place in public meetings with others from the community in attendance. Soon, the parents were also called to account. In this way, the committee functioned as a true diversion program. Eventually, young people who faced criminal charges were being referred to the committee as an alternative to formal court processing. The band council then took a further step by appointing a community “magistrate.” While this position has no status under either provincial or federal laws, the individual is considered by the community to be acting upon authority stemming from known tribal customs. There does not appear to have been any instance where a person in the community has questioned the authority of the community magistrate. The RCMP have been supportive of the program. They have found it so effective that they too refer young people to the program, rather than laying a charge, as they would likely have done before the program was instituted. We were advised that the number of young offender crimes in the community has been reduced dramatically. • The Wi Chi Whey Wen Youth Justice Committee. The Ma Mawi Chi Itata Centre, which provides voluntary services for Aboriginal families in Winnipeg under Manitoba’s Child and Family Services Act, has established this youth justice committee under the YOA in conjunction with the Probation Service of the Province of Manitoba. The purpose of this committee is to provide diversion and alternative measures for Aboriginal youth. The close working relationship between a child and family service program and a youth justice committee is encouraging since, as we have noted elsewhere, there is often a direct link between Aboriginal youth in need of social services and Aboriginal youth crime. This sort of cooperation is rare and is to be encouraged. While the program is beneficial, it needs more resources to deal with the large number of Aboriginal youth coming before the courts in Winnipeg. • The Roseau River Tribal Council Justice Committee. In the 1970s, the Roseau River Indian Band had a reputation for rates of violence and crime that exceeded those of most other communities in Manitoba. In 1973, Judge Robert Kopstein of the Provincial Court, who had been hearing cases from Roseau in a nearby non-Aboriginal community, started to hold regular court sittings on the reserve. He and Milton Kotyk, a probation officer, met several times with the chief and council of the band to discuss the problems and what could be done about them. As a result of these meetings, the band established the Roseau River Justice Committee. The committee was made up of several people from the band. At first, the committee members asked the judge if they could observe the court proceedings. He agreed. Later, the judge agreed to have a member of the committee sit beside him in the courtroom. From time to time, when sentencing a band member, the judge would ask the committee members for the opinion of the committee. The committee member often spoke about the community’s concerns. In this way, the band had an effective voice in the proceedings. The committee later instituted a youth diversion program, with the assistance of the local probation officer, the judge and the Crown attorney. Both the police and the Crown attorney began referring cases to the committee. Sometimes, the committee would initiate meetings with youth and their parents to deal with complaints concerning a youth’s conduct. The committee could impose a variety of community sanctions, including requiring community service work, suspending a youth from involvement in recreational programs, suspending a youth from school, requiring a youth to apologize to the victim or the community, or even banishing a youth from the community. Anyone unhappy with the committee’s disposition could appeal to the chief and council, although this rarely occurred. At the time the committee was most active, the band was undergoing a cultural revival. This revival was partly responsible for the improved conditions on the reserve. But most residents feel that the efforts of the youth justice committee significantly helped to reduce the incidence of crime and violence. The community committee continues to be active. It operates as a diversion and an alternative measures program, and deals with many of the cases where young people from the reserve get into trouble with the law. TOP
Other Examples of Diversion and Alternative Measures TOP During the course of the Inquiry, we heard presentations from a number of organizations that either were operating diversion programs or were hoping to establish such programs. They included: •The Community Dispute Centre. This service is a community-based organization in Winnipeg’s North End and Inner City. The centre aims at providing people with the means to settle conflicts in a non-violent manner, without recourse to the legal system. The process relies on the use of face-to-face meetings between the parties to a dispute and third-party mediators. The centre’s executive director, Robert Miller, said the centre “views mediation as a way of strengthening communities and empowering people to deal with conflict in their daily life.” The centre deals with a variety of neighbourhood conflicts, such as landlord and tenant disputes, but it does not involve itself in matters where criminal charges have been laid. •Mediation Services. This program, sponsored by the Mennonite Central Committee, works in cooperation with the Winnipeg Police Department and the Crown attorney’s office to provide mediation as an alternative court process. According to Paul Redekop, the Mediation Services representative who appeared before our Inquiry, the service “is oriented to the principle of restorative justice. This principle sees justice to be done when relationships which were disrupted because of criminal acts are restored.” The service makes use of face-to-face meetings of victims, accused individuals and trained volunteer mediators. The mediation service is provided as an alternative to the court process in cases where criminal charges have been laid and a plea has not been entered. Cases from both adult court and Youth Court are diverted to Mediation Services. Both the victim and accused must agree to the process. The service subscribes to a model of restorative justice, as opposed to retributive justice. Mediation Services deals largely with assault cases, along with some property disputes and some abuse cases. •The Native Harmony and Restoration Centre. This is a proposal of the Interlake Reserves Tribal Council. The council wishes to establish the centre at Pineimuta Place, a former federal radar base near Gypsumville now owned by the council, as a diversionary and alternative measures facility. The centre would combine traditional tribal customs and values with post-secondary education and vocational training. Its long-term goal is to allow those who have been in conflict with their community to return to it healed and reconciled. The centre would allow the offender’s family members to reside at the centre and, because it is located in close proximity to a number of Aboriginal communities, would provide an opportunity for reconciliation between the victim and offender. TOP
Diversion in Manitoba TOP 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. TOP
Alternative Measures in Manitoba TOP The Young Offenders Act provides a number of suggestions and directions to the Youth Court and to others dealing with youth who come before the court. Unfortunately, not enough attention is given to exploring all these options in every case. There is too much use of traditional sentences, including probation. We would like to see alternative measures programs applied to take advantage of the options referred to in the Act. In this way, society and Aboriginal youth will benefit. If an alternative measures program has been complied with by a youth, section 4(4)(a) of the YOA says the court shall dismiss the charge. The Act leaves it up the Attorney General of the province to develop guidelines for alternative measures programs. The current guidelines specify that young persons can only be referred to alternative measures if they have committed less serious offences and do not have a prior history of serious offences. Manitoba’s alternative measures scheme excludes young persons charged with serious driving offences, crimes of violence or threatened violence, and crimes resulting in a total loss of over $1,000. We consider it inappropriate that a provincial Attorney General can negate the principles of the YOA by establishing restrictive criteria for the use of alternative measures. We recommend that this power be removed from the Department of the Attorney General. We believe that youth court judges who deal with young offenders on a daily basis, and who continually search for ways to deal with them, are in a much better position to devise and apply alternative measures. We recommend that new guidelines be established to provide that alternative measures programs are available to all offenders. The police, lawyers, Crown attorneys and judges should consider such measures in every case. This is particularly important if an offender has never been offered the opportunity to participate in an alternative measures program. Some of the alternative measures we think should be considered are:
In our opinion, these types of measures will be much more effective in dealing with inappropriate conduct on the part of Aboriginal young people than would be a conviction and the imposition of a fine or incarceration. They certainly are more appropriate in Aboriginal communities. The person or group to whom a youth is referred can be asked to report to the court after a period of time. If the alternative measures program does not work, the youth can be brought back to court. We recognize that all young offenders cannot be dealt with in this way. Many of those who have committed serious offences may require a more severe approach. Nevertheless, the court should keep alternative measures in mind in every case and should refrain from taking another step unless and until these alternatives have been discussed with the lawyers and the accused. TOP
International Examples: The Scottish Experience TOP An example of the type of approach we believe should be examined is provided by the Scottish Children’s Hearings System. Young offenders in Scotland benefit from having the court and social service systems work together to solve youth and family problems. In 1964 the Secretary of State for Scotland appointed a committee under the chairmanship of Lord Kilbrandon to consider the manner in which truants, juvenile delinquents and children in need of protection were being dealt with. The committee made no distinction between children who were neglected and children who had committed offences. It took the position that all unacceptable behaviour was the result of abuse, neglect or deprivation on the part of care-giving adults, the community or the state. This was much like the philosophy of Canada’s Juvenile Delinquents Act. Because of the committee’s philosophy, questions of guilt or innocence were seen as being largely irrelevant. In fact, the committee believed that most of the 95% of juveniles charged with an offence who plead guilty ought to be dealt with by social service agencies outside the court system. They argued that all troubled youth should receive treatment and education to assist them in becoming productive members of society. The system recommended by the Kilbrandon committee to provide services to troubled youth was to be known as the Children’s Hearings System. This program was intended to be distinct from the courts and to be a part of the social service system. It was to deal with all who would have been dealt with formerly by the juvenile court system or by the child welfare system. Three basic assumptions and principles formed the basis for the new program:
The position of “reporter” was key to the committee’s proposals. A reporter, usually a professionally trained social worker, was given wide powers to receive and investigate complaints referred by the police, social welfare agencies, the schools or anyone in the community. Complaints could be dismissed by the reporter, the case could be monitored, or the complaint could be referred to a Children’s Panel. Under the Scottish system that now exists, a Children’s Panel is appointed for a period of three years and members are expected to sit for at least three months a year. Members have experience in dealing with children and their problems, but they need not be trained professionally in social work or the law. Panel members undergo an intensive six-week training course. The only reason for referring a case to a panel is if “the child is in need of care.” When a reporter refers a case to the Children’s Panel, both the youth and the parents are informed of the nature of the referral. A hearing date is set within a few days. Parents and child may be accompanied by a clergyman, doctor or any other person. Social workers, teachers, counsellors or psychologists may also be present. There are no particular rules of procedure. The hearing takes place, not in a courtroom, but in a room with those present seated around a table. The intention of the hearing is for parents, children and panel members to assess the gravity of the problem and to reach agreement on how best to treat the situation. The system is designed specifically to avoid the formal adversarial procedures of a courtroom. Its decisions, nevertheless, are subject to appeal to a court. If a dispute arises concerning the grounds of the referral, or if no agreement can be reached, the panel must inform the court. The court is then required to hold a hearing within seven days. A panel may order the removal of children at risk, and young offenders may be sent to a residential school. Children removed from parents remain the responsibility of the panel, even if they are being looked after by foster parents or in a children’s home. The panel may also order supervision of various kinds. For example, they may require a youth to go to an attendance centre, which is a day program, staffed by police officers, that provides programs on physical education, handicrafts, citizenship and the like. While there are aspects of the Scottish program that appeal to us, we do not support such extensive authority for an alternative measures or diversion program in Manitoba. An important part of the Scottish system of dealing with youth is the role of the police and, in particular, the way they deal with young people who have committed offences that are not considered serious enough to warrant charges being laid. The police may require the youth and the parents to report to the police station to receive a warning. The Kilbrandon committee reported that about 90% of juveniles dealt with by the police in this way do not come into police hands again. The Police Juvenile Liaison Scheme, which was introduced in Liverpool in 1949, continues, with local variations, in several parts of Scotland. The scheme is basically a program to follow up with the child, both at home and at school, after a warning has been issued. This usually involves visits by the police and sometimes by the clergy. We believe the children’s panels and Juvenile Liaison Scheme are examples of ways in which the justice system can employ “child welfare” principles in dealing with young people who have come into conflict with the law. As we mentioned earlier, however, such an approach works best in cases where the youth’s responsibility for the breach of the law is either proven or admitted. As a way of disposing of such cases, we think the approach is commendable. TOP
Application of Alternative Measures in Manitoba TOP There is a broad range of diversion and alternative measures programs, and most share, at least to some extent, the philosophy that rehabilitation, reconciliation and restitution should be emphasized over retribution, particularly with young offenders. Some programs focus on victim-offender mediation or reconciliation, while others are more broadly based alternatives to the formal court system. It is apparent that the degree to which Aboriginal youth benefit from alternative measures programs, no matter how they are structured, will depend heavily upon the way such programs are delivered. We recommend that:
In our opinion, Aboriginal alternative measures programs, which provide culturally appropriate services and programs to Aboriginal youth, would go a long way towards reducing the over-representation of Aboriginal people in the youth justice system. These types of programs are needed not only in or near urban communities. Smaller Aboriginal and non-Aboriginal communities need them too. TOP
Aboriginal Youth and the Justice System—General Issues TOP In addition to our criticisms of the Young Offenders Act, we believe that young Aboriginal people who are accused of crimes in Manitoba are victimized by the justice system in much the same manner as are adult Aboriginal people. Elsewhere in this report, we deal with the problems created by our court system, the method of providing legal representation, the provision of bail, pre-trial detention, sentencing, correctional institutions, the lack of culturally appropriate programming in the justice system and the problems created by the low numbers of Aboriginal people employed in the system. At the risk of repeating ourselves, we believe it is important to review the manner in which these issues affect Aboriginal young people. TOP
Systemic Discrimination TOP Many Aboriginal people who testified before our Inquiry felt they were discriminated against by the justice system at nearly every step. They felt they were discriminated against by the police, lawyers, Crown attorneys, judges and probation officers for a variety of reasons. They felt they suffered discrimination because their cultures, societies and languages were different. They felt they suffered because of their low social standing and educational levels and their high unemployment. They felt they were discriminated against because of the poverty, living conditions and social problems in their communities. They felt discriminated against because of the remoteness of many of their communities, the lack of services and the absence of officials who might provide local alternatives to the incarceration of their youth in mainly southern institutions. Finally, they felt discriminated against and taken advantage of because they often did not understand either their legal rights or the legal process. They felt the steps taken to inform them of these rights were insufficient. In their criticisms, many witnesses did not separate or distinguish between the youth and the adult justice systems. To them, the justice system was one monolithic entity. It was often symbolized by a plane that arrived in their communities perhaps once a month with the police, a Crown attorney, a Legal Aid lawyer and a judge. They often did not understand what was being said or what was being done in court proceedings, but they knew some of the results. Young people would be taken away and sentenced to custody in some faraway facility. The problems begin even before any crime has been committed or any law has been broken. Aboriginal youth are frequently denied programs in their own communities that might help them steer themselves away from an encounter with the law. For example, there are few recreational facilities in Aboriginal communities. There are few, if any, crime prevention programs in Aboriginal communities. There are few, if any, public legal education programs that educate Aboriginal young people about the law. There are no programs to tell them their rights or what to do if they are arrested.23 If they are arrested, northern Aboriginal youth are more likely than non-Aboriginal youth to be taken from their families and communities to wait for a hearing in a correctional facility, usually hundreds of miles away. Since there are no open custody facilities in Aboriginal communities, few probation officers to speak on their behalf and few existing alternative measures, young Aboriginal people are more likely to be held in custody. They are more likely to be denied bail. They will probably not have much, if any, time to consult a lawyer before their hearings. They are more likely to have their hearings remanded, over and over again. They are more likely to be sentenced to custody after their hearings and to receive longer sentences than non-Aboriginal youth. They are less likely to be accepted for an early release program or to be able to take advantage of the appeal process. Time after time, people from Aboriginal communities repeated these complaints and observations to our Inquiry during its hearings around the province. The justice system is much more likely to interfere with or to disrupt the lives of Aboriginal youth in ways that rarely happen to non-Aboriginal young people living in a southern city. For example, non-Aboriginal young people would not likely be “scooped up” from their homes and communities to be whisked away to pre-trial detention facilities hundreds of miles away. They would not likely have to appear for a hearing and have no one able to attend to vouch for their character or to suggest alternatives to incarceration. They would not be expected to endure undue hardship or expense in order to attend the court. They would have support programs and appropriate facilities available in their own communities. 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. TOP
Crime Prevention TOP There is virtually no effort by the criminal justice system, or any other system, aimed at preventing youth crime in Aboriginal communities. However, the Province is allocating vast resources to respond to crime once it has occurred. We believe the priorities are misplaced. Crime prevention must take into account the culture of the community, in addition to the severe social and economic realities of the community or area. This must include an understanding of the causes of family dysfunction, and the historical and contemporary situations facing young Aboriginal people. Crime prevention programs must take into account the poverty, deprivation and isolation faced by many Aboriginal communities and their youth. Crime cannot be prevented without addressing these problems. As LaPrairie explains:
Recreational activities for Aboriginal youth are nonexistent in many Aboriginal communities. Boredom is a common complaint of the young people and a serious concern of community leaders. Sadly, we heard that some youth commit offences just to enjoy the excitement of a trip out of their community. There is no question in our minds that the absence of constructive social and recreational opportunities is linked to the incidence of juvenile delinquency. Some efforts have been made to improve recreational opportunities. In Berens River, for example, we were told of the tremendous drop in crime which accompanied the attendance by the community of the Northern Fly-In Sports Camp. This non-profit organization sets up sports camps in northern communities for several weeks each summer. This experience clearly shows that the problem of youth crime in northern Manitoba, and probably elsewhere, can be addressed to some significant degree by the provision of adequate and appropriate youth recreational programs. The government has reduced its support for this program. We recommend that support be reinstituted and expanded. We recommend that:
Youth Court Services TOP There is no court communicator in regular attendance at the Manitoba Youth Centre or in Youth Court. There is one Aboriginal judge. But there are no Aboriginal Crown attorneys in Youth Court or in any other court, for that matter. Aboriginal young people have as great a need as adults for Aboriginal court workers. We see the functions as being similar to those of adult court workers. They should be available to explain procedures, identify options, and generally provide advice and assistance. When necessary, Aboriginal court workers should also advocate before the court on behalf of the Aboriginal young person. They can also assist in the identification of cases that may be suitable for alternative measures. Aboriginal youth court workers would have a special interest in young Aboriginal people. These workers would understand the communities from which the youth come, the problems they are likely to confront and the resources that are available to assist them. We recommend that:
Staffing TOP If we are to begin restructuring the justice system, we have to begin with the people who plan and administer the system. According to the best information we have been able to obtain, there are no Aboriginal people involved in the planning or the administration of youth services at the senior or mid-management levels. This applies to the Manitoba Youth Centre, the Agassiz Youth Centre, probation services, and central office staffing in both the Community Services and Justice departments. In fact, there are too few Aboriginal staff members at all levels. The staff at youth institutions do not speak an Aboriginal language. Many young Aboriginal people, particularly from remote areas, speak their own languages more fluently than English and they have difficulty comprehending English. This means non-Aboriginal workers cannot communicate well with Aboriginal youth. Aboriginal youth have been threatened with punishment for speaking their languages at institutions like Agassiz. That is unacceptable. The issue could be easily addressed by having supervisory staff who can speak the Aboriginal language of the youth, rather than coercing the youth to desist from its use. Because of their inability to speak Aboriginal languages, correctional staff are unable to fully appreciate the personal problems of Aboriginal youth, or the family or community dynamics, that might have contributed to the commission of offences or that may bear upon the youth’s rehabilitation. In our chapter on correctional institutions, we recommend that the number of Aboriginal people employed in correctional facilities and programs should at least represent the number of Aboriginal people in the province. At least one-half of these people should be able to speak an Aboriginal language. We also recommend that cross-cultural training programs should be mandatory for all corrections staff, and that there should be an ongoing series of refresher courses. We believe that these recommendations must be implemented in both adult and youth correctional institutions.TOP
Conclusion TOP The youth justice system fails Aboriginal youth in virtually every measurable way and there is no indication of plans to change the system. On the contrary, the plight of Aboriginal youth and the frustration and bitterness of Aboriginal communities are all but ignored. Change will not come easily. But those in authority must commit themselves to massive reorganization and change. As with other criminal justice programs, we believe that fundamental changes in philosophy, policy and programs are needed in the youth justice system. In particular, we cannot imagine an effective youth justice system for Aboriginal youth without a substantial measure of control of this system being vested in Aboriginal communities. It is for this reason that we have recommended that youth justice be included within the responsibilities of the Aboriginal court system that we propose. In both Aboriginal and non-Aboriginal communities, the intent and purpose of the Young Offenders Act are not being realized. This will continue as long as the system ignores the principles of the Act and, instead, blindly adopts the processes and procedures that have come to characterize the adult system. The youth justice system must be different. It must truly seek to provide minimal interference in the lives of youth by developing alternatives to criminal charges and to formal court processing. We believe much could be achieved with a strong determination to implement the YOA’s philosophy. We believe the answer to dealing with the problems of young offenders is to provide services that take into account the culture, background and needs of an Aboriginal young person. The services must be supportive, rather than punitive. Finally, they must be provided by Aboriginal people where possible and, if that is not possible, by individuals educated to work with Aboriginal people and to apply culturally appropriate solutions.TOP |
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