The Justice System and Aboriginal People

The Aboriginal Justice Implementation Commission


Chapter 17

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The Recommendations

Aboriginal Self-Government
Aboriginal Justice Systems
Aboriginal Peoples’ Rights
Aboriginal Women
Child Welfare
Young Offenders
Fatality Inquiries

Aboriginal Justice Commission
Aboriginal Justice College
Cross-Cultural Issues


Affirmative Action

Employment Equity
Employment Targets
Removing Barriers to Equitable Employment
Affirmative Action for Aboriginal Lawyers

Information Gathering and Statistics


A Strategy for Action

 Introduction TOP

From time to time throughout the Inquiry’s public hearings, presenters—especially Aboriginal presenters—expressed concern about the effectiveness of the process and particularly about the likelihood of any changes resulting from it.

Rufus Prince, an elder of the Long Plain First Nation at the time of his presentation, who has since passed away, said:

There is one last point I want to raise, and that deals with the repercussions which are going to happen, and I think that was mentioned here this morning as a result of this Commission of Inquiry. You exposed a lot of injustices. You have lifted up the rock and the worms are scurrying for cover. But as soon as this Commission is over and all the spotlights and flash bulbs are over, the rogues will come out from the dark and be twice as bad, determined to put the system of injustice back into full swing.

It’s like poking a stick into a hornet’s nest. If you are going to do that, the hornets are going to get mad.

We ask that the Province extend the power to this Commission to monitor the implementation of its recommendation and to see no retaliation is taken by rogue officials against those who have spoken out in the Commission.

You’ve got to do this or we’re going to suffer repercussions, and the bureaucrats are going to find a nice high shelf for your report and recommendation, and a generation later, if they have another Commission on the same subject, they’ll find it there covered with dust.

All the time and effort and sacrifice you have devoted to this Commission will go to nothing and be all in vain. We will only have dug the ruts a little deeper.

Ron Richard of the Manitoba Metis Federation said:

[A]lthough we are encouraged by the establishment of the judicial inquiry, we still harbour reservations about the outcome of this exercise, remembering that in the past there have been inquiries and recommendations with regard to the problems which plague the Metis community.

Billyjo De La Ronde, also of the Manitoba Metis Federation, echoed his remarks:

The Federation also feels and would like to see that this Inquiry is not put aside to collect dust, and that the recommendations, whatever you may have, will be acted upon.

Chief Louis Stevenson, on behalf of the Assembly of Manitoba Chiefs, stated:

It must be abundantly clear that any recommendations that flow from this Inquiry and stated in unequivocal terms, that these recommendations have to be actioned, otherwise this Inquiry will result only in an exercise that builds up the hope of Indian people only to devastate whatever little faith that remains.

Chief Oscar Lathlin of The Pas Band stated, "This is the biggest fear that we have of this Inquiry, that nothing will be done once the Inquiry is over."

Aboriginal people are tired of being studied and are concerned that reports on Aboriginal issues have a history of being placed on a shelf to gather dust.

There was a recurring request that we provide for a process by which our recommendations could be implemented and long-term change facilitated. Given the problems that have arisen in the past where the implementation of reforms for Aboriginal issues are concerned, and the loss of momentum that has occurred in some areas, we have decided that it is appropriate for us to make suggestions in this area.

We cannot, of course, offer any assurance that any of our recommendations will be accepted or acted upon. The decision to implement our recommendations is, we recognize, a matter for both federal and provincial governments. Whether they do so will depend upon the overall persuasiveness of the report, the degree to which there is support among Aboriginal and non-Aboriginal people for the initiatives, the governments’ ability and inclination to make the changes recommended, and their overall responsibility to govern in a manner that takes into account the interests of all members of society.

However, we do believe that a special process is called for, by which the issues we have concluded need to be resolved are dealt with. We have found that the nature of government decision making in the past, where Aboriginal people and their interests were concerned, has been cumbersome and inappropriate. In addition, Aboriginal people are in a unique position insofar as their right to self-determination is concerned. It appears to us, therefore, that in future, Aboriginal issues will be approached and resolved on a more government-to-government basis.

We begin by addressing what needs to be done by various agencies and by each level of government to put our recommendations into place. We then discuss the matter of an implementation commission with Aboriginal and government representation, and a proposed mandate for it. We also discuss the question of how Aboriginal people can be trained to take over many of the functions necessary to the operation of the justice system within their own communities. Finally, we address the question of an overall approach to cross-cultural training for those within the justice system, and how the numbers of Aboriginal people within the existing justice system can be increased. TOP


The Recommendations TOP

During the course of this report, we have made a large number of recommendations. Some have been addressed to the provincial or federal governments, while others have been addressed to Aboriginal people and their communities or agencies, or to other government agencies or programs. We do not intend to re-list all those recommendations.

Rather, it is our intention in this part to summarize the major recommendations we have made throughout the report, and to make broad statements as to the nature of the responsibilities which flow from them to specific entities. We view it as essential that all our recommendations be implemented. We do not wish it to be thought that in preparing the following section, we intend to suggest that any recommendations not specifically referred to should be ignored.

In this section we set forth the action which each government or institution will have to take to enable our recommendations to be put into place. TOP


Aboriginal Self-Government TOP

Aboriginal self-government means the right of Aboriginal communities to run their own affairs within their own territory. In recent years, Aboriginal people have developed a capacity to control a wide range of services, including child and family services, band housing programs, educational programs and local services. While Aboriginal self-government has been recognized in a de facto manner by all governments, it needs official recognition so that no further questions need arise as to its existence, or as to the right of Aboriginal people to their enjoyment of it. Additionally, the matter of the perceived ability of the federal government to unilaterally determine its parameters remains a constant threat to the very existence of Aboriginal self-government.

Action to be Taken by the Federal Government:

  • Recognize the reality of Aboriginal self-government through parliamentary resolution.
  • Propose a specific amendment to the Constitution recognizing Aboriginal self-government and pursue its passage with all provincial governments.
  • Amend the Indian Act to remove restrictions on Aboriginal self-determination and recognize specifically the right of Aboriginal governments to establish their own constitutions, civil and criminal laws, and institutions of government.

Action to be Taken by the Provincial Government:

  • Recognize the reality of Aboriginal self-government through a legislative resolution and work with the federal and other provincial governments toward a constitutional amendment recognizing it.
  • Recognize the right of Aboriginal communities to establish an Aboriginal justice system and work toward its implementation.



Aboriginal Justice Systems TOP

Aboriginal justice systems should be established in Aboriginal communities, beginning with the establishment of Aboriginal courts. We recommend that Aboriginal communities consider doing so on a regional basis, patterned on such systems as the Northwest Intertribal Court System in the state of Washington.

We suggest that Aboriginal courts assume jurisdiction on a gradual basis, starting with summary conviction criminal cases, small claims and child welfare matters. Ultimately, there is no reason why Aboriginal courts and their justice systems cannot assume full jurisdiction over all matters at their own pace.

The law to be applied in such systems would ultimately be the criminal and civil codes of each Aboriginal community, and such part of federal and provincial laws as each community selects.

Action to be Taken by Aboriginal Communities:

  • Meet to consider the establishment of either local or regional justice systems, including trial and appeal courts.
  • Prepare to enact civil and criminal laws.
  • Prepare to establish Aboriginal police forces.
  • Prepare to select and appoint judges and administrative personnel.

Action to be Taken by the Provincial Government:

  • Enact legislation that recognizes the right of Aboriginal people to establish their own justice systems and recognizes their jurisdiction and authority to enact their own laws.

Action to be Taken by the Federal Government:

  • Amend the Criminal Code to recognize Aboriginal courts and their jurisdiction.
  • Amend the Indian Act and enact other appropriate federal legislation to recognize the right of Aboriginal communities to establish and maintain their own justice systems, and to recognize their jurisdiction and authority to enact their own laws without requiring the approval of any other level of government.



Aboriginal Peoples’ Rights TOP

Aboriginal people have a variety of rights arising from their treaties, from Aboriginal title, from specific statutes and from the Constitution of Canada. Federal and provincial governments, and Canadian society generally, by and large have not well understood the Aboriginal perspective of the importance which these rights hold for them. As well, Aboriginal people have largely been unable to enforce their rights legally or politically in a manner which reflects their own understandings.

Many Aboriginal, treaty and constitutional rights pertaining to Aboriginal people require clarification. While the process of clarifying those issues undoubtedly will be one of negotiation between Aboriginal people and government, we recognize that governments have a number of advantages in the negotiations, including a considerable incentive to delay the process. Therefore, we recommend mechanisms that are intended to see that outstanding issues are resolved in a fair manner within a reasonable period of time.

One such entity which we recommend is a Treaty Land Entitlement Commission, consisting of Aboriginal and government representatives, with a mandate to hear submissions and make binding decisions on reserve populations, boundaries and the dedication of reserve land.

We have concluded that the population of a reserve at the time the matter is finally resolved should be the number used to determine the amount of land to which a First Nation is entitled.

The Treaty Land Entitlement Commission should also have authority to award compensation to Indian bands for losses suffered by the delay in settling lands.

We also recommend the establishment of an Aboriginal Claims Tribunal to deal with other sorts of claims against the government. Issues involving resource development, water rights, hunting and fishing, wild rice, timber management, membership codes, Metis claims, the financial implications of Bill C-31, and others which need to be resolved could be referred to this tribunal.

Because Aboriginal people have shown a preference for negotiation over litigation in the area of resolving these claims, we believe that the claims tribunal should have a role to play in monitoring the negotiations to ensure that they occur in as fair a manner as possible. The tribunal should be given sufficient authority to monitor the negotiations that occur between Aboriginal people and governments, as experience has shown that Aboriginal-government negotiations are marked by an imbalance of power in favour of government.

As well, the claims tribunal should be given sufficient authority to resolve any matter referred to it, including allegations that one party or the other is not bargaining in good faith, as well as authority to determine the best manner of resolving the entire claim. Aboriginal people must have equal representation in the process.

Conflicts—sometimes inadvertently created—between the rights of Aboriginal people and laws passed by provincial or federal governments have created confusion as to the state of enforceability of the rights of Aboriginal people. We recommend that the Aboriginal Justice Commission which we propose undertake a study of those laws.

We believe that the confusion can be remedied most easily by rendering specific federal and provincial laws subject to the rights of Aboriginal people, and amending the federal and provincial Interpretation Acts to provide that federal and provincial laws are to be interpreted in such a manner as not to derogate or adversely affect those rights.

Action to be Taken by the Federal Government:

  • Work with the provincial government and with Aboriginal people to legislatively establish a Treaty Land Entitlement Commission.
  • Establish a separate Aboriginal Claims Tribunal to deal with all outstanding and future specific and comprehensive claims between Aboriginal people and the federal or provincial governments.
  • Review all federal legislation including regulations to remove any provisions which conflict with the rights of Aboriginal people, or amend the legislation to render those regulations subject to the rights of Aboriginal people, including their treaty and Aboriginal rights. The Fisheries Act, the Migratory Birds Convention Act and the convention itself, for example, will need to be amended to achieve this purpose.
  • Amend the federal Interpretation Act to require that all legislation must be interpreted in a manner that does not derogate or adversely affect the rights of Aboriginal people.

Action to be Taken by the Provincial Government:

  • Amend specific provincial legislation that is in direct conflict with the rights of Aboriginal people so as to make those laws subject to their rights.
  • Amend the provincial Interpretation Act to require that all legislation must be interpreted in a manner that does not derogate or adversely affect the rights of Aboriginal people.
  • Remove provisions that purport to require Aboriginal people to obtain licences to exercise their rights.

Action to be Taken by Aboriginal Communities:

  • Establish conservation laws to protect the natural resources which fall within their jurisdiction and to regulate their development and use.



Police TOP

We believe that the future of Aboriginal policing in Manitoba lies in the creation of Aboriginally controlled police forces for Aboriginal communities, and in increasing the numbers of Aboriginal police officers on existing forces. Increasing the level of awareness of the cultural uniqueness of Aboriginal people is also important. Each Aboriginal police force should ultimately assume responsibility for all law enforcement in their communities. Metis communities also should develop regional Metis police forces, with their own police commissions.

All police forces within the province should increase the numbers of Aboriginal officers, strengthen cross-cultural education, improve relations with Aboriginal communities and change some of their practices.

Government should take responsibility for improving the manner in which complaints of police misconduct are investigated and handled. This will necessitate amendments to the Law Enforcement Review Act so as to increase Aboriginal representation on the board and hearing panels of the Law Enforcement Review Agency. The authority of the board needs to be altered so that it can make its own determination as to the penalty that should be imposed on any officer found to have been at fault. At present, the authority of the board is restricted to the maximum penalty the commissioner has determined in advance.

Government will also have to be responsible for overseeing the implementation of employment equity programs within police forces. Eventually, an Employment Equity Commission should take responsibility for that area. Other statutes will require amendment.

Action to be Taken by Municipal Police Forces:

  • Prepare and table with their governing bodies and with the Minister of Justice an employment equity plan, no later than December 31, 1991, that will result in there being more Aboriginal male and female officers on their police forces, and more Aboriginal civilian employees on their staff, in numbers proportionate to the percentage of Aboriginal people in the province.
  • Review departmental hiring practices to eliminate criteria or processes that have adverse impacts upon Aboriginal people and replace those practices or criteria with more appropriate ones.
  • Review and strengthen cross-cultural and public education programs and involve Aboriginal people in their development and presentation.

Action to be Taken by the RCMP:

  • Support the establishment of Aboriginal police forces and cooperate with them.
  • Increase the numbers of Aboriginal men and women on the force and engage Aboriginal civilian staff in numbers proportionate to the Aboriginal population of the province.

Action to be Taken by Aboriginal Communities:

  • Establish regional police forces with Aboriginal members and their own regional police commissions, following the model of the Dakota Ojibway Tribal Council Police Force.

Action to be Taken by the Provincial Government:

  • Make provincial grants to the City of Winnipeg for police services conditional upon the development and implementation of employment equity programs and targets for the hiring of Aboriginal personnel.
  • In conjunction with Aboriginal communities, create a provincial Aboriginal Police Commission and a commissioner to develop standards for all aspects of Aboriginal policing in Manitoba, and ensure that Aboriginal police forces and their officers attain and maintain appropriate standards of recruitment, training, professional development and comportment.
  • Through the Manitoba Police Commission, develop standards for all aspects of policing in non-Aboriginal communities in Manitoba, and ensure that non-Aboriginal police forces and their officers attain and maintain appropriate standards of recruitment, training, professional development and comportment.
  • Amend the Law Enforcement Review Act to ensure Aboriginal representation on the board and on any panel hearing a complaint from an Aboriginal person.
  • Ensure that proper and independent procedures for the investigation and resolution of allegations of police misconduct are put into place.
  • Take such steps as are necessary to ensure that, in cases where the RCMP is performing duties as a provincial police force, RCMP officers are subject to the same complaint mechanisms as other police officers under provincial jurisdiction.
  • Establish a special investigations unit through special legislation, responsible directly to the Minister of Justice, to take control of the investigation of any incident involving a police officer where possible criminal conduct arises or where a person dies or suffers serious injury. The unit should consist of experienced criminal investigators, but must not include officers from the police department under investigation. The unit should have access to legal counsel independent of the police force involved and of the Attorney General’s department to consider whether criminal charges should be laid.



Sentencing TOP

Incarceration should be used only as a last resort and only where a person poses a threat to another individual or to the community, or where other sanctions would not sufficiently reflect the gravity of the offence, or where the offender refuses to comply with the terms of another sentence that has been imposed upon him or her. Incarceration for non-payment of a fine should rarely occur. Other procedures for the collection of fines should be considered. If an individual wilfully refuses to pay a fine, and is able to do so, then incarceration can be considered after a show cause hearing.

Where incarceration is required for an Aboriginal person, it should be in a community-based facility in his or her home community, if one exists, or in a more culturally appropriate facility as close to that individual’s home as possible.

Action to be Taken by the Judiciary:

  • Make greater use of restitution, community service orders, placing the adult under the supervision of someone in the community, open custody and other options, in place of fines or incarceration.
  • Impose fines only if the individual is able to pay.
  • Refrain from imposing incarceration in default of payment of fines.
  • Meet with leaders of the Aboriginal communities served by circuit court and assist in the development (where the community wishes to do so) of local Aboriginal sentencing panels. They should then seek the advice of those panels, in open court, when attempting to determine an appropriate sentence.
  • Look for innovative sentences that will not only have the offender recognize the impropriety of his or her actions, but will prevent any repetition and will return the accused, the victim and the community to a state of harmony, all without having to send the offender to jail.
  • In the case of Court of Appeal judges ) attempt to be more supportive of innovative sentences imposed by trial judges.

Action to be Taken by the Federal Government:

  • Amend the Criminal Code to remove the authority of a judge or magistrate to impose incarceration for failing to pay a fine, except where the individual wilfully refuses to do so after a show cause hearing.
  • Amend the Criminal Code to authorize judges to stipulate the type of community service or the place of incarceration of an offender.
  • Amend the Criminal Code to allow for the imposition of open custody sentences on adults in community residential centres, group homes, or forest or wilderness camps, as is the case with young offenders.

Action to be Taken by the Provincial Government:

  • Amend the Summary Convictions Act to remove the authority of judges or magistrates to impose incarceration for failure to pay a fine, except where the individual wilfully refuses to do so after a show cause hearing.
  • Abolish the Fine Option Program and in its place establish a Fine and Restitution Recovery Program, patterned after the Maintenance Enforcement Program.
  • Appoint resident Aboriginal probation officers in each Aboriginal community and in urban centres, proportionate to the presence of Aboriginal people in the provincial population at a minimum, but closer to the proportion of Aboriginal people receiving probation services. The probation officer should be in court when Aboriginal people are being sentenced to assist the court’s understanding of the accused, of any programs available in the community, and of sentencing options.
  • Assist Aboriginal communities in the establishment of regional Aboriginal probation services.
  • Gather statistical information on an ongoing basis on the impacts of particular sentences so that a judge can be provided with a report on the results of a particular sentence, and the judiciary at large can see the effectiveness of various types of sentences.



Aboriginal Women TOP

The abuse to which Aboriginal women and children have been subjected is criminal and culturally unacceptable. On reserves, in particular, chiefs and councillors must accept the protection of women and children as one of their most pressing responsibilities. Greater numbers of safe houses and shelters need to be provided. More appropriate treatment programs for Aboriginal abusers need to be made available. New initiatives within the justice system are a necessity. Abusers should be removed from the home, and the victim and children returned to it with the support of local government, the police and the courts.

Action to be Taken by the Provincial Government:

  • Provide more safe homes or shelters in each Aboriginal community.
  • Prosecute those suspected of domestic abuse where the evidence is available and that is the wish of the victim.
  • Provide mediation, counselling and other support services where the victim wishes to see the abuser treated and the family held together.
  • Encourage and provide sufficient resources to expand to other Aboriginal communities throughout the province the method of dealing with abusers that has been developed and is used by the Hollow Water Resource Group.
  • Close the Portage Correctional Institution for women.
  • Consider the use of co-correctional institutions for those women who must be incarcerated.
  • Establish local open custody facilities where the offender can work and attend school, counselling or other programs during the day.
  • Establish programs to deal with alcoholism, drug abuse, emotional or other personal problems, and provide that programs are available to prepare any inmate who wishes to seek an occupation upon release.
  • Ensure that Aboriginal women are involved in all aspects of the provincial justice system, from local court administrators to program developers and directors.

Action to be Taken by the Federal Government:

  • Ensure that all sentenced women who live in Manitoba serve their sentence in Manitoba.
  • Ensure that Aboriginal women are involved in all aspects of the justice system, from parole board members to correctional officers.

Action to be Taken by Aboriginal Communities:

  • Establish a local government portfolio and other support mechanisms to protect women and children from abuse.



Jails TOP

The whole jail system should be reformed. Local community-based facilities in Aboriginal communities, staffed by Aboriginal correctional officers and designed to provide culturally appropriate programs for Aboriginal inmates, should be established.

Aboriginal people charged with an offence should be released on bail in their own communities. Many who are incarcerated should spend their time in open custody institutions in their own communities where they can work, take education or job training or counselling in the community during the day, and return to the facility at night.

Aboriginal youth should be held in their own communities before their trials, and either in their own communities or in wilderness youth camps not far from their homes if they are sentenced to incarceration.

Aboriginal inmates prefer to work and should be given that opportunity unless they are enrolled in training, educational or counselling programs.

The nature of institutions generally should change from purely custodial "prisons" to places where personal problems can be addressed and where work, education, job training and personal development programs are available. The number of Aboriginal people in jail should be substantially reduced. The overall capacity of the jail system should also be reduced.

Action to be Taken by the Provincial Government:

  • Ensure that Headingley Correctional Institution is the only secure provincial institution.
  • Convert the provincial correctional institutions in Brandon and The Pas to open custody facilities similar to the one in Dauphin.
  • Establish throughout the province more wilderness camps, similar to Egg Lake, which are administered by Aboriginal people.
  • Ensure that each Aboriginal community has its own secure temporary holding facilities so people will no longer have to be transported around the province prior to their trial.
  • Discontinue using the Manitoba Youth Centre as an open custody facility.
  • Ensure that the rules for disciplinary hearings, which are now not honoured, are revised, and that an independent process is established.
  • Engage Aboriginal staff in correctional institutions in numbers at least proportionate to the percentage of Aboriginal people in the province, and perhaps as high as the proportion of Aboriginal inmates in each institution.
  • Ensure that at least 50% of Aboriginal people on staff in correctional institutions speak an Aboriginal language.
  • Ensure that recognized elders and other traditional Aboriginal people attending correctional institutions for ceremonial or spiritual purposes have access to those institutions, and be permitted to bring with them items of spiritual significance on the same basis as chaplains who are recognized under the Corrections department’s chaplaincy program.

Action to be Taken by the Federal Government:

  • Engage Aboriginal staff in correctional institutions in numbers at least proportionate to the percentage of Aboriginal people in the province, with the optimum number being equal to the proportion of Aboriginal inmates in each institution.
  • Ensure that at least 50% of Aboriginal people on staff in correctional institutions speak an Aboriginal language.
  • Ensure that recognized elders and other traditional Aboriginal people attending federal institutions for ceremonial or spiritual purposes have access to those institutions, and be permitted to bring with them items of spiritual significance on the same basis as chaplains who are recognized under the federal chaplaincy program.



Parole TOP

All inmates should be released after the same percentage of their sentence has been served, unless there are unusual circumstances making it inappropriate to release a person on parole, such as his or her being violent or a clear danger to another person. Aboriginal parole officers should be increased in number, and the manner in which the National Parole Board considers Aboriginal parole applicants should be more culturally sensitive. Rather than merely supervising Aboriginal parolees, parole officers should be assisting them with obtaining employment and financial assistance, and providing appropriate counselling. Parole assessments should be done by Aboriginal people in the accused’s community.

Action to be Taken by the Federal Government:

  • Change the National Parole Board regulations to ensure that Aboriginal people are well represented on the parole board and to ensure that a majority of Aboriginal members sit on any panel considering an Aboriginal inmate’s eligibility for parole, parole conditions or alleged breach of conditions of parole.
  • Ensure that presently inappropriate parole conditions are no longer imposed. The condition that an inmate must admit guilt before being considered for parole should be abolished.
  • Appoint Aboriginal parole officers in every community and ensure that Aboriginal parole officers deal with Aboriginal people on parole. Ensure that parole assessments are done by Aboriginal people in the accused’s community.
  • Give consideration to having the same person fulfil the roles of a probation and a parole officer in Aboriginal communities.

Action to be Taken by Aboriginal Communities:

  • Take steps to establish an Aboriginal Parole Board in Manitoba to deal with those people sentenced by Aboriginal courts.



Child Welfare TOP

Aboriginal people are not being well served by non-Aboriginal child and family service agencies. Their staff and policies are seen as insensitive to Aboriginal people and their child care traditions. The authority of Aboriginal child welfare agencies, which are well received, should be expanded.

Action to be Taken by the Provincial Government:

  • Establish the office of Child Protector, as recommended by Judge Kimelman, to protect the interests of children, to investigate any complaint into the practices of any child welfare agency and to be responsible to the Legislature.
  • Establish an Aboriginal child and family service agency in the city of Winnipeg, to handle all Aboriginal cases.
  • Expand the authority of existing Indian agencies to enable them to offer services to band members living off-reserve.
  • Establish a mandated province-wide Metis agency.
  • Ensure that child welfare agencies work more closely with youth justice personnel and with Youth Court.

Action to be Taken by the Federal Government:

  • Renew the tripartite child welfare agreements with the provincial government and First Nations of Manitoba and provide increased funding to cover services for new band members resulting from the government’s Bill C-31.



Young Offenders TOP

Aboriginal young offenders are now transported from all parts of Manitoba to the Manitoba Youth Centre upon their arrest, while awaiting bail, while awaiting trial and then while awaiting sentence. In addition to the tremendous financial and emotional cost, the system is adding to jail populations and hardening young people.

Action to be Taken by the Provincial Government:

  • Ensure that diversion and alternative measures are applied by the police, Crown attorneys, judges and others to keep young people out of the courts.
  • Take steps to substantially reduce pre-trial detention, and address the unacceptable delays in bringing young offender cases to a conclusion.
  • Expand bail supervision programs, such as the one operated by Ma Mawi Chi Itata Centre, throughout the province.
  • Establish short-term youth detention facilities in each Aboriginal community, and longer term facilities which focus on the use of wilderness camps at which youth can further their education, receive job training and counselling to deal with any problems they may have, to provide them with a meaningful role upon their return to their community.
  • Ensure that child and family service agencies are instructed to continue their involvement with youth who are under their care when charged with an offence.
  • Expand the number of youth justice committees throughout the province and ensure that they are used by police, Crown attorneys and judges when dealing with youth-related problems.
  • Transfer the responsibility to establish alternative measures guidelines to the judiciary.
  • Ensure that alternative measures are based upon Aboriginal culture, that they include the use of Aboriginal peacemakers, that these measures are available to all youth, not just first-time offenders, and that their use be expanded in consultation with Aboriginal youth justice committees.
  • Ensure that the Aboriginal Court Worker Program is available to young offenders wherever Youth Court sits.
  • Ensure that child welfare and youth justice services are integrated and coordinated.

Action to be Taken by Aboriginal Communities:

  • Establish youth justice committees in their communities.

Action to be Taken by the Federal Government:

  • Amend the Young Offenders Act to remove provisions permitting cases to be transferred from Youth Court to adult court. If harsher penalties are considered desirable, or if a more open court process is sought, enable the youth court judge to impose more substantial sentences in some cases, to hear cases with a jury and to permit the more complete reporting of proceedings.
  • Amend the Young Offenders Act to permit judges to commit a youth to the care of a child care agency as a disposition under the Act.
  • Amend the Young Offenders Act to provide that judges, rather than the Attorney General, have the authority to devise alternative measures guidelines.
  • Amend the Young Offenders Act to remove the provision permitting youth to waive the right to have a parent or guardian present during police questioning.



Courts TOP

The Court of Queen’s Bench and the Provincial Court should be replaced with a new court to be known as the Manitoba Trial Court. Judges sitting in Aboriginal and other communities throughout the province would then have the jurisdiction to deal with any type of case. Various court practices should be altered to ensure the disposition of all types of cases within a reasonable time.

Action to be Taken by the Provincial Government:

  • Enact legislation to establish the Manitoba Trial Court with the jurisdiction now attached to existing courts. A General Division should deal with all civil and most criminal cases. A Family Division should deal with young offender, child welfare and all family cases, including all intrafamily physical and sexual abuse criminal cases.
  • Cooperate with the federal government in the appointment of all existing Queen’s Bench and Provincial Court judges to the new Manitoba Trial Court.
  • Provide proper facilities in every community where court is to sit that will be available for court purposes as required. Ensure that all trials, including jury trials, are held in the community where the offence was alleged to have been committed.
  • Hire local staff for courts that sit in Aboriginal communities. These would include a court administrator, a court interpreter, and an Aboriginal court worker.
  • In conjunction with the judiciary, undertake a blitz to dispose of all outstanding cases in remote and rural Aboriginal communities.
  • Appoint Aboriginal peacemakers as officers of the court who would take referrals of cases involving Aboriginal accused and attempt to arrive at a reconciliation between the victim and the offender through the use of more traditional Aboriginal dispute resolution techniques.

Action to be Taken by the Federal Government:

  • In cooperation with the provincial government, appoint the judges of the Queen’s Bench and Provincial Court to the Manitoba Trial Court.
  • Appoint judges to the Court of Appeal only from judges of the Trial Court.
  • Abolish the preliminary inquiry.
  • Amend the Criminal Code to permit an accused to appear by counsel, agent or by telephone for purposes of adjournment or other procedural or pre-trial matters, and to provide that a judge does not lose jurisdiction over a case due to the failure of an accused to appear.

Action to be Taken by the Judiciary:

  • Establish court schedules to deal with all matters on a court docket on the day they are set to proceed, whether the sitting takes one or more days.
  • Establish and enforce guidelines for the expeditious completion of all cases.
  • In conjunction with the provincial government, undertake a blitz to dispose  all outstanding cases in remote and rural Aboriginal communities.
  • Establish appropriate pre-trial procedures in each division of the court, rticularly to accommodate disclosure when the preliminary inquiry is abolished.
  • Refrain from flying or driving to circuit court with counsel or the police.

Action to be Taken by Legal Aid Manitoba:

  • Ensure the appointment of counsel in all cases where the applicant meets the income criteria. In criminal matters, counsel should be appointed, at least on an interim basis, by telephone or by duty counsel.
  • Ensure that Legal Aid staff arrive in a community the day before court to have adequate time to interview clients and witnesses.



Fatality Inquiries TOP

Unlike other proceedings, those who are not happy with any decision made by a judge during the course of an inquiry have limited recourse to have that decision overturned. As well, the appearance of a conflict of interest can arise where one of the parties involved works closely with Crown attorneys, who normally have conduct of the fatality inquiry.

Action to be Taken by the Provincial Government:

  • Amend the Fatality Inquiries Act to permit greater participation by interested persons, and to make inquest reports and records available to the public, to relatives, and to band or community councils.
  • Amend the Act to provide that where a police officer or a government agency is involved, a non-government lawyer be retained to conduct the inquest.
  • Amend the Act to provide that an appeal (rather than a judicial review) of an inquest, or of the decision not to hold one, is permitted. Any citizen should be entitled to ask that an inquest be held or that one already held be reopened. Judges should be permitted to direct that to be done if they are persuaded that it is in the public interest to do so.



Juries TOP

Systemic discrimination is clearly seen in the jury selection process. The right and responsibility of Aboriginal citizens to sit on a jury should be ensured by legislative and administrative change. The ease with which Aboriginal people can be excluded from the jury selection process should be stopped.

Action to be Taken by the Federal Government:

  • Amend the Criminal Code to do away with stand-asides and peremptory challenges, to provide that only challenges for cause, dealing with the impartiality of the juror, be permitted, and that the trial judge be the one to rule on any challenge.

Action to be Taken by the Provincial Government:

  • Amend the Jury Act:
  • To require that jury trials be held in each place where the court sits.
  • To provide that juries be chosen from people who reside within 40 kilometres of the place of trial. Where sufficient jurors cannot be obtained from within that area, jurors should then be selected from the closest similar community.
  • To provide that every person called for jury duty is required to attend.
  • To provide that translation services are available for those jurors who speak an Aboriginal language.

Action to be Taken by Aboriginal Communities:

  • Develop programs in conjunction with public legal education authorities to acquaint community members with the law and the jury system, and encourage Aboriginal participation as jurors.



Aboriginal Justice Commission TOP

We believe that an Aboriginal Justice Commission of Manitoba should be established by federal and provincial legislation and by appropriate processes of the Aboriginal people of Manitoba. We suggest that the commission have a board of directors made up of equal numbers of Aboriginal and governmental representatives, with an independent person, acceptable to all parties, as chairperson. Aboriginal representatives should include status Indians, Metis, non-status Indians, and representatives of Aboriginal women and urban Aboriginal people.

The board of directors of the commission should appoint an Aboriginal Justice Commissioner acceptable to Aboriginal people, with authority to take action in the name of the commission as its chief executive officer, and appoint sufficient permanent staff to deal with its various responsibilities. In our view, the Aboriginal Justice Commission is key to the implementation process.

It is apparent to us that there will be considerable work involving both levels of government and Aboriginal people in the implementation of the recommendations which we make. We believe that the implementation of those recommendations and any consequent negotiations should be overseen by the Office of the Aboriginal Justice Commissioner, whose primary role would be to ensure that Aboriginal-government negotiations occur in as fair and productive a manner as possible and that any assistance necessary to overcome areas or points of disagreement is provided.

In addition, while we believe that the Aboriginal Justice Commission should have the support of both levels of government and of Aboriginal people, it should have a degree of independence. The commissioner should be responsible to, and take direction from, the commission and report to it on his or her activities.

The commission’s primary responsibility, we believe, would be to monitor the degree to which governments are proceeding toward the implementation of the recommendations in this report, and to report publicly on its progress from time to time.

As well, the office of the commissioner could facilitate any negotiations which need to occur between governments and Aboriginal people, and assist in resolving points of disagreement. That could be done in whatever way the parties agree, but we believe that utilizing mediation or other dispute resolution techniques, including arbitration, should be considered.

The tasks of the commission should be to:

  • Enter into discussions with Aboriginal people to determine their wishes with respect to the various recommendations.
  • Recommend the form and method of the implementation of recommendations.
  • Monitor the implementation of the changes we suggest.
  • Report to governments, Aboriginal people and the general public on the progress of implementation.
  • Assist in the establishment of Aboriginal justice systems.
  • Take steps to establish an Aboriginal Justice College.
  • Monitor the progress of affirmative action programs.
  • Initiate discussions between Aboriginal people and governments to establish mechanisms to deal with Aboriginal self-government and the settlement of outstanding claims.
  • Receive concerns and complaints of any nature from Aboriginal people and forward them to the appropriate department or agency for attention, and monitor the results.
  • Mediate Aboriginal concerns or complaints with governments or agencies.
  • Become involved in any issue involving Aboriginal people.
  • Advise government on Aboriginal concerns and recommend appropriate action.
  • Propose legislation or legislative change.

We recommend that:

  • An Aboriginal Justice Commission of Manitoba be established by legislation and by appropriate processes of the Aboriginal people of Manitoba, with a board of directors made up of equal numbers of Aboriginal and government representatives, and an independent chairperson. The commission should be provided with all necessary staff and resources.
  • The position of Aboriginal Justice Commissioner be established as the chief executive officer of the Aboriginal Justice Commission. The commissioner’s tasks will include monitoring and assisting government implementation of the recommendations of this Inquiry.



Aboriginal Justice College TOP

An Aboriginal Justice College will be needed to provide training and continuing education for the Aboriginal people required to assume positions of responsibility within both the existing justice system and Aboriginal justice systems. In almost every chapter of this report, we discuss the need for Aboriginal people in Aboriginal communities to perform all the tasks within the system.

Training will be required for Aboriginal judges, attorneys, police, correctional officers, court clerks, administrators, interpreters, court workers, peacemakers, youth justice committee directors, social workers, probation and parole officers, and others.

The Brandon University Northern Teacher Training Program (BUNTEP) has been successful in attracting and educating Aboriginal teachers. The concentration of large numbers of Aboriginal students in the course and the resulting peer group support have been described as the single most important factor in the success of the program. The corrections officers program at Assiniboine Community College had similar success. The experience of both programs should be examined when programs for the college are being developed.

While we recommend that the Aboriginal Justice Commission undertake the establishment of the Aboriginal Justice College, we suggest that once it is established it be an independent body with its own board of directors and staff, most of whom should be Aboriginal people.

The college might also organize the courses in cultural understanding for non-Aboriginal judges, lawyers, court staff, police, correctional and classification officers, educators, and others that we recommend in this report.

We recommend that:

  • The Aboriginal Justice Commission establish an Aboriginal Justice College with its own Aboriginal board of directors, and staffed by Aboriginal people, to provide training and continuing education for Aboriginal people who wish to assume positions of employment within both the existing justice system and Aboriginal justice systems.
  • Training provided by the Aboriginal Justice College include preparation for such positions as judges, attorneys, police officers, correctional officers, court clerks, administrators, interpreters, court workers, peacemakers, youth justice committee directors, social workers, probation and parole officers, and others, as exist within the present justice system and as are needed to establish and maintain Aboriginal justice systems.
  • The Aboriginal Justice College organize courses in cross-cultural understanding for on-Aboriginal personnel.



Cross-Cultural Issues

Purpose TOP

Most people in the justice system have little understanding of Aboriginal people, their history, culture, or way of life. Our study has convinced us that there are widespread misconceptions about Aboriginal people and about their perception of the law and the legal system.

We are convinced that those administering the system have no idea of some of the hardships they cause by automatically applying practices and procedures that work in other communities. They do not do this intentionally, but lack sufficient knowledge of the impact on Aboriginal people to foresee the results.

Problems of distance, time and lack of resources have to be appreciated. The impact of procedures, such as a simple adjournment or the imposition of inappropriate conditions of probation or parole, have to be understood.

If those who operate the justice system are supposed to be doing so on behalf of society, they require a better understanding of Aboriginal society. The cultural differences, such as the non-confrontational, non-adversarial approach of Aboriginal people, should be appreciated. The Aboriginal desire to return people and communities to a state of harmony should be understood. Those operating the present system should hear why Aboriginal people consider the existing system to be a foreign one that is not serving their needs.

We believe that many of the problems resulting from current practices cannot begin to be alleviated until those who work in the system understand those problems. We also believe that those working within the system would appreciate an opportunity to expand their knowledge of this sector of their clientele.

While courses have been made available to some police departments and to civil servants, these programs have not been extensive. Little, if any, cross-cultural education has been provided to the judiciary and lawyers. Cross-cultural educational courses are urgently required.

We accept the opinion of experts that cross-cultural training courses should ideally last for several days. However, given the nature of the demands within the justice system, we believe that more than one training course, lasting at least three days each, is the best way to cover the necessary materials and to provide time for questions and discussion. Once the first training session is held, there should be follow-up programs and the sessions should be regularly evaluated.

We suggest that separate programs be provided for different professionals working in the system so the program can then be adapted to their particular tasks. The programs could nevertheless be similar.

We recommend that:

  • Federal, provincial and municipal governments, individually or in concert, with the assistance and involvement of Aboriginal people, establish formal cross-cultural educational programs for all those working in any part of the justice system who have even occasional contact with Aboriginal people.



Contents TOP

The curriculum of the cross-cultural training course should include the following matters:

The History of Aboriginal Peoples. This should include a review of the early pre-contact history of Aboriginal peoples, the number and variety of Aboriginal cultures and tribes in Canada, the Aboriginal use of land and traditional tribal forms of organization.

Early contact with the Europeans, their relationship with Aboriginal peoples up to Confederation, and the circumstances leading up to and including the negotiation of the treaties should be reviewed. It is particularly important to ensure that non-Aboriginal people understand and appreciate how Aboriginal people feel about their historical rights and why.

The history of residential schools and the child welfare policies of the 1950s, 1960s, 1970s and 1980s, and how these affect today’s parents and children, are important to understand.

Aboriginal Culture. The role of men and women, the role of chiefs, elders, the family and extended family, and the role of children in Aboriginal society should be explained. Ethical principles, such as non-interference, acceptance, truthfulness, silence, emotional restraint and sharing, are important to understand.

The philosophy, spirituality and "religious" beliefs of the various Aboriginal cultures of Manitoba should be explained. An explanation of the significance of Aboriginal sacred objects, such as the sweat lodge, the shaking tent, the Sundance, pow wows, the use of the pipe, eagle feathers, sacred medicines such as sweetgrass and so forth, should be given.

The questions of "law" and wrongdoing, and how they are dealt with, are important for those in another system to understand. The traditional methods of dispute resolution and their level of acceptance are relevant.

•Discrimination. Identifying racism, discrimination and prejudice is an important part of cross-cultural awareness. The existence of racism, prejudice, stereotyping and discrimination as experienced by Aboriginal people should be discussed. The tendency to make assumptions and to generalize when dealing with Aboriginal people, and the affect of this, should be explored.

How systemic discrimination works and what to do about it is an equally important part of cross-cultural awareness.

• Statistics. Demographic material outlining the situation of Aboriginal people should be presented. The numbers of Aboriginal people in the courts and jails, and the reasons for this, should be discussed. The reasons for unacceptable conduct should also be considered.

•Aboriginal Community Life Today. The current political, social and economic realities of life in Aboriginal communities should be explained. The efforts being made by Aboriginal people to improve life in their communities, and the services that are available to people and to the justice system, should be understood. Advances made in the fields of education, health and welfare, child welfare, budgetary control, alcohol reduction and abuse programs should be described.

•Urban Living. The realities of life for Aboriginal people in urban areas should be presented. Aboriginal-police, Aboriginal-jail and Aboriginal-court relationships should be explained from the Aboriginal perspective. The knowledge, or lack of knowledge, on the part of Aboriginal people concerning the law and the legal system should be made known.

•Aboriginal Concepts. Those working in the justice system need to be made aware of the problems which arise for Aboriginal people as a result of their different concepts. That information would help justice officials to understand the reasons for Aboriginal reactions to the legal process, such as an unwillingness to testify, apparently conflicting or changing testimony, delays in answering questions and misapprehensions of the consequences of testifying. The extent to which Aboriginal people understand English, and their reaction to the police, to parole boards and to the courts, also need to be understood.

•Impact of Existing Systems. The effect on Aboriginal people of incarceration and of delays in getting a case disposed of should be explained. The cost of repeated attendances should become known. TOP


Presentation TOP

Those presenting the programs should be familiar with the historical and current situation of Aboriginal people, and have a good working knowledge of the legal system. We consider it essential that numerous Aboriginal people of both sexes be involved in the presentation, including men and women who have been incarcerated.

There should be an opportunity for conversation, apart from formal sessions, between justice system personnel and Aboriginal people. Those participating in the program should visit an Aboriginal community such as an Indian reserve to observe the way of life and amenities available to Aboriginal people. Similar visits to Aboriginal neighbourhoods in Winnipeg would be of value. Some cultural event might be included in the three-day program.

In our opinion, these courses should be provided to all new personnel, as well as to judges, lawyers, and service providers now working within the justice system. TOP


Affirmative Action

Employment Equity TOP

Throughout this report, we have stressed the need to have more Aboriginal people involved in every part of the existing justice system. Because of their almost complete absence other than as accused, the system is now considered to be a foreign and uncaring one by Aboriginal people. It must become, and it must appear to Aboriginal people to be, more relevant to them and their issues. This can be accomplished, we believe, only if the numbers of Aboriginal people within the justice system at all levels are increased.

Many Aboriginal accused do not understand the law. They do not understand, for example, how they can be convicted of wildlife offences when hunting and fishing rights are enshrined in their treaties, and they do not appreciate the role of those in authority within the system. Many do not understand the purposes of various procedures and are unable to follow court proceedings. This can and does lead to their making uninformed and inappropriate decisions at very crucial times in the process, including, we believe, guilty pleas.

One of the problems is that there are almost no Aboriginal people in the system to whom they can turn for assistance or advice. Other than some police officers or band constables, there are few, if any, Aboriginal people employed by the legal system resident in Aboriginal communities. Police are generally associated with authority and prosecution, and are not the appropriate resource to turn to for help once a charge has been laid. Even in towns and cities, there are few Aboriginal people within the system with whom the Aboriginal person can enter into a meaningful discussion about his or her charge and from whom he or she can receive advice and information.

We are satisfied that if there were Aboriginal people working in the legal system, there would be a greater understanding of the problems faced by Aboriginal accused, victims, witnesses and their families, and higher levels of assistance and advice. Aboriginal communities would benefit economically and socially from having people within their community who hold positions of importance within the justice system.

Aboriginal justice systems, which will deal almost exclusively with Aboriginal people, will additionally require Aboriginal staff. The existing system can provide a training ground for those eventually hired by those systems.

We are not alone in our belief in the necessity of having Aboriginal people in all parts of the legal system. During our hearings, whenever the question was raised, police officials, government agencies and others agreed that there was a need to involve more Aboriginal people in the justice system. The problem is that there is no agreement as to how this is to be accomplished, nor has much attention been given to the breadth of representation that is required.

We are aware that government and public sector employers have, on occasion, established "affirmative action" guidelines for the hiring of minorities. We are unimpressed with their results to date. It is clear that voluntary initiatives have had little impact and that a lack of public accountability for such poor results contributes to their continuance.

A recent report prepared for the Department of Labour about recruitment, selection and classification processes in the government reveals that much is wrong with how the government utilizes affirmative action:

There are no real consequences for managers, including Deputy Ministers, who fail to effectively manage the Affirmative Action process.... Affirmative Action does not have a high profile in departmental affairs.1

Therefore, despite all the good will that was expressed to us during the hearings by police, government and other agency officials, we do not believe that increasing the numbers of Aboriginal people within the justice system can be brought about without strong and assertive action and, in some cases, without the direct intervention of an enforcement agency.

We believe that the continuing under-representation of Aboriginal people at all levels of the public service demands that all components of the government and, in particular, the justice system, formally adopt legally enforceable, target driven, equity employment programs. We include all levels of the system in that conclusion, from police officers and prison guards to members of the judiciary and bureaucracy. We believe that the progress of those programs should be reported annually to an appropriate entity with powers to enforce compliance. Such an entity should have access to specific and appropriate remedies.

We recommend that the Province enact an Employment Equity Act. Such legislation would provide for an Employment Equity Commission with adequate professional and investigatory staff. The commission should report directly to the Legislature. The commission would have wide powers to support, to monitor and to require the development and implementation of employment equity programs in all government services, and in those areas over which the Province has legal jurisdiction, particularly those whose services are purchased or funded, in whole or in part, by government.

The government should freely and openly utilize the principle of contract compliance by making its grants and contracts subject to the fulfilment by the recipient of employment targets for identified minorities and particularly for women and Aboriginal people. Grants or payments to cities and municipalities that include support for police services should be conditional upon the implementation of an acceptable employment equity plan and targets that have been set by the commission. The same rules should apply to the government’s own employment practices. The implementation of approved programs should be carefully monitored by the commission.

We believe that it is particularly important that the commission have the capacity to enforce compliance by government contractors and to apply remedial action when such compliance has failed to occur.

While we suggest no limit on the authority of the Employment Equity Commission, we would like to see its initial efforts directed towards the justice system and the employment within it of greater numbers of Aboriginal people. TOP


Employment Targets TOP

A key question is the appropriate level of Aboriginal representation within various components of the system. Appropriate employment levels for Aboriginal people within the justice system should depend upon where the services are to be delivered and the extent of the Aboriginal population being served. While setting targets which reflect the overall percentage of Aboriginal people within the provincial population would represent significant progress, a higher standard is appropriate in many cases.

As a minimum, therefore, the target for Aboriginal people should be the percentage of Aboriginal people in the Manitoba population. As an optimum target, the numbers of Aboriginal people in a particular service should equal the percentage of the population of the clientele being served. If, for example, the Headingley Correctional Institution population is 55% Aboriginal, the percentage of Aboriginal staff should be between 12% (the Aboriginal percentage of the Manitoba population) and 55% (the Aboriginal population of the institution). For the staff at Egg Lake, where all the inmates are Aboriginal, the Aboriginal people on staff should be between 12% and 100%.

We recommend that:

  • The Province of Manitoba legislate the establishment of an Employment Equity Commission with appropriate Aboriginal representation on its governing body.
  • The Employment Equity Commission have two arms: an investigative arm responsible for examining any matter covered by the legislation, and an adjudicative arm responsible for hearing any complaint made under the legislation. Those on the adjudicative side who sit as hearing panels to determine a complaint should include an Aboriginal person if the complaint involves an Aboriginal issue or complainant.
  • The mandate of the commission be:
  • To develop employment equity targets for employers within the legislative jurisdiction of the Province of Manitoba, including any department of the government of Manitoba and any municipality, town or city within the province.
  • To ensure that employers set policies and programs for the advancement and promotion of Aboriginal people.
  • To monitor compliance with established employment equity targets.
  • To require employers in receipt of government grants or contracts to establish an acceptable employment equity plan with appropriate time frames, within which Aboriginal people will be hired.
  • To hear and determine complaints against any person or employer who fails to comply with an established employment equity plan.
  • Hearing panels called upon to determine complaints be entitled to make orders requiring compliance with an employment equity plan acceptable to the commission, or make such other order as may appear appropriate to it, such as financial compensation either to an individual or to a group of individuals.

Although our focus is upon the Province’s responsibilities in this area, we also suggest that the federal government take similar measures.

We recommend that:

  • The federal government strengthen its employment equity legislation to establish an Employment Equity Commission similar to that which we recommend for the Province of Manitoba.



Removing Barriers to Equitable Employment TOP

Equality has a number of dimensions. Equality in employment requires that an individual not only have equal opportunity to be considered for employment, but also have equal opportunity to gain skills needed for employment, equal opportunity to information about the availability of employment, and equal consideration of his or her actual skills which are relevant to the employment in question.

One of the greatest barriers to employment opportunities lies in the formal qualifications which are used in hiring. The problems for Aboriginal people are obvious; if university degrees are a major criterion for hiring, then few Aboriginal people will be considered. The best alternative appears to be to ensure that all jobs are described in terms of the specific skills and knowledge required to do the job and to identify those related experiences which may be substituted for any formal requirement. Some jobs, we believe, could just as easily specify a proven ability to learn, as opposed to a specified level of educational attainment. As the report looking at government affirmative action and its own hiring process stated:

[T]here has been an unwarranted increase in the level of credentials required for positions being filled in recent years. This increase in qualification requirements is viewed as not being the result of bona fide job requirements and therefore, as a means of discriminating on the basis of education.2

We comment elsewhere upon the consequences which this has for Aboriginal people.

We believe that jobs which require or will inevitably result in high contact with Aboriginal people should place greater emphasis upon the applicant’s knowledge and skills in the area of Aboriginal culture and languages. Such positions could be designated as "Aboriginal bilingual positions" within government, much as the government now designates some positions as "bilingual" for purposes of its French language policy.

We recommend that:

  • Federal and provincial government positions which require or will inevitably result in high contact with Aboriginal people be designated as "Aboriginal bilingual positions."

We are convinced that the effectiveness of the justice system will be immeasurably improved, and Aboriginal people served much more appropriately, if the approaches we have recommended are taken. TOP


Affirmative Action for Aboriginal Lawyers TOP

The number of Aboriginal lawyers in Manitoba and in Canada is disproportionately low. According to information provided by Statistics Canada, there were approximately 43,000 lawyers in Canada in 1988. Of that number, fewer than 200 were Aboriginal. If the national Aboriginal presence in the population of 3% is considered, then there should be nearly 1,300 Aboriginal lawyers in Canada.

In Manitoba there are approximately 1,600 lawyers. There should be approximately 190 Aboriginal lawyers in Manitoba alone if Aboriginal people were to be proportionately represented in the legal profession. In fact, less than 10 Aboriginal lawyers are actually engaged in the practice of law in this province.

If we are ever to increase the number of Aboriginal judges within the existing system, the pool of Aboriginal lawyers available from which to select must first be enlarged.

One of the reasons for the low numbers of Aboriginal lawyers is the low level of Aboriginal students in post-secondary institutions. However, it would appear that even among those Aboriginal students who do go on to post-secondary education, law school has not been an option often considered.

Increasing the number of Aboriginal students should be a priority for the University of Manitoba Law School. Once Aboriginal law students are enrolled in law school, additional supports are required to ensure they go on to graduate. Don Purich, the director of the Native Law Centre at the University of Saskatchewan, told us:

In our review of what happens in law schools, we have determined that there are three things that very much influence the success that [Aboriginal] students have in a law faculty and those are the availability of supports services; the existence of a peer group at the law school which we find to be a very important factor; and the number of faculty members researching and teaching in the Aboriginal law area.

The University of Manitoba Law School does not have on its faculty an Aboriginal person with the responsibility of providing support services to Aboriginal students. We believe that it should do so. In addition, we believe that the Law School should immediately undertake the development of a full credit course or courses in Aboriginal people and their legal issues, as well as ensuring that Aboriginal issues are taught as part of various law courses.

As is the case with educational criteria generally, a concern arises about an over-reliance upon law school selection criteria shown to be culturally and ethnically biased. The University of Manitoba Law School, as is the case generally across Canada, relies heavily upon the student’s previous university marks, as well as the student’s score in the Law Schools Admissions Test (LSAT). The manual which accompanies the LSAT states:

Scores on the LSAT, as in other tests of its kind, never completely represent the potential of any student. This is especially true for American Indian, Black, Mexican American, Puerto Rican or other minority students whose educational experience in and out of school may have differed significantly from that of the great majority of students.

LSAT scores are becoming more and more widely used as a method of eliminating applicants from consideration, rather than as an indication of the student’s potential ability to successfully complete law school. Generally, those students with the highest grade point averages and the highest LSAT scores are admitted first. Over the years, the average LSAT score for successful first-year law school applicants has risen dramatically, and the tendency has been to eliminate those with lower scores, even though those eliminated can probably successfully complete the law school program. According to Purich, the average LSAT score at the time of his presentation to us was approximately 33, whereas he believed that students with an LSAT score over 20 could succeed at law school:

Roughly ten people apply for every one position in our Canadian law schools. In order to be considered or gain admission through [the] general admission category, one would probably need [a] minimum of a 75 percent grade point average and a Law School Admission Test score of probably at least 35 out of 48.

Our studies at the Native Law Centre have shown that people with a Law School Admission Test score of 20 have a reasonably good chance of succeeding in law school and I think we should bear in mind that at one time, getting into law school, and I will confess when I got into law school all one needed was a 65 percent grade point average.

So, I think the criteria used in the general category do in fact work to the disadvantage . . . of many qualified applicants . . . who have faced some educational disadvantages or other problems in terms of gaining entry.

In recognition of the fact that the general admission category may, in fact, work to the prejudice of minority students, all Canadian law schools have set up "special admissions" categories. The people who are considered in that category vary somewhat from law school to law school.

The University of Manitoba does have a special admissions category for Aboriginal (and other) law students. As with other special admissions categories across Canada, there are certain minimum standards which each applicant must meet, but such applicants are not required to compete with other students in the general admissions category. Their applications are considered on the basis of their LSAT score, their grade point average, their life and work experiences, and their maturity level.

But even with a special admissions category, it is hard to imagine that the number of Aboriginal lawyers in Manitoba will reach the level we believe to be necessary. With a first-year class of approximately 100 students, the University of Manitoba will have to ensure that 12 students of each class are Aboriginal simply to maintain an adequate Aboriginal presence in the profession into the future. However, an additional number will need to be admitted in order to eliminate historical imbalances. If that were attacked at the rate of 20 lawyers per year (additional to the 12 per year needed to maintain parity), it would still take almost nine years to overcome the imbalance. Clearly, this has implications for the limiting of Aboriginal students to a special admissions category. Some will have to be admitted in the general admissions category, as well. This raises questions about how the Law Faculty considers all law school applicants generally.

We believe it is important that Aboriginal law school applicants be required to meet those standards which are essential determinants of the students’ ability to perform the work necessary in law school and thereafter as lawyers. As with police recruits, we believe that it is improper to develop what are perceived as "lower" standards for Aboriginal students. However, we also believe that the use of educational criteria which do not primarily indicate the individual’s ability to perform the tasks required for the intended position should be eliminated, or the manner of their use altered.

Because the use of a special admissions category does have the potential to stigmatize qualified Aboriginal students, we encourage the Faculty of Law to review its entrance processes so as to ensure that minimum eligibility criteria for all students are identified and applied, and that all students are thereafter selected in a process which is not more favourable to non-Aboriginal students than to Aboriginal ones.

Law schools generally have an obligation to address this issue and we believe that they should be coordinating efforts to do so as soon as possible.

One of the options which we recommend is the establishment of a one-year, pre-law program, where Aboriginal students could attend and study legal and other courses designed to assist them in entering and graduating from law schools in more significant numbers than current law school initiatives are able to generate. Their successful completion of such a program should be a factor to be considered on their application for admission into the Faculty of Law. We note that a similar program has been utilized with some success for Aboriginal medical students. Such a pre-law program could be offered at the Aboriginal Justice College.

We recommend that:

  • The University of Manitoba Faculty of Law establish a recruitment program whereby Aboriginal students (including those in high schools) throughout Manitoba and Northwestern Ontario are encouraged to attend law school.
  • The Faculty of Law review the manner in which it makes use of the Law School Admission Test scores and grade point averages of law school applicants to ensure that Aboriginal students capable of successfully completing law school are not thereby unfairly eliminated.
  • The Faculty of Law increase the number of Aboriginal law students it accepts into first-year law. The minimum number of students it should be accepting would be 12% of each class, the same proportion as the proportion of Aboriginal people in the general population. Entrance levels should also include an additional number to overcome historical imbalances.
  • The Faculty of Law engage an Aboriginal person as a member of its faculty with the primary responsibility of providing support services to Aboriginal students and with the secondary role of developing materials on, and teaching, Aboriginal law.
  • The Faculty of Law undertake the development of a full credit course or courses in Aboriginal legal issues, and ensure that Aboriginal issues are included as part of the core courses taught to each law student.
  • The Faculty of Law organize and sponsor a conference of law schools from across Canada, to be held for the purpose of addressing the issue of increasing the numbers of Aboriginal law graduates in Canada so as to accomplish two objectives:
    • To overcome historical imbalances in Aboriginal under-representation in the legal profession.
    • To establish entry levels of Aboriginal law students that will ensure that the Aboriginal presence in the legal profession reflects the Aboriginal presence in the population generally.
  • The Faculty of Law and the Aboriginal Justice College establish a pre-law program for Aboriginal students wishing to enter law school.



Information-Gathering and Statistics TOP

It is clear that our justice system has been sorely tested and found wanting in the course of this Inquiry. Inquiries in other provinces which have looked at Aboriginal people and the justice system have concluded, much as we have, that Aboriginal people are being treated unfairly, and that major reforms to the manner in which justice is delivered to them need to be brought about.

One of the problems which became apparent to us from the outset is the fact that the justice system is largely unaware of the nature and the magnitude of the problem with which Aboriginal people are confronted. This arises, in part, because there is an insufficient collection of data. For the most part, administrators simply are not aware of what the justice system is doing, insofar as Aboriginal people are concerned. We believe that is not compatible with sound planning or proper administration. Therefore, we believe that data-gathering to determine the impact of the justice system on Aboriginal people should be done systematically.

While it may be argued that improved record-keeping would be expensive, cost has not prevented the establishment of elaborate data collection of criminal records and fingerprints. We also understand the concerns of those who suggest that keeping records based on ethnic background could lead to other problems. Aboriginal people have been subjected for too long to intrusive scrutiny.

We believe, however, that justice system data can play an important role in the future, although waiting for that data should not be used as an excuse for inaction. Record-keeping that simply identifies offenders by ethnic background also would not achieve much. Instead, records should be kept that focus on different processes within the justice system. Support for this was expressed to us by Ken Filkow, chairperson of the Manitoba Human Rights Commission, in his presentation to us.

There has been some newspaper accounts reporting that the City of Winnipeg Police Force has taken the position that the human rights legislation has precluded the department from collecting data regarding the participation of Aboriginal people in the system. This is a very serious misunderstanding which the Commission wants to correct. The collection of such data is clearly an important element in the planning and delivery of affirmative action programs.

Aboriginal people themselves need to be able to assess the manner in which they are affected by the justice system. We believe that Aboriginal organizations see the wisdom and the validity of the need to gather such information. If the Canadian Centre for Justice Statistics or the provincial Department of Justice were to consult with Aboriginal groups on the kinds of data that should be gathered, we are sure any objections could be overcome.

We recommend that:

  • Governments consult with Aboriginal groups to design and implement a data collection system that will provide detailed information to compare the impact on, and treatment of, Aboriginal and non-Aboriginal persons by the justice system, to evaluate the success of programs dealing with Aboriginal offenders and to provide information to help identify needed reforms.



Resources TOP

There are two aspects to the matter of resources which we wish to address. One has to do with the issue of the extent to which our recommendations call for the expenditure of additional resources on the administration of justice in Canada. Secondly, there is the related question of how best to provide resources for the increased responsibilities and jurisdiction which we call upon Aboriginal communities to accept and exercise in the future.

It is clear that the delivery of justice to Manitoba’s Aboriginal people is costly. Tens of millions of dollars are spent every year by the federal and provincial governments to pay for justice services involving Aboriginal people. Simply redeploying those resources in a manner that is less reactive to crime and more preventive would be a substantial improvement.

We are mindful of the fact that the end result of our recommendations likely will be that additional resources will have to be found. We have refrained from costing out the recommendations, because we do not believe that a cost-benefit analysis is the way to approach the question of justice for Aboriginal people.

It should also be clear that we view some of our recommendations ultimately as cost-saving measures. Many of them address ways to avoid the continued incarceration of Aboriginal people, a practice which constitutes the single greatest drain on the already limited resources of the justice system.

From time to time, we have addressed the necessity for Aboriginal leaders and their governments to accept their responsibilities and to take action. We do so on the clear understanding that Aboriginal governments, to a large extent, are dependent on other governments for their funding. We note that raising revenues from the limited sources available to them is next to impossible. The land included in most Indian reserves and other Aboriginal communities in Manitoba has limited economic potential.

Therefore, Aboriginal governments will need to obtain additional resources from government to implement change. However, improvement in the delivery of justice to Manitoba’s Aboriginal people is an urgent matter. We cannot continue to deliver justice to Aboriginal people as it has been delivered in the past.

Providing ongoing and consistent levels of resources to Aboriginal governments is a fundamental issue, and is one which cries out for solution. We believe the Aboriginal Justice Commission should address this question as a matter of first importance, but we encourage government and the residents of Manitoba to rethink their approach to funding.

Requiring Aboriginal governments to go on bended knee to other governments each year for a financial contribution so that they can fulfil their own governmental responsibilities is not only demeaning to Aboriginal people, but is an inappropriate way to treat such an issue over the long term. A satisfactory solution needs to be found that takes into account not only the ongoing needs and responsibilities of each level of government involved (including Aboriginal), but also the fact that access to adequate resources to accomplish valid governmental objectives is part of the Aboriginal right to self-government.

We encourage the development of a firmer funding arrangement for Aboriginal government. We suggest that the matter be approached on several fronts:

  • That a formula be worked out between federal, provincial and Aboriginal governments whereby a base level of funding would be provided to Aboriginal governments at a level equivalent to a proportionate share of government revenue.
  • That, as descendants of the original owners of the land and as an aspect of their treaty rights, Aboriginal people, through their governments, be entitled to a share of resource revenue from each level of government.
  • That a system of transfer payments be worked out whereby Aboriginal people can benefit from the greater access to the revenue-producing powers available to other levels of government—particularly the federal powers.

We believe that as long as the question of funding to Aboriginal government is approached as a question of government discretion, the evolution of the relationship between Aboriginal people and non-Aboriginal people will be impaired. It is a matter that needs to be resolved fairly, equitably and with dignity.

We recommend that:

  • As a matter of urgent importance, governments and Aboriginal people, with the assistance of the Aboriginal Justice Commission, negotiate an acceptable process to provide ongoing funding for Aboriginal governments to undertake the initiatives we suggest, in a manner consistent with:
  • The need of Aboriginal people for an ongoing, consistent revenue base.
  • The right of Aboriginal people, as original owners of the land, to a fair share of revenue resources from both levels of government.
  • The greater access to the revenue-generating powers and sources available to federal and provincial governments.



Conclusion TOP

We now conclude our report.

We have investigated the administration of justice in Manitoba and have come to the conclusion that it does not deliver justice to Manitoba’s Aboriginal people. In almost every aspect of our legal system, the treatment of Aboriginal people is tragic. We marvel at the degree to which Aboriginal people have endured, and continue to endure, what the justice system is doing to them. However, they have paid the price of high rates of alcoholism, crime and family abuse.

The time to act is at hand. Aboriginal people will be able to find their way out of the destructive labyrinth to which they have been consigned, but only if federal and provincial governments take positive action to fulfil their historic responsibilities and obligations. In this manner, government can begin to build a new relationship with Aboriginal people based upon respect, understanding and good will.

With greater self-determination in their own territories, Aboriginal people can begin to feel they are being dealt with fairly. With their own justice system, they can assume responsibility and once again deal with their own problems in their own culturally appropriate manner.

For those Aboriginal people not living in an Aboriginal community, a restructuring of the existing justice system will enable them to be dealt with in a humane and positive manner. With Aboriginal people working in every aspect of that system, a sensitive, informed and positive approach to Aboriginal people will become possible.

We have suggested what we believe has to be done and we have indicated how governments and agencies can bring about the necessary changes. We have completed our assignment. Government and others must now accept the responsibility to make the changes that cry out for action.

Canada’s treatment of its first citizens has been an international disgrace. To fail to take every needed step to redress this lingering injustice will continue to bring tragedy and suffering to Aboriginal people, and to blacken our country’s name throughout the world. By acting now, governments can give positive expression to the public support and good will we have encountered from Manitobans during the past three years. TOP

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