The Justice System and Aboriginal People
The Aboriginal Justice Implementation Commission
Manitoba Courts TOP
At the centre of any justice system lie the courts. All accused individuals are entitled to their day in court, and all offenders are sentenced by a court. If there is to be any justice in our legal system, it includes the fair and equitable operation of the courts. TOP
Manitoba courts deal with all manner of laws, whether passed by the federal, provincial, municipal or band authorities. Civil matters are dealt with by the Court of Queens Bench. Criminal matters are dealt with by the Court of Queens Bench and by the Provincial Court of Manitoba, depending on the nature of the charge and, in some cases, on the choice of the accused person. Family law is dealt with by both the Queens Bench and the Provincial Court, depending on the type of case and the location of the dispute.
Criminal offences in Canada are defined by the federal Criminal Code, which creates three different kinds of offences, depending upon their seriousness: summary conviction offences, indictable offences and hybrid offences. Each type of offence is treated by the courts in a different manner. TOP
There are three courts which play a crucial role in the daily administration of justice in Manitoba. These are the Provincial Court of Manitoba, the Court of Queens Bench of Manitoba and the Court of Appeal.
The Provincial Court has jurisdiction to deal with offences under federal criminal laws, provincial statutes and municipal by-laws. It also has jurisdiction to deal with Child and Family Services Act matters in certain parts of the province. The judges of the Provincial Court are appointed and paid by the Province of Manitoba.
Trials in Provincial Court are conducted by a judge sitting alone without a jury. With a few exceptions, this court has the jurisdiction to hear any criminal case. In serious cases where the charge has been designated as indictable, an accused may have a choice to be tried by a Provincial Court judge, by a Queens Bench judge sitting alone, or by a court composed of a Queens Bench judge and a jury. In less serious cases, the accused may have no choice and the case is heard in the Provincial Court.
Where an accused chooses to have a trial in the Queens Bench, either before a judge alone or with a judge and jury, a Provincial Court judge conducts a preliminary inquiry. The purpose of that hearing is to determine whether there is enough evidence to warrant a trial. If there is not sufficient evidence, the accused is discharged at that stage. If there is enough evidence, the accused is committed for trial, a transcript of the evidence is prepared and the case is transferred to the Queens Bench for trial.
The Provincial Court is the designated Youth Court for Manitoba and it hears all matters under the Young Offenders Act. The Crown, however, may apply to have a case transferred for hearing in the Queens Bench. The youth court judge may grant or deny that application. That decision, however, is subject to an appeal to a judge of the Queens Bench.
In child protection matters, the Provincial Court has concurrent jurisdiction with the Family Division of the Queens Bench, except in Winnipeg, Brandon, St. Boniface and Selkirk, where the Queens Bench has exclusive jurisdiction in this field. The Provincial Court also deals with maintenance enforcement in locations where the Queens Bench does not sit.
Where the Provincial Court has jurisdiction under the Family Maintenance Act, it may grant a separation, order custody of and access to children, and order child or spousal support. The Provincial Court does not have jurisdiction to grant a divorce, to divide marital property, to grant exclusive possession of a house, or to grant an order of prohibition or non-molestation in potentially abusive situations. It may grant, however, a non-molestation order if there is a charge under the Criminal Code, either as a condition of bail or as part of a probation order following a conviction.
Judges of the Provincial Court reside in Winnipeg, Portage la Prairie, Brandon, Dauphin, The Pas and Thompson. They also hold court in many small, rural communities and in the remote communities of northern Manitoba. The Provincial Court operates over 50 circuit courts out of six provincial judicial centres. The Winnipeg-based circuit of the Provincial Court sits in approximately 18 non-urban settings, while the Thompson circuit of the Provincial Court sits in approximately 20 remote communities, flying in to all but one of them. The frequency of these visits varies, depending on caseload and location, with some communities being visited twice a month and some only once a year.1
There are 39 full-time Provincial Court judges in Manitoba, one of whom is Aboriginal.
Court of Queens Bench
The Court of Queens Bench has wide civil and criminal jurisdiction, including jurisdiction accorded by federal and provincial legislation, as well as inherent jurisdiction to deal with other matters and procedures enshrined in the common law.
In criminal matters, depending on the charge or the choice of the accused, trials may be before a judge sitting alone or before a judge and jury. In each case there will have been a preliminary hearing in the Provincial Court and there will be a transcript of those proceedings. The Queens Bench holds jury trials at Winnipeg, Portage la Prairie, Brandon, Dauphin, The Pas and Thompson.
Civil cases dealing with any legal dispute people wish to bring to court are dealt with by the Court of Queens Bench. This court also deals with small claims, which are heard first by a hearing officer, but may be appealed to a judge of the court. Decisions of administrative tribunals are reviewed and declaratory orders may be made. Appeals from sentences or from decisions of the Youth Court dealing with raising a youth to adult court are heard.
The Family Division of the court has exclusive jurisdiction to deal with a number of family-related statutes, the most common of which are the Divorce Act of Canada and the provincial Family Maintenance Act, Marital Property Act and the Child and Family Services Act, in areas where there is a resident Family Division judge (Winnipeg, Brandon, St. Boniface and Selkirk). In other parts of the province, both the Family Division of the Queens Bench and the Provincial Court have jurisdiction to deal with child protection cases. This division also deals with adoptions. The Family Division has attached to it a social arm, Family Conciliation, which performs a mediation function in custody and access disputes and prepares reports for the court when requested. There are 15 counsellors resident in several locations throughout the province.
The Court of Queens Bench, including the Family Division, holds regular sittings at Winnipeg, St. Boniface, Selkirk, Portage la Prairie, Morden, Brandon, Dauphin, Swan River, The Pas, Flin Flon and Thompson. Aside from occasional sittings in Minnedosa, these are the only communities in which the Court of Queens Bench sits. The court does not sit in a single Aboriginal community. The court does not hold jury trials during July and August.
The judges of the Court of Queens Bench are appointed and paid by the federal government. Judges are appointed either to the Court of Queens Bench, without any other designation, or to the Family Division of the Court of Queens Bench.
There are 33 Court of Queens Bench judges in Manitoba, none of whom is Aboriginal.
Court of Appeal
The Court of Appeal hears appeals from the Provincial Court, from the Court of Queens Bench, from administrative tribunals and, on occasion, a specific reference directly from the government on a constitutional issue. This court has seven judges, one of whom is the Chief Justice of Manitoba. None of the Court of Appeal judges is Aboriginal.
Witnesses seldom testify in this court. Appeals are invariably based on the record of the proceedings in the lower court and on the arguments of counsel. The record includes the documents that have been filed and, where evidence has been given, a transcript of that evidence. The court also hears appeals against the length of sentence imposed by a trial judge.
The Court of Appeal conducts all its hearings in Winnipeg. The court usually sits in panels of three, but for more serious matters five judges sit to hear an appeal. As the Supreme Court of Canada becomes busier, the Court of Appeal increasingly has become the court of last resort for Manitobans.
Supreme Court of Canada
This court hears appeals from the Manitoba Court of Appeal. Except in cases where the Court of Appeal is divided, no criminal appeal can be heard unless a preliminary application to appeal is made. In general, the Supreme Court limits appeals to matters of national, rather than local or personal, interest and to cases dealing with Charter of Rights and Freedoms and constitutional issues. TOP
Judges play a key role in the legal system. Not only do they make a determination of guilt or innocence at the end of a trial, but they have a large measure of control over the way a case proceeds from the time of the first appearance of the accused in court until the final disposition. In making decisions, judges are supposed to represent the community, since the judge applies the laws established by the communitys representatives in the Legislature and Parliament. If they are to adequately fulfil this role of representing the community, judges must understand the community and must be aware of the cultural background and the circumstances of those who appear in court.
A judge should be seen as one who brings justice to the people and community he or she serves. Serving a community means not only the application of the law to cases, but also making dispositions that will be accepted and respected by those coming before the court and by the community at large. If the ultimate goal of the law is to regulate conduct and to maintain a safe environment in which individual and community rights are preserved, the judge must have an understanding of the individual before the court and of the community itself.
There are just over 1,600 lawyers in Manitoba. Approximately 880 of these lawyers practise at least some criminal law: approximately 800 of them as members of the private bar, 50 as Crown prosecutors and 30 as staff lawyers with Legal Aid Manitoba.
The duty of defence counsel is to represent a client to the best of his or her ability. In Manitoba an accused person, if he or she has sufficient resources, may hire a defence counsel from the private bar. If the accused meets the income qualifications, Legal Aid Manitoba will arrange to have the accused represented by a defence counsel of the accuseds choice from the private bar who is willing to act, or by a Legal Aid staff attorney.
It is estimated that there are fewer than 200 Aboriginal lawyers in all of Canadafewer than 10 of whom practise in Manitoba. There would be approximately 190 Aboriginal lawyers in Manitoba alone if Aboriginal people were to be represented in the legal profession proportionate to their share of the provinces population.
Legal Aid Manitoba
Legal Aid Manitoba (LAM) provides a variety of legal services to low-income Manitobans. Although it keeps no records of the racial background of its clientele, Aboriginal people constitute a significant proportion. Legal Aid services are provided on a sliding scale, depending on an applicants income and family size. According to guidelines presented to us, an individual with a family of four would have his or her legal costs fully covered if his or her family income is $25,000 a year or less. If this persons family income is between $25,000 and $27,000, he or she would have to repay a portion of the legal costs incurred by Legal Aid. If the family income is between $27,000 and $31,500, the individual would have to repay the full amount of the Legal Aid costs.
Legal Aid provides legal services for all indictable offences, for summary conviction cases where there is a likelihood of jail or loss of employment upon conviction, for civil cases where there is a reasonable likelihood of success, and for administrative tribunals where the merits of the case warrant. In 198788, 30,932 people applied for Legal Aid representation and 6,565 had their applications refused.2
There are Legal Aid offices in Winnipeg, Brandon, Dauphin, The Pas and Thompson. According to the Legal Aid brief presented to us, Legal Aid Manitoba employs 35 lawyers, seven articling students and six paralegals (two of whom are fluent in Aboriginal languages and service four Aboriginal communities from Thompson). Two lawyers are located in The Pas and four in Thompson. As of 1988, the agency had no Aboriginal lawyers on staff, although the agency has had a number of Aboriginal law students article with it over the years.
One of the most important services provided by Legal Aid is the provision of duty counsel. These lawyers are present in the courts to advise people who are appearing without a lawyer of their rights, to assist them in applying for bail or for Legal Aid assistance, and to speak to sentence if they wish to plead guilty. Duty counsel also can be appointed to act as defence counsel at a trial. Eligibility for duty counsel representation in criminal matters requires only that a person be charged with an offence. Legal Aid currently provides duty counsel on a routine basis at all provincial courts and at Youth Court at the Manitoba Youth Centre. In 198788 Legal Aid duty counsel served just over 28,000 persons, and provided information and advice to 17,200 more.3
People who qualify for Legal Aid are allowed to have their case handled by a member of the private bar, as long as that lawyer is on the LAM panel of private bar lawyers who have indicated their willingness to accept legal aid cases. In Saskatchewan private bar lawyers are allowed only for murder cases, while Alberta provides private bar lawyers on a strict rotationallowing for no choice on the part of the accused. The private bar handles about 70% of the legal aid cases in Manitoba each year.4
There are two significant restrictions on the freedom of choice accorded to an accused person in Manitoba who qualifies for Legal Aid. First, Legal Aid Manitoba will not pay travel time or expenses for lawyers, unless there are no lawyers available, either in terms of resident lawyers or travelling duty counsel, in the community where the accused resides. For this reason very few private bar lawyers are willing to take cases in remote northern communities. Second, while an accused may choose to be represented by a prominent lawyer, he or she often finds that the case has been assigned to a junior lawyer working for the same firm as the requested lawyer.
Crown attorneys are employees of the provincial Justice department. The Crown attorney may be consulted by the police on whether charges should be laid and, if so, what the appropriate charge should be. He or she will decide whether a hybrid offence will be pursued as an indictable offence or as a summary conviction, which witnesses are to be called, whether charges will be stayed at any point and whether there is going to be an appeal. The majority of the work of Crown attorneys involves consultation with the police, the prosecution of cases, and speaking to the sentencing of people who have entered a plea of guilty or have been convicted.
Magistrates and Justices of the Peace
These officers are appointed and paid by the provincial government. Some are full time and others act on a part-time basis. They have limited authority to hear minor offences under the Criminal Code of Canada or under a variety of provincial legislation. They also grant bail in some cases and issue subpoenas and warrants. While they may conduct some trials, they generally receive pleas of guilty and impose fines according to a schedule prepared by the Justice department. Most of their work involves offences under provincial laws. There are 20 Aboriginal magistrates in Manitoba.
Masters are officers of the Court of Queens Bench, and are appointed and paid by the provincial government. They deal with all bankruptcy cases and with specific issues referred by judges. They deal with all manner of procedural disputes and are responsible for the Child Protection and Enforcement of Maintenance Orders dockets of the Queens Bench in Winnipeg, Brandon, Selkirk and Dauphin. They have jurisdiction throughout the whole of the province, but, currently, only sit at the above locations. Hearing officers of the Court of Queens Bench are responsible to the Senior Master. None is Aboriginal.
Hearing officers of the Court of Queens Bench hear small claims civil cases involving less than $5,000. They also assist in the enforcement of maintenance orders. Hearing officers reside in Winnipeg and Brandon, and travel to other parts of the province from time to time. None is Aboriginal.
Court reporters record the evidence and other proceedings of the Queens Bench and Provincial courts. When requested, they provide transcripts of the evidence taken at a preliminary inquiry, a trial or sentencing hearing.
Aboriginal Court Workers
Since the early 1970s, Manitoba has had a program, run under the jurisdiction of the chief judge of the Provincial Court of Manitoba, to provide assistance to Aboriginal people who are charged with offences in Provincial Court. It originally was called the Court Communicators Program, but recently has been renamed the Aboriginal Court Worker Program. Aboriginal court workers help Aboriginal accused understand their rights and the court process. The court workers will help accused in obtaining a lawyer and applying for legal aid. They can attend court to provide information on the accused to the court. There are 10 full-time court workers, two part-time court workers and a chief court worker. They are located in Winnipeg, Fort Alexander, Brandon, Dauphin, The Pas, Thompson, Grand Rapids and Portage la Prairie. They are all Aboriginal persons.
The program has been recently evaluated by the Justice department and is currently undergoing a reorganization. A new advisory council, with representation from various Aboriginal organizations, has been created and the program was renamed. It is the only Aboriginal court worker program of its type in Canada which is not run by an Aboriginal agency.
Sheriffs serve subpoenas to witnesses who are to appear in criminal cases, summon and assemble jury panels, maintain security and order in courts, and escort prisoners. There are approximately 80 sheriffs in Manitoba who operate under the supervision of a chief sheriff.5
Court Clerks / Court Monitors
Court clerks ready a court for a sitting. They prepare the docket or list for the day and make certain that the necessary files and documents are available. They mark and keep control over all exhibits that are filed and see that all orders are entered properly. Many act as court monitor as well, and record, and sometimes transcribe, court proceedings.
At present there are five Aboriginal court clerks in Manitoba. We understand that the Manitoba government, in conjunction with the Core Area Initiative program, is currently training 15 Aboriginal people to become court clerks.
In circuit courts, court clerks also function as magistrates with jurisdiction to hear guilty pleas, swear informations and issue court documents such as summonses or subpoenas. TOP
A great many talented and dedicated people are involved in the operation of a very intricate and complex court system. Despite the best efforts of all involved, however, the court system is one which is becoming increasingly estranged from the general public and one which has never been accepted by Aboriginal communities. Justice in Manitoba is not being delivered in a manner which is sensitive to the concerns of local communities. There is not equal access to the services of courts across Manitoba, nor is there a swift resolution of cases. For Aboriginal people, the manner in which they are processed in the criminal court system is particularly unsettling. TOP
Manitoba has two criminal trial courts and an appellate court. The Court of Queens Bench hears the most serious of criminal cases and sits with a judge and jury or a judge alone. The Provincial Court hears 95% of all criminal matters and all youth court matters, and sits without a jury. There are numerous offences which start in one court and end up in the other, and there are numerous offences which can be tried entirely in either court, depending on choices made by either the Crown or the defence. Part of the problem, as we shall see, is that both courts are not equally accessible throughout the province.
This results in the provision of differing levels of service to different parts of the province. Northern Manitoba, where most Aboriginal communities are located, and where travel can be especially difficult and costly, suffers as a result of any matter having to be heard in both courts or solely in the Court of Queens Bench. One can grasp the problems and delays that this creates for Aboriginal people only by following the route that offenders must travel through this system before they come to trial. TOP
In most cases a police officer sets the criminal court process in motion by presenting a justice of the peace or magistrate with a written allegation that a person has committed an offence. If the police officer swears that he or she believes there are reasonable and probable grounds for the charge, the justice can issue either a summons requiring the accused to attend a court hearing on a specific date, or a warrant for the arrest of the accused. In many cases the person may already have been apprehended by the police officer and be in custody. The Charter of Rights and Freedoms requires that, when an arrest takes place, the accused is to be informed of his or her legal rights. The formalities of the legal system can begin to frustrate the Aboriginal person even at this early stage in the proceedings. A Legal Aid paralegal in northern Manitoba told us of an Aboriginal accused who thought the police were telling him he must take counselling, when, in fact, they were advising him of his right to legal counsel. TOP
When a suspect is taken into custody, the first issue that must be resolved is whether the accused will be released by the police officer or granted judicial interim release or, as it is more commonly known, bail.
If an arrested person is charged with an offence that carries a maximum penalty of less than five years imprisonment, he or she must be released by the police unless there are reasonable grounds to believe that he or she would not show up in court or that his or her release would not be in the public interest. This would include, for example, where the person presents a danger to himself or herself, to another individual or to society. In releasing the accused, the police may also require a promise to pay the Crown up to $500 should he or she fail to abide by the terms of the release. If the accused does not live within 200 kilometres of the community where he or she is being held in custody, the police can also require a cash deposit of up to $500 before releasing the individual.
If the police choose not to release him or her, the accused must be brought before a justice of the peace or a judge within 24 hours of arrest. Ordinarily, a person may be held in custody only if the prosecution satisfies the court that his detention is necessary to ensure his attendance in court, or that detention is necessary in the public interest or for the protection or safety of the public ... including the substantial likelihood that the accused will ... commit a criminal offence....6 Where the accused is already on bail, and in some other circumstances, the onus of proof is on the accused.
Where an accused is charged with murder or the other offences mentioned in section 469 of the Criminal Code, bail can be granted only by a Queens Bench judge. In those cases the onus of proving he or she should not be detained also falls on the accused.7
Bail and Aboriginal People: Some Statistics
We examined the impact of the denial of bail on Aboriginal people. Our analysis of data collected in a study done on Provincial Court cases reveals that Aboriginal persons were 1.34 times more likely to be held in pre-trial detention. For Aboriginal women aged 1834, the difference was 2.4 times. For adult males between the ages of 18 and 34, Aboriginal persons spent 1.5 times longer in pre-trial detention. Overall, we determined that Aboriginal detainees had a 21% chance of being granted bail, while non-Aboriginal detainees had a 56% chance. We discovered that in Winnipeg and Thompson, Aboriginal people spent considerably more time in pre-trial detention than did non-Aboriginal people.
In Winnipeg, the average length of detention for an Aboriginal detainee was more than twice as long as for non-Aboriginal detainees. In Thompson, the average length of detention was 6.5 times longer for Aboriginal detainees.
In Thompson, 28% of Aboriginal people who applied for bail had their applications denied, versus 10% of non-Aboriginal accused.
During the course of our Inquiry, we heard of cases where Aboriginal people were held in custody on remand for a year or longer.
The issue of pre-trial detention is particularly serious when one looks at the treatment of young offenders. According to our information, on average, Aboriginal youth in pre-trial detention were detained almost three times longer than non-Aboriginal youth.
The Consequences of Bail Denial
Persons who are denied bail face numerous difficulties. The most obvious is that they are denied their liberty until the court process has run its course, which can take over a year. This can seriously impair family life and can result in a loss of employment. Accused who are held in custody until trial also are less able to participate in the development of their legal defence.
Time spent in custody often is referred to as dead time. An accused serving dead time languishes in jail, serving custodial time which may or may not be taken into account in the final disposition, and during which he or she quite literally has nothing to do. Many prisoners complained to us that they did not think they received credit for the time they spent in custody prior to sentencing, because a sentence only starts to run from the day it is imposed. They also complained that they could not take advantage of, or participate in, any of the institutions programs for sentenced inmates. Alcohol and drug counselling may have been offered to some of them, but even that was not always so.
Indeed, accused who serve their remand time in custody often serve this time in conditions which are more restrictive and punitive than those experienced by convicted criminals. The Winnipeg Remand Centre, which has been the scene of a number of suicides, is a prime example of this problem. The denial of bail also increases the pressure on an accused to plead guilty just to end the court process as quickly as possible and to obtain relief from the conditions of remand.
The denial of bail can have more sinister consequences. The strength of a case against an accused and the circumstances surrounding the commission of an offence are factors which the court can take into account when deciding whether to release an individual. If bail is denied, this sometimes can create an aura of guilt or suspicion. In the eyes of an Aboriginal accused and the general public, the fact that a person has been charged with a serious offence and has been denied bail is highly suggestive both of guilt and of the ultimate need to incarcerate. Studies have shown that individuals who have been denied bail are far more likely to be incarcerated upon conviction.8 It is difficult to estimate the degree to which the trial or sentencing judge has been influenced in his or her decision, either to convict or to incarcerate, by the fact that the accused was denied bail. However, it is easy to imagine why the accused may feel he or she is at a disadvantage.
It is advisable for an accused to be represented by legal counsel at a bail hearing. However, an arrested person may not have acquired the services of a lawyer within 24 hours of arrest, and even if he or she has, the lawyer might need more time to become fully prepared for the hearing. As a result, the accused may have to ask for what is likely to be the first of many remands or delays in the court process.
Bail and Systemic Discrimination
It is worthwhile to note the number of ways the pre-trial detention system can discriminate against Aboriginal people, particularly those who reside in remote communities.
When police arrest an Aboriginal person in a remote community, they often remove the accused from the community immediately, on the grounds that there is no local facility in which to hold the individual, or there is no local person who can hear a bail application. From this point on, the Aboriginal accused begins to be shuttled about the province.
Because of the economic circumstances of many Aboriginal people in Manitoba, an Aboriginal offender is likely to need to have a lawyer appointed through Legal Aid Manitoba. Waiting for the Legal Aid appointment process to be completed can lead to delays in the bail hearing.
Once that hearing does take place, a number of bail requirements or conditions of release can discriminate against the Aboriginal accused. Factors such as mobility, family ties, whether the accused is employed, whether the accused has a fixed address and the accuseds links with the community are all used by judges to determine whether a person is to be granted bail and how stringent the terms of release are to be. These factors militate against Aboriginal people and have a more adverse impact upon them than upon non-Aboriginal people. These factors also work against Aboriginal accused in urban areas.
Even if the accused is to be released, the court may impose a number of conditions that, while reasonable for many non-Aboriginal people, are out of reach and, therefore, unreasonable for Aboriginal persons. These might include a condition that another person undertake to ensure that the accused show up for trial and to provide a cash deposit, or a guarantee.
In 1986, for example, the unemployment rate for status Indians was four times the rate for non-Aboriginal people. In that year, 70% of Aboriginal Manitobans had incomes below $10,000.9 Finding a relative or acquaintance with sufficient meansa precondition to qualifying as a surety or guarantorcan be more than simply problematic, it can border on the impossible. Aboriginal people, therefore, are discriminated against by conditions of bail which require that someone assume a significant debt if the accused fails to appear in court. A person may be fully eligible for release except that he or she does not know anyone who can come up with sufficient money to post a surety or who has sufficient property to act as a guarantor. Aboriginal people living in cities are unlikely to own their own homes.10
This clearly creates a situation where there appears to be one law for the rich and one for the poor. In one of its presentations to our Inquiry, the John Howard Society told us that it is regularly requested to sign sureties for inmates at the Winnipeg Remand Centre. The society must turn these requests away because it lacks the necessary financial resources.
Additionally, Aboriginal people are compelled by socio-economic circumstances to migrate frequently between reserve and city in search of employment. Provisions of the Municipal Act also state that status Indians are required to be free of public assistance for a year before being entitled to provincial or municipal assistance. This sometimes results in Indian people having to continue to rely on band assistance even if they move to the city to look for work, which in turn means that they have to return to their reserves once per month to obtain their assistance.
Aboriginal people who frequently move between urban centres and reserve communities are more likely to be said to lack fixed addressesanother factor which works against them when bail is considered. Our survey of Aboriginal inmates indicated that while most of them were arrested in urban areas, they still maintained strong links with their reserve communities. This high rate of Aboriginal mobility places especially adverse burdens on Aboriginal accused.
In the United States, bail criteria have been codified into a number of scoring systems. We applied one of these systems, the Minneapolis Scoring System, to inmates at the Winnipeg Remand Centre. The system poses a series of questions relating to employment, residence, family ties, substance abuse and previous criminal recordimportant factors which our own judges take into account when considering judicial interim release. The scoring system gives points for various answers. Individuals who receive five or more points are considered good risks for release. We found that 39.1% of the non-Aboriginal inmates were considered good risks under that system, compared to only 29.4% of the Aboriginal inmates. This suggests that the criteria that judges currently employ are likely to be biased against Aboriginal people. TOP
It should be noted that there is a difference between a trial and a court appearance. A trial takes place after an accused pleads not guilty to the charges. The Crown then must call witnesses to prove the case against the individual.
A court appearance is just that, an appearance of the accused in court. At various steps in the court process, the accused is required to appear in court, but the case often is remanded or adjourned at the request of either the Crown or the defence, or both. Remands may be granted because the accused does not yet have a lawyer, because the defence needs to receive information from the Crown, because the Crown has not finished preparing the case, or because the Crown and defence wish to negotiate a plea. Often the court appearance lasts just a few minutes as the lawyers and judge quickly agree to a remand and set the date for another court appearance. The accused is often required to attend each court hearing, even if it is apparent that the matter will not be dealt with on that day. Some cases are remanded without a word being spoken to the accused. To Aboriginal persons, who may have had great problems just getting to court, the system seems cold and uncaring when it takes their attendance for granted and does not even inquire about problems they may have in returning on another day chosen by the court party. TOP
The next step in the court process is determined by the type of offence that is being tried and the type of trial the accused selects. Less serious offences, known as summary conviction offences, are tried in Provincial Court. Some indictable offences, such as mischief and theft under $1,000, are tried in Provincial Court, as well. Other indictable offences, such as murder, may be tried only in Queens Bench.
For most indictable offences, except for those deemed to be in the absolute jurisdiction of the Provincial Court by virtue of section 553 of the Criminal Code, the accused may elect to be tried in the Provincial Court or the Queens Bench. If the accused selects trial in the Court of Queens Bench, he or she must also specify trial by a judge alone or by a judge and jury.
Before a person can be tried by the Court of Queens Bench, a preliminary inquiry is almost always held. The Minister of Justice may issue a direct indictment, which by-passes the preliminary inquiry, but that is rarely done. TOP
If an accused elects to be tried by a Queens Bench judge or jury, a preliminary inquiry will be held in the Provincial Court. If the person is committed to stand trial at the preliminary inquiry, there is an arraignment in the Queens Bench when the indictment, or formal charge, is read and the plea of guilty or not guilty is entered. If the plea is guilty, the case is adjourned for sentencing. If the plea is not guilty, a trial date is set. The date will be determined to some extent by the date on which the transcript of the proceedings of the preliminary inquiry will be available.
A preliminary inquiry is a procedure in which there is a hearing to determine whether there is enough evidence to warrant the holding of a trial on charges that have been laid. The inquiry is held before a Provincial Court judge whose sole task is to determine whether there is sufficient evidence upon which a jury, properly instructed as to the law, might convict. The Provincial Court judge has very limited jurisdiction when presiding over this type of hearing. The judge may not determine guilt or innocence, but merely whether there should be a trial in another court. While the judge is permitted to make procedural rulings that might result in the dismissal of the charge, that jurisdiction is very limited. The judge may commit a person to stand trial on the original charge (e.g., murder), or may commit on a lesser charge (e.g., manslaughter), or may decline to commit the person to stand trial on any charge.
The preliminary inquiry is available only in cases where an accused has decided to have a trial in the Queens Bench. If the accused has elected to be tried in the Provincial Court, there is no preliminary inquiry and the case proceeds directly to trial before a Provincial Court judge. In that situation the judge listens to the evidence presented by all the witnesses who are called to testify and makes a determination of whether the accused is guilty or not. If guilty, the judge sentences the accused.
Preliminary inquiries were established in England in the days when a Queens Bench judge would go on circuit from London to other parts of the country to hear the more serious criminal cases. It was the responsibility of a local justice to hold a preliminary inquiry to weed out the weak cases in which there was insufficient evidence to warrant proceeding to trial.
Today, the responsibility for weeding out cases falls upon Crown attorneys. After reviewing statements taken by the police, and sometimes after interviewing witnesses, they are able to make a good assessment of the evidence available to them and the likelihood of a conviction. If they decide that the evidence will not support the charge, they either can reduce the charge to one the evidence will support, or apply their absolute discretion and stay the charge altogether.
The original need for the preliminary no longer exists. Cases seldom are dismissed at the preliminary inquiry stage. In a study conducted by our research staff, 208 preliminaries held in Winnipeg in 1989 were examined. Only three of the 208 cases, or 1.4%, were dismissed at the preliminary. The rest all went on to a trial or to a plea of guilty.
In its 1974 Study Report: Discovery in Criminal Cases,11 the Law Reform Commission of Canada suggested that the preliminary inquiry be abolished. However, the defence bar strenuously objected and the proposal was dropped. Defence counsel who discussed the matter with us felt that the preliminary was important for a number of reasons. The Crown uses it to see how its witnesses stand up under questioning and to see if there are gaps in its case that should be filled. The defence uses the preliminary to see how strong the Crowns case is and to obtain evidence from witnesses that may be used in cross-examination at the trial. What the lawyers for both sides are doing is obtaining discovery of the case to help them determine how to proceed, or whether the Crowns case is so strong that a plea of guilty might be the wiser way to proceed.
We do not quarrel with the benefit to both the Crown and the defence of having a mechanism for learning more about the case. None of the reasons we heard in support of retaining the preliminary dealt with the likelihood of the case being dismissed. Rather, the call for its retention was based on the information that can be obtained during the hearing.
We believe that the preliminary, as it is now structured, is not the only way that information can be obtained. Nor is it the best way. It is also clear that the requirement for a preliminary inquiry causes several problems in the system. It causes delay in the processing of cases. It ties up judicial time that could be put to much better use. It involves two courts in bringing cases to trial.
In civil cases there is often an initial hearing, called an examination for discovery. We believe a procedure needs to be developed to replace the preliminary inquiry, one that combines the benefits of that type of hearing with the benefits of a pre-trial conference. TOP
At the present time, if a person is committed to stand trial at a preliminary inquiry, the case is transferred from the Provincial Court to the Court of Queens Bench, where the accused is arraigned. The formal charge is read to the accused and a plea is taken. A date for trial then is set for some time after it is anticipated that the transcript of the evidence taken at the preliminary will be ready.
The re-election procedure permitted by the Criminal Code still makes it possible for the accused, who had chosen originally to have a trial in Queens Bench, to decide to have it in the Provincial Court. The accused has an absolute right to make that decision within 14 days of the preliminary inquiry, or even later with the consent of the Crown. There is also a provision in the Code that permits an accused to convert a preliminary inquiry into a trial before the Provincial Court judge, in certain cases with the consent of the Crown. These procedures are often employed where the accused, after hearing some of the Crowns evidence, decides it would be preferable to enter a plea of guilty before the Provincial Court judge.
There are also proceedings that permit an accused who has initially chosen to be tried in the Provincial Court to change that election and proceed to a preliminary inquiry and trial in the Court of Queens Bench. The procedures clearly permit some judge-shopping.
The procedures in this area are complex and, in our opinion, outdated, unnecessary and inefficient. They contribute a great deal to delay in the processing of criminal cases. TOP
There is no clearer example of the unequal and uneven manner in which the current justice system deals with Aboriginal people than in the circuit courts of northern Manitoba.
Three to four days a week, a Provincial Court judge, a Crown attorney, a Legal Aid lawyer, a court clerk, an Aboriginal court worker and a court reporter meet at the Thompson airport and board a small chartered aircraft. They comprise one of the two Thompson-based circuit court parties. During the course of a year, this party travels to approximately 20 communities; some are visited only once a year, but, in general, the court is scheduled to travel to most communities 10 to 12 times a year.
Almost all northern communities can be reached only by airplane, which creates the first problem for the circuit court. It is not uncommon for weather to delay, or even prevent, the courts departure or landing. In winter, flights can be delayed by storms, and in spring and fall, delays can be caused by problems with break-up and freeze-up on the lakes and rivers. Many runways are gravel-based and can be rendered unsafe by heavy rains. Circuit courts are tightly scheduled, so that a cancelled flight means that the court cannot visit for another month. This can create tremendous hardship for Aboriginal people.
While the circuit court travels to many remote communities, it does not reach all of them. The people of Lac Brochet, for example, must make a two-hour boat or snowmobile trip to appear in court in Brochet. They may well make this trip in dangerous weather conditions only to discover that court has been cancelled. The only comfort they can draw from the experience is to remind themselves that if they had not made the trip and if the court party had been able to arrive, they might have been charged with failing to appear in court. Similar problems exist in Red Sucker Lake, Wasagamack and St. Theresa Point, to name a few of the other communities which suffer from a lack of court service.
The residents of a remote community get their first sight of the circuit court when all its members, who are usually non-Aboriginal, with the exception of the Aboriginal court worker, descend from the plane at the local airport. The court party is then often driven from the airport in an RCMP vehicle to the building or hall where court is to be conducted.
Circuit court service to aboriginal communities
Before the court session begins, the Crown and defence lawyers, as well as perhaps some of the police officers, may discuss the particulars of various cases and examine files. None of this is improper as it often is necessary for defence lawyers to acquire information about a case from the prosecutor, just as it is desirable for the prosecutor and defence to discuss the possibility of matters being resolved without having to go to trial.
In addition, members of circuit court parties work so closely together on a regular and intense basis that friendships often develop. This easygoing familiarity can leave the impression that cases have been decided before court opens. In particular, the sight of the judge being on friendly terms with lawyers on both sides of the case leads to a concern that all these people are in league together and that results are predetermined. The perception left with the Aboriginal community is not good.
Glen Smith, the mayor of Cross Lake, spoke to us on this issue:
Defence counsel and Crown attorneys do discuss cases and work out arrangements with each other before court commences, and sometimes before they arrive in the community. Such discussions often are called plea bargaining. Plea bargaining is commonplace and occurs in urban centres, as well. Defence lawyers faced with a strong case against their client often speak to prosecutors in order to try to make a favourable arrangement. These bargains may involve pleading guilty to a lesser charge, pleading guilty to one charge if others are dropped, or pleading guilty if the Crown attorney agrees to recommend a lighter sentence.
It is an inevitable part of the criminal justice system and, in and of itself, is not to be discouraged or criticized. It can relieve the demand on victims to testify, can allow accused to have matters dealt with quickly, can save court time and can minimize the demand on public resources. While plea bargaining is a matter of some controversy, it is seen generally as a process which can and should benefit the accused.
In the case of circuit courts, however, plea bargaining can take on a more sinister appearance for Aboriginal accused. First of all, the adversarial system which gives rise to the propensity for deal-making or plea bargaining is at odds with Aboriginal cultures, where open discussion aimed at developing a consensus that resolves community (and private) matters is the hallmark.
Secondly, the plea bargaining process itself is almost always limited to the defence counsel and the prosecutor. The victim, the witnesses, the court and the community are never part of that process. The accused might be involved, but even his or her role is minimal, usually consisting of authorizing discussions or admissions, and agreeing to or rejecting the final outcome of the discussions.
Good counsel know that for a plea bargain to work best, he or she must have the full support and proper consent of his or her client, and the client, in turn, must have a full knowledge and appreciation of the evidence, the position to be taken by the Crown attorney, and the law as it affects his or her position. As well, good defence counsel ensure that the client understands that even if the Crown and defence agree on everything, including the sentence, the judge, who has no part in the discussions, has an overriding discretion to accept or reject the deal and to impose whatever he or she thinks is an appropriate sentence.
In order for the client to fully appreciate all those factors, there must be appropriate and meaningful contact between defence counsel and the accused. Counsel and client must communicate well with each other. This is where the process breaks down for many Aboriginal accused.
When Aboriginal accused reside in remote communities and defence counsel reside and work in distant urban centres, the frequency and quality of communication between them are impaired. Additionally, if there are unresolved or unappreciated cultural or language barriers at play, whatever communication that does take place can be almost totally ineffective. Most often, Aboriginal accused never see or hear from their lawyers between court appearances. Usually, defence counsel only speak to their clients just before court starts or during one of the recesses in the proceedings. If counsel must speak to several clients as well as to the Crown attorney during those times, then matters can take on a sense of urgency not conducive to the ends of justice.
If one adds to that the noted tendency of all members of the court party to want to get court over with so that the plane carrying them can leave before dark or before anticipated bad weather sets in, then Aboriginal accused can justifiably feel that their interests and rights are being ignored in favour of the desire of the court party to get finished and get out.
If, in fact, there are time pressures being brought to bear upon a lawyer because of a scheduled take-off time or impending bad weather, defence counsel may feel pressured to make a deal, or to get his or her client to accept a deal offered by the Crown. We believe that defence counsel, in fact, do press their clients to accept deals in situations that are not fair to them. Poor communication between non-Aboriginal defence counsel and Aboriginal accused and systemic pressures on counsel to cooperate contribute to this practice.
Ross Beardy (speaking through a translator) gave this example of the circuit court proceedings at Garden Hill, which are all too typical of those across the North.
At the Portage Correctional Institution for women, inmates told us of how they were convinced to plead guilty when they either did not commit the offence, or did so under what they considered to be legitimate extenuating circumstances. Aboriginal women felt their lawyers had pressured them to plead guilty, and because of their ignorance of the legal system, the lack of alternative advice and a history of oppression, they agreed.
The following testimony of a group of four inmates at the Portage jail also was typical.
We heard from another inmate that lawyers told their Aboriginal female clients to plead guilty and receive a lesser fine. This was true even if the client seemed to have a good defence.
Part of the problem appears to lie in the degree to which lawyers take over the conduct of the case from Aboriginal clients. It seems as though the client is sometimes taking direction from the lawyer, rather than the other way around. We believe that the court facilitates this process by allowing lawyers to waive the reading of charges to the accused and entering a plea on behalf of their clients. The most that clients are called upon to do in that circumstance is to nod their heads or say yes when asked by a lawyer whether they agree to a guilty plea. TOP
The facilities in which court is held in circuit points are rarely conducive to the administration of justice in a calm and dignified manner. Circuit court often sits in a community hall or school gymnasium. The court party is grouped at one end of the room and, as a result, court proceedings often cannot be heard by spectators.
Often, there are not enough seats, or room, to accommodate members of the public. While translation sometimes is available, it is for the benefit of the court party and the accused, not for the spectators. It is very rare indeed that words spoken by the court party are translated or explained to the people watching. There is little sense in calling it a public court if the public cannot hear or understand what is happening.
For some people, the court sitting may be the first chance to see a family member since his or her apprehension. As a result, the courtroom also serves as an often noisy visiting room. Most judges and litigants would refuse to proceed in the facilities provided in Aboriginal communities if those same facilities were offered in the city of Winnipeg. Indeed, circuit court judges have refused to hold court in some communities because of the poor condition of the facilities. TOP
Many of the people who appeared before us said that court often commences well after the scheduled time. Even if court starts on time, it is not uncommon for the first significant order of business to be a request for an immediate recess. This often happens because the Crown attorney and defence counsel were unable to interview witnesses or clients prior to the hearing.
The Legal Aid lawyer on circuit generally provides service as duty counsel. Duty counsel is a lawyer designated by Legal Aid to provide assistance to accused appearing in court without counsel.
Duty counsel operating out of Thompson assisted over 2,600 people in the 198788 fiscal year. The Thompson Legal Aid office formally represented 894 persons on a more formal client-lawyer basis during the same period.12 This means that counsel must conduct hurried conferences with as many clients as possible before the court convenes. As duty counsel, lawyers give an accused advice, help an accused apply for legal aid, assist an accused who is applying for bail and speak to the court about the appropriate sentence when the accused pleads guilty.
In cases where the individual wishes to plead not guilty and be represented by a lawyer through Legal Aid, the duty counsel will take his or her application and ask the judge to remand the case until the application can be approved, a certificate issued by Legal Aid and a lawyer appointed. If the accused qualifies for legal aid, it is likely that the Legal Aid staff lawyer who is scheduled to visit that community as duty counsel for the next sitting of circuit court will be assigned to handle the case. This may well be the same lawyer who originally took the accuseds application for legal aid a month earlier. It should be noted that during the same visit, this lawyer will also be required to act as duty counsel for many other people and may not have more than a few minutes to speak with the persons they are going to be representing that day.
A study of Legal Aid conducted for the provincial government commented on this problem:
For duty counsel to conclude matters without issuing a certificate encourages guilty pleas. Thus, there can be some pressure on duty counsel to allow an accused to plead guilty.
Although Legal Aid is prepared to pay for members of the private bar to represent accused, Legal Aid does not pay transportation time or costs to communities where alternative legal representation, either resident lawyers or travelling duty counsel, is available. As a result, Legal Aid only pays travel time and costs for private bar lawyers travelling to remote communities when the duty counsel is overbooked. Therefore, most of the defence work carried out in remote communities is conducted by Legal Aid staff lawyers.
We heard many complaints about the fact that duty counsel lawyers were not able to gain a full knowledge of their clients situations under the circumstances that we have described. At our hearings in Gods Lake Narrows, Doug Hastings told us that in his community:
In his presentation to our Inquiry, Thompson Legal Aid lawyer Michael Paluk told us that the schedule of court sittings has meant that lawyers have not always been as accessible as they would like to be to their own clients in the communities served by the circuit court. Some presenters were more vigorous in their criticism, describing the system as a kangaroo court and a make-work project for lawyers. In addition, not only do Aboriginal accused spend less time with their lawyers, and duty counsel have incentives to encourage guilty pleas, but Aboriginal accused are more likely than non-Aboriginal accused to appear without counsel at all.14
The lack of time with a lawyer can have significant consequences for how an accused is dealt with in the system. The lawyer will be less informed about the circumstances of the offence, the potential defences to the charge and the resources available as alternatives to pre-trial detention or harsh sentences. The accused will be less informed about the available options and less able to provide informed instructions to counsel. If the lawyer does not have time for the client in court, it is likely the lawyer will not have much time for pressing the prosecutor to reduce charges or to agree to reduced sentences outside court. These possibilities must not be overlooked when considering explanations for the treatment Aboriginal people receive in the justice system.
It is a matter of great concern to us that the Legal Aid duty counsel system gives an appearance of justice and fair legal representation to Aboriginal accused that is not borne out in reality. TOP
The dockets on the circuit court often are fulland varied. Provincial Court judges hear adult criminal cases, family cases and youth cases, and all these cases are often on the same docket. This is inappropriate. Heather York, a social worker in Norway House, told us:
It is clear that the present organization of circuit courts does not afford judges the necessary time to deal carefully, thoughtfully and separately with family matters and young offenders. These cases are regularly rushed through at the end of adult criminal dockets. The situation is so bad that in some communities family disputes are never taken to court at all. While it is good to encourage people to settle legal matters without going to court, it is another thing for the system to be unable to offer adequate court services to those who need them and who have the right to take their disputes to court if that is what they wish to do. TOP
In addition to these problems, the Provincial Court does not have the power to deal with issues such as divorce and the division of marital property. Nor can Provincial Court grant restraining orders to people subjected to, or living in fear of, physical or sexual abuse. To have these matters attended to, families must travel to distant urban centres where the Court of Queens Bench sits.
Residents of remote communities who have civil matters which they want dealt with by the court must also travel to urban centres to put their case before the Court of Queens Bench. Unless they do this, they cannot resolve their private civil disputes legally. Nor is there any local way of challenging the decisions of local government in the courts. TOP
Court parties rarely spend the night in the community they are serving. The feeling in the communities we visited was that the court party often operates with one eye on the clock so it can depart on time. There often is considerable pressure to get through the docket. This, in turn, creates pressure to make deals, pressure to limit discussions with the accused and witnesses, pressure to limit questioning during trials and, ultimately, pressure to simply get the process over with quickly by pleading guilty. We heard many complaints of cases on the docket not being reached and being adjourned for a month because the court party had to leave to board a waiting aircraft.
When people in the court party start looking at their watches and then speak of the need to hurry as the plane will be leaving at 4:00, the members of the community feel a lack of concern for their needs and their priorities. The feeling of Aboriginal people is, quite properly, If you ask us to come to court today, then deal with our case. If you dont have time for our community, then dont come. The community feels insulted by the way it is treated.
Aboriginal people are also aware that they only receive one court hearing a month because decision-makers in Winnipeg have come to the conclusion that, for economic reasons, that is all the administrators of justice are willing to provide. They are left with the unfortunately correct assumption that they are on the short end of a cut-rate justice system.
During the course of our Inquiry, we heard countless stories of the hardships that Aboriginal people encounter as they deal with a system which metes out justice on a monthly basis. Percy and Irene Okimow told of the frustrations they experienced following their daughters arrest for discharging a firearm, break and enter, and mischief. Upon her arrest in Gods River, their daughter was taken first to Gods Lake Narrows for court, where she was denied bail, and then sent to Thompson. Her parents followed her to both communities, attempting to arrange for her release. In the space of a week, the family spent $1,200 on transportation and accommodation. Another youth who had been arrested at the same time, whose parents had not been able to travel to Thompson, was denied bail.
Court location is not solely a northern problem. In his presentation to us, Chief Raymond Swan, on behalf of the Interlake Reserves Tribal Council, pointed out that 6,500 of the 10,353 people served by the Gypsumville and Ashern RCMP detachments are Aboriginal. Despite the fact that there are several Indian reserves in the area of the detachments, and that most of the accused charged by those detachments are Aboriginal, the circuit courts where the accused must appear are all held in non-Aboriginal communities.
We have begun our examination of the problems Aboriginal people experience with the court system by looking at northern circuit courts because the circuit courts throw the issues into their starkest relief. But it is in the area of delay that the circuit court presents special and seemingly insurmountable problems. TOP
The right to a trial within a reasonable time is guaranteed by section 11(b) of the Charter of Rights and Freedoms. This right was addressed most recently in the case of R. v. Askov et al.,  2 S.C.R. 1199, in which the Supreme Court of Canada upheld a stay of proceedings where a trial had been delayed unreasonably. In the majority decision, Mr. Justice Cory wrote that the courts should consider a number of factors in determining whether the delay in bringing an accused to trial has been unreasonable: the length of the delay, the explanation for the delay, waiver and prejudice to the accused.
He also noted that the right to a trial within a reasonable period of time is so important that the lack of institutional resources cannot be employed to justify a continuing unreasonable postponement of trials.
The decision also underlines the point that it is the duty of the Crown to bring an accused to trial and that the Crown must bear the responsibility for delay.
The importance of this decision is that it heightens the significance of the problem of delay in Manitoba courts. We believe that Aboriginal people in Manitoba are not having their cases disposed of within a reasonable time. People in almost every community we visited complained about the long delays in bringing cases to trial.
There are many reasons why the courts often work slowly. These include such things as resource limitations, judge-shopping by defence lawyers, undue accommodations for the personal schedules of lawyers, the requirement for preliminary hearings, delays in obtaining counsel and the structure of the court system. Even when the system works normally and at its most efficient, proceedings can take many months. TOP
Many presenters spoke to us of the pain and confusion created by a justice system which seemed to them to proceed at its own leisurely pace. The harmful effects of delay are felt not only by the victims and witnesses who may have to relive painful memories that can be several years old, and by the accused who must endure months, if not years, of anxiety and fear, but also by the justice system itself. Manitobas justice system has lost the respect of the people it is meant to serve in Aboriginal communities. Leonard Mackay of Norway House concluded a list of complaints with the justice system by telling us that The respect for the justice system diminishes every year.
Eddie Ross, a Gods River band councillor and volunteer probation officer, spoke to us about his communitys problems with having the nearest circuit court location at Gods Lake Narrows, a community which is only 32 kilometres away, but which is only accessible to the residents of Gods River by boat, snowmobile or plane.
Ross estimated that the community of Gods River, which does not have a high crime rate, spent at least $2,000 a month on air fares to go to circuit court.
In Gods River we were also presented with a brief from Wesley Okimow, which told of the 24 trips he had to take to attend circuit court in Gods Lake Narrows because of charges pending against his son. At the time of our Inquiry, the family had spent $5,760 on air fare. In January 1988 Okimow took his son to court by snowmobile. If he did not show up at court there would be a warrant for his arrest.
The court process ended when the boy pleaded guilty to charges of break, enter and theft, for which he was sentenced to six months at the Manitoba Youth Centre in Winnipeg.
Jemima Ross, the community health representative in Gods River, told us of the problems she faced as a single parent whose children had been charged with various offences and whose cases were heard at the circuit court in Gods Lake Narrows.
She said that the only time her family had been given a reason for a remand was the one time she had not been able to go to court with her children and had their uncle accompany them. She said the court said at that time that it wasnt good enough for the uncle to be there.
Following our hearings at Gods River, the concerns of the community were brought to the attention of the Chief Judge of the Manitoba Provincial Court. Arrangements were made for court to sit at Gods River on a regular basis. While this may have alleviated the problem of community members having to face difficult hurdles such as distance and cost to get to court, we are not satisfied that it solves the problems of delay.
Many Aboriginal people have low incomes and no vehicle, and are unable to hire transportation. In isolated communities, transportation to a court outside the community may not be readily available and is often prohibitively expensive for people on low incomes. If people are required to take a plane, bus or train to an outside community, they may have no way of getting home the same day and may have to pay accommodation costs. Incurring these expenses only to see a case remanded can be a very frustrating experience.
These problems exist in both northern and southern Manitoba. Low-income people simply cannot find the means to travel to distant communities. If people from the Sioux Valley reserve are charged with offences which occur on their reserve, they have to go to court in either Virden or Brandon, both of which are many kilometres away. Often, their lawyer will be in Brandon. If they do not own a car, they will have to pay someone to drive them to court. Hitchhiking is an unreliable alternative. If they cannot afford the cost, they dont go to court. This can lead to further problems for them.
The justice system and its operation have a very serious impact on the members of a community. Time and time again we heard Aboriginal elders tell us that they could not understand the decisions that the system was making, or why it took the system so long to reach those decisions. In Oxford House, elder Wesley Weenusk told us of the case of his grandson, who had pleaded guilty to a charge of break and enter. Despite the fact the young man entered a guilty plea on his first court appearance, the case took seven months to come to sentencing. Weenusk told us:
Court cases often seem to develop a life of their own and are capable of wearing down all the involved parties. Bert Crocker, of the Sagkeeng Child and Family Services in Fort Alexander, told us of a family case which had gone on for 10 months without resolution. The matter had started out as a contested case but, after nearly a year of court activity, the respondents had all but dropped out of the case. Crocker provided us with a brief summary of some of the delays the case had encountered:
One inmate in Dauphin told of losing his job, due to repeated remands. It makes no sense to have an accused lose a job merely because a charge is delayed, yet this may be the result of having to attend court on a number of occasions. Even if time off work can be obtained, the accused probably will lose pay and suffer the frustration of having the process repeated.
In South Indian Lake, Janet Soulier asked, How come the justice system cannot deal with cases when they come up? She explained that people are inclined to get into more trouble when on remand. She said people go through hell while on remand.
Delays in the system may be intended to protect the interests of accused. Lawyers naturally should not want their clients to plead guilty to a charge until they have had the opportunity to review the particulars, satisfy themselves that the evidence supports the plea and prepare themselves to speak to sentence. The system, however, makes little effort to explain this to Aboriginal offenders. In Sandy Bay, Mervin Houle told us of seeing people repeatedly coming to court with the intention of pleading guilty, only to be told to come back to the next court hearing.
John Constant, a former RCMP special constable in The Pas, told us that many Aboriginal people view the court system as
Constant also felt defence lawyers were able to use remands to drag court proceedings out indefinitely. His years on the force left him with an image of a system where:
We heard from men and women who felt their lawyers continually were arranging unnecessary remands. We heard of impaired driving charges taking over a year to be dealt with and of people being remanded eight and 10 times.
Delays in completing cases may affect a whole community. We found the community of Lac Brochet in a state of shock when we visited. Several young men from that community were awaiting trial on charges of sexual assault. Because of the number of youth involved and the nature of the crime, the case deeply affected everyone in the community. The community was aware that it had a serious problem, and leaders and elders wanted to deal with it, but we were told that they could not begin to look at healing the community until the trials were over.
The testimony we heard concerning the problem of court delay made a powerful impression on us. It is clear that the system operates too slowly, and it is equally clear that Aboriginal people suffer disproportionately from this delay. TOP
Two studies have recently examined the extent of delay in the Manitoba courts: the Provincial Court study was conducted by the Attorney Generals department in 1986 and our own research staff examined Court of Queens Bench cases which had gone to a preliminary inquiry in Winnipeg.
Provincial Court cases involving Aboriginal defendants which went to trial took an average of 215 days between the date of arrest and the date of final disposition. This means it took seven months for these cases to come to trial. In Provincial Court cases which did not go to trial, the time between the date of arrest and final disposition averaged 125 days for Aboriginal defendants. In other words, cases involving guilty pleas, or which culminated in stays of proceedings, took an average of four months.
The processing time for cases ending up in the Court of Queens Bench was significantly longer. For jury trials, the process took an average of 354 days from arrest to final disposition for Aboriginal people, while in the case of non-jury trials Aboriginal defendants spent an average of 340 days in the court process. The longest component of delay in Court of Queens Bench was the period between the date when a trial date was agreed upon and the trial. The average time spent waiting for a trial, after the trial had been scheduled, was 186 days for cases with jury trials and 154 days for cases where a jury was not involved.
According to our analysis of the data from the Provincial Court study, the average time in Winnipeg between first appearance and date of disposition for Aboriginal defendants was 161 days. In the North, cases involving Aboriginal people were processed in 100 days. The Provincial Court study also looked at juvenile defendants and found that Aboriginal youth spent an average of 130 days from first appearance to disposition. While these data might suggest that trials are not taking inordinately long to schedule, one must take into account that the vast majority of cases in our courts are resolved by way of guilty plea. That length of time seems inordinate.
The study of court delay done by our research staff did not differentiate Aboriginal people because racial identification of defendants was not available in the data, but it did demonstrate that preliminary inquiries create extensive delays. Of 208 cases in which preliminary inquiries were held in Winnipeg, the average time from first appearance to first trial date was 400 days (13.3 months). The shortest time between the two dates was 101 days and the longest was 794 days. Half of the cases took over 389 days to complete.
In his submission to our Inquiry, Attorney General James McCrae addressed the question of backlog and delay, stating:
All of what the minister says may be accurate statistically, but we disagree with his conclusions.
To say there is no backlog because the courts can offer an early trial date when one is requested ignores the fact that there exists a considerable delay in the court system before a trial date can be set. During the course of our hearings, we were told that there were many cases on court lists that had not been given a trial date and yet had been in the system for longer than 180 days.
The research on court delay in Manitoba has shown clearly that court processing takes too long. A delay of one year on any matter is not acceptable, nor is it acceptable for simple matters to take six months or more to process. In our opinion, no matter should take more than 180 days from the date an individual is charged until the trial begins. TOP
Lengthy delays have a number of potentially detrimental effects on those involved with the court process, including offenders, victims, witnesses and the general public. Delay makes the trial process more difficult as memories fade and witnesses become more difficult to find. The ability of both defence and prosecution to present their cases may suffer under such conditions. As the time between offence and trial becomes longer, the connection for the community between the offence and the penalty becomes less clear. While the impact of delay on persons held in custody is clear, the failure to resolve criminal charges promptly also can be disruptive to accused who have remained in the community. Victims also feel a great deal of anxiety about the eventual resolution of their cases. Repeated visits to court as remands are granted are very disruptive to the lives of all involved in the case.
In Winnipeg, Mary Roulette painted this vivid picture of the impact that the delays of the court system can have on Aboriginal people:
In Mills v. The Queen,  1 S.C.R. 863, Mr. Justice Lamer (now Chief Justice) noted that the Charter of Rights and Freedoms guarantee of a fair trial within a reasonable time is also a guarantee of security of the person. He pointed out that a person accused of a crime is stigmatized, suffers from stress, anxiety and a loss of privacy, has his or her family life disrupted, and can lose his or her job. He also noted that outside the courts there is little respect for the concept of the presumption of innocence:
The impact of delay is even more severe for Aboriginal people, many of whom live in remote communities where coming in from the trapline or travelling to another centre for a court appearance can cause a serious financial hardship. Also, according to our own studies, in Thompson courts Aboriginal defendants were more likely to have been denied bail than non-Aboriginal people, and thus were more likely to spend the duration of the delay in custody. According to the study, 10% of bail applications made by non-Aboriginal accused in Thompson were turned down, while 28% of the Aboriginal people who applied for bail were refused.
The tension, fears and concerns arising from a criminal charge may also have a devastating effect on family and friends close to an accused or to the victim. These feelings are compounded every time a matter is delayed. Delay may have the same effect on witnesses, who may not want to go to court and who may be anxious until the experience is over. The problem is intensified when the accused and the witnesses live in the same small community. Each of these people may have to rearrange his or her life to accommodate the scheduling and rescheduling of court sittings. While scheduling problems are not easy to deal with, we suggest in a later chapter that the problem of delay may be minimized if time limits and case management procedures designed to speed up the system are put into place. Changes must be made if Aboriginal people are to develop any faith in the justice system.
Delay clearly has brought the administration of justice and the reputation of lawyers into serious disrepute with Aboriginal people. Unfortunately, many lawyers see delay as a valid defence strategy. Some lawyers believe that the longer it takes a case to get through the system, the more likelihood there is of prosecution witnesses not appearing or of their memories of events fading. During the period of delay, the accused may find work or participate in a treatment program in order to look like a better risk at sentencing. Lawyers may seek adjournments in order to have a case heard by a particular judge, or to suit their own schedules. Some convicted people have told us that they were happy to have cases adjourned so they could go to court or go to jail at a time convenient to them.
It should be clear, and we emphasize this fact, that the court system does not operate to suit the pleasure of the accused or their counsel, but rather to see that justice is done with reasonable dispatch, to see that people who, in fact, are guilty of their charge are dealt with promptly, and to ensure that those who are not guilty can have the stigma attached to them removed and can get on with their lives as quickly as possible. TOP
Systemic Causes of Delay
In studying the problem of delay, we canvassed many people working in the system in an attempt to determine the reason for the many remands and delays in processing cases. None of the key actors saw himself or herself as being responsible for court delay.
RCMP officers said that their investigation is usually completed by the time a charge is laid. In some cases of violence, the accused may be arrested and charged when there are initial grounds to justify a charge, and then the investigation continues. Generally, however, the RCMP representatives said they are ready to proceed to trial the first time the case appears on a court list.
Although others gave us a different impression, Legal Aid lawyers said they are generally ready to proceed quickly once they receive particulars from the Crown and have a chance to consult with their clients.
Crown attorneys said that once they make full disclosure to the defence, they are not responsible for any delay. They tended to blame defence counsel or the overburdened court calender. They also told us that there were not enough Crown attorneys to handle the workload, especially if extra time is to be devoted to each community.
Private defence counsel tended to blame the Legal Aid appointment system for much of the delay. They also felt that some delay was due to the lack of judges and Crown attorneys. Some delay, they said, is caused by their inability to get instructions and by the limited time they have to spend with clients in preparation for a hearing. They said there is delay in waiting for particulars from the Crown.
In short, all the parties involved in the court system claim that they are not responsible for delay, that others are, and that they are ready to proceed to trial quite quickly. Yet, this is not happening. It is clear that counsel and the judiciary must accept greater responsibility for the delays experienced by Aboriginal people in the court system.
It is likely that the problem of delay is a problem inherent to the circuit court system. While there are some efficiencies which various justice personnel can introduce which might ease the situation, major structural reforms are needed so that Manitobas Aboriginal people will not continue to be subjected to the problems associated with court delay.
Efforts have been made to eliminate delays and to enable cases to be dealt with in a timely fashion. Improvements have been made in the Provincial Court in Winnipeg. The system there now operates more efficiently than it did at the time of our hearings. However, corresponding changes have not been made in the court system that serves rural and remote communities, and it is here that delay has its most serious impact on Manitobas Aboriginal people. Delays still exist in the overall time it takes to resolve family disputes. Dramatic systemic changes will have to be made to address the needs and concerns expressed to us during our hearings.
Remands as a Cause of Delay on Circuit Courts
It will be very difficult to deal with cases more quickly as long as the circuit court system is based on monthly justice. Necessary remands take one month each and there are two or three necessary remands for every case.
The Preliminary Inquiry as a Cause of Delay
We examined the impact of the preliminary inquiry on delay. Of 208 accused who had preliminary inquiries in 1989, the average length of time from first appearance to preliminary inquiry was 228 days (7.6 months). This figure included two cases with long delaysthe longest was 1049 daysbecause of the failure of the accused to appear. Half the cases took longer than 205 days (6.5 months) between first appearance and preliminary inquiry. Clearly, the delays caused by the preliminary inquiry are substantial. Given the time needed to prepare and to hold a preliminary inquiry, the financial costs also are substantial.
We examined the length of time it took to prepare transcripts. We found that the average time between the date of the preliminary inquiry and the date that the Court of Queens Bench received the transcript was 78 days. The shortest time in which a transcript was received was a mere five days, while the longest was 307 days (10.2 months). Twenty-five per cent of the transcripts were received in 48 days or less, 50% were received in 66 days or less, and 75% of the transcripts were received in 93 days or less after the preliminary inquiry. With the changes in the court reporting system currently being implemented, we are unable to say whether there will be any significant alteration in these time lines, although there is nothing to suggest that that will be the case.
The federal governments 1984 study, Some Statistics on the Preliminary Inquiry in Canada,17 showed an average delay of five months caused by the preliminary inquiry. More Aboriginal than non-Aboriginal people are kept in custody until their preliminary inquiry, due to bail being refused or their inability to meet bail conditions, which means that delays caused by the preliminary inquiry have a more adverse affect on Aboriginal people.
What we heard at our community hearings leads us to believe that the impact of the preliminary inquiry in the North is even greater than that found by the Department of Justice.
The federal study described a typical case: 18
The study found that an average of 61 days elapsed before the preliminary began, and an average of 82 days elapsed between its conclusion and the start of the trial. This led the reports authors to ask, Is it really necessary for the non-exceptional [case] to take this long? Is a preliminary inquiry really necessary to resolve pleas?
This is a question which we address further in Chapter 8.
Legal Aid Appointments and Delay
We have been informed by Legal Aid Manitoba that it generally processes an application on a criminal matter within 24 hours. This is not the impression we received from defence counsel. We believe that the Legal Aid appointment procedure contributes to delay, particularly on the circuit courts. In many cases, accused who live in communities served by the circuit courts are not able to apply for legal aid until the day the circuit court comes to the community. Their application is taken by the Legal Aid duty counselwho may very well be appointed to represent those individuals when the circuit next visits the community. However, all that can be done during the individuals first court appearance is to request a remand pending appointment of counsel. That appointment may very well be authorized within the next 24 hours, but the process will have added another 30 days to the life of the case.
The Lack of Case Screening
Many cases remain in the legal system far longer than they should. This is because either the Crown persists in pursuing a prosecution, only to drop charges eventually, or an individual pleads not guilty through the early stages of the court process, only to plead guilty on the eve of a trial. Three years ago, 75% of cases scheduled for trial in the Provincial Court in Winnipeg collapsed on the eve of the trial with either a guilty plea or a staying of charges. The introduction of pre-trial screening procedures has brought this percentage down. Not only are these cases lingering too long in the court system, their collapse on the eve of trial creates a situation where there are judges with no cases to preside over and courtrooms that are not being used. TOP
This chapter is far from exhaustive in outlining the problems experienced by Aboriginal people in their contacts with the justice system in Manitoba. In other chapters we deal with the appropriateness of the sentences handed down by our courts, the role of police, the future of correctional institutions in Manitoba, the problems faced by Aboriginal women, jury selection, child welfare and the youth court system, and the probation and parole system in Manitoba.
We do believe, however, that this chapter has demonstrated that the court system in Manitoba is not an equal system. As far as Aboriginal people are concerned, the inequality exists both in the services the system provides and the impact it has on their communities. It is foolish and naive for anyone to insist that the administration of justice in Manitoba provides a uniform standard of justice to all people in this province.
In examining the court system in Manitoba, we are struck by the fact that there clearly exists a distinguishable, separate justice system for Aboriginal people. Indeed, the rhetoric that surrounds the equality of the justice system evaporates as one examines the way the courts deal with Aboriginal people. It is a system administered by non-Aboriginal people. The laws which the courts apply are alien to Aboriginal people, the adversarial approach employed by the courts does not reflect Aboriginal values, and the sanctions these courts apply are ineffective in terms of deterring accused or others from further involvement.
The court system appears to view Aboriginal people and their communities with a mixture of disdain and disregard. The provinces senior courts never hold hearings in their communities, while the courts that do travel there appear to want quite literally to get out of town before the sun goes down. As a result, cases are either rushed through without due preparation and consideration, or are delayed from month to month.
In short, the current court system is inefficient, insensitive and, when compared to the service provided to non-Aboriginal people, decidedly unequal.
We now turn to an examination of alternatives to the current court system. TOP
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