The Justice System and Aboriginal People

The Aboriginal Justice Implementation Commission

   

Chapter 8

View Chapter
    

 

COURT REFORM

Introduction

Changes to Court Structure and Administration

The Problems with the Current System
A New Trial Court
Court Divisions
Court Facilities in Remote Communities
Separation of Youth and Family Matters
Travel Arrangements for Circuit Court Parties
Conclusion

Eliminating Delay

Court Scheduling
Dealing with Current Caseload
Improved Circuit Court Services
Changes to Legal Aid
Provision of Information to Defence
Pre-Trial Conferences
Elimination of the Preliminary Inquiry
Mandatory Time Limits
Case Flow Management Techniques
Delay and Court Appearances
Conclusion

Pre-Trial Detention
Personnel

Judges
Lawyers
Addition of Local Personnel to Circuit System

Conclusion

 

Court Reform TOP

Introduction TOP

The previous chapters have outlined the problems Aboriginal people experience in their dealings with the court system in Manitoba and have recommended the creation of an Aboriginal justice system. This will be a major initiative and unless it goes forward, the problems of inequality and injustice will continue to plague our justice system.

However, the creation of such a system must be supplemented by other reforms, since many Aboriginal people do not live in communities that will have an Aboriginal justice system—the most obvious of these communities being the city of Winnipeg. As well, we recognize that there will be a period of transition before Aboriginal justice systems achieve the full jurisdiction that we anticipate they will assume.

We are recommending a series of reforms to the existing court system. In some cases, such as the improvement of circuit court services, these reforms should be seen as transitional steps to Aboriginal justice systems. As a result, all staff people hired to implement those steps should be selected with the involvement of the communities in which they will be working, and with the anticipation of an Aboriginal system.

Other reforms are more far-reaching and will have a more permanent impact on the courts. These include the amalgamation of the Court of Queen’s Bench and Provincial Court of Manitoba, the elimination of preliminary inquiries and the adoption of time limits for case processing. These recommendations are intended to alleviate or eliminate a variety of problems facing Aboriginal people in their dealings with the court system. These problems include a lack of access to the full range of court services in all parts of the province, delay in the court system and the excessive amount of pre-trial detention.

In making these recommendations for reform, we are guided by three over-arching goals:

• To create a court system which is fully responsive to the needs of the many different communities in Manitoba.

• To improve Aboriginal people’s access to the full range of Manitoba court services.

• To reduce and eliminate delays that are present in Manitoba’s court system.

We believe that the reforms we are recommending to fulfil these goals will benefit not only Aboriginal people, but all Manitobans. We believe too that a responsive, accessible and speedy court system will also be one which is less complex and easier for all Manitobans to understand.

We will discuss our vision of a reformed court system in terms of structure, services and personnel. Before it is possible to discuss these changes, it is necessary to review the existing court structure. TOP

 

Changes to Court Structure and Administration

The Problems with the Current System TOP

As we observed in our chapter on the current court system in Manitoba, the courts deliver their services to Aboriginal people in a complex and inadequate manner. This complexity and lack of equal accessibility arise from a number of causes: the fact that the courts are a product of a federal system that by its nature creates overlapping jurisdictions; the fact that there are three different classifications of criminal offences, with differing procedures for each; and the fact that a number of choices are available to people using the courts.

The existence of two levels of courts has created a number of problems, but none is more disturbing than the lack of equal access to judicial services throughout the province. As we noted earlier, there are a number of matters which can only be dealt with by the Court of Queen’s Bench. These include, to name only a few, murder charges, civil actions, divorces and applications for injunctions to restrain abusers from entering another’s property. Very few communities in Manitoba have enough of these matters requiring attention at any one time to justify the cost of a sitting of the Queen’s Bench, which means that court never sits in most communities. Many people who appeared before us asked for civil law services in their communities. Others asked that the unified Family Court, with its specialized services, be made available to them. We believe that, however it be accomplished, all Manitobans, wherever they live, are entitled to better, more uniform and speedier court services. Some substantial changes will have to be made to bring that about.

The courts make crucial decisions about the lives of Manitobans. They deal with civil, criminal, family and youth matters. In civil law alone, suits involve everything from personal injury and contracts, to labour law, to landlord and tenant disputes, to the review of decisions of administrative tribunals. The fact is that these services are not available in Aboriginal communities. As a result of the limited services available to them, many Aboriginal people refrain from commencing legal proceedings they would initiate if the courts were more accessible.

Trials in serious criminal matters now take place in urban centres which are often a great distance from the community where the parties live and where the problem developed. Juries hearing such matters are often made up of people with no connection to the community where the offence took place. All this serves to further alienate Aboriginal people from the justice system. Members of those communities also feel particularly disadvantaged by what they consider to be a foreign system which has been imposed upon them.

At the present time, court services in remote communities are provided by the Provincial Court, and deal almost exclusively with a limited number of criminal and family matters. The Provincial Court is also the only court that attends in smaller rural centres, on a circuit basis. No jury or other Queen’s Bench sittings are held in any Aboriginal community. No court services dealing with civil law matters are provided.

There is no question in our minds that people in remote and rural communities believe they now receive second-class court services. They are aware that there are matters the circuiting Provincial Court judge has no power to deal with. They are told that on a regular basis. The fact that the Court of Queen’s Bench is known as a superior court and the Provincial Court as an inferior court reinforces the general impression among all Manitobans that there is a hierarchy of courts in the province and that one is more important than the other. Most people do not appreciate that the terms are technical ones, referring to the extent of jurisdiction. We, of course, do not share the belief that one court is more important than another, but the public perception remains. An unfortunate consequence of the present levels of service is that many Aboriginal people believe they are receiving an inferior level of justice. They are certainly receiving a lesser level of service than those who live in larger centres.

In the cities where the Court of Queen’s Bench does hold regular sittings, the Provincial Court also sits, and the litigant must understand the rules and procedures of each to know where certain legal services are available. In criminal matters in these places, both courts are often involved. If an accused elects to have a trial in the Queen’s Bench, a preliminary inquiry must first be held in the Provincial Court, a transcript of the evidence must be awaited and, if it is a jury trial, the date of the next assize must be awaited. Hearings in both courts may be necessary to determine where a young offender is to be tried.

The manner in which the courts now operate also separates different parts of the system that should be working more closely together. In other chapters we recommend that the Youth Court and child welfare systems should work more closely together. This cannot be done at the court level in places like Winnipeg and Brandon, where all child welfare cases are heard in the Queen’s Bench and all prosecutions under the Young Offenders Act are heard in the Provincial Court. If the two services are to be better coordinated, it is essential that the same coordination apply at the court level.

Family law in the Winnipeg and Brandon areas is now handled solely by the Family Division of the Queen’s Bench, but the service to families is incomplete. Although alleged abuse is an important factor in family cases dealing with the custody or guardianship of children, if there is a criminal charge laid against one party, that part of the family problem has to be heard by either the Provincial Court or the General Division of the Queen’s Bench. In our opinion, all these matters should be in one court, with mediation, counselling and social services available to it.

The existence of two levels of courts makes it possible for accused individuals to transfer cases at various points in the court process, and creates what one observer has called a "natural mechanism for delay."1 Indeed, a multicourt system almost invites manipulation on the part of some lawyers or parties who see some advantage in either bringing a trial on quickly or delaying it as long as possible. When a case is shifted from one court to another, there is a tremendous duplication of paperwork, as one set of files must be closed and another opened. More significantly, a switch of courts generally creates a three- or four-month delay in the case getting to trial.

At a time when there is obviously a demand and need for increased judicial service throughout the province, the present system continues antiquated practices that result in the under-utilization of the judiciary. Judges of the Provincial Court have to preside over preliminary inquiries that are little more than discovery procedures. Along with the elimination of the preliminary inquiry that we recommend elsewhere, a single court would release these judges for other duties. We believe there likely are sufficient judges now in Manitoba, if properly deployed, to provide the additional services that are required. TOP

 

A New Trial Court TOP

One possible solution to providing more equal court services throughout the province would be to have the Court of Queen’s Bench sit in the same communities as the Provincial Court. While this would provide the needed court services, it would do so only by exacerbating the other problems of cost, complexity and inefficiency that we have identified. A unified criminal court has been called for in some circles. This measure, however, would not meet our concern to have a full range of civil and family services made available.

We have come to the conclusion that the only way in which a full range of civil, criminal and family services can be delivered to all residents of the province in an efficient manner is to have every judge able to deal with any kind of case.

One way to enable judges to deliver a full range of judicial service throughout the province would be to extend to the existing Provincial Court judges all the jurisdiction the judges of the Queen’s Bench now have, and to extend to the existing Queen’s Bench judges all the jurisdiction now held exclusively by the Provincial Court judges. The best way to bring this about is to create a new court by the amalgamation of the Provincial Court and the Court of Queen’s Bench.

The concept of the amalgamation of courts is not new. In 1984 the county courts were amalgamated with the Court of Queen’s Bench in Manitoba. The same process has now been completed in all but one of the provinces of Canada. Specialty courts also have been developed in Manitoba. The Provincial Court is designated as the Youth Court. It also has a special abuse section. In 1983 a Family Division was created within the Queen’s Bench as a unified family court, and in 1989 it was expanded and now sits in those centres where the rest of the Queen’s Bench regularly sits.

In 1989 the Attorney General of Ontario proposed the amalgamation of the courts in that province. The first stage of that proposal is now in place with the creation of the Ontario Court of Justice, which has replaced the former county and district courts and the High Court of the Supreme Court of Ontario. The second stage is to bring the provincial courts into the new court.

We suggest that a new court be created in Manitoba that might be called the Manitoba Trial Court, a new name which we think would give the public a clear indication of the work of the court. This court should be created as a superior court with full jurisdiction. The existing Court of Queen’s Bench of Manitoba and the Provincial Court of Manitoba should cease to exist. The act creating the court could be an amalgamation of the court statutes that now exist. The court rules, as well, would have to be changed or amalgamated, on the recommendation of the new court.

The administrative structure of the courts now involves separate Queen’s Bench and Provincial Court staff. Large, separate, administrative offices now exist in the city of Winnipeg. Although efforts to improve and coordinate staff have been made, particularly in rural areas, the creation of one court, either with one administration or at least one administration for each division of the new court, would further improve and simplify the process, and make better use of available resources. Making arrangements for court sittings and the assignment of the necessary support staff would be more efficient. The judges’ coordination of dates when cases can be heard and the assignment of judges would be simplified.

The federal government will have to be asked, in consultation with the provincial government, to appoint the judges of the existing courts to the new court. Federal legislation, particularly the Criminal Code, should be amended to designate the Manitoba Trial Court as the one to have the criminal jurisdiction now held by the existing courts in Manitoba.

We recommend that:

 The Manitoba Court of Queen’s Bench and the Provincial Court of Manitoba be abolished and be replaced by a new court to be known as the Manitoba Trial Court. This court should have the combined jurisdiction of the courts it replaces. TOP

 

Court Divisions TOP

We suggest there might be two divisions of the Manitoba Trial Court: a General Division and a Family Division. It might have one chief justice and two associate chief justices, one in charge of each division. The chief justice should be responsible for the overall operation and supervision of the court, the coordination of the work of the divisions, and the performance and rotation of judges.

Each division should operate separately from the other and develop its own rules, practices and procedures, subject to any coordination the chief justice thinks necessary. The associate chief justices should be responsible for the day-to-day operation of the division to which they are appointed and, in conjunction with the chief justice, ensure that the services of the division are made available throughout the province.

Judges might be appointed to the court and then assigned by the chief justice to one division or the other, or they might be appointed to one of the divisions. We suggest they spend the majority of their time in the division to which they are assigned, but should spend a considerable amount of time working in the other division. While it is important for a judge to be particularly proficient in one area of work, it is equally important for all judges to be able to deal with any matter that comes before the court. This will be particularly important when judges preside in smaller communities where there is a wide variety of work to be attended to at each sitting. Where there is a case on a court list that would benefit from a judge with particular experience, such a judge should be assigned and then handle all other matters on the list, as well.

Another reason we consider it important for judges to have experience in both divisions is our assumption that judges of the Court of Appeal will be drawn from the Trial Court. In fact, we recommend that judges appointed to the Court of Appeal come only from the Trial Court. It is important that judges of the appeal court be familiar with the procedures and practices of a trial court and with the problems facing a trial judge. This is of particular importance with respect to Aboriginal people. As courts of appeal rarely hear witnesses, the judges of those courts must gain their court-related experience of Aboriginal people and their communities as trial judges.

The creation of one court will achieve one of our chief objectives, that child welfare and Youth Court matters be dealt with in the same division of the same court.

Another important change we recommend will not be achieved merely by the establishment of one court. It will require the assignment of one area now dealt with in the criminal courts to the Family Division. We recommend that all intrafamily abuse cases be dealt with in the Family Division. We conclude that the separation of abuse from other issues between spouses, or between spouses and their children, is not advisable. We believe that all family problems should be addressed at the same time.

If these cases are dealt with in the Family Division, several options would be open to the victim. The case could proceed as a criminal prosecution and the offender would be sentenced if found guilty. In cases where the victim was concerned about the family relationship, but did not wish to prosecute, counselling, mediation and other services should be provided. In some cases, both procedures might proceed at the same time. Even if a prosecution has started, it might be delayed while abuse counselling or mediation are attempted to put a halt to the unacceptable conduct. If the efforts to solve the problem are not proving effective, the prosecution could proceed.

The Family Conciliation branch, which is now attached to the Family Division of the Court of Queen’s Bench, should be attached to the Family Division of the new court, as well. It might well be expanded to include counselling services for abused spouses, children and abusers. Existing programs of this nature might be transferred from other government agencies and attached to Family Conciliation.

All charges of abuse against a child or adult allegedly committed by anyone outside the family should be dealt with in the General Division.

We suggest that each division might have groupings of judges, or assignments of judges within it, to enable judges to specialize in a particular area, at least for a period of time. Some judges, because of their experience as lawyers or experience they have gained on the bench, are known to prefer and to be particularly effective in a certain area of work. We think these special abilities should be utilized and the preferences of judges accommodated, if that is at all possible. Merely by way of example, we suggest that judges might provide special services in fields such as the following:

General Division

• Contracts • Jury trials • Torts

• Judge-alone trials • Small claims • Pre-trials

• Labour • Estates • Judicial review

• Commercial • Bail and procedural issues

Family Division

• Divorce • Young offender • Custody of children

• Child welfare • Property division • Maintenance enforcement

• Family criminal • Reciprocal enforcement

In addition to providing all services in each community where it sits, the new court will enable the introduction of other changes. We believe that jury trials should be conducted in the community where the offence is alleged to have been committed. These trials, which deal with some of the most serious crimes, can result in the imposition of severe penalties and have a substantial impact upon the community. In addition to involving local people as jurors, these trials will offer an opportunity for the local residents to see the judicial system in operation. In our discussion of juries in Chapter 9 we deal with how the jurors should be selected.

We recommend that:

 Jury trials be held in the communities where the offence was committed.

 The Manitoba Trial Court have a General Division and a Family Division.

 The Family Division be responsible for young offender, child welfare and family matters as well as for cases involving intrafamily physical and sexual abuse; and that the General Division be responsible for all civil matters and those criminal matters not dealt with by the Family Division.

 All judges appointed to the Manitoba Court of Appeal come from the Manitoba Trial Court.

We recognize that we have recommended some sweeping changes. We find them necessary as part of other changes needed to properly provide Aboriginal people, wherever they live, with a sensitive and accessible court system. While we acknowledge there may be other ways to bring the changes about, we have attempted to propose a model we think is workable and that will address the needs we have identified during this Inquiry. TOP

 

Court Facilities in Remote Communities TOP

As part of the creation of an Aboriginal justice system, court facilities in Aboriginal communities must be upgraded. As we noted earlier, the current facilities are simply unacceptable. Until Aboriginal justice systems assume full jurisdiction, the Manitoba Trial Court should hold trials (including jury trials) in Aboriginal communities that do not currently have formal courtrooms. We expect lawyers and court officials to spend more time in remote and rural communities, both to prepare and to hold trials. This will require improved facilities. Finally, and of greatest importance, we believe that the court system can gain the respect of Aboriginal communities only if the communities are able to see the court system treating their residents and concerns with the same respect accorded to the residents of urban communities.

We recognize that these recommendations will involve cost, but we believe the cost can be kept within reason if the court facilities are added to band or other community multipurpose facilities. We suggest that the court facilities be developed in such a way that they can be used for other purposes when not required for court sittings. In the end, however, rural and Aboriginal communities should be provided with services that meet the same standard as those available in other parts of the province. Extra resources required to deliver equal justice must be provided.

We recommend that:

 Proper court facilities be established in Aboriginal communities that will be available for court purposes as required. TOP

 

Separation of Youth and Family Matters TOP

Youth and family matters should not be heard as additions to a criminal docket. Greater sensitivity must be shown to the private nature of these highly personal matters and there should be separate family sittings wherever possible. Family abuse situations, child welfare problems and other matters of a personal nature should not be mixed with the adult criminal hearings. If there are not enough cases in a community to warrant sittings on separate days, arrangements must be made to deal with family matters at a separate sitting, either in the morning or afternoon, so the two sittings do not run into one another and force those involved in the family cases to mingle with those awaiting the hearing of adult criminal matters.

We recommend that:

 Hearings in the Family Division of the Manitoba Trial Court be held separately from criminal proceedings. TOP

 

Travel Arrangements for Circuit Court Parties TOP

Judges on circuit must be, and must appear to be, totally independent of the police and counsel. This is expected in all courts, but is particularly important in Aboriginal communities where the people start with a mistrust of what, to them, is just another foreign system.

We recommend that the practice of judges travelling with lawyers and police cease. Judges should not travel with the lawyers even if both prosecution and defence lawyers are present. The judge should fly in a separate aircraft. Even if there is additional cost, we consider this change essential if justice is to be seen to be done. Where the destination is served by commercial aircraft, the judge must take care not to travel with counsel to the hotel or to court.

The appearance of the judge being on friendly terms with lawyers on either side of the case reduces the respect the judge must have to administer justice impartially. The judge’s conduct is carefully observed and judges should be aware of that close scrutiny. A judge’s conduct and decorum must be, in all respects, beyond reproach.

To avoid members of the community associating the judge with the prosecution, the judge should not be driven around the community by police officers, because they may have been involved in the arrest of an accused over whose case the judge must preside. One of the tasks of the local court administrator should be to arrange for the necessary ground transportation for the court party.

We recommend that:

 Unless they are travelling in commercial airplanes, circuit court judges not travel with lawyers or police to circuit court sittings.

Preventing Inappropriate Pleadings

On numerous occasions we were told by Aboriginal people that they were advised to plead guilty, even though they believed themselves to be innocent. It is apparent Aboriginal people are not receiving the full protection of their rights guaranteed by the law in such a proceeding.

We recommend that:

 Judges insist that whenever an Aboriginal person is entering a guilty plea, the following procedure be followed:

• The charge is read in full to the accused.

• The judge confirms that the accused understands the charge by asking the accused to explain it.

• The accused, and not counsel, enters a plea.

• The judge confirms that the accused agrees with the guilty plea and that it is being given freely and voluntarily with a full appreciation of the nature and consequences of the plea. TOP

 

Conclusion TOP

We would like to stress our belief that the creation of a unified court system should in no way be seen as an acceptable substitute for the creation of an Aboriginal justice system. However, the unified court would create an efficient and simpler justice system for all Manitobans, and it would certainly address problems which weigh most heavily on Aboriginal people. It would also provide a needed improvement in the delivery of justice to remote communities as the transition is made to an Aboriginal justice system. TOP

 

Eliminating Delay

Court Scheduling TOP

As we noted in our discussion of the current court system, the Provincial Court of Manitoba has gone a long way toward reducing delay within the city of Winnipeg. Three years ago it was often the case that the courts were setting trial dates 13 months in advance. They now can give trial dates within a three-month period. It is instructive to examine the methods that have been employed to bring about this improvement.

Central to the process has been the fact that judges, with the cooperation of Crown and defence attorneys, have taken control over the court scheduling process. A number of administrative changes were required, but of greater importance was the judiciary’s decision to assert its control over the flow of cases. In particular, judges became far less willing to grant motions that would contribute to the delay of a case. While the individual remands that were being granted in the past all may have been reasonable, the cumulative effect—the delaying of a trial for over a year—was seen to be extremely unreasonable. As a result, it is now uncommon for cases to go beyond three remands in the Provincial Court in Winnipeg.

The same approach, however, is not being applied outside Winnipeg. When trial dates or remands are being scheduled, the present system often limits its consideration to the schedules of the various professionals involved. If a case is not ready to proceed, the Crown attorney checks the calendar to see when the circuit court will return to the community. The Crown attorney indicates which date is suitable. If the police have a problem making witnesses available, the date is set to take that concern into account. If defence counsel has a heavy caseload, a date will be set when that lawyer is free. The date that is fixed for trial is then set, with these considerations. Throughout this process, the needs of the Aboriginal defendant, his or her family members, the victim and prospective witnesses are rarely taken into account.

The legal system appears to operate in the belief that the most important participants are those who are part of the legal establishment, yet, the legal system exists to serve the public. Many people are affected by every case that goes to court and it is important that the court ensure that it considers their needs, as well.

We believe that judges outside Winnipeg must make much greater use of their right to control the scheduling of cases. We do not think it is proper for the court to be adjourned so that the lawyers can speak with their clients. This should take place prior to court. Lawyers should be coming to circuit court points the day before court to meet with their clients. If lawyers knew in advance that adjournments would not be allowed, they would conduct the necessary consultations in advance of the court day. Judges should grant remands only for exceptional cause and they should bear in mind the burden that remands place on people in communities which have only one court hearing a month. TOP

 

Dealing with Current Caseload TOP

In 1989 the Provincial Court of Manitoba eliminated a tremendous backlog of cases in the city of Winnipeg. This was accomplished, in part, by a blitz which focussed on disposing of any cases which had been outstanding for several months. We believe it is necessary to conduct a similar blitz to clear up cases in the circuit courts. The blitz should focus on disposing of all cases which have been outstanding for six months or longer.

Such a blitz will require assigning additional judges, Crown attorneys and Legal Aid lawyers. We believe it should not take more than six months to eliminate the current backlog of cases.

Once the courts are current, the performance of each court location should be regularly monitored to see that no backlog develops. Should a trend in that direction be detected, additional sitting days should be made available.

We recommend that:

 Special court sittings be organized to address all cases outside the city of Winnipeg which have been outstanding for more than six months. If necessary, additional staff should be hired until all these cases have been disposed of. TOP

 

Improved Circuit Court Services TOP

As they currently operate, circuit courts provide an unacceptable level of service to Aboriginal people. We believe the Aboriginal communities served by circuit courts will be among the first to develop their own justice systems. We believe such systems will be able to provide swift and appropriate justice at the community level. To aid in the transition to these new systems, circuit courts must be reformed immediately. We should make it clear that the reforms we are calling for will require additional resources—we need more court personnel in local communities, we need more lawyers providing defence, and we need to have these people spending more time in Aboriginal communities.

Justice cannot be delivered on a monthly fly-in, fly-out basis. Judges must be prepared to go into Aboriginal communities and stay until dockets are completed. This may mean that courts have to sit for more than one day, particularly if there are family and youth matters to be dealt with.

We recommend that:

 Circuit court sittings be scheduled in such a manner as to allow all the matters on a docket to be dealt with in one court visit. This may entail scheduling two-day visits to many communities. TOP

 

Changes to Legal Aid TOP

We suggest a change in the way Legal Aid Manitoba provides representation to Aboriginal people in remote communities. We would like to see a switch made from the provision of representation by overburdened duty counsel to a system where Aboriginal people enjoy the same sort of lawyer-client relationship that characterizes legal representation in other parts of the province. At the present time, defence counsel, whether they be Legal Aid or private counsel, do not have adequate time to obtain all the information necessary to prepare a defence or to speak to sentence. There is virtually no time to discuss various options with an accused and members of the family. As far as we can determine, counsel do not discuss cases with the chief or other community representatives. Youth justice committees are not consulted.

This system can only be improved if Legal Aid lawyers travel to a community the day before court is scheduled and spend the day meeting with the people scheduled to appear in court the following day. Others in the community will also have to be seen if alternative measures are to be investigated and proposed to the court. This minimal step may require the hiring of more Legal Aid staff lawyers.

We also believe changes are necessary to the Legal Aid appointment process. Accused individuals in remote communities are often not able to apply for legal aid until the circuit court comes to town. We believe that this situation would be alleviated to some degree if Aboriginal court workers were resident in circuit points. These people should be authorized to accept Legal Aid applications. An application for the appointment of counsel should then be communicated to the appropriate Legal Aid office without delay. If a facsimile machine is available, the application should be forwarded by that means. If no facsimile machine is available, the application should be processed by telephone and the application form forwarded later.

Legal Aid duty counsel should be given the right to grant interim approval of an application and, as well, the power to appoint counsel to represent an accused at his or her first appearance. In many cases, this may result in duty counsel appointing themselves to represent an individual. If duty counsel arrive in the community a day before the court sitting, they will be able to meet with the individuals who would normally not make an application for Legal Aid until the day of the court sitting.

If this procedure is followed, it would eliminate at least one remand in the handling of many circuit court cases. It is particularly important to speed the appointment process for those in custody so that an application for bail can be made as soon as possible.

When Legal Aid makes an appointment, the Crown attorney’s office should be notified immediately. Crown counsel then should take the responsibility for moving the case along. Particulars should be sent to the defence counsel without waiting for them to be requested.

We recommend that:

 Lawyers attend in circuit court communities at least one day before court to ensure that cases can be properly prepared.

 Legal Aid duty counsel be authorized to grant interim approval of all Legal Aid applications. If, upon review, the applicant does not qualify for Legal Aid, the approval could be cancelled.

 Legal Aid application procedures be amended to allow accused individuals who live in communities where there is no Legal Aid office to apply by telephone. Where no Legal Aid staff are available, Aboriginal court workers be authorized to accept and forward Legal Aid applications.

TOP

 

Provision of Information to Defence TOP

Before a plea is required of an accused, the Crown should have provided the defence with a statement of particulars setting out the Crown’s case and copies of any statements from the accused and the complainant. As soon as a plea of not guilty is entered, the Crown should also provide the defence with the following:

• Statements from all witnesses intended to be called.

• Statements from others not intended to be called.

• Sketches and drawings.

• Experts’ reports.

• Any other information relevant to the case.

If other information becomes available prior to trial, this should also be disclosed, otherwise the Crown should be precluded from introducing it at trial. If another witness later becomes available, or if it is determined that a witness may be able to deal with other issues, the same disclosure and notice should apply. TOP

 

Pre-Trial Conferences TOP

Compulsory pre-trial procedures are already in place in the Provincial Court and in the Court of Queen’s Bench, and can easily be adapted to the changes we suggest. These pre-trial proceedings assist counsel in receiving an outline of the opposition’s case. An efficient system of pre-trial proceedings will do a great deal to streamline the operation of the court and should lead to a significant reduction in court delay. We suggest there be a pre-trial conference in every case involving an indictable offence where a plea of not guilty has been entered. The length of the conference and the matters to be considered will vary, depending on the seriousness of the charge and the procedural and legal issues involved.

The pre-trial conference should be conducted by a judge who will not be the judge who presides at trial. The purposes of the conference are to ready the case for trial and to discuss the various options in an open and frank exchange. The main role of the judge is to see that the case is ready to proceed to trial. A secondary role may be to assist counsel in discussing alternatives that may arise from the evidence disclosed at the pre-trial conference. Everything said at a pre-trial conference should be confidential and no tentative agreements that are made should be binding on either the Crown or the defence. The conference should consider as many of the following issues as might apply to a particular case:

• Make certain that all documentary disclosure has been completed, or set the time within which that is to be done.

• Discuss the evidence with a view to ensuring that an appropriate charge has been laid.

• Determine what, if any, facts can be agreed upon to avoid calling certain witnesses.

• Determine whether there are any legal or technical issues to be presented and, if there are, to obtain lists of authorities that should be considered by the trial judge.

• Discuss the estimated length of trial.

• Determine the language of trial and whether interpreters will be required.

• Confirm the availability of all witnesses.

• Discuss the possibility of a change of plea or willingness to plead guilty to some lesser charge.

• Deal with any pre-trial motions that do not have to be dealt with by the trial judge.

• Set the trial date in consultation with all parties and the trial coordinator.

• Determine whether any pre-trial examination of witnesses is required by the defence and, if so, set the date for that to be done.

While the presence of an accused is probably unnecessary in most cases, we suggest that the accused have the option of being present at the pre-trial conference. The presence of the accused will enable defence counsel to keep the accused advised and to receive instructions. If the case is in a remote community, and counsel and the judge are not all present, the pre-trial conference could be conducted by a telephone conference call initiated by the court. The accused should have the option to participate in the call. TOP

 

Elimination of the Preliminary Inquiry TOP

As we noted in Chapter 6, the initial purpose of the preliminary inquiry has virtually disappeared. Instead of being a hearing to determine whether there is sufficient evidence to warrant a trial, it has become a discovery process.

If our proposal for the early delivery of information by the Crown to the defence is put in place, and if pre-trial conferences are held, the Crown will have determined the basis upon which it wishes to proceed and the defence will have most of the information it needs.

We recognize that the defence will still not have had an opportunity to question key witnesses and we believe that right should continue. We do not think that the preliminary inquiry is necessary to enable that to be done.

We suggest that if, at the pre-trial conference, the defence indicates a desire to question certain witnesses, a date be set for a "pre-trial examination of witnesses." We suggest that examination take place before a special examiner of the court. A special examiner is usually a court reporter who has been given that special designation. The special examiner can swear witnesses and make procedural rulings.

We recommend that the preliminary inquiry be abolished. We also strongly recommend that the pre-trial examination of witnesses not be conducted by a Provincial Court judge. The present use of judges to preside over preliminary inquiries is, we believe, an inappropriate and wasteful use of their time and talents.

We suggest that the elimination of the preliminary inquiry, along with the amalgamation of the courts and the imposition of some time restraints, will result in a much simplified and more efficient process.

We recommend that:

 Preliminary inquiries be abolished and replaced with a discovery and pre-trial process. TOP

 

Mandatory Time Limits TOP

Another mechanism we recommend to eliminate the delay we have found with respect to the processing of young offender cases generally, and criminal cases in rural and remote Aboriginal communities in particular, is the imposition of time limits on the processing of cases.

The legal basis for controlling the processing of cases is found in the Charter of Rights and Freedoms, which is Part 1 of the Constitution Act, 1982. Section 11 provides:

Any person charged with an offence has the right to be tried within a reasonable time.

In Mills v. The Queen, at page 941, Mr. Justice Lamer (now Chief Justice of the Supreme Court), spoke of the responsibility of those administering the system to accommodate it to the Charter and to change the system if necessary:

Our legislators have, by the entrenchment of s. 11(b), established as a fundamental societal priority the maintenance of an effective and prompt system for the administration of criminal justice. There can be no assumption that the constitutional right to be tried within a reasonable time must conform to the status quo; rather, it is the system for the administration of criminal justice which must conform to the constitutional requirements of the Charter. We cannot shrink from our task of interpreting the Charter in a full and fair manner, even when, and perhaps especially when, we are confronted with the possibility of resulting significant institutional adjustment.

This topic has been the subject of comment by the Law Reform Commission of Canada, by bar associations and by the courts, but little has been done to establish actual guidelines.

The Law Reform Commission made proposals for having trials heard within a reasonable time in its 1978 report entitled Criminal Procedure Part 1 and considered the matter again in a 1988 study paper on "Trial Within a Reasonable Time." In that document, it proposes a post-charge time limit of six months for summary conviction offences and one year in cases where there has been a preliminary inquiry.

The American Bar Association has agreed that at least 98% of all cases should be concluded within 180 days of arrest.2 Time limits have been implemented in a number of jurisdictions in the United States. Again in Mills, Mr. Justice Lamer, at page 938, indicated some of the limitations being applied in the United States:

California Penal 1382 (West 1985) stipulates that when a person has been “held to answer” for an offence, an information must be filed within 15 days and that a defendant must be brought to trial within 60 days of the indictment or filing of the information; in misdemeanor cases, the defendant must be brought to trial within 30 days after arraignment if he is in custody, or 45 days in all other cases; Colorado Criminal Code, Colo. Rev. Stat. 18–1–405 (1973), states that a defendant must be brought to trial within 6 months; Illinois Code of Criminal Procedure, Ill. Ann. Stat. ch. 38, 103–5 (Smith-Hurd 1980), states that every person in custody shall be tried within 120 days from the date that he was taken into custody and that every person on bail or recognizance shall be tried within 160 days; Michigan Code of Criminal Procedure, Mich. Stat. Ann. 28.978 (Callaghan 1985), provides that every person held in prison upon an indictment shall be tried at the next term of the court after the expiration of 6 months from the time when he was imprisoned; South Carolina Code of Criminal Procedure, , S. C. Code Ann. 17–23–90 (Law Co-op. 1985), provides that a person held in custody must be indicted and tried within two court terms after his confinement [see State v. Fasket, 5 Rich. (39 SCL) 255 (1851); 18 U.S.C. ch. 208 3161 (c)(1)(1982)] states that in any case in which a plea of not guilty is entered, the trial must commence within 70 days.3

In view of our recommendation that the preliminary inquiry be abolished, we believe that the target period, from the time of laying a charge to the commencement of all criminal trials, should be six months. There will be cases, of course, where an extension of time will have to be sought and granted, but we suggest those extensions be for unusual circumstances and be quite limited.

When time limits on criminal cases are being addressed, attention should also be directed to delay in bringing civil and family cases to trial. The new Ontario Court of Justice is experimenting with several models of case flow management. In Windsor, time limits for simple, standard and complex civil actions are set at six, 18 and 36 months. In family cases, the time from commencement of a proceeding to trial is set at 12 months, and a variation proceeding at six months. Similar time limits or guidelines should be established in Manitoba. The principle upon which case flow management is based is that once a case has started, the courts have an obligation to the litigants to see that it is dealt with in reasonable time.

We recommend that:

 The judiciary establish timelines and procedures that will ensure that a case gets to trial within a reasonable time.

TOP

 

Case Flow Management Techniques TOP

While time limits can be established relatively easily, their implementation does not automatically mean that the system will respond quickly. Along with time limits must come case flow management procedures which will enable the courts to meet their time limits. The study by the American Bar Association cited above examined procedures in a number of courts and identified a number of management techniques which enabled some courts to process their cases more quickly than others. It found that the caseload and the number of judges made little difference. Nor did one particular system appear to stand out above the others. Rather, the study found that it was the application of case flow management methods that made the difference.

We recommend that:

 Manitoba courts implement a comprehensive case flow management program.

Such a management system should incorporate these principles:

• Once a court proceeding has been commenced, the court, and not counsel, should control its passage through the system.

• Case events should be scheduled at relatively short intervals.

• Once a trial date is set, every effort should be made to ensure it proceeds as scheduled.

• The trial of criminal cases should commence within six months of when the charge was laid.

• Efforts should be made by the Crown attorney to screen out of the court system cases which would be better resolved in some other way.

• A Crown attorney should review every charge that has been laid to see whether the available evidence supports it.

• Over-charging should be avoided. Where there is a difference of opinion between the police and the Crown attorney, the opinion of the Crown attorney should prevail.

• All murder charges should be reviewed and authorized by a senior Crown attorney.

• Judges should be assigned in such a way that if a trial does not proceed, the judge will be free to preside over other matters. It is important that enough judges be on standby for situations where a case continues longer than anticipated, where a court docket cannot be completed as quickly as anticipated, or where more trials proceed than were anticipated.

• We recommend that all matters scheduled for trial or set for guilty pleas on a court docket be disposed of at the sitting for which they are set. If remands are substantially reduced, the court should be able to deal with pleas of guilty first and then hear trials. The judge assigned to that sitting should remain as long as necessary to dispose of all matters on the list, even if that takes more than one day.

• Pre-sentence reports should not be ordered automatically. Where people who are present can provide the judge with the necessary information about the offence and the circumstances of the accused, a report should not be ordered.

• In order to ensure that backlogs do not grow and lead to delays, the court should continually monitor the processing of cases. TOP

 

Delay and Court Appearances TOP

Repeated remands and delays, and the regular court appearances they entail, create problems for Aboriginal accused who reside in remote and rural communities. They must often travel significant distances at great personal expense, only to have their court appearance last just a few minutes as a remand is granted. If they fail to appear, they risk having the charges against them multiply. We believe it is necessary to relax the requirements for court appearances.

For summary conviction matters, an accused can be represented in court by counsel or an agent properly instructed by the accused to appear for him or her. Such a person can act in the place of the accused, including agreeing to a remand or entering a plea if the court is satisfied that person has sufficient authority to do so. If there is any question in the judge’s mind, he or she can still require the accused to be present and adjourn the matter for that purpose. If a counsel or agent appears without proper instructions, then the court can issue a warrant. We suggest that the same options apply with respect to all offences.

For indictable matters, it is not clear whether counsel or an agent can appear in place of an accused, even for a remand. The Criminal Code, which governs the procedure on indictable matters, is silent on the point. Some, including both the provincial and federal departments of Justice, have interpreted that silence to mean it cannot be done. They take the position that if an accused does not appear, the court loses jurisdiction, unless a warrant has been issued or the accused has consented to a remand in person. Therefore, where an accused charged with an indictable offence does not appear, the Crown attorney asks the court for a warrant of arrest, even if counsel for the accused has clear authority to agree to a remand. Most judges issue such warrants and order that they be "held" until the next remand date, an order of questionable validity. The warrants are usually held, but if the accused does not appear at his or her next remand, invariably the warrant is executed and the person is arrested. Sometimes, the warrant is acted upon on the day of the next hearing to make sure the accused is in court.

This can be a hardship for an Aboriginal accused charged with an offence in his or her home community, but who, for one reason or another, has to leave the community temporarily. We have already noted the high mobility of Aboriginal people between urban and reserve settings. If an accused cannot make it back to the community for court because of distance and cost, if he or she has counsel and if his or her matter is simply going to be remanded, we wonder why the court should have to issue a "jurisdictional warrant."

If, for reasons of health, weather or employment, an accused is unable to attend a court sitting to which he or she has been remanded, we believe counsel should be able to seek a further adjournment. If that were possible, an arrest warrant would not have to be issued.

Currently, the inability to appear, even for good reason, results in the accused being arrested. We believe that an accused should be able to appear by counsel or agent for all preliminary matters (summary conviction and indictable), provided that the counsel or agent has full authority to appear and the court is satisfied that the attendance of the accused is not necessary. Even a telephone call to the court administrator or Crown attorney should enable a remand to be made in an appropriate case, without the court losing jurisdiction.

We recommend that:

 The Criminal Code be amended to allow accused to appear by counsel or agent for all preliminary purposes.

Where an accused does not have a counsel or an agent and is unable to attend court for good reason, and contact has been made with the RCMP, the Crown attorney, Legal Aid or court staff advising of the reason, we believe that the court should not have to issue a warrant for jurisdictional purposes. This is especially true in situations where the matter would have been remanded in any event. In fact, we do not understand why an accused’s presence in court should ever be required, other than for bail or trial.

We recommend that:

 The Criminal Code be amended to provide that once an information has been laid the court does not lose jurisdiction merely because the accused is not present.

We heard of cases in which Aboriginal people were arrested on a warrant because they failed to appear, and ended up in jail. Many said that they were then charged with failing to appear and, because they were in jail, they pleaded guilty to the original charge just to get the matter over with, since they then had two charges against them. It seems to us that some defence counsel are too willing to allow their clients to plead guilty to charges of failing to appear where the client has a reasonable excuse. TOP

 

Conclusion TOP

We believe that with the introduction of time limits, the elimination or reduction in remands, the elimination of procedures that now cause delay, such as the preliminary inquiry, and the application of case flow management techniques, a much higher quality of court services can be made available to all Manitobans. This is particularly the case for Aboriginal people who have trouble obtaining release on bail, or those who live in small rural locations or remote northern communities. We believe the justice system as a whole will also be a beneficiary. TOP

 

Pre-Trial Detention TOP

We believe that our justice system imprisons far too many people who have been found guilty of crimes. This is a serious problem and we deal with it in detail in Chapter 10. It is perhaps even more disturbing to discover the degree to which our system incarcerates individuals who have not been convicted of any crime. In some of the institutions we visited, many of the inmates, sometimes as many as 30%, were being held in custody pending consideration of their cases by the courts. Studies demonstrate that Manitoba makes excessive use of pre-trial detention and that this policy weighs adversely against Aboriginal people.

According to statistics in the 1988–89 Annual Report of the Manitoba Department of the Attorney General,4 considerably more persons are taken into pre-trial detention than are sentenced to jail. This suggests that many of those pre-trial detentions were unnecessary, that either the court found the individuals to be not guilty or found that incarceration was not appropriate for them.

In 1988 there were 15,138 admissions at the Winnipeg Remand Centre and 2,658 temporary detentions at the Manitoba Youth Centre, for a total of 17,796 pre-trial detentions. The statistics do not reveal how many pre-trial detentions there were at the other jails in the province. There were less than 10,000 adults sentenced to jails in the province, including federal institutions. There were, at most, approximately 1,300 youth sentenced to jail in the province in 1988.

These figures suggest there were more than one and one-half times as many pre-trial admissions for adults as there were sentences to jail.

The figure of 1,300 for sentenced youth includes 600 youth admitted to institutions other than the Manitoba Youth Centre and Agassiz Youth Centre. It is not clear whether these youth were being held in pre-trial detention or were sentenced to those institutions. The figure also includes 460 youth sentenced to open custody, which is not supposed to be considered the same as jail, but, in practice, Manitoba open custody is very similar to closed custody (24-hour lockup). Even using the figure of 1,300, this suggests there were more than two times as many pre-trial detentions for youth as there were youth sentenced to jail.

For women, there were 1,819 admissions to the Winnipeg Remand Centre, but only 628 women admitted to the other jails in the province. This suggests there were three times as many pre-trial admissions for women as there were sentences to jail.

According to the Canadian Centre for Justice Statistics, in 1988–89 only 33% of the individuals in provincial custody in Manitoba had been sentenced to a term of imprisonment after being found guilty of a crime, while 66% were in custody awaiting further court appearances, trial or sentencing (these individuals are usually referred to as being held on remand). Quebec was the only other province in which the number of individuals being held on remand exceeded the number of individuals who had been sentenced to a term of imprisonment. In Saskatchewan 63% of the individuals in provincial custody were sentenced; in Alberta the figure is 68%.5 The raw figures are equally disturbing. In 1988–89, 10,083 people were admitted to Manitoba’s provincial correctional institutions on remand; the comparable figures for Saskatchewan, Alberta and British Columbia were, respectively, 4,464; 9,679; and 4,772.6

Some jurisdictions have dealt with these problems by establishing bail supervision programs. Under these programs, people who cannot find anyone to post bail for them, but otherwise qualify for release, are released on condition that they regularly report to designated officials. These programs are now available in Ontario, British Columbia and Saskatchewan. To date, the Manitoba government has shown little commitment to developing alternatives to pre-trial detention. We believe the time has come to do so. Such programs for Aboriginal accused should operate in remote communities and urban centres, and should come under the direction of Aboriginal people.

Local communities must be equipped with short-term custody facilities. Accused individuals should be held in these facilities and a bail hearing should be arranged in the community before a local judicial officer.

In remote communities and in urban centres, there is also a need to develop new criteria for determining whether an individual should be released. These must take into account, among other things, the strength of the Aboriginal community’s network of extended families and this network’s ability to provide pre-trial supervision.

The excessive use of pre-trial detention is another reason we recommend the establishment of time limits on prosecutions.

We believe an Aboriginal justice system will be able to deal effectively with many of the problems of pre-trial custody in remote communities. Such a system would be able to deal with the question of detention and supervision in the community where the offence took place.

We recommend that:

 Bail hearings be conducted in the community where the offence was committed.

 The Manitoba government establish a bail supervision program to provide pre-trial supervision to accused persons as an alternative to detention.

 Inappropriate bail conditions, such as requiring cash deposits or financial guarantees from low-income people, that militate against Aboriginal people obtaining bail, no longer be applied.

TOP

 

Personnel TOP

In our chapter describing the current court system, we noted that very few of the people employed by the Manitoba justice system are Aboriginal and that virtually none of the people in decision-making positions is Aboriginal. Elsewhere in this report, we recommend the adoption of an Employment Equity Act. We believe that the Justice department and its related agencies must make employment equity a priority.

We recommend that:

 The provincial Justice department establish minimum and optimum targets for the employment of Aboriginal people at all levels. The minimum target must be no less than the percentage of Aboriginal people in Manitoba; the optimum target is to be equal to the percentage of Aboriginal people served by the department and its agencies.

 Legal Aid Manitoba establish minimum and optimum targets for the employment of Aboriginal people at all levels. The minimum target must be no less than the percentage of Aboriginal people in Manitoba; the optimum target is to be equal to the percentage of Aboriginal people served by Legal Aid Manitoba. TOP

 

Judges TOP

As we noted earlier, judges play a key role in the justice system. They exercise considerable control over the way a case will move through the court system, they preside over the courts, they must determine whether a person is guilty or innocent and they must pass sentence. In addition to this, the judge plays an important symbolic role in the judicial system. Manitobans have high expectations of their judiciary.

Some of the Aboriginal people who appeared before our Commission said their expectations are not being met. Presenters spoke of judges who treated Aboriginal people like children, of judges who comported themselves in an unprofessional manner, of judges who refused to hold court in Aboriginal communities because they were dissatisfied with the court facilities and of judges who did not respond to letters of complaint from community members.

We also believe that when it comes to sentencing, judges rely far too much on incarceration, do not pay enough attention to cultural factors, avoid, or are unaware of creative and available community sanctions, and impose unnecessary and inappropriate conditions on probation orders.

A survey conducted by our Inquiry revealed that some judges do not fully understand that Aboriginal people have unique legal and cultural rights; they appear to view Aboriginal people as being no different from Canada’s other ethnic minorities. The survey also found that some judges believe that the present circuit court system provides adequate service and that there is no need for additional court sittings in Aboriginal communities.

It is not surprising, therefore, to discover that the system over which Manitoba’s judges preside is not held in high esteem by Aboriginal people. There is little faith that it can resolve matters to the benefit of the Aboriginal accused, the victim, their families or the community. The system’s most senior officials must bear no small measure of responsibility for this state of affairs.

The courts are seen as part of a foreign system applying a set of values established for the benefit of the non-Aboriginal community. They are seen as insensitive to individual and community needs. Instead of trying to resolve problems in a consultative manner and to restore harmonious relationships in the community, the adversarial system seeks to determine fault and to punish. This may not be the fault of the judge who is operating within the present rules, but judges often get the blame and are included when Aboriginal people speak of indifference and lack of understanding.

A judge must decide whether an accused should be released on bail and, if so, the conditions that should be imposed. The judge will determine whether there will be any delay at that point. Whether the case can be disposed of at an early appearance may depend upon whether the judge agrees to requests from lawyers for delays. The judge’s knowledge of the effects of delay on the accused may determine his or her willingness to grant remands. A judge’s decisions in all these matters may depend upon his or her knowledge of resources within the community. A judge should know if there are justice committees, elders, peacemakers or others to whom a matter might be referred, what counselling and supervision facilities exist, and what alternative measures might succeed in the circumstances of a particular case.

The decisions a judge makes on the movement of a case through the courts often have a substantial impact on those required to attend in court. Our investigations indicated that in some remote communities, judges may be unaware of the cost and disruption caused by a "simple" adjournment. Some seem to be unaware of the lack of transportation in southern Aboriginal communities, the problems of distance in the North and the economic impacts of return trips to court.

We believe that judges could do much to alleviate some of the problems resulting from current practices and procedures, if they were aware of the problems. The challenge is to provide judges with the necessary information and an understanding of how Aboriginal people are being affected by the current system. Ways of improving the delivery of judicial services should also be presented to or developed by the judiciary. For this reason, we recommend that Manitoba judges be provided with a cross-cultural training program. We discuss cultural awareness programs in more detail in the final chapter of this report.

Judicial Isolation

While a cross-cultural training program for judges will represent a positive step in improving the justice system for Aboriginal people in Manitoba, other problems must also be addressed. One of these is the isolation of judges from the communities they serve.

This isolation is a particular problem in cases involving Aboriginal people. Those working in the legal system who make decisions in cases involving Aboriginal people must be knowledgeable about them, their history and culture, the communities in which they live, their economy, their means of livelihood and their way of life. Most judges do not come from backgrounds which give them this knowledge.

This degree of knowledge about the customs and needs of Aboriginal communities cannot be obtained under the current circuit court system, where judges spend only a few hours each month in each of the communities they serve. Queen’s Bench and Court of Appeal judges do not even have this exposure to Aboriginal communities. Judges are currently working within a structure which limits their contact with Aboriginal people.

Judges must be prepared to meet with the chief and council when they go to remote communities. They need not discuss particular cases, but should show that they are concerned about delivering good court services to the community. They should listen to suggestions as to how problems can be lessened and services improved.

It is clear that the best way to ensure that the judicial system has judges with knowledge of Aboriginal people is to establish a system of courts with Aboriginal judges. For the remaining judges in the province, while a cross-cultural program will address these issues, judges should also be meeting with community members to be properly aware of life in Aboriginal communities. They should be aware of the concerns of people living in different parts of the province. If individual judges feel it inappropriate to visit in the communities, at least the chief justice and associate chief justices should do so, and report and discuss their findings with all the judges of their court. Judges should also meet with Aboriginal community leaders in urban areas to ensure that the concerns of those leaders are also known. TOP

 

Lawyers TOP

Aboriginal Perceptions of Lawyers

The general role of lawyers in the criminal justice system is understood by Aboriginal people. The word "lawyer" is translated into some Aboriginal languages as "one who speaks for another." However, we learned from our hearings that many Aboriginal people are very disillusioned and dissatisfied with the services they receive from lawyers. In addition to specific complaints, there are general impressions of the legal profession that lawyers must address. The main criticism is that lawyers often do not tell their Aboriginal clients what they are doing or why. Lawyers are seen as a major cause of delay. Aboriginal people feel that many lawyers do not understand the people they represent, the situation in Aboriginal communities, or factors that should be raised in court. Legal Aid lawyers were particularly singled out for criticism by people who did not feel that they were as good as members of the private bar. As we discuss later, this is not an opinion that we share.

We heard numerous complaints about the treatment Aboriginal people received from lawyers who forced them to make decisions they did not understand, kept them in constant fear, pressed them to plead guilty when they felt they were innocent, did not act in their best interests and treated them as if they were guilty. On top of this, Aboriginal people believed that lawyers were enriching themselves on their misery.

Some complaints were directed specifically at Legal Aid lawyers, particularly the services provided by duty counsel in the circuit courts. People complained about having to stand in line to see their lawyer, that Legal Aid did not pursue bail with enough vigour and that, on occasion, it took several court appearances to have a Legal Aid lawyer appointed. On numerous occasions people wondered how it was possible for Legal Aid lawyers to defend people after only speaking to them for five or 10 minutes.

The suggestion that Legal Aid lawyers come to communities in advance of the day set for court was heard on many occasions. Aboriginal people, paralegals and Legal Aid lawyers all agree that there are not sufficient resources to devote enough time to the needs of Aboriginal clients.

Not all comments were unfavourable. Lawyers were credited with doing a good job in speaking to sentence in the southern courts. Many Aboriginal people who were convicted of an offence thought their lawyer presented a good defence and did all that was reasonably possible to obtain an acquittal. Some even expressed surprise with the extent of a lawyer’s activity when the lawyer knew they were guilty of the offence with which they were charged.

Lawyers’ Opinions Surveyed

Our Inquiry conducted a mail survey of 146 lawyers known to have extensive practices in criminal law in Manitoba. The survey confirms the perception of Aboriginal people that, with a few exceptions, lawyers often do not have a grasp of Aboriginal issues or concerns. While many lawyers recognized that Aboriginal people in remote communities did not receive a proper level of service, there does not appear to be an understanding of the Aboriginal community’s desire for a greater degree of involvement in, and control over, the legal system. Where they do indicate some support for Aboriginal peoples’ concerns, that support is less than unanimous.

Only 26% of all respondents indicated that they sometimes consulted with the chief or band council in the course of their duties. Even fewer reported consulting with mayors, local justice committees or elders. In all cases, Crown attorneys were less likely to consult with community leaders than were defence counsel. These findings support the view that the lawyers who work in the circuit court system are very isolated from the communities they serve.

This isolation from Aboriginal communities is particularly disturbing in light of the fact that Aboriginal people made up a substantial proportion of the caseloads of the lawyers who responded. Two-thirds of the Legal Aid and private defence counsel, and half of the Crown attorneys, reported that Aboriginal people represented more than one-half of their caseloads.

Many defence lawyers expressed concern about the availability of legal counsel in Aboriginal communities. Only 29% of the defence lawyers thought the availability of counsel in Aboriginal communities was adequate. As one commented, "Legal Aid does not have the resources to service remote communities adequately." Crown attorneys were more satisfied, with 56% reporting they felt availability of counsel was adequate.

Many lawyers expressed concern about the time available to them to do their work in circuit courts. One respondent noted, "Circuit lawyers have little time in circuit courts. Staff, defence and Crown lawyers on northern circuits handle far more cases than their southern counterparts." Virtually all the defence lawyers, as well as 72% of the Crown attorneys, agreed that at least some of the time there was not enough time to deal with all cases on the docket. The majority (70%) of respondents felt that more court sittings were required in Aboriginal circuit court locations.

Responses were more positive about the possibility of considering Aboriginal traditions when sentencing Aboriginal offenders. Seventy-four per cent of all respondents agreed that traditional Aboriginal ways of dealing with offences should be considered in sentencing, while only 12% felt they should never be used. Crown attorneys were the least likely to support this idea. The comments of two respondents illustrate both sides of this issue very effectively:

• Use of native cultural conflict resolution tools (including reconciliation, elders, sweat lodges, etc.) can give Aboriginal communities control and ownership over the criminal justice process and could frequently replace prosecution. Ownership would give a sense of responsibility. Flying in a court party to ‘solve’ local problems keeps communities powerless and precludes problem-solving by the local community.

• What should not be forgotten is that the law of the land is the Law of Canada, one law for one people. It cannot differ from jurisdiction to jurisdiction in the sense that substantive law and the applications of that substantive law must be the same (equality provisions demand it).

While there was support for considering Aboriginal traditions in sentencing, other suggestions, such as altering the jury selection process, did not receive much support.

Generally, Crown attorneys appear to think that the present system is good and needs few, if any, changes. Legal Aid lawyers were at the opposite end of the spectrum, with many feeling that Aboriginal people are not well served by the present system. Members of the private bar seemed to be in the middle. We now turn to those different components of the bar.

Legal Aid Services

As we note above, Legal Aid Manitoba was often singled out for criticism by Aboriginal presenters in remote communities. Legal Aid lawyers appearing before us also acknowledged the problems that they experience in providing service to Aboriginal people in remote communities. We believe that there are, indeed, problems with the type of legal services provided by circuit courts, but we do not believe that this reflects any lack of commitment or ability on the part of Legal Aid lawyers. Legal Aid executive director Allan Fineblit said in his submission to us that "the current justice system is not serving Aboriginal people and must be dramatically changed." He reported that "it was the consensus of the Legal Aid staff that there is much to commend some form of Aboriginal justice system."

In 1987 a study of Legal Aid Manitoba commissioned by the federal government concluded that:

[E]ven though conventional wisdom suggests that [Legal Aid] staff lawyers are less efficient and effective than the private Bar in the delivery of legal aid services, the analysis presented above indicates that this view is incorrect. [Legal Aid] Staff appear to be more efficient in time recorded per case than the private Bar; and, case outcomes for staff and private Bar cases do not present appreciable differences.7

We believe that concerns about the competency of Legal Aid staff lawyers are misplaced. Legal Aid staff lawyers are able to provide first-class legal service. Nevertheless, we recommend that Legal Aid lawyers visit circuit court communities the day before a court hearing. To accomplish this, it may be necessary to temporarily increase the size of the Legal Aid staff, particularly in northern Manitoba.

Legal Aid’s Northern Paralegal program employs two Aboriginal paralegals who provide pre-trial legal advice in four communities served by circuit courts. This is an important initiative which has received positive assessments. During the course of our Inquiry, we heard from the paralegals on a number of occasions and were impressed with the services they provide. Their testimony indicates that this sort of program should be expanded. All communities should receive this type of service. We believe that, as good as the present program is, it should be integrated into the Aboriginal Court Worker program we recommend later.

One of the areas which we have identified as contributing to the over-representation of Aboriginal people in the justice system, particularly in our correctional institutions, centres on Legal Aid regulations which stipulate that even if an applicant meets the financial criteria, Legal Aid will not provide counsel in summary conviction cases, unless there is a likelihood of the accused either going to jail or losing his or her job upon conviction.

Many Aboriginal people appear to have developed a record of relatively minor offences prior to their first incarceration. We know that in considering what sentence is most appropriate for an accused, judges are often swayed by the existence of an accused’s prior record. An accused with even a short history of arrests and convictions for minor offences runs a much greater risk of being incarcerated for another minor offence than one who lacks such a record.

Legal Aid’s policy contributes, no doubt, to the compilation of a criminal record of minor offences for such accused. In effect, legal assistance is unavailable to otherwise eligible accused, assistance which would help prevent them from being improperly convicted, or from pleading guilty without legal advice. We know that duty counsel is available to assist such accused, but we also know that duty counsel can only provide the most superficial of assistance to unrepresented accused. For Aboriginal accused, who are the single largest group in court, Legal Aid’s policy has an adverse impact upon them.

We recommend that:

 Legal Aid Manitoba provide representation in all criminal matters in which the accused meets the Legal Aid income criteria.

Private Counsel

We have focussed on Legal Aid staff lawyers in large part because the poverty of Aboriginal people means that they rely very heavily on Legal Aid services. However, private counsel who receive certificates, or who represent Aboriginal accused by private agreement, must also change their approach. They should be more accessible to their Aboriginal clients.

It is clear to us from our hearings that many Aboriginal people feel that the lawyers who represented them did not fully explain the process which was taking place, made deals their clients did not fully understand, and treated their clients in a patronizing and perfunctory fashion. Canadian law is complex and it is often practised under very difficult conditions; lawyers may not feel they have the time to explain how their actions are in the best interests of their client. But a lawyer who fails to do so is not properly representing his or her client, especially when that lawyer is supposed to be taking instructions from the clients, not telling them what to do.

Crown Attorneys

Crown attorneys play a large role in the administration of the criminal justice system. They review, or they should review, all charges that have been laid by police. They are responsible for making certain that the appropriate charge has been laid. They should only proceed with a charge which is supportable on the available evidence. Many defence counsel blame some of the problems with the system on over-charging by the Crown or the police, and the Crown attorney must make certain this does not occur.

If there are community support services, the Crown attorney must be aware of them and use them whenever possible. Some communities have justice committees in place that can be used to resolve problems without the need to apply the full force of the criminal justice system.

We recommend that:

 The Justice department provide regular workshops to Crown attorneys on the range and effectiveness of the various community services which are available in Manitoba.

In light of the crucial role Crown attorneys play in the justice system, we are disturbed by the fact that, according to our survey of provincial lawyers, Crown attorneys find little wrong with the status quo when it comes to the treatment afforded Aboriginal people by the justice system. We believe that many problems exist, that substantial changes should be made and that the cooperation of the Province’s Crown attorneys will be essential in bringing these changes about. Any implementation strategy must include an orientation and training program for Crown attorneys. TOP

 

Addition of Local Personnel to Circuit System TOP

As we have noted earlier, we anticipate that many, if not all, Aboriginal communities served by circuit courts will move to establish Aboriginal justice systems. As a transitional measure, important court services should be provided by local personnel. The local community must have a role in the hiring and training of these individuals. This local involvement will also provide a continuing court presence in the community between visits of the court party and during the period when the Aboriginal justice system is being established. A variety of local personnel will be invaluable to the court and will significantly improve the delivery of services to the community.

It is possible for more than one of the required services to be provided by the same person. However, we see it as absolutely essential that the local community become involved in the current justice system, at least in these ways. When a more comprehensive Aboriginal court system is in place, some of these court officials will still be needed to serve that system.

Court Administrator

A resident court administrator is needed in every Aboriginal community served by the circuit court, to keep the records of the court, to provide information to litigants and witnesses and to make sure that facilities are readied for court hearings. That person might also have the authority of a magistrate to issue court processes and to deal with bail and other matters under the direction of the court. The court administrator should also have the authority of a hearing officer to deal with small claims, and maintenance and fine enforcement questions, in the same way hearing officers deal with them in urban centres.

At the present time, a court clerk is part of the fly-in court party. This practice should cease. We suggest that the local court administrator be trained to perform these duties. It should be the responsibility of the administrator to perform all the tasks of a registry officer, to make arrangements for the sittings of the court and to act as clerk when the court is in session.

There is an association of Aboriginal court clerks in the United States which offers ongoing training programs, in which clerks are instructed in such matters as office management, docket control, the conduct of civil and criminal trials and the empanelling of a jury. Similar training should be provided in Manitoba.

A court reporter also travels with the court party. We suggest that this is unnecessary. We recommend that each court facility have amplification and recording equipment. Amplification is needed to enable those present to hear what the judge, lawyers and witnesses are saying. As part of the installation of that equipment, we recommend that recording equipment be installed to record the court proceedings. The court administrator should be responsible for the operation of the equipment. If a transcript is required, the administrator should prepare it or engage another person in the community to prepare it.

Interpreter

Many Aboriginal people who come before the court do not understand what is happening or what is said to them. They are unable to fully express themselves in English. Section 14 of the Charter of Rights and Freedoms guarantees an interpreter to an accused who does not understand or speak the language. Even people who do speak English may not understand it well enough to understand the implications of court proceedings. Therefore, an interpreter who is familiar with the local language and dialect, and properly trained in court interpreting, must be available for all court proceedings, to interpret from English to the local language and from the local language to English. This would help eliminate many of the misunderstandings which exist at the present time, and would help educate community members on the role and function of the courts. The provision of interpretation services is essential as long as court officials do not speak the language of all those who come before the court. We understand that, at the present time, there are no interpreters in the employ of the government who are attached to any circuit court. Aboriginal court workers (formerly court communicators) often fulfil this function, but they and their clients feel that it creates a conflict to provide translation on behalf of the court while simultaneously attempting to represent the interests of an individual accused person.

An extreme example of the types of conflict that can arise was outlined during our Inquiry by Stanley Guiboche. He provided us with this account of what happened to him while he was a court communicator in The Pas:

It was a corporal at the town detachment and this was quite some way back. I don’t know where the officer is now, or whether he is still on the force. He asked if I could go see him, or said he needed to see me. So, I went to the detachment, where the town office is now, and on entering the office there I seen two young native kids sitting there. I asked them what was the matter. I asked them in Cree and they didn’t say anything. I noticed they had no shoes on.

When the corporal came out I asked him what did he want me to do. He said that they had picked up these two kids and they were 14, 15, maybe 16, and it seemed like they were quite scared. They wanted some assistance in taking statements off them, from them. I asked if any statements had been taken so far and they said that they took one from one of them. However, the other one didn’t want to give a statement because he didn’t understand.

So, I said, “Well, what is it that you are investigating or why did you pick these fellows up.” They said that they were suspects in murder. I informed the corporal then at the time, I said, well in that particular case I can only tell the boys not to say anything and that I should really get a lawyer for them. The corporal got very upset and wanted to know what the heck was my job.

He said, “What the heck is your job anyway? You’re an interpreter.” I said, “I’m an interpreter in the sense that I communicate with lawyers and their clients, but not to the extent that I don’t think my job includes assisting the police in taking statements.”

Due to linguistic differences throughout Manitoba, interpreters should be selected from each community and be provided with proper training. During our public hearings, we occasionally asked Aboriginal people who travelled with us to act as interpreters. While that was satisfactory, we concluded that it was preferable to ask a resident of the community we were in to act as interpreter. That resident not only knew the linguistic distinctions, but he or she had the confidence of the other community members.

Interpreters should be trained in law and legal procedure through a formal, structured training course. In order to give this training, a dictionary of legal terminology should be developed, which would give Aboriginal people a means of expressing difficult legal concepts in Aboriginal languages.

A qualified interpreter should be in attendance at every sitting of the court in an Aboriginal community. It is important to allow the interpreter to discuss a question and answer with a witness, as it is often not possible to literally translate a question or answer from English to an Aboriginal language, or to give a simple "yes" or "no" answer.

We recommend that:

 The position of court administrator with magistrate’s powers be created in each Aboriginal community served by a circuit court.

 The Province of Manitoba establish a formal Court Interpreter’s Program with staff trained in the interpretation of court proceedings, including legal terminology, from English into the Aboriginal languages of Manitoba. As part of this program, local court interpreters should be engaged in each Aboriginal community served by circuit courts.

 The Province of Manitoba, in consultation with the Manitoba Association for Native Languages, establish a Legal Interpretation Project to develop appropriate Aboriginal translations of English legal terms.

Aboriginal Court Worker

We believe that the Aboriginal Court Worker program should be significantly revamped. In particular, it should be placed under the administration of a separate Aboriginal board of directors and it should given responsibility to administer and expand the Legal Aid Manitoba Northern Paralegal program.

An Aboriginal court worker should be resident in Aboriginal communities served by circuit courts, in order to advise accused persons and other community members of the court procedures and of what is required of them. Currently, such services are provided by two paralegals employed by Legal Aid Manitoba, who serve four northern communities, and by the Aboriginal Court Worker program (formerly the Court Communicator program) which exists throughout the province and is run by the provincial Justice department.

The Court Communicator program in Manitoba has been a good beginning. In the areas where the worker is fluent in local languages, an important service is being provided to Aboriginal accused. Unfortunately, there are many courts not served by the present system. The Youth Court, for example, has none. The services court communicators have provided in the past were not well defined. As a result, their role has not been well understood. In many cases their existence has been unknown. A number of inmates told us they were unaware of the service. When it was described to them, they thought the service would be helpful. We are pleased to hear the program is undergoing a reorganization and is placing greater emphasis on outreach and education.

We have also examined the Legal Aid paralegal program. We congratulate Legal Aid Manitoba for taking this initiative, which has been positively evaluated. The two paralegals operating from Thompson are fluent in Cree and English, and work in Norway House, Cross Lake, God’s Lake Narrows and Shamattawa. They operate drop-in clinics in these communities and assist Legal Aid lawyers in the preparation of cases. From what we know of the services they offer, we can say those services just scratch the surface of the type of services that are required in Aboriginal communities.

Alberta currently has a Native Court Workers program. That program is managed by an independent board accountable to, and appointed by, Aboriginal organizations, and offers services to Aboriginal people. The service we recommend for Manitoba is similar in structure to that in place in Alberta.

We recommend that this program and its workers assume the tasks now performed by Aboriginal court workers and by the northern paralegal officers employed by Legal Aid Manitoba. At the present time, both services concentrate on giving the accused some understanding of the situation, assisting them in obtaining a lawyer and facilitating communications between lawyer and client, if that is necessary. The additional duties we would like to see the worker undertake is to assist in communications and understanding between the accused and the judge, and vice versa. Court workers should be more actively involved in advising the court of any facts or local conditions the judge should be aware of before sentencing.

It is important that a judge not merely ask if an accused understands what is being said or explained. We have found that Aboriginal people may say they understand, when they do not. Some may think they understand, when they do not. Some may understand most of what they are told, but they may not understand the subtle details or the full implication of what has been said. One of the responsibilities of the court worker should be to make certain that the accused understands everything that is happening.

We suggest that the program be managed by an independent, Aboriginal board of directors. Such a board will be aware of the problems of those going to court and be able to adapt the service to the needs of the communities and of the Aboriginal accused.

We recommend that:

 The Aboriginal Court Worker program have an Aboriginal board of directors and take over the functions and staff of the existing court communicator and paralegal programs. Court workers should be available in every Aboriginal community serviced by the circuit courts.

Peacemaker

Alternate dispute resolution is a term that may include "diversion" but is generally equated with "mediation." Mediation is a process applied in the resolution of disputes between two people, organizations or public bodies that permits an individual ("mediator") to work with the parties in an effort to help them arrive at their own solution. In pure mediation, the mediator does not actively attempt to suggest his or her idea of how a dispute should be resolved, but acts as a facilitator to enable the parties to come together and to devise their own solution.

Other forms of alternate dispute resolution are similar to mediation, but may call upon the facilitator to take a more active role. Negotiators argue on behalf of one party to a dispute, and conciliators, or conciliation officers, carry messages and positions back and forth between disputing parties, making suggestions to each as to what concessions might result in an agreement.

In our discussion of Aboriginal justices systems, we examined the role that peacemakers play in American tribal courts. We believe that peacemakers can play a major role in helping those communities which choose to establish Aboriginal justice systems to make the transition from the current justice system. In addition, there is a role for peacemakers in the general justice system in non-Aboriginal communities with a large Aboriginal population.

A peacemaker, as that term is used, and as the practice in tribal courts in the United States demonstrates, may assume each of these roles from time to time, as he or she applies his or her art. The peacemaker’s goal is to settle disputes between parties and to return them to a peaceful relationship with one another, and to restore stability to the community, without the need to involve the adversarial court system.

The goals of the peacemaker are to:

• Determine the cause of a problem that may result, or has resulted, in a dispute or a criminal charge.

• Determine the effect on the victim and his or her attitude towards the offence and the offender.

• Bring home to the offender that his or her conduct is unacceptable in the community.

• Counsel the offender.

• Attempt to ensure that there will be no repetition of the unacceptable conduct.

• Provide ongoing support to the offender and the family.

• Involve the families and place some continuing responsibility for the conduct of the offender upon his or her family.

• Restore peace in the community.

In order to achieve these goals, the peacemaker must be a person who has the respect of the community and is able to work with others to resolve interpersonal problems. A peacemaker, because of age, life experience and ability as a mediator and conciliator, can be effective in resolving problems that develop in a community. A peacemaker can deal with the parties on a personal basis in a way our formalized court system cannot. He or she may also be able to apply traditional ways to deal with Aboriginal offenders and families, which the court system is not equipped to do.

In the Navajo Tribal Court, a judge refers cases to a peacemaker whom the judge considers suitable for the particular case. The peacemaker meets with the parties, and often with their parents in the case of juveniles, to determine the cause of the trouble and to seek solutions. The peacemaker sends a written report to the court. The judge may accept the recommendation of the peacemaker or may deal with the case in some other way.

The role of the peacemaker is different from that of a judge, and the peacemaker’s objective may be quite different. While a judge must listen to admissible evidence, convict or acquit, and impose sentences when there is a conviction, the peacemaker has as a goal the maintenance of stability in the community. Where there is an admission of fault (rather than a plea of guilty), the peacemaker can try to mend the harm that has been caused by determining the cause of the inappropriate action and finding a remedy. Family members and others can be involved in the solution.

Even at this stage, without having the benefit of an Aboriginal court system, we recommend that all courts have peacemakers attached to them. They should be Aboriginal people dealing with Aboriginal accused.

The role of the peacemaker should be to take referrals from the court in any case where the Crown attorney, the defence counsel, the accused or the victim can persuade the judge that the problem should be dealt with without using the full criminal court system. A judge should also be able to make such a reference, even if others do not agree.

If the recommendation of the peacemaker is accepted, the charge should be withdrawn or stayed by the Crown, or a conditional or unconditional discharge applied by the judge. If the peacemaker recommends a certain penalty and if the accused pleads guilty, that penalty should be given serious consideration by the presiding judge.

Several peacemakers may be attached to one court. The peacemakers we met in the Navajo court system were Aboriginal men and women with experience in teaching, in religious and community activity, and in dealing with young people and problems of substance abuse.

We recommend that:

 Peacemakers be appointed in each Aboriginal community in Manitoba. They should be appointed through procedures which are agreed to by the community.

 Peacemakers, recommended by recognized local Aboriginal groups, be appointed in Winnipeg and in other urban centres throughout the province. TOP

 

Conclusion TOP

We believe that the reforms we have outlined above will remove much of the complexity and inequality that plague the current court system in Manitoba. A unified court system will provide full service at all court points. A streamlined court process will end the denial of justice that delay creates. The reform of the circuit courts and the hiring of additional Aboriginal staff in remote communities will provide for more complete local justice services and enable a smooth transition to an Aboriginal justice system. TOP

buffy.jpg (6592 bytes)Manitoba Government Home Page  

Back to Table of Contents