Report of the Aboriginal Justice Inquiry of Manitoba
Terms of Reference
Aboriginal and Treaty Rights
The Evolving Law on Aboriginal
and Treaty Rights
The Special Position of the Metis
The Indian Act
Statutes in Conflict
with Treaty and Aboriginal Rights
Aboriginal Justice Systems
Argument for Aboriginal Justice Systems
Creating Aboriginal Justice Systems
The Charter of Rights and Freedoms
Changes to Court Structure
How Aboriginal People Are
Excluded from Juries
Local Jury Trials
Alternatives to Incarceration
The Need for a New Approach to
Jail Location and Capacity
Responding to Aboriginal Needs
Separation of Pre-Trial and
Staffing Issues and Discipline
The Evolution of Canadas
The Parole System and Aboriginal Parole
The Composition of the Parole Board
Planning and Conditions of Parole for Aboriginal People
The Abuse of Woman and Children
The Sentencing of Aboriginal Women
Parole and Post-Release Issues
Peoples and the Child Welfare System in Manitoba
Manitobas Child and Family
and the Young Offenders Act
Diversion and Alternative Measures
and the Justice System General Issues
The Role of Police in Society
Employment Equity Programs
Police Forces in Manitoba
Police Act and the Manitoba Police Commission
Aboriginal Systems of Policing
Public Complaints and Policing in
A Strategy For Action
Aboriginal Justice Commission
Aboriginal Justice College
Information Gathering and Statistics
Aboriginal and Treaty Rights
Evolving Law on Aboriginal and Treaty Rights TOP
The federal and provincial governments each issue a public
statement within 180 days of the release of our findings describing how each government
intends to meet its fiduciary obligation to the Aboriginal people of this province.
Land Rights TOP
Current population figures be used for entitlement in conjunction
with the formula set out in each treaty to determine the precise amount of land that is
owed to each First Nation.
The government of Manitoba reinstitute a moratorium on the disposal
of Crown land in the Province and that no Crown land be made available to third parties by
grant or lease until all First Nation land selection has been made or without the consent
of the treaty land entitlement bands in the region.
A Treaty Land Entitlement Commission be created for Manitoba
consisting of five members, namely, one provincial nominee, one federal nominee, two
nominees from the Assembly of Manitoba Chiefs, and a neutral chairperson selected by the
other members of the Commission. This Commission should be empowered to render binding
decisions on any disputes that may arise over:
- The exact population of an entitlement band.
- The amount of land originally set aside for the reserve that is to be deducted from the
current treaty entitlement.
- The selection of Crown lands to fulfil the entitlement obligation.
- The location of boundaries.
- The amount of financial compensation for the delay.
The Treaty Land Entitlement Commission be created by complementary
federal and provincial legislation with the endorsement of the Assembly of Manitoba
Chiefs. We further recommend that this legislation be drafted jointly by both governments
in conjunction with the treaty land entitlement First Nations
The governments of Manitoba and Canada recognize the Northern Flood
Agreement as a treaty. The two governments should honour and properly implement the
Appropriate measures be taken to ensure that equivalent rights are
granted by agreement to the other Aboriginal people affected by the flooding.
A moratorium be placed on major natural resource development projects
unless, and until, agreements or treaties are reached with the Aboriginal people in the
region who might be negatively affected by such projects in order to respect their
Aboriginal or treaty rights in the territory concerned.
The Federal Specific Claims Branch and the federal claims policy be
fundamentally changed so that the Government of Canada establish a claims negotiation
office that is independent of existing ministries and has a clear mandate to negotiate and
settle claims, and has senior officials who have been appointed from outside the
An independent claims tribunal be created. The tribunal should have
full authority to hear and adjudicate on the validity of claims and on compensation
questions where the parties cannot reach agreement. The tribunal should be established by
legislation with power to create its own rules of procedure, be free from the strict laws
of evidence and be able to impose deadlines on the Crown for responding to claims
The claims tribunal be a national board but with a sufficient number of
members, half of whom should be nominees of First Nations, so that it can sit in panels of
three to hear a variety of claims simultaneously, if necessary.
Aboriginal people be participants in the designing of the
tribunals precise mandate, drafting the necessary legislation and in selecting the
members of the tribunal. The legislation should require that the tribunal, the federal
claims policy and the process, be subject to an independent review every five years with
the evaluation report to be made to Parliament and Aboriginal groups.
This tribunal be adequately funded and have its own research staff so
as to be able to maintain sufficient distance from the federal government.
The federal government participate fully in the settlement of land
claims through the tribunal we have recommended.
The governments of Manitoba and Canada refrain from requiring
Aboriginal groups to consent to extinguish Aboriginal rights when entering into land
The independent claims tribunal have authority to resolve specific
claims and comprehensive claims. The tribunal would have three basic functions:
- To decide disputes concerning the validity of a claim or its precise boundaries.
- To exercise supervisory authority over the negotiation process.
- If negotiations break down, to hold hearings to resolve the matter and to make a binding
Natural Resources TOP
The federal government amend the Fisheries Act and the Migratory
Birds Convention Act to clarify that Aboriginal and treaty rights prevail in cases of
The Province of Manitoba recognize the harvesting of wild rice as an
The Province, if it wishes to exercise any influence over the
regulation of this resource off-reserves, negotiate co-management agreements with the
Aboriginal peoples concerned.
The Province ensure that the exercise of wildlife harvesting rights is
not infringed by timber management practices.
The provincial government pursue the development of co-management
agreements with the First Nations and Metis peoples regarding timber resources off-reserve
in the Aboriginal peoples traditional territory.
Existing Aboriginal rights to water and beds of waters be recognized
by the federal and provincial governments.
In keeping with provincial fiduciary obligations and to assist in the
economic advancement of First Nations, the Province of Manitoba formally renounce its half
interest in minerals within Indian reserves.
First Nations have the right to use and control totally all mines and
minerals on reserve lands and to receive 100% of the benefits and income therefrom.
Federal government begin a process of negotiations with the First
Nations of Manitoba to transfer title to the reserve lands into the names of the various
The Special Position
of the Metis TOP
The federal and provincial governments, by resolution of their
respective legislative assemblies, specifically acknowledge and recognize the Metis people
as coming within the meaning of section 91(24) of the Constitution Act, 1867 and that the
Government of Canada accept that it has primary constitutional responsibility to seek to
fulfil this mandate through devising appropriate initiatives in conjunction with the Metis
people in Canada.
The Manitoba Aboriginal Justice Commission, which is proposed and
discussed in detail elsewhere in this report, be mandated by the Manitoba Metis
Federation, and the provincial and federal governments to define and designate the
boundaries for "Metis communities" for program delivery, local government and
administration of justice purposes.
The issue of responsibility for off-reserve status Indian people be
resolved by providing that, as a primary federal responsibility, financial services for
them should come ultimately from the federal government, and that short term interim
measures recoverable from the federal government should be provided by the Province.
The Indian Act TOP
The Indian Act be amended to eliminate all continuing forms of
discrimination, regarding the children of Indian women who regain their status under Bill
The Indian Act be amended to remove the two generation rule.
Any person designated as a full member of a recognized First Nation in
Canada be accepted by the federal government as qualifying as a registered Indian for the
purposes of federal legislation, funding formula and programs.
As a temporary measure, the Indian Act be amended to remove the
authority of the Minister to veto by-laws enacted by First Nations pursuant to the Indian
That section 81 be amended to increase the lawmaking powers of band
councils by expressly empowering them to replace provincial legislation that may apply on
reserves currently as a result of section 88 of the Act. The revised law-making
jurisdiction should expressly include the ability to enact a comprehensive civil and
Any amendments to the Indian Act be developed in accordance with
certain key principles. They include recognition that:
- The Act is to be changed only in ways that enhance Indian self-determination.
- The amendments should have the support of First Nations.
- The legislation should be prepared in consultation with representatives selected by
- The pace of change should be in accordance with the wishes of the people concerned.
in Conflict with Treaty and Aboriginal Rights TOP
Aboriginal Justice Systems TOP
The government of Manitoba invite the Assembly of Manitoba Chiefs and
the Manitoba Metis Federation to designate representatives to work with senior provincial
officials to review all relevant legislation that may conflict with Aboriginal and treaty
rights. This review should identify specific areas of conflict and propose concrete
solutions and statutory amendments. The Manitoba Aboriginal Justice Commission that we
propose should be utilized to assist in this process if any of the parties wish.
The federal and provincial governments establish a process to review
all proposed legislation for its potential effect on the rights of Aboriginal peoples.
The Interpretation Acts of Manitoba and Canada be amended to provide
that all legislation be interpreted subject to Aboriginal and treaty rights.
for Aboriginal Justice Systems TOP
The federal and provincial governments assist Aboriginal people in the
establishment of Aboriginal justice systems in their communities in a manner that best
conforms to the traditions, cultures and wishes of those communities, and the rights of
Federal, provincial and Aboriginal First Nations governments commit
themselves to the establishment of tribal courts in the near future as a first step toward
the establishment of a fully functioning, Aboriginally controlled justice system which
includes (but need not necessarily be limited to):
- A policing service.
- A prosecution branch.
- A legal aid system.
- A court system that includes:
i) a youth court system;
ii) a family court system;
iii)a criminal court system;
iv)a civil court system;
an appellate court system.
- A probation service including a system of monitoring community service orders.
- A mediation/counselling service.
- A fine collection and maintenance enforcement system.
- A community-based correctional system.
- A parole system.
The federal and provincial governments begin the process of
establishing Aboriginal justice systems by enacting appropriate legislation.
At the same time as legislation to begin the process of establishing
Aboriginal justice systems is enacted, the federal and provincial governments acknowledge,
by resolution of their respective legislative bodies, that Aboriginal justice systems must
be protected constitutionally from federal and provincial legislative incursions and that
such systems will ultimately be recognized as an aspect of the right of Aboriginal people
to self-government and will not be dependent solely upon federal or provincial legislation
for their existence.
Aboriginal governments enact their own constitutions setting out, among
other things, the principle of the separation of the judicial from the executive and
legislative arms of each Aboriginal government so as to protect Aboriginal justice systems
from interference and to provide security for their independence.
Justice Systems TOP
Wherever possible, Aboriginal justice systems look toward the
development of culturally appropriate rules and processes which have as their aim the
establishment of a less formalistic approach to courtroom procedures so that Aboriginal
litigants are able to gain a degree of comfort from the proceedings while not compromising
the rights of an accused charged with a criminal offence.
Where Indian and Metis communities are located side by side, the
leaders of the two communities give serious consideration to establishing a jointly
managed Aboriginal justice system which serves both communities.
In establishing Aboriginal justice systems, the Aboriginal people of
Manitoba consider using a regional model patterned on the Northwest Intertribal Court
System in the state of Washington.
Regional Aboriginal justice systems establish an independent and
separate appeal process which makes use of either separate appeal judges or other judges
of the Aboriginal system as judges of appeal.
All people, Aboriginal and non-Aboriginal, within the geographical
boundaries of a reserve or Aboriginal community, be subject to the jurisdiction of the
Aboriginal justice system in place within that community.
Aboriginal communities be entitled to enact their own criminal, civil
and family laws and to have those laws enforced by their own justice systems. If they wish
they should also have the right to adopt any federal or provincial law and to apply or
enforce that as well.
Aboriginal traditions and customs be the basis upon which Aboriginal
laws and Aboriginal justice systems are built.
The jurisdiction of Aboriginal courts within Aboriginal lands be
clear and paramount, and that in appropriate cases Aboriginal courts be recognized as
having jurisdiction over some matters arising in places other than the Aboriginal
community, such as:
a) Child welfare cases in which the domicile of the child is the
Aboriginal community over which the court has jurisdiction.
b) Cases in which a member of an Aboriginal community breaches the laws
of his or her community, such as where a First Nation member hunts in a manner that is
contrary to a First Nation law or regulation enacted by the government of that First
c) Cases in which an individual has breached a law of the Aboriginal
community and has left the community to avoid detection or responsibility.
d) Civil matters in which the parties have agreed to submit the matter
to an Aboriginal court for determination.
Metis communities that are identified as such by agreement of the
Manitoba Metis Federation and the government of Manitoba be defined geographically through
negotiations between the government of Manitoba and the Metis people of each community for
the purpose of establishing a Metis justice system.
The presence of non-Aboriginal people within a Metis community should
not prevent the community from being declared a Metis community, and the legitimate
concerns of that minority should be respected.
If, and to the extent, that juries are a part of Aboriginal justice
systems, jury selection processes be implemented which permit non-Aboriginal persons to
sit on juries, provided they comply with appropriate residential criteria established by
Through appropriate Aboriginal legislation an Aboriginal Judicial
Council be established to which any person can complain of judicial misconduct on the part
of an Aboriginal judicial officer.
The same principles of judicial conduct be applied to Aboriginal judges
as apply to other members of the judiciary
The Charter of
Rights and Freedoms TOP
Court Structure and Administration TOP
The Manitoba Court of Queens 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.
Jury trials be held in the communities where the offence was
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.
Proper court facilities be established in Aboriginal communities that
will be available for court purposes as required.
Hearings in the Family Division of the Manitoba Trial Court be held
separately from criminal proceedings.
Unless they are travelling in commercial airplanes, circuit court
judges not travel with lawyers or police to circuit court sittings.
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
Eliminating Delay TOP
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.
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.
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.
Where no Legal Aid staff are available, Aboriginal court workers be
authorized to accept and forward Legal Aid applications.
Preliminary inquiries be abolished and replaced with a discovery and
The judiciary establish timelines and procedures that will ensure
that a case gets to trial within a reasonable time.
Manitoba courts implement a comprehensive case flow management
The Criminal Code be amended to allow accused to appear by counsel or
agent for all preliminary purposes.
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.
Pre-Trial Detention TOP
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.
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.
Legal Aid Manitoba provide representation in all criminal matters in
which the accused meets the Legal Aid income criteria.
The Justice department provide regular workshops to Crown attorneys
on the range and effectiveness of the various community services which are available in
The position of court administrator with magistrates powers be
created in each Aboriginal community served by a circuit court.
The Province of Manitoba establish a formal Court Interpreters
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
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.
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.
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.
Aboriginal People Are Excluded from Juries TOP
Every person called for jury duty, who is not granted an exemption, be
required to attend, and that summonses be enforced even when sufficient jurors have
The Criminal Code of Canada be amended so that the only challenges to
prospective jurors be challenges for cause, and that both stand-asides and peremptory
challenges be eliminated.
The Criminal Code be amended so that rulings on challenges for cause
be made by the presiding judge
Local Jury Trials TOP
Alternatives to Incarceration TOP
In the event that there is a need to look elsewhere for jurors, the
jury be selected from a community as similar as possible demographically and culturally to
the community where the offence took place.
In urban areas, juries be drawn from specific neighbourhoods of the
town or city in which victims and accused reside.
The Manitoba Jury Act be amended to permit an Aboriginal person who
does not speak and understand either French or English but who speaks and understands an
Aboriginal language, and is otherwise qualified, to serve as a juror in any action or
proceeding that may be tried by a jury, and that, in such cases, translation services be
The Need for a
New Approach to Sentencing TOP
a) The offender poses a danger to another individual or to the
b) Any other sanction would not sufficiently reflect the gravity of the
c) An offender wilfully refuses to comply with the terms of any other
sentence that has been imposed.
The provincial Justice department regularly and consistently collect,
analyse and distribute information on the success rates of all sentences, and distribute
that information to judges, Crown attorneys and the defence bar .
Probation officers be available when courts sit in Aboriginal
communities. to explain the results of pre-sentence studies.
The Criminal Code be amended to allow judges to designate the specific
place of custody for offenders.
The Manitoba Court of Appeal encourage more creativity in sentencing
by trial court judges so that the use of incarceration is diminished and the use of
sentencing alternatives is increased, particularly for Aboriginal peoples.
The Criminal Code be amended to provide that cultural factors be
taken into account in sentencing, and that in the meantime judges be encouraged to take
Judges invite Aboriginal communities to express their views to the
court on any case involving an offence or an offender from their community.
Aboriginal communities be encouraged to develop the best method of
communicating their concerns to the court in a manner that is respectful of the rights of
the accused, and of the dignity and importance of the proceedings.
Community Sanctions TOP
All Aboriginal offenders be supervised by Aboriginal probation
Probation officers assigned to handle cases of Aboriginal persons be
able to speak the language of the probationer.
Conditions of probation orders be related directly to the circumstances
of the offence and the offender, and be conditions that can be realistically adhered to by
There be a reorganization of the way community service orders are
administered and supervised so that organizations are provided with the necessary
resources to ensure that orders are fulfilled and that judges are provided with the
necessary information to allow them to match offenders with programs.
Cross-cultural training programs be mandatory for all non-Aboriginal
probation staff, and that there be an ongoing series of refresher courses.
When Aboriginal probation officers are not available to supervise
Aboriginal offenders, judges make greater use of section 737(a) of the Criminal Code,
which permits the court to place a person under the supervision of some "other person
designated by the court."
Courts seek out individuals in Aboriginal communities who are willing
to accept the responsibility of supervising individuals placed on probation.
a) All fines and orders of restitution should be automatically
registered with and enforced by the Fine and Restitution Recovery Program.
b) If the payment of a fine is not made, the program be empowered to
collect the money by garnishment or attachment in the same manner as the way in which
maintenance orders are now enforced, or to take other actions such as preventing licensing
of vehicles by the Motor Vehicle Branch.
c) If these measures fail, the offender be brought to a show cause
hearing presided over by a hearing officer.
d) If the hearing officer concludes that the offender does not have the
ability to pay, the officer may order a period of community service or extend the time for
payment of the fine.
e) If the hearing officer concludes that the offender has the ability
to pay but is simply refusing to do so, the officer could refer the case to a master or a
f) A judge or master would have the authority, after all other
efforts at collection have failed, to incarcerate those who have the ability to pay but
refuse to do so.
The existing Maintenance Enforcement Program be expanded and adapted to
administer the Fine and Restitution Recovery Program.
The automatic assessment of a term of imprisonment in default of
payment of fines levied by Common Offence Notices be abolished, and that the Fine and
Restitution Recovery Program apply.
The Criminal Code and other legislation allowing for the levying of
fines be amended to require that, before levying any fine, judges be required to determine
whether a person is able to pay a fine; and that fines not be imposed if the offender is
unable to pay the fine at the time of sentence or within a reasonable time thereafter.
The Criminal Code of Canada, The Manitoba Summary Convictions Act and
any other relevant legislation be amended to eliminate incarceration in default of fines.
Where a judge orders the performance of community service work of a
specified number of hours, the judge have the option to specify the type and place of
work, thus allowing the judge to fashion an appropriate sentence and eliminate the need
for the offender to apply elsewhere to enter a program.
Where there is a default in the payment of a fine, the default be noted
on the accuseds record so that the default can be taken into account if the person
comes before the court on a subsequent occasion.
Brandon and The Pas Correctional institutions be converted into minimum
security, open-door institutions similar to Dauphin.
Jail Location and Capacity
Work camps, such as the one at Egg Lake, be established near Aboriginal
communities for non-dangerous Aboriginal offenders who require incarceration.
As Aboriginal community-based facilities are opened, an equal number of
units of capacity in existing correctional institutions be closed down and the space
converted to vocational or academic programming.
Financial assistance be provided for families of Aboriginal inmates to
enable them to communicate with and travel to visit relatives.
Aboriginal accused be released on bail in their home communities
If Aboriginal accused are transported away from their home communities
to be held in custody and are subsequently released on bail, the arresting authority be
responsible to convey them back to their home communities.
Responding to Aboriginal
Correctional institutions develop a policy whereby elders recognized
by provincial Aboriginal organizations as capable of providing traditional assistance or
spiritual advice and counselling to Aboriginal inmates in a culturally appropriate manner,
be granted status equivalent to chaplains under the Chaplaincy program of the Corrections
The Correctional Services of Canada and the Corrections Branch of the
Manitoba Department of Justice institute a policy on Aboriginal spirituality which:
a) Guarantees the right of Aboriginal people to spiritual services
appropriate to their culture.
b) Recognizes appropriate Aboriginal organizations to provide
Aboriginal spiritual services.
c) Provides training for correctional staff on Aboriginal spirituality,
on the relative importance of such services to Aboriginal people, on the different
practices and beliefs likely to be encountered, on how those practices and beliefs can and
should be accommodated by correctional staff and on how to handle traditional items of
spiritual significance to Aboriginal people.
d) Provides for the hiring of knowledgeable personnel within each
institution who can advise corrections staff on how to deal with cultural issues arising
within the institutions Aboriginal population.
e) Provides for the attendance of Aboriginal inmates at spiritual
ceremonies outside jail.
Culturally appropriate education, trades training and counselling
programs, particularly those having to do with the treatment of alcohol abuse, family
violence, anger management and culturally appropriate ways for inmates to cope with their
problems, be provided in every Manitoba correctional institution.
of Pre-Trial and Sentenced Persons TOP
Adults on remand be kept in physically separate institutions
from those who have been convicted.
The Manitoba Youth Centre and the Agassiz Youth Centre no longer be
used as open custody facilities or as remand facilities, except for those youth who
present a danger to themselves or others.
Only home-type facilities or camps be used for open custody
In the city of Winnipeg, the Corrections Branch seek out and develop
alternatives to the use of the Manitoba Youth Centre as a remand facility. This should
include the greater use of non-institutional settings such as group and foster homes.
Staffing Issues and
Discipline Procedures TOP
At least one-half of the Aboriginal staff of each institution be able
to speak an Aboriginal language.
Cross-cultural training programs and ongoing refresher courses be
mandatory for all corrections staff.
Disciplinary hearings in correctional institutions provide for fair
adjudication by having an independent third party preside over the hearing and ensure the
rules of natural justice are followed.
An independent tribunal be established to adjudicate inmate complaints
about the treatment they receive within a correctional system; and that the tribunal have
appropriate resources and authority to investigate complaints, mandate change and enforce
compliance with its orders.
Work Programs TOP
Correctional officials develop work programs both inside
and outside institutions which allow inmates to engage in meaningful activities and earn
Corrections Branch develop written guidelines on the appropriate use of
inmate work details.
The Evolution of
Canadas Parole System TOP
The National Parole Board accept as a governing principle
that all inmates should be entitled to be released after having completed the same
proportion of their sentence, except for those who are considered violent or dangerous.
Any offence now giving rise to loss of earned remission be dealt with
by loss of privileges or other penalty while in the institution.
System and Aboriginal Parole TOP
An Aboriginal Parole Board be established to deal with
inmates incarcerated by Aboriginal courts.
Every Aboriginal inmate be provided with a culturally appropriate
information session upon admission to a correctional institution. Such a session should
explain the parole eligibility rules. Further sessions should be given when the inmate
becomes eligible to apply for parole.
Parole be considered automatically and no inmate be allowed to waive
his or her right to apply for parole.
The Composition of
the Parole Board TOP
The federal parole service establish minimum and optimum
targets for the employment of Aboriginal people. The minimum target must be no less than
the percentage of Aboriginal people in Manitoba; the optimum target is the percentage of
Aboriginal people served by the parole service.
The National Parole Board, in conjunction with Aboriginal groups,
establish release guidelines which take into account the cultural and social circumstances
unique to Aboriginal people.
There be Aboriginal parole officers in each Aboriginal community.
The National Parole Board be given authority to transfer jurisdiction
over a case to the Aboriginal Parole Board.
The Solicitor General name an additional number of Aboriginal persons
as National Parole Board members, in consultation with Aboriginal organizations.
The National Parole Board ensure that all applications involving
Aboriginal inmates, including applications for the revocation of parole, be heard by
panels which have at least one Aboriginal member.
The membership profile for National Parole Board members be changed to
permit greater representation of Aboriginal people.
A program of cross-cultural awareness be developed and
implemented for all correctional and parole staff who are involved in making parole
decisions about Aboriginal offenders; and that any such cross-cultural awareness program
specifically take into account Aboriginal living conditions, Aboriginal values and
customs, and the resources available in Aboriginal communities to support the
reintegration of offenders.
The separate roles of parole officer and probation officer be combined
in Aboriginal communities.
and Conditions of Parole for Aboriginal People TOP
Community assessments of parole applicants be done by Aboriginal
parole officers who understand the applicants community.
Aboriginal parole officers be hired in Aboriginal communities.
The National Parole Board, working through its Aboriginal parole
officers, make practical arrangements, including provision for financial assistance, to
ensure the effective reintegration of Aboriginal inmates into their own communities.
The National Parole Board, in consultation with Aboriginal
organizations, develop and adopt more culturally sensitive release criteria and processes
for reviewing conditional release applications from Aboriginal inmates.
The National Parole Board not require that guilt be
admitted prior to an inmates obtaining parole.
The practice of placing special parole conditions on Aboriginal
inmates, such as abstention from the consumption of drugs or alcohol as a matter of
Where parole conditions are imposed, they be ones that, among other
things, can reasonably be adhered to, that are in accord with the inmates cultural
standards, and that will positively benefit both the inmate and the community.
The National Parole Board not prohibit the return of parolees to their
The Abuse of Woman and
The Indian Act be amended to provide for the equal division
of property upon marriage breakdown.
Aboriginal leaders establish a local government portfolio for
women and children, with responsibility to develop educational and support programs in the
area of spousal and child abuse.
Police forces establish family abuse teams which include police
officers and social workers trained in dealing with domestic disputes. Such teams should
make extensive use of electronic record-keeping and community resources.
Shelters and safe homes for abused women and children be established
in Aboriginal communities and in urban centres. These shelters should be controlled by
Aboriginal women who can provide culturally appropriate services.
The provincial government implement the recommendations found in the
report of the Child Advocacy Project entitled A New Justice for Indian Children.
Community mediation programs such as the one operated by the Hollow
Water Resource Group be expanded to Aboriginal communities throughout the province. Such
programs must be designed and operated by Aboriginal people.
The Sentencing of
Aboriginal Women TOP
Alternatives to incarceration appropriate to Aboriginal
cultures be developed for Aboriginal women.
The Portage Correctional Institution be closed.
All women who are now sent to a federal penitentiary
outside the province be permitted to serve their sentences in Manitoba.
Culturally appropriate group homes be established in urban areas by
Aboriginal womens organizations where urban Aboriginal women can serve any term of
incarceration to which they may be sentenced, with access to programs of recovery from
substance abuse, recovery from victimization and dependency, academic upgrading and
training, and parenting skills.
Aboriginal women living in isolated or rural communities be held in
open custody facilities in their home communities. Such women would be free to attend to
their families, to work or to obtain education during the day, to attend counselling
sessions in the evenings, and remain in the facility each night until their sentence is
The Milner Ridge Correctional Centre be converted to a co-correctional
institution as a pilot project.
When facilities for men and women are established near northern
communities, Aboriginal women from the North be allowed to serve their sentences in the
facility nearest to their home community.
Arrangements be made for children to have frequent visits with their
Child and family service agencies provide necessary support to
Aboriginal mothers in jail and their children to ensure that the family is kept together.
Where children need to be taken into care following the incarceration
of an Aboriginal mother, child and family service agencies make culturally appropriate
foster arrangements for the children of such inmates.
Parole and Post-Release
Aboriginal women be appointed to the National Parole
Funding be provided to Aboriginal women to establish a halfway house
for Aboriginal female inmates.
The National Parole Board give direction that release plans for female
inmates with children pay close attention to the need for family reintegration, and in
particular to living and income security arrangements required for family reintegration.
We further recommend that the federal and provincial governments ensure that income and
housing support programs be developed for released female offenders with young children,
designed to facilitate family reintegration.
Peoples and the Child Welfare System in Manitoba TOP
The provincial government establish the Office of Child
Protector, responsible to the Legislature, as recommended in the Kimelman Report. This
offices responsibilities would be, among other things:
- To ensure that children involved with the child welfare system have their interests and
- To receive and investigate complaints about the manner of treatment of children by child
Child and Family Services Act TOP
Aboriginal and non-Aboriginal child and family service agencies be
provided with sufficient resources to enable them to provide the communities they serve
with the full range of direct service and preventive programs mandated by the Child and
Family Services Act.
The federal and provincial governments provide resources to Aboriginal
child and family service agencies for the purpose of developing policies, standards,
protocols and procedures in various areas, but particularly for the purpose of developing
computer systems that will permit them to communicate quickly and effectively with other
agencies, to track cases and to share information.
Principle 11 of the Child and Family Services Act be amended to read:
"Aboriginal people are entitled to the provision of child and family services in a
manner which respects their unique status, and their cultural and linguistic heritage.
The Province of Manitoba in conjunction with the Manitoba Metis
Federation develop a mandated Metis child and family service agency with jurisdiction over
Metis and non-status children throughout Manitoba.
The jurisdiction of the reserve-based Indian child and family service
agencies be extended to include off-reserve band members.
Indian agencies be provided with sufficient resources to ensure that
this expanded mandate be effectively carried out.
Youth and the Young Offenders Act TOP
The police consider alternatives to the laying of charges in all
cases involving Aboriginal youth and, when appropriate, exercise their discretion to take
no legal measures or to take measures other than laying a charge.
Police departments designate youth specialists and provide specialized
training to all officers involved in the administration of the Young Offenders Act.
Section 56(4) of the Young Offenders Act be amended to remove the
provision which allows young offenders to waive their right to have a parent or guardian
present during questioning by the police.
When a youth court judge denies bail, the judge consider releasing
the young offender into the custody of his or her parents, or another responsible person,
as contemplated by section 7.1(1)(a) of the Young Offenders Act.
The Ma Mawi Chi Itata Centre be given adequate funds and resources to
expand its bail supervision program.
Aboriginal communities be provided with resources to develop bail
supervision and other programs that will serve as alternatives to detention.
Accused youth who must be held in pre-trial detention be held in
detention facilities in their own communities.
Young offenders be removed from their community only as a last resort
and only when the youth poses a danger to some individual or to the community.
If Parliament considers it necessary, the Young Offenders Act be
amended to give youth court judges the option of imposing lengthier sentences on youth
convicted of serious offences.
If Parliament considers it necessary, the Young Offenders Act be
amended to allow judges to order that the trial of youth be open to the public and the
media in appropriate cases.
The Young Offenders Act be amended to prohibit the mixing of closed
custody facilities with open custody.
Open custody facilities and wilderness camps be established for
Aboriginal youth throughout the province and, especially, in Aboriginal communities.
The Young Offenders Act be amended to allow a judge dealing with a
criminal case to commit a youth to the care of a child and family service agency as an
alternative to incarceration or custody.
Child and family service agencies be directed to continue to provide
services to youth clients charged with an offence.
Child welfare and youth justice services be more fully integrated and
coordinated so that all their services are available to young people charged with
Youth probation for Aboriginal youth be made a part of the
responsibility of Aboriginal child and family service agencies.
Alternative Measures TOP
The Young Offenders Act be amended to remove the provision prohibiting
members of youth justice committees from being remunerated.
Manitobas alternative measures guidelines be amended to allow any
young offender to be referred to an alternative measures program. The police, lawyers,
Crown attorneys and judges should consider such measures in every case.
The authority for the creation of alternative measures
guidelines be shifted from the provincial government to the judiciary. The
provincial government establish Aboriginally focussed diversion and alternative measure
programs which incorporate the following principles:
a) Aboriginal culture must be integrated into the program. Diversion
schemes which involve the use of Aboriginal elders, peacemakers and other aspects of
Aboriginal culture appear to have the greatest potential for success. In the context of
Manitobas urban Aboriginal communities, the program decision-makers could be drawn
from the Aboriginal community within the urban environment.
b) Judges must allow the community to become involved in sentencing but
they must retain ultimate responsibility for sentencing.
c) The program should attempt to involve all those who have a direct
interest in the case, including the victim and the community.
d) Programs should be able to accept referrals at any stage of the
criminal justice process. They should also be able to accept referrals from the community
before any charges have been laid and, if possible, before the authorities become
e) The communitys respect for the program is vital. This means
that one primary goal of the program must be to seek reconciliation and the restoration of
peace in the community.
f) The establishment of a range of innovative options that can be used
by the decision-makers will be critical to the success of alternative measures programs
based in Aboriginal communities. An appropriate plan for an Aboriginal youth might, for
example, involve participation in an Aboriginally operated wilderness program, an
education program, an employment training program, or a treatment program.
g) Aboriginal supervisors from the community must monitor the
disposition. The community must see sanctions that originate from, and are enforced by,
the community, and not some outside force.
h) These programs should be formally designated and recognized as Young
Offenders Act programs so that their role has official recognition and official support.
Aboriginal Youth and
the Justice System General Issues TOP
Aboriginal communities throughout Manitoba be encouraged and
adequately funded to develop crime prevention programs for youth, based on the development
of a full range of employment, cultural, social and recreational opportunities.
The funding for the Northern Fly-In Sports Camp be firmly established
and that the camp be expanded to provide its services to all northern Aboriginal
The Role of Police in
Employment Equity Programs
Cross-Cultural Training TOP
Cross-cultural education components of all police training courses be
reviewed and strengthened, and this process actively involve members of the Aboriginal
community, resource persons and recognized experts.
All police officers be rotated through cross-cultural education
programs, and periodic refresher programs be provided as part of the regular professional
development programs of all police departments.
Any police recruits displaying racist attitudes be screened out of
training, and police officers who display such conduct after joining the force be required
to take further training or, if necessary, be formally disciplined or dismissed.
The courts adopt the Anunga Rules of Australia, as rules of the court
governing the reception into evidence of statements to police made by Aboriginal persons.
All statements taken by police officers be either audio- or
video-recorded. If the contents of a transcribed statement are challenged, or some
tribunal wishes to hear how certain words were expressed, the tape or video can be played.
Video equipment be used to record the statements of all suspects in
cases involving deaths and other serious cases. We suggest that the taping record the
totality of each interview, including all introductory comments and explanations and
warnings given by the police, and including any formal statement or other comments that
The videotape will be of great value. The impact would be reduced if
accused persons could allege that promises or inducements were offered or pressure was
applied to them before the taping began.
Where video equipment is not available, all statements be
audio-recorded. The RCMP has tape-recorded some statements for years. We recommend that
all police make that practice mandatory in all cases, with the use of video where
statements are taken in an office with that equipment.
Police Forces in Manitoba
The RCMP support the establishment of Aboriginal police forces and
develop a policy of cooperation with such forces.
While they continue to police Aboriginal communities, the RCMP and
all other Manitoba police forces develop and make public an integrated strategy to
strengthen their capacity to provide culturally appropriate policing services, and the
strategy include the development of a process of regular communication with Aboriginal
organizations and communities, and the annual publication of reports which indicate
progress in meeting the goals of the strategy.
The Dakota Ojibway Tribal Council Police Force be provided with
sufficient resources so that it can increase staff training and development in modern
police methods, and gradually assume full responsibility for all law enforcement duties
within its geographic jurisdiction.
Aboriginal communities be encouraged to form regional police forces and
regional police commissions following the model of the Dakota Ojibway Tribal Council
Police Force. These should be established under Aboriginal control and management.
Metis and non-status communities consider the development of a
regional police force, with a police commission.
The Liquor Control Act be amended to place limits on the amount of
alcohol an individual can purchase at any one time without a permit.
The transport of large quantities of alcohol without a permit be made
illegal. Transporters of illegal shipments should not only be subject to fines, but should
also face the loss of their licences and vehicles.
Police forces, in conjunction with local Aboriginal governments that
have prohibited the importation of alcohol to their reserves, undertake special
enforcement programs designed to halt any illegal importation.
The RCMP employ Aboriginal police and civilian staff in their
detachments in proportion to at least the Aboriginal population of the province and
preferably in proportion to the Aboriginal population being served.
The Winnipeg Police Department prepare and table with the city
council and the Minister of Justice, no later than December 31, 1991, an employment equity
plan which has clear targets, target dates and remedies should targets not be achieved.
The City of Winnipeg Police Department set an initial target of 133
Aboriginal police officers. The first step in reaching that goal should be to designate
the next recruiting class as entirely Aboriginal. Thereafter, 50% of each recruit class be
dedicated to Aboriginal recruits until the target has been met.
The Winnipeg Police Department be required to report publicly the
progress of its employment equity program to the Minister of Justice.
A portion of the funding provided by the Province to the City of
Winnipeg for police salaries be conditional on the Winnipeg Police Departments using
that funding only for the hiring of Aboriginal police officers.
The assignment of Aboriginal police officers not be restricted to the
core area or other Aboriginal areas of the city of Winnipeg
The Winnipeg Police Department no longer rely on the grade 12
educational criterion for police recruitment and develop approaches which more
appropriately test recruits ability to perform the functions required of police
The City of Brandon Police Department prepare and table with Brandon
City Council and the Minister of Justice an employment equity plan no later than December
31, 1991, which will increase the numbers of Aboriginal people on the City of Brandon
Police Department to a level equal to their proportion of the Manitoba population. The
plan should include target dates by which to achieve that proportion and remedies should
those targets not be met.
The Brandon Police Department set an initial target of nine Aboriginal
police officers and that the City of Brandon Police Department dedicate that number of
positions for Aboriginal recruits in its next recruit class.
Both the City of Winnipeg Police Department and the City of Brandon
Police Department consider hiring Aboriginal police officers who already have policing
experience with an Aboriginal force or with the RCMP.
Aboriginal people be represented among the civilian members of both the
City of Winnipeg Police Department and the City of Brandon Police Department in the same
proportion as their presence in the provinces population.
The City of Brandon Police Department, in cooperation with the Brandon
Friendship Centre, develop a program to reach out to and inform Aboriginal people living
in Brandon about policing issues.
The Provincial Police
Act and the Manitoba Police Commission TOP
The Provincial Police Act make explicit provision for the recognition
of any police commission or committee which is established to provide police services in
any municipality, unorganized territory, or Aboriginal community in Manitoba.
The Manitoba Police Commission prepare and enforce a wide range of
regulations covering recruitment, training, equipment, procedures, supervision of, and
support for, police forces in Manitoba.
Aboriginal Systems of
The Provincial Police Act be amended to provide for the establishment
of a provincial Aboriginal Police Commission with authority to prepare and enforce a wide
range of regulations covering recruitment, training, equipment, procedures, supervision
of, and support for, Aboriginal police forces in Manitoba.
Final decisions concerning the size, composition and manner of
appointment to the Aboriginal Police Commission be made by Aboriginal people.
The Provincial Police Act be amended to provide for the appointment of
an Aboriginal Police Commissioner, to serve the Aboriginal Police Commission, with any
such person being selected by Aboriginal organizations responsible for Aboriginal police
Agreements be developed between the provincial Aboriginal Police
Commission, local police commissions, the RCMP and the provincial Justice department for
Aboriginal police forces to provide full police services to Aboriginal communities, with a
firm timetable for achieving this goal, including training, equipping and supporting the
local forces with appropriate back-up services as required.
Complaints and Policing in Manitoba TOP
This plan of action include either the creation of a standing special investigations
unit, or a plan to quickly assemble a special investigations team for a particular
incident, able to take control of the investigation immediately following report of the
incident. The unit or team should not include officers from the police department under
investigation. The plan should include independent counsel to give advice concerning the
laying of criminal charges. This counsel should not be a Crown attorney. The unit or team
should report directly to the Minister of Justice.
The police forces in the province be required to provide all available assistance and
cooperation to the special investigations team.
- The Law Enforcement Review Board be reconstituted and the Law Enforcement Review Act be
amended to approximate the Ontario model.
The board appoint independent counsel to have conduct of each case and be responsible
for presenting the evidence.
Where the complaint is from an Aboriginal person, one member of a panel be Aboriginal.
The test to be applied by the board be proof by clear and convincing evidence, rather
than beyond a reasonable doubt.
If the board decides that the complaint is proven, it have full power to impose
whatever penalties it deems appropriate.
In addition to what is now in the Law Enforcement Review Agency reports, the agency
report annually on the nature of complaints, how many were found to have merit, how many
were dismissed and the type of penalty applied.
Police officers, including the officer against whom the complaint is made, be
Aboriginal justice systems establish and maintain an agency to receive,
investigate and resolve complaints against Aboriginal police officers similar to what we
recommend for provincial police forces.
Strategy For Action TOP
Complaints against the RCMP in Manitoba, when acting as a provincial police force, be
investigated and heard by the Law Enforcement Review Board.
- An Aboriginal Justice Commission of Manitoba be established by legislation and by
appropriate processes of the Aboriginal people of Manitoba, with a board of directors made
up of equal numbers of Aboriginal and government representatives, and an independent
chairperson. The commission should be provided with all necessary staff and resources.
The position of Aboriginal Justice Commissioner be established as the chief executive
officer of the Aboriginal Justice Commission. The commissioners tasks will include
monitoring and assisting government implementation of the recommendations of this Inquiry.
Aboriginal Justice College
- The Aboriginal Justice Commission establish an Aboriginal Justice College with its own
Aboriginal board of directors, and staffed by Aboriginal people, to provide training and
continuing education for Aboriginal people who wish to assume positions of employment
within both the existing justice system and Aboriginal justice systems.
Training provided by the Aboriginal Justice College include preparation for such
positions as judges, attorneys, police officers, correctional officers, court clerks,
administrators, interpreters, court workers, peacemakers, youth justice committee
directors, social workers, probation and parole officers, and others, as exist within the
present justice system and as are needed to establish and maintain Aboriginal justice
The Aboriginal Justice College organize courses in cross-cultural understanding for
Cross-Cultural Issues TOP
- Federal, provincial and municipal governments, individually or in concert, with the
assistance and involvement of Aboriginal people, establish formal cross-cultural
educational programs for all those working in any part of the justice system who have even
occasional contact with Aboriginal people.
Affirmative Action TOP
- The Province of Manitoba legislate the establishment of an Employment Equity Commission
with appropriate Aboriginal representation on its governing body.
The Employment Equity Commission have two arms: an investigative arm responsible for
examining any matter covered by the legislation, and an adjudicative arm responsible for
hearing any complaint made under the legislation. Those on the adjudicative side who sit
as hearing panels to determine a complaint should include an Aboriginal person if the
complaint involves an Aboriginal issue or complainant.
The mandate of the commission be:
- To develop employment equity targets for employers within the legislative jurisdiction
of the Province of Manitoba, including any department of the government of Manitoba and
any municipality, town or city within the province.
- To ensure that employers set policies and programs for the advancement and promotion of
- To monitor compliance with established employment equity targets.
- To require employers in receipt of government grants or contracts to establish an
acceptable employment equity plan with appropriate time frames, within which Aboriginal
people will be hired.
- To hear and determine complaints against any person or employer who fails to comply with
an established employment equity plan.
Hearing panels called upon to determine complaints be entitled to make orders requiring
compliance with an employment equity plan acceptable to the commission, or make such other
order as may appear appropriate to it, such as financial compensation either to an
individual or to a group of individuals.
- The federal government strengthen its employment equity legislation to establish an
Employment Equity Commission similar to that which we recommend for the Province of
- Federal and provincial government positions which require or will inevitably result in
high contact with Aboriginal people be designated as "Aboriginal bilingual
- The University of Manitoba Faculty of Law establish a recruitment program whereby
Aboriginal students (including those in high schools) throughout Manitoba and Northwestern
Ontario are encouraged to attend law school.
The Faculty of Law review the manner in which it makes use of the Law School Admission
Test scores and grade point averages of law school applicants to ensure that Aboriginal
students capable of successfully completing law school are not thereby unfairly
The Faculty of Law increase the number of Aboriginal law students it accepts into
first-year law. The minimum number of students it should be accepting would be 12% of each
class, the same proportion as the proportion of Aboriginal people in the general
population. Entrance levels should also include an additional number to overcome
The Faculty of Law engage an Aboriginal person as a member of its faculty with the
primary responsibility of providing support services to Aboriginal students and with the
secondary role of developing materials on, and teaching, Aboriginal law.
The Faculty of Law undertake the development of a full credit course or courses in
Aboriginal legal issues, and ensure that Aboriginal issues are included as part of the
core courses taught to each law student.
The Faculty of Law organize and sponsor a conference of law schools from across Canada,
to be held for the purpose of addressing the issue of increasing the numbers of Aboriginal
law graduates in Canada so as to accomplish two objectives:
- To overcome historical imbalances in Aboriginal under-representation in the legal
- To establish entry levels of Aboriginal law students that will ensure that the
Aboriginal presence in the legal profession reflects the Aboriginal presence in the
The Faculty of Law and the Aboriginal Justice College establish a pre-law program for
Aboriginal students wishing to enter law school.
Gathering and Statistics TOP
- Governments consult with Aboriginal groups to design and implement a data collection
system that will provide detailed information to compare the impact on, and treatment of,
Aboriginal and non-Aboriginal persons by the justice system, to evaluate the success of
programs dealing with Aboriginal offenders and to provide information to help identify
- As a matter of urgent importance, governments and Aboriginal people, with the assistance
of the Aboriginal Justice Commission, negotiate an acceptable process to provide ongoing
funding for Aboriginal governments to undertake the initiatives we suggest, in a manner
- The need of Aboriginal people for an ongoing, consistent revenue base.
- The right of Aboriginal people, as original owners of the land, to a fair share of
revenue resources from both levels of government.
- The greater access to the revenue-generating powers and sources available to federal and