Court Reform
Changes to Court Structure and Administration
Eliminating Delay
Pre-Trial Detention
Personnel

Alternatives to Incarceration
The Need for a New Approach to Sentencing
Community Sanctions

Jails
Security
Jail Location and Capacity
Responding to Aboriginal Needs
Separation of Pre-Trial and Sentenced Persons
Staffing Issues and Discipline Procedures
Work Programs

Aboriginal Women
The Abuse of Woman and Children
The Sentencing of Aboriginal Women
Parole and Post-Release Issues

Child Welfare
Aboriginal Peoples and the Child Welfare System in Manitoba
Manitoba’s Child and Family Services Act

Young Offenders
Aboriginal Youth and the Young Offenders Act
Diversion and Alternative Measures
Aboriginal Youth and the Justice System — General Issues

Policing
The Role of Police in Society
Employment Equity Programs
Cross-Cultural Training
Police Forces in Manitoba
The Provincial Police Act and the Manitoba Police Commission
Aboriginal Systems of Policing
Public Complaints and Policing in Manitoba

A Strategy For Action
Aboriginal Justice Commission
Aboriginal Justice College
Cross-Cultural Issues
Affirmative Action
Information Gathering and Statistics
Resources

• 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.

• 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 NFA’s terms.

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 government.

• 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 submitted.

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 tribunal’s 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 provincial government develop a policy that respects the desire of Aboriginal people to retain a role in the management and conservation of their traditional territory.

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 claims agreements.

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 decision.

• The federal government amend the Fisheries Act and the Migratory Birds Convention Act to clarify that Aboriginal and treaty rights prevail in cases of conflict.

• The Province of Manitoba recognize the harvesting of wild rice as an Aboriginal right.

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 of Manitoba recognize Aboriginal and treaty rights to harvest timber resources.

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 people’s 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 First Nations.

• 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 be amended to eliminate all continuing forms of discrimination, regarding the children of Indian women who regain their status under Bill C-31.

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 Act.

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 criminal code.

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 Indian people.
• The pace of change should be in accordance with the wishes of the people concerned.

• The federal government accept its fiduciary obligations in relation to the increase in First Nations membership generated by Bill C-31 and assume the expenses for First Nations resulting from this increase.

• 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.

• The federal and provincial governments recognize the right of Aboriginal people to establish their own justice systems as part of their inherent right to self-government.

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 their people.

• 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.

• 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 Nation.

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.

• The Manitoba Metis Federation and the government of Manitoba establish a forum of elected and technical representatives with a mandate to identify those Metis communities in the province where Metis justice systems can be established.

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 the community.

• Aboriginal judges be exempt from all civil liability in reference to actions or omissions while in the exercise of their judicial capacity.

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

• First Nation governments draft a charter of rights and freedoms, which reflects Aboriginal customs and values.

• 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.

• 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.

• 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 the plea.

• 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 pre-trial process.

• 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 program.

• 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.

• 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.

• 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.

• 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 Manitoba.

• 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.

• 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.

• When a sheriff grants an exemption from jury duty, the person who is exempted be replaced with someone from the same community.

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 responded.

• 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

• Jurors be drawn from within 40 kilometres of the community in which a trial is to be held.

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 provided.

• Incarceration be used only in instances where:

a) The offender poses a danger to another individual or to the community.

b) Any other sanction would not sufficiently reflect the gravity of the offence.

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 this approach.

• 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.

• Regional, Aboriginally controlled probation services be created to serve Aboriginal communities; and that Aboriginal people be employed by the Province as probation officers in numbers at least proportionate to their presence in the provincial population.

All Aboriginal offenders be supervised by Aboriginal probation officers.

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 the probationer.

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.

• Judges make greater use of orders of restitution.

• The existing Fine Option Program be abolished and replaced with a Fine and Restitution Recovery Program which would follow these principles:

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 judge.

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 accused’s record so that the default can be taken into account if the person comes before the court on a subsequent occasion.

• Headingley Correctional Institution and Stony Mountain Institution be the only secure facilities for male offenders in Manitoba.

Brandon and The Pas Correctional institutions be converted into minimum security, open-door institutions similar to Dauphin.

• Open custody programs for Aboriginal adult and young offenders requiring counselling, behaviour improvement, job training and other forms of assistance be established in Aboriginal communities.

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.

• Secure short-term holding facilities be established in Aboriginal communities.

Aboriginal accused be released on bail in their home communities whenever possible.

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.

• 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 Branch.

• 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 institution’s 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.

• 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 sentences.

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.

• The number of Aboriginal people employed in correctional facilities and correctional programs be at least proportionate to the population of Aboriginal people in the province of Manitoba.

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.

• Rules for disciplinary hearings in correctional institutions be clarified and enforced to permit an inmate to have a friend or lawyer present to assist at the hearings and to guarantee the opportunity to make full answer and defence to a charge.

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.

Correctional officials develop work programs both inside and outside institutions which allow inmates to engage in meaningful activities and earn income.

Corrections Branch develop written guidelines on the appropriate use of inmate work details.

• 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.

• 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 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.

• Community assessments of parole applicants be done by Aboriginal parole officers who understand the applicant’s 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 inmate’s 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 course, cease.

Where parole conditions are imposed, they be ones that, among other things, can reasonably be adhered to, that are in accord with the inmate’s 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 home community.

• The practice of automatically requiring supervision of parolees by a parole officer be ended, and supervision only be required when necessary for the rehabilitation of the inmate and the protection of society.

• 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.

• 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 women’s 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 served.

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 mother.

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.

Aboriginal women be appointed to the National Parole Board.

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.

The provincial government establish the Office of Child Protector, responsible to the Legislature, as recommended in the Kimelman Report. This office’s responsibilities would be, among other things:

• To ensure that children involved with the child welfare system have their interests and rights protected.

• To receive and investigate complaints about the manner of treatment of children by child welfare agencies.

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.

• 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.

• The Young Offenders Act be amended to rescind those provisions which allow a youth to be transferred to adult court for trial.

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 allow judges to designate the specific place of custody for young offenders.

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 offences.

Youth probation for Aboriginal youth be made a part of the responsibility of Aboriginal child and family service agencies.

• Adequate administrative and financial support be provided to youth justice committees.

The Young Offenders Act be amended to remove the provision prohibiting members of youth justice committees from being remunerated.

Manitoba’s 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 Manitoba’s 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 involved.

e) The community’s 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 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 communities.

• The Aboriginal Court Worker Program provide a court worker wherever Youth Court sits.

• Police forces adopt a community policing approach, particularly in Aboriginal communities.

• Police forces immediately institute employment equity programs to achieve Aboriginal representation equivalent to the Aboriginal proportion of the Manitoba population

• 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 result.

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.

• As soon as possible, Aboriginal police forces take over from the RCMP the responsibility for providing all police services in Aboriginal communities.

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.

• New targets be set by the RCMP to bring appropriate numbers of Aboriginal men and women into the force as full officers more quickly than is currently contemplated.

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 Department’s 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 officers.

• 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 province’s 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 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.

• 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 forces.

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.

• The Minister of Justice establish a plan of action to deal with any incident where possible criminal acts are alleged against the police, or where a person dies or suffers serious injury in an incident involving a police officer.

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 compellable witnesses.

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.

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 commissioner’s tasks will include monitoring and assisting government implementation of the recommendations of this Inquiry.

• The Aboriginal Justice Commission establish an Aboriginal Justice College with its own Aboriginal board of directors, and staffed by Aboriginal people, to provide training and continuing education for Aboriginal people who wish to assume positions of employment within both the existing justice system and Aboriginal justice systems.

Training provided by the Aboriginal Justice College include preparation for such positions as judges, attorneys, police officers, correctional officers, court clerks, administrators, interpreters, court workers, peacemakers, youth justice committee directors, social workers, probation and parole officers, and others, as exist within the present justice system and as are needed to establish and maintain Aboriginal justice systems.

The Aboriginal Justice College organize courses in cross-cultural understanding for non-Aboriginal personnel.

• 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.

• 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:

1. 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.
2. To ensure that employers set policies and programs for the advancement and promotion of Aboriginal people.
3. To monitor compliance with established employment equity targets.
4. 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.
5. 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 Manitoba.
• Federal and provincial government positions which require or will inevitably result in high contact with Aboriginal people be designated as "Aboriginal bilingual positions."
• The University of Manitoba Faculty of Law establish a recruitment program whereby Aboriginal students (including those in high schools) throughout Manitoba and Northwestern Ontario are encouraged to attend law school.

The Faculty of Law review the manner in which it makes use of the Law School Admission Test scores and grade point averages of law school applicants to ensure that Aboriginal students capable of successfully completing law school are not thereby unfairly eliminated.

The Faculty of Law increase the number of Aboriginal law students it accepts into first-year law. The minimum number of students it should be accepting would be 12% of each class, the same proportion as the proportion of Aboriginal people in the general population. Entrance levels should also include an additional number to overcome historical imbalances.

The Faculty of Law engage an Aboriginal person as a member of its faculty with the primary responsibility of providing support services to Aboriginal students and with the secondary role of developing materials on, and teaching, Aboriginal law.

The Faculty of Law undertake the development of a full credit course or courses in Aboriginal legal issues, and ensure that Aboriginal issues are included as part of the core courses taught to each law student.

The Faculty of Law organize and sponsor a conference of law schools from across Canada, to be held for the purpose of addressing the issue of increasing the numbers of Aboriginal law graduates in Canada so as to accomplish two objectives:

1. To overcome historical imbalances in Aboriginal under-representation in the legal profession.
2. To establish entry levels of Aboriginal law students that will ensure that the Aboriginal presence in the legal profession reflects the Aboriginal presence in the population generally.

The Faculty of Law and the Aboriginal Justice College establish a pre-law program for Aboriginal students wishing to enter law school.

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

• As a matter of urgent importance, governments and Aboriginal people, with the assistance of the Aboriginal Justice Commission, negotiate an acceptable process to provide ongoing funding for Aboriginal governments to undertake the initiatives we suggest, in a manner consistent with: