Reports
Aboriginal Justice Implementation Commission
Final Report
Report of the Aboriginal Justice Inquiry of Manitoba
Chapter Six
The Courts
The Aboriginal Justice Inquiry's recommendations in the area of court reform were guided by a commitment to the establishment of Aboriginal justice systems. The creation of such systems requires action by both the federal and provincial governments, and is not therefore, within the mandate of this Commission. However, the AJI report also identified needed reforms to the current court system. Aboriginal witnesses who appeared before the AJI presented compelling evidence that the Canadian justice system had failed Aboriginal people and Aboriginal communities. Witnesses argued that the system did not understand local conditions, failed to rehabilitate, and contributed to Aboriginal overincarceration. Furthermore, despite the system's expense and power, it did not reduce crime or improve community safety. The reforms proposed by the AJI were intended to enhance community involvement in the courts, probations, and corrections, and, in effect, outline a community justice approach to justice issues.
For example, the AJI recommended measures that addressed:
Aboriginal people's understanding of the court process
delay in the court process
the poor service provided by the circuit courts in Aboriginal communities
the overuse of pretrial detention
the need for community involvement in court practice
the overuse of incarceration, and the need for correctional program service delivery in communities, and for alternative or conditional sentences
the need for a greater Aboriginal presence in probation services
The recommendations provide communities with a greater role in defining problems, developing approaches, reaching decisions, and then implementing those decisions. While community justice approaches are particularly appropriate in Aboriginal communities where, in the past, the justice system has often appeared to be little more than a foreign and imposed regime of punishment and regulation, it may be that incorporating community justice approaches in our legal system would benefit all Manitobans.
Community justice approaches enhance the legitimacy, fairness, and effectiveness of the justice system. Furthermore, a community justice approach is supportive of, and, indeed, integral to, the community development approach to crime prevention that is outlined in Section Four of this report.
This chapter reviews the AJI community justice recommendations, summarizes the progress that has been made on implementation, outlines trends and issues in the establishment of community justice approaches, and concludes with a set of community justice recommendations.
AJI Recommendations:
Aboriginal Understanding of the Court Process
The Aboriginal Justice Inquiry recommended that:
Judges insist that whenever an Aboriginal person is entering a guilty plea, the following procedure be followed:
The charge is read in full to the accused.
The judge confirms that the accused understands the charge by asking the accused to explain it.
The accused, and not counsel, enters a plea.
The judge confirms that the accused agrees with the guilty plea and that it is being given freely and voluntarily with a full appreciation of the nature and consequences of the plea.
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.
These recommendations address a fundamental point: justice must not only be done, but it must be seen to be done--and that means that the people affected by the operation of the justice system must understand the system and have a meaningful input into that system.
While the AJI recommendations have not been formally adopted, the Aboriginal Justice Implementation Commission has been informed that progress has been made towards meeting the AJI's goals in this area.
The establishment of an Aboriginal Magistrate's Court, operating out of Thompson as a part of the First Nations Justice Strategy (FNJS), is an important initiative in improving community understanding of the justice system. For example, the magistrate has adopted the AJI's recommended approach in taking guilty pleas. The Aboriginal Justice Implementation Commission has been informed that, as a general rule, judges of the Provincial Court apply the AJI proposals on guilty pleas as they deem required.
While there is no formal Court Interpreter's program or Legal Interpretation project, the Aboriginal Court Worker program has hired graduates from the Red River College program for interpreters in Aboriginal languages. As part of the First Nations Justice Strategy, eight northern Aboriginal communities have Aboriginal court workers who are hired directly from the circuit court communities. The Aboriginal Court Worker Program Advisory Board, which represents the Aboriginal community, has examined the board's role and mandate. To date, they have not recommended any changes, such as becoming a Board of Directors.
Reduce Delay
The Aboriginal Justice Inquiry recommended that:
Special court sittings be organized to address all cases outside the city of Winnipeg which have been outstanding for more than six months. If necessary, additional staff should be hired until all these cases have been disposed of.
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.
Delay continues to be a problem in the Manitoba court system, particularly for circuit courts. The AJIC has been informed that the province is currently testing a comprehensive case-management system to reduce delay. The AJIC was also informed that northern circuit court delay has been reduced by the work of the Aboriginal Magistrate's Court.
Improve the Circuit Courts
The improvements proposed to the circuit courts were intended to strengthen their impartiality, ensure that they operated efficiently, and bring to an end the rushed, hurried, and often chaotic appearance of the circuit courts in northern communities. The Aboriginal Justice Inquiry recommended that:
Proper court facilities be established in Aboriginal communities that will be available for court purposes as required.
Unless they are travelling in commercial airplanes, circuit court judges not travel with lawyers or police to circuit court sittings.
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.
The position of court administrator with magistrate's powers be created in each Aboriginal community served by a circuit court.
A number of these proposals, particularly the establishment of court facilities, separate transportation, and prior visits by lawyers to fly-in communities, have not been adopted.
However, the First Nations Justice Strategy has reduced the size of the dockets and made it possible for circuit court judges to deal with all the matters on the docket in a one-day visit in a number of communities. In a separate pilot project in Garden Hill, the Crown attorney, a Legal Aid lawyer, and a magistrate go into the community the day before the judge arrives. They conduct interviews, discuss cases, and dispose of as many matters as possible before the arrival of the judge. Legal Aid has paralegals attend in a number of communities to facilitate solicitor-client interaction.
The establishment of the full-service duty counsel program allows Legal Aid duty counsel to deal with guilty pleas immediately, rather than have to remand for a Legal Aid application.
Furthermore, Legal Aid now allows accused persons who cannot travel to a community where there is a Legal Aid office to make application by telephone. A similar service is also available, on an informal basis, for persons seeking coverage for domestic or civil matters.
Efforts to recruit Aboriginal community magistrates have been hampered by the volume and complexity of issues with which a magistrate must deal. Changes to the Criminal Code to allow for telephone bail have been of some assistance, and it is anticipated that video links between remote communities and court centres will also be of assistance.
Despite these improvements, it must be stressed that the Aboriginal Justice Inquiry's critical assessment of the circuit courts, as the clearest example of "the unequal and uneven manner in which the current justice system deals with Aboriginal people," still stands (AJI, Volume 1, page 227).
In addition to the issues raised by the AJI recommendations, it is also the case that there are a number of Aboriginal communities that have sought to have circuit court held in their communities. At present, the circuit court sits in neighbouring non-Aboriginal communities, even though the vast majority of people on the court docket are Aboriginal people from Aboriginal communities. Moving the court to the Aboriginal community would allow for greater involvement in the court process for Aboriginal people and greater use of Aboriginal community resources.
Bail
The Aboriginal Justice Inquiry recommended that:
Bail hearings be conducted in the community where the offence was committed.
The Manitoba government establish a bail supervision program to provide pre-trial supervision to accused persons as an alternative to detention.
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.
The AJIC has been informed that, other than in larger communities where court is held daily or every few days, it would be impractical to hold bail hearings in the community where an offence was committed. An accused person must be brought before the court for a bail hearing quickly, usually within 24 hours. It would be prohibitively expensive to have standby court parties that could be flown into remote communities to hold bail hearings within 24 hours of an arrest. However, amendments to the Criminal Code have given police officers greater discretion to release alleged offenders. A telephone bail program operating out of Winnipeg serves remote communities seven days a week, from 7:00 am to 11:00 pm. Unfortunately, it appears the program has not had the intended impact of reducing the number of people being transferred out of their home community. Manitoba Keewatinowi Okimakanak (MKO) community justice workers were to be given additional training in bail hearings and community supervision with the goal of reducing the number of people on bail being transported out of their home community.
If bail is granted, the government is responsible for transporting the individual back to her or his home community.
Manitoba Corrections operates bail supervision programs for both young people and adults. As of the 2000 year-end the Youth Bail Management program had an active caseload of 81 young people, 60 percent of whom are Aboriginal. At the same time, the Adult Bail Supervision program was supervising 425 adults, 18 percent of whom are Aboriginal. While the courts attempt to release individuals on bail in their own communities, a lack of resources means it is not possible to provide bail supervision in many remote communities.
Community Involvement
The Aboriginal Justice Inquiry recommended that:
Peacemakers be appointed in each Aboriginal community in Manitoba. They should be appointed through procedures which are agreed to by the community.
Peacemakers, recommended by recognized local Aboriginal groups, be appointed in Winnipeg and in other urban centres throughout the province.
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.
The concept of a peacemaker is drawn from the tribal court system in the United States. According to the AJI, the goals of a peacemaker are to:
determine the cause of a problem that may result, or has resulted, in a dispute or a criminal charge
determine the effect on the victim and his or her attitude towards the offence and the offender
bring home to the offender that his or her conduct is unacceptable in the community
counsel the offender
attempt to ensure that there will be no repetition of the unacceptable conduct
provide ongoing support to the offender and the family
involve the families and place some continuing responsibility for the conduct of the offender upon his or her family
restore peace in the community
A Peacemaker Program is currently being introduced in the Interlake Tribal Council communities.
Consultation between judges and community members can take place at the discretion of the presiding judge. In a number of communities, judges do allow community members to participate in the disposition of several matters, and the possibility exists for the further expansion of this process. The communities where this practice is most well developed are those participating in the First Nations Justice Strategy, and communities such as Hollow Water and Waywayseecappo. In addition, a number of communities involved in Department of Justice initiatives have Elders and other community-based justice workers or justice committee members attend. They are invited to express the concerns of the community.
The overuse of incarceration, and the need for correctional program service delivery in communities, and alternative or conditional sentences
The Aboriginal Justice Inquiry called for a philosophy of sentencing that:
Would make less use of correctional facilities, strengthen the use of community sanctions, address the needs of victims and offenders, give proper consideration to cultural factors when formulating sentences and allow the community to play a meaningful role in the development and monitoring of sentences. (AJI, Volume 1, page 390)
It argued that the current sentencing philosophy placed too heavy a reliance on incarceration. As a result, the AJI stated that:
Large numbers of Aboriginal people are taken from their families and communities to be locked away in correctional institutions. In these institutions, which are costly to build, maintain and operate there is little in the way of constructive programming. As a result, the institutions are not effective in rehabilitating or deterring offenders. Not surprisingly, the system is viewed by Aboriginal people as a foreign one, and there is much bitterness about the unfair way that Aboriginal people and Aboriginal communities are treated. The price that Aboriginal families pay, in terms of family breakdown, loss of income and educational opportunities, cannot be overestimated.
The emphasis on incarceration also ignores the needs of the victims of crimes, and the possibilities of reconciling offenders with victims and the broader community. Courts have the power to order restitution and community service, and we believe that for many people who are currently incarcerated these sorts of sentences would have been more appropriate. These sanctions are not only less expensive than incarceration, but they hold the promise of healing communities, rather than simply punishing offenders. They also provide a clearly visible sanction within the community. (AJI, Volume 1, page 390)
These approaches led the AJI to make the following recommendations:
Incarceration be used only in instances where:
The offender poses a danger to another individual or to the community.
Any other sanction would not sufficiently reflect the gravity of the offence.
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 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.
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.
Judges make greater use of orders of restitution.
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.
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.
As can be seen, the AJI recommendations sought to reduce reliance on incarceration, to ensure that sentencing was culturally appropriate, to extend the judicial power over the execution of sentences, and to ensure that fines were collected while at the same time ensuring that people were not incarcerated for the non-payment of fines.
A number of measures have been taken to provide judges with more guidance and more flexibility in sentencing. The 1995 amendments to the Criminal Code provide that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate and increase the options to incarceration. These provisions are section 742.1, which allows for sentences of two years less a day to be served in the community if certain risk factors and other conditions are met (conditional sentences), and section 717, which legislatively allows for the use of alternative measures for adults (alternative measures). The Commission was advised, however, that Manitoba has not adopted a formal alternative measures policy, which would set out the types of cases and offenders that are eligible for alternative measures. In addition, the proposed Youth Criminal Justice Act states that a sentence must be the least restrictive sentence that is capable of providing a meaningful consequence, and of promoting rehabilitation and reintegration into society.
The AJIC also notes the changes in the Criminal Code that allow for the courts to take the circumstances of Aboriginal offenders into consideration when sentencing. The Supreme Court of Canada in R. v. Gladue (1999), 133 C.C.C. (3d) 385, explained how this provision should be applied.
Manitoba Justice has established Youth Alternative Measures Protocols that determine whether an offender is eligible for diversionary programs. Under these protocols (which are currently being revised), an offender must be determined to have a low risk of reoffending and be non-violent. Currently, 16 community accountability programs work with offenders under these protocols. Many of these programs have a specific Aboriginal focus, while in other cases a large percentage of their clientele are Aboriginal. Manitoba is also supporting the Manitoba Metis Federation for the first phases of a court diversion program in the Parklands Region.
On the broader issue of whether judges should be matching offenders with programs, detailing probation provisions, and designating the nature and place for community service work, there exists a difference of opinion. The Manitoba government position is that judges should not manage cases post-sentencing. The government argues that for reasons of liability, in determining the offender risk level and matching offender needs to programming, the government should control the administration of court-imposed sentences, including the designation of the specific place of custody for offenders. (It should be noted that Community Corrections officials do meet with Provincial Court judges to establish procedures for the administration of sentences.) The Aboriginal Justice Implementation Commission recognizes both the need for judicial independence and the validity of the government's concerns. For this reason, the AJIC encourages judges to explore the options that recent changes in the law have provided them in fashioning sentences that meet the needs of the community and the offender. The AJIC further believes that if its recommendations on probation services (below) were adopted, judges would be able to make even greater use of currently available sentencing options.
Unfortunately, for cost reasons, probation officers do not attend courts in Aboriginal communities. As a result, sentencing judges cannot question them on their pre-sentencing reports. Such information, as the AJI suggests, is required to ensure that sentences are appropriate. The development of Aboriginal and community-based probation services has the potential of addressing these issues.
The AJI recommended improving the resources available to organizations that supervise community service orders. According to the Manitoba government, the payments to these organizations had not increased in nine years until fiscal year 2000-01, when increases were granted. The AJIC has been informed that, due to a set of policy and legal changes, currently no one in Manitoba is imprisoned solely on the basis of the non-payment of a fine. The government has announced an intention to establish an Offender Debt Collection program that would use civil means such as garnishment of wages to collect unpaid fines, along with such measures as a refusal to issue or renew a driver's licence, the fine option program, and a lien on a vehicle for parking offences.
The Manitoba government has informed that AJIC that it intends to introduce a provision in the new Provincial Offences Procedures Act, similar to the Criminal Code provision that requires the courts to satisfy themselves that offenders can either pay or discharge a fine before imposing the fine.
The Manitoba government has appointed a research coordinator and is increasing its ability to monitor and measure corrections outcomes. As well, Manitoba Corrections is involved in a national study with the Canadian Centre for Justice Statistics, which will yield a national and regional picture of the success rates for both adult and youth custodial and community supervision sentences, based on 1993 statistics.
Probation
The Aboriginal Justice Inquiry recommended that:
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.
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.
Progress has been made on a number of issues in this area. The Manitoba Corrections Division has community participation agreements with approximately 30 Aboriginal communities and service agreements with another five Dakota Ojibway Tribal Council (DOTC) communities. These agreements provide the First Nations communities with funding and support to employ an indigenous person to deliver community correctional services.
Province-wide, approximately 25-30 percent of probation officers are Aboriginal. One hundred percent of probation officers in The Pas Community Corrections office are Aboriginal, while in the Thompson office 70 percent are Aboriginal.
In 1993, Manitoba Corrections instituted the Anishinabe Pitama Committee of Aboriginal corrections staff, formed to provide corrections management with assistance and advice regarding Aboriginal staff recruitment, promotion, training, programming, classification, support, and secondment. The Committee will contribute to program development for Aboriginal offenders and to help design and deliver Aboriginal cultural awareness training to non-Aboriginal staff.
The Commission has been advised that Aboriginal organizations are interested in providing probation services to Aboriginal people, and that the Government of Manitoba is also interested in developing a process that would result in probation services for Aboriginal people being provided, primarily by Aboriginal probation officers.
The Aboriginal Justice Implementation Commission acknowledges that progress has been made in a number of areas. New sentencing and bail policies have come into existence. A number of community-based justice initiatives have also been developed. However, it is also the case that the court process is far too slow, and, for Aboriginal people, remote and imposed. Community justice initiatives have the potential to address these problems and can assist in reducing incarceration, increasing the legitimacy of the justice system, and, perhaps of greatest importance, allowing communities to re-establish social equilibrium.
Issues in Community Justice
Expectations
Justice systems address symptoms, not causes, of crime and social disruption. Over the last three decades, there has been a growing dissatisfaction with the North American justice system's ability to reduce crime and social disruption. There has been a considerable degree of disagreement as to whether this failure is because the system is too punitive or is not sufficiently punitive. There is little disagreement, however, on the point that a very costly system is producing very unsatisfactory results. There is a danger, however, in assuming that community justice systems on their own can reduce crime rates and social disruption. Unless social and economic conditions are also addressed, a move to a community justice system can, at best, ensure that justice is administered in a more effective manner that is accepted as legitimate by the community. It will always be difficult to reintegrate offenders into a community--it is a truly difficult task if the community is unstable and provides few employment, educational, or recreational opportunities.
Resources
Whether one looks at the lengthy periods of delay in Manitoba's court system, the overcrowding and lack of resources in its correctional institutions, the caseloads that probation officers carry, or the waiting list for rehabilitation programs, one can only conclude that the provincial justice system is either suffering from a lack of resources or is allocating those resources in an inefficient manner. These service problems underline the need for change. But they serve to remind us that if the Province of Manitoba experiences resource shortages in operating its justice system, Aboriginal communities will face similar, if not more severe, resource problems if more justice responsibilities are moved into communities. It is unrealistic to expect that a community justice system can be maintained into the future if it depends in large measure on the contributions of volunteers. Community supports are extremely important in determining the success or failure of many intervention programs. However, intervention must be offered on an ongoing and long-term basis if it is to be effective.
Approaches
The development of a community justice system will be an experimental process. It is to be expected that such systems will develop in different fashions in different communities. A wide range of questions must be addressed; these include who represents the community in a community system, and what are effective and acceptable sanctions. In a community-based system, different communities will develop different answers to these questions.
For example, many community justice projects involve diverting cases away from the criminal justice system towards alternative forms of dispute resolution or community service. One of the risks of this process is that it can develop into what is referred to as "net-widening"; offenders who once may have been let off with a warning are now referred to community treatment programs. The program may have a positive impact on the individual, but at the same time, resources that might have been spent on more adequately addressing issues related to a more serious offender have been expended on a minor offender.
Finally, most of the discussions that have taken place about the issue of community justice been in the context of northern or rural Aboriginal communities. It is important to address the needs of urban Aboriginal people who come into contact with the justice system, either as offenders or victims.
Community Accountability Programs
As noted above, the Manitoba government has established, in partnership with numerous community groups, 16 community accountability programs. Low-risk offenders are diverted away from the criminal justice system to these programs. The following section of this report provides a brief overview of the types of community justice programs currently in operation in Manitoba, with a focus on the First Nations Justice Strategy in northern Manitoba.
Manitoba Keewatinowi Okimakanak (MKO) First Nations Justice Strategy (Northern Manitoba)
The First Nations Justice Strategy represents one of the most promising approaches to both alleviating the problems with the circuit courts, and allowing community justice institutions to develop in Aboriginal communities.
A joint project of MKO, Manitoba Justice, and the federal Department of Justice, the program employs a community-based justice model that emphasizes community accountability. It involves two essential components: Magistrate's Court conducted on a circuit basis; and, community justice workers (CJW) who establish community justice committees and develop community-based diversion programs.
The program commenced operation in 1997 in ten communities in northern Manitoba that are served by circuit courts. The program has a Cree magistrate and a specific Crown attorney assigned to it. The magistrate and the Crown attorney hold hearings in seven communities on a regular basis, alternating with the regular circuit hearings of the Provincial Court in those communities.
The Magistrate's Court provided a number of benefits to the communities and to the justice system as a whole. Because the magistrate speaks Cree, she could ensure that the accused and community members in general were able to understand what was transpiring in the court. The magistrate also involved community members in a number of ways. In some communities, Elders and other community members were invited to speak to the court about the accused, the victim, or other related community matters. Community justice workers also attended court and provided advice to the magistrate on cases that were being decided. The Crown attorney screens files and, in conjunction with the defence and the community, can make referrals to diversion programs. The magistrate is able to refer matters to community diversion and treatment programs on disposition, take guilty pleas in those areas for which a magistrate has jurisdiction, remand cases to Provincial Court, and set trial dates.
Broadly speaking, a magistrate has the authority to take guilty pleas and pass sentence on federal, provincial, Indian Act, and band bylaw offences that are deemed to be of lesser significance. Accused who plead not guilty or who are charged with more serious offences must have their cases dealt with by a judge.
The Magistrate's Court program has had a beneficial impact on the circuit courts that operate in these communities. When the Provincial Court sits in these communities, it does not have to hear the cases that have been dealt with by the Magistrate's Court. This means that the Provincial Court has more time to deal with the more serious cases that appear on its docket, which reduces delay and allows the cases to be heard in a less rushed fashion.
The community justice workers:
attend all court sittings to provide input and to assist in screening cases for diversion
meet with accused who are referred for a community disposition to make all arrangements
coordinate the activities of the community justice committee
ensure that dispositions resulting from a hearing are followed up
collect data, and report to MKO and the justice coordinator
The program operates on a community accountability model, which requires the support of the police, the Crown, the court, the community, and the offender. The goal is to hold offenders responsible to communities and to divert less serious offenders out of the formal justice system. The referral can come from either the police, prior to the laying of a charge, or from the Crown after a charge is laid. In these cases, the matter is referred to a community justice committee, which develops an appropriate disposition. If the offender adheres to the plan fashioned by the committee, the charges (if they had been laid) are stayed. Finally, the magistrate or judge can incorporate recommendations in the final disposition if the matter does proceed to court.
An evaluation of the program by the Courts of Division of the Department of Justice concluded that the
FNJS has demonstrated that by working in close partnership with First Nations communities, adult and youth offenders have been held accountable to their communities in a manner that empowers communities and promotes satisfaction with the justice system. In addition, court delay has been significantly reduced and culturally appropriate services were provided as a cost-effective alternative to Provincial Court. (The First Nations Justice Strategy Evaluation Report, page 21)
The evaluation did, however, identify a number of concerns. In several communities, there was a high turnover rate among the community justice workers and concerns about the resources available to them. It was recommended that by merging the CJW position with that of Aboriginal court worker, salaries could be increased and turnover slowed. The Commission was advised that many CJWs are now also acting as Aboriginal court workers, and turnover has been lessened. There were also recommendations that the resources and training opportunities available to CJWs be increased. Finally, it was recommended that the Crown attorney position attached to the program be converted from term to permanent to ensure continuity. The Commission was also advised that this has been done.
The extensive use that community justice committees make of volunteers raises a number of problems in Aboriginal communities where unemployment rates are very high. Lack of compensation may discourage some people from becoming involved and it may cause a longer-term burnout. The evaluation recommended that "The policy regarding volunteerism associated with the community justice committees needs to be reviewed to see if it is appropriate for and supportive of the FNJS." (The First Nations Justice Strategy Evaluation Report, page 21)
It was also noted that the program had mixed results in involving victims; in some cases victims were reluctant to become involved in community hearings, and in other cases it appeared they had not been invited. Finally, there was a concern that in some cases those offenders who did not comply with community dispositions and had never been charged were not being charged, and, therefore, were managing to avoid taking any responsibility for their action. It was recommended that there be closer communication with the police services to ensure that non-complying offenders are dealt with through the courts.
The contingent nature of the funding for the First Nations Justice Strategy is common to many community justice projects. It depends on a renewal of support from both the federal and provincial governments to simply continue to offer its current level of support, let alone expand that service.
Other Community-Based Diversionary Programs
The First Nations Justice Strategy is not the only community-based diversionary program in Manitoba. Others include the following.
Community Conferencing Project (Portage la Prairie)
A full-time coordinator and 20 volunteer Community Justice Forum Facilitators work with adult and youth offenders, victims, and community members. They receive referrals from police, Crown prosecutors, and probation officers.
St. Theresa Point Aboriginal Youth Court
A community resource team works with Elders, traditional justice approaches, family, victims and community members. The team reviews cases and recommends community disposition, which are applied by local community members and followed up by a case manager.
Community Justice Committees
Manitoba has 80 community justice committees. Both young people and adult offenders are diverted to this program, although in the past the majority of people being diverted have been young people. The committees use such strategies as mediation, community justice forums, community service workers, and restitution to deal with conflicts and crime referral. They are supported by designated probation officers and the Justice Initiatives Fund.
Waywayseecappo Aboriginal Justice Programs
An Elders panel sits with the Provincial Court, providing advice and recommendations on sentencing. It also speaks with victims, offenders, and families in an attempt to resolve community disputes. A community justice worker is developing community-based options and expanded diversionary programs.
Mediation Services
This service is available in Winnipeg, Brandon, and Thompson. Approximately 800 cases a year are diverted to this program, through which offenders and victims meet to repair and resolve criminal matters. When the offender has completed the agreed-upon course of events, the charges are stayed.
Hollow Water Community Holistic Circle Healing Project
This program addresses sexual abuse in the Hollow Water First Nation and in the Métis communities of Aghaming, Seymourville, and Manigotagan. Local workers trained in sexual abuse intervention provide pre- and post-court intervention and assistance to victims and victimizers in cases that do not go to court.
Aboriginal Ganootamaage Justice Services of Winnipeg
This program is designed to divert Aboriginal offenders from the criminal justice system, and to integrate them into society through traditional cultural healing forms and the completion of a healing plan. Elders, traditional ceremonies and activities, and broader community involvement and participation are important components in the program.
CP1879 (Winnipeg)
Similar to the Aboriginal Ganootamaage Justice Services of Winnipeg, this program targets young people charged with criminal offences and is operated under the sponsorship of Mediation Services of Winnipeg. It uses mediation, and cultural and traditional activities and programs to resolve conflicts and crimes.
Youth Alternative Measures
This program is run by the Manitoba Government Community Corrections Branch of Probation Services, and provides formal youth alternative measures. It resolves approximately 2500 cases a year through referrals to community justice committees, and community agencies, parent action letters, community service works, and restitution.
Restorative Resolution
Operated by the John Howard Society, this program is an alternative to custody for certain offenders. Offenders must accept responsibility by entering a guilty plea and be willing to follow a community-based plan that includes a meeting with the victim, if the victim agrees, and an attempt to repair the harm caused by criminal behaviour.
John School
Operated by the Manitoba Department of Justice, the Salvation Army, and the Winnipeg Police Service, this is a program for first-time male offenders charged with Communicating for the Purpose of Prostitution.
Prostitute Diversion
Health and social workers, police, and former prostitutes provide counselling in this three-day, live-in diversion program for male and female offenders arrested for Communicating with a Person for the Purpose of Engaging in Prostitution.
Transition Program for Adults Sexually Exploited through Prostitution
This is a year-long transitional program that assists prostitutes in leaving the streets. It is operated by New Directions for Children, Youth and Family. It deals with both personal, pre-employment, and educational issues.
Positive Lifestyle Program
This is a Salvation Army diversion program that provides educational and therapeutic services in seven sessions. The program is targetted to adult offenders of both sexes.
Interlake Peacemakers Project
The objective of this project is to train a team of Ojibway peacemakers for each of the First Nations communities comprising the Interlake Reserves Tribal Council. A coordinator gives overall leadership to the project, which is designed to resolve crime and conflict in the participating communities at the pre- and post-charge stages, as well as at the post-sentence and pre-release stages.
Recommendations
The Aboriginal Justice Implementation Commission's review of the AJI recommendations dealing with community justice issues indicates that despite the progress that has been made in a number of areas, there are still real and continuing problems in the areas of delay, circuit courts, community involvement, alternative sentencing, and probation.
Progress in these areas will not come quickly. The issue of delay, for example, is multi-faceted, involving both resources (the number of judges, Crown attorneys, Legal Aid lawyers, and other court workers) and the management of those resources. It is a problem that extends across the province, and involves both Aboriginal and non-Aboriginal people. It is an area that requires ongoing attention from the government, the courts, the bar, and the community.
The AJIC is recommending a number of community justice measures that will address and alleviate delay, the problems associated with circuit courts, the lack of community involvement in the justice system, the need for alternative sentencing, and the need for culturally appropriate, community-based probation services.
The AJIC recommendations involve:
supporting the First Nations Justice Strategy and its expansion to the remaining MKO communities, along with continued evaluation
adopting a community justice approach, based on suggested core elements and appropriate resourcing
adopting a public commitment to improved circuit court services, together with publication of data that will allow public measurement of progress
moving circuit court sittings held outside Aboriginal communities to these communities where the majority of persons appearing before the court are Aboriginal
ensuring Aboriginal delivery of probation services to Aboriginal offenders
First Nations Justice Strategy
The First Nations Justice Strategy is a successful community justice initiative that involves Aboriginal people in the court process, makes use of diversion and alternative measures, and reduces delay in the circuit courts, while allowing provincial circuit judges to devote more attention to more serious cases. An evaluation of the FNJS identified a number of areas where the program required strengthening. Among other recommendations, the evaluation recommended that, in consultation with communities, the program be expanded to other Aboriginal communities in northern Manitoba.
The Aboriginal Justice Implementation Commission recommends that:
6.1
The Government of Manitoba, in consultation with Aboriginal communities, implement the recommendations of the First Nations Justice Strategy Evaluation Report to expand the strategy to all other MKO communities that wish to participate.
6.2
The Government of Manitoba review its policy on volunteers working in the justice system, in particular in remote communities, with a view to ensuring, at the least, that volunteers are not out-of-pocket for expenses.
Community Justice Model
The Aboriginal Justice Implementation Commission recommends that:
6.3
The Government of Manitoba, in consultation with Aboriginal communities in southern Manitoba and the City of Winnipeg, consider whether the First Nations Justice Strategy approach would be useful in the southern parts of the province.
6.4
The Government of Manitoba establish community justice initiatives that provide for community involvement, alternative measures, and culturally appropriate services where communities express an interest in developing such a program.
Such a program should include:
The adoption by the Attorney General of an alternative measures policy that could provide guidance to Crown attorneys, police, and others on the types of cases eligible for alternative measures.
A system to refer and to track referred cases and to ensure results are reported to the appropriate authorities.
Ensuring that adequate community resources are catalogued and available to handle referred cases. Such resources may be alcohol or addiction counsellors; mediators; facilitators for various alternative approaches, such as conferencing, talking circles, healing circles, and reintegration circles; community justice workers or probation officers to supervise restitution, etc.
Commitment to Improved Circuit Courts
The Commission recognizes the need to improve circuit court services. Many of the AJI recommendations, such as case-flow management, scheduling improvements, early attendance by lawyers in the location to ensure proper preparation of cases, and the involvement of communities in the process, should have the effect of improving the system. The Commission was informed that a number of recommendations have been enacted, but have not provided a significant improvement. For example, in a number of communities, lawyers arrived in the community the day before the court hearing. However, their clients did not arrive in the community until the day of the hearing itself. As a result, there was no improvement in the efficiency or effectiveness of the court.
The information the Commission has received indicates that individual approaches have not worked, and that a more concerted approach is required. The issues are complex, and responsibility is divided among judges, Crown attorneys, defence lawyers, court officials, police, and, perhaps, others. These different and independent groups need to work together, without sacrificing their own independence, towards the goal of improved service delivery to the public.
The Aboriginal Justice Implementation Commission recommends that:
6.5
Service indicators be developed for each circuit court by the Department of Justice. These indicators might include some or all of the following:
Number of matters on a docket
Number of remands
Number of remands per case
Number of guilty pleas
Number of trials
Total time of sitting
Average or median time from charge to trial for each court location
This data should be collected for each sitting of court in each location, and published on the department's website.
The department should indicate what it considers to be minimum service standards for Winnipeg and locations outside Winnipeg. The department and the Judiciary should then commit to meeting these standards.
Where the standards cannot be met, the department should be required to explain why it is unable to meet the standards.
The adoption of these standards would promote fairness and equity in the administration of justice in the province.
Local Court Sittings
The Aboriginal Justice Implementation Commission recommends that:
6.6
The Government of Manitoba, in consultation with the appropriate First Nation governments, work to establish circuit court sittings on the Sandy Bay, Peguis, Sagkeeng, and Little Saskatchewan First Nations, should these First Nations desire this. This option should be offered to other First Nations whose members constitute the majority of persons appearing in a circuit court held near, but not on, the particular First Nation. Implementing this option will require negotiating appropriate agreements to ensure acceptable and continuing service, and to address concepts of community participation.
Probation Services
The Commission agrees with the findings of the Aboriginal Justice Inquiry that for probation services to be effective, they should be provided by individuals who are familiar with the community, understand the circumstances of the accused, and have the resources and training needed to properly discharge their responsibilities.
The Aboriginal Justice Implementation Commission recommends that:
6.7
The Government of Manitoba consult with Aboriginal organizations with a view to creating regional, Aboriginal-controlled probation services to serve Aboriginal communities.
6.8
The Government of Manitoba seek to increase significantly the number of Aboriginal probation officers so that probation services to Aboriginal offenders are delivered primarily by Aboriginal probation officers.
The Commission has been advised and believes that enhanced Aboriginal participation in probation services will assist in implementing a community justice approach, which can more effectively manage community sanctions for those offenders for which such sanctions are appropriate and assist in reintegrating offenders that have been incarcerated. This will also reduce the prospect of probationers offending again.
The Portage Correctional Institution
The Aboriginal Justice Implementation Commission has focussed its attention on community justice and community development initiatives. The Commission gives priority to measures that reduce the use of incarceration and that encourage correctional program service delivery in communities. Given these priorities, the AJIC has not developed a set of recommendations on Manitoba correctional institutions. However, the condition of the Portage Correctional Institution requires comment. In its 1991 report, the AJI stated:
The Portage Correctional Institution is the province's only correctional institution for women. We believe the institution is an inappropriate facility for women and should be closed. In its place, we recommend the establishment of co-correctional facilities and community houses where female offenders can be required to live. These homes should exist in Aboriginal and in urban communities. Counselling and job-related training should be available in the home and in the community. The inmate should be able to attend school or work during the day, returning to the home for counselling and to stay at night. (AJI, Volume I, page 501)
The AJI recommended that:
The Portage Correctional Institution be closed.
Ten years later, the facility remains in operation. This is a shameful state of affairs that should not be allowed to continue. The AJI recommended that the women in the Portage Correctional Institution be moved to either community custody or the Milner Ridge Correctional Institution. The AJI's recommendation to make Milner Ridge a co-correctional facility may not be appropriate, given the fact that it is currently devoted to domestic violence offenders. This does not lessen the obvious point--the Portage Correctional Institution, an inadequate facility, must be closed.
The Aboriginal Justice Implementation Commission recommends that:
6.9
The Portage Correctional Institution be closed.
6.10
The Government of Manitoba establish a new correctional facility for women that provides them with adequate treatment, training, and cultural and spiritual supports, and provides the greatest possible number of opportunities for community integration.
Manitoba Government