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6. First Nations and the Justice System

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 E. Aboriginal People and First Nations Today → 1. Land Claims → 2. First Nations: Self Government → 3. Resource Rights → 4. First Nations: Health and Demographics → 5. Education → 6. First Nations and the Justice System
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Introduction

Bill Reid, Sketch for a Housefront Design, Haida Gwaii Museum

Aboriginal peoples constitute less than 3% of Canada’s population, but they make up approximately 40% of Canada’s total prison population. This statistic makes it apparent that the justice system, for Aboriginal peoples, is a very different experience compared to other Canadians.

A number of different factors are the cause of this statistic. Poverty, unemployment and a lack of education affects a larger number of Aboriginal peoples compared to other Canadians. Other observers and experts argue that the Canadian justice system is inherently racist. They point to the higher incarceration rates for Aboriginal peoples compared to non-Aboriginal as evidence of this racism. In 1996 the Royal Commission on Aboriginal Peoples (RCAP) argues that many of the problems that affect Aboriginal people are inter-related:

Contents

From economic and social disempowerment to problems in the criminal justice system, Aboriginal peoples’ issues are seemingly indivisible – one crosses over to another in an interconnected and almost continuous fashion. Alcoholism in Aboriginal communities is connected to unemployment. Unemployment in connected to the denial of hunting, trapping and gathering practices. The loss of hunting and trapping is connected to dispossession of land and the impact of major development projects. … The oppressive web can be seen as some of the disempowerment of communities and individual Aboriginal citizens.[1]

What is offered in this chapter is an overview of some of the main issues surrounding Aboriginal peoples and the justice system, current efforts to reduce the number of Aboriginal peoples in prisons, treatment of Aboriginal prisoners, and Aboriginal policing programs.

Traditional Aboriginal Justice

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It is difficult to offer a general overview of traditional Aboriginal justice systems. There are too many different Aboriginal cultures in Canada. While there were similarities between some cultures there was (and is) more diversity than similarities. A real difficulty is the lack of historical sources. Europeans often dealt with First Nations people in very limited ways: trade, religious work, exploration, etc. If justice was being applied it might have been done in private, and Europeans would not have seen it and perhaps written down a description. However, some examples from a few different First Nations will help to highlight how some applied justice in their own cultures.

All human cultures have some form of rules and laws. In small groups of people these rules can be easily applied. A small group of ten people hunting in the winter can often work out their differences amongst themselves (although even this is based on their own cultural idea of what is fair and just). However, a large group of hundreds or thousands of people require a more complex system. Rules and ways to apply and enforce those rules are required. As populations grow rules and systems become more complex.

Some Aboriginal groups, such as the Ojibwa and Cree, lived in both small and large groups. At certain times of the year, usually the winter, they lived in small family based hunting groups. In the spring and fall they would gather in much large groups to fish or (on the prairies) hunt buffalo. On the prairies large groups numbering in the thousands could gather to hunt buffalo. Buffalo hunts required a large degree of organization and, as a result, rules, laws and customs were developed. Experienced hunters would be placed in charge of a hunt. People who broke rules would be punished. Their possessions might be taken from them, or they could be whipped.

Other forms of social rules helped to prevent crimes. Amongst the Huron, for example, it was believed that illness could be caused by witchcraft. Witchcraft was caused by jealousy: someone was jealous of another person’s success and cast a charm on them to make them ill. To avoid this Huron culture was based on sharing amongst people so that everyone benefited from one person’s success.[2] Quite often the nature of Aboriginal life, in a cold climate, made cooperation necessary for survival.

Other forms of punishment were used by some Aboriginal peoples. Using ridicule and shame as a deterrent against anti-social behaviour was common. If someone stole, for example, the entire community would ridicule that person. This ridicule was not destructive or vindictive in nature. The entire community would tell that person that they were unhappy with his/her behaviour. Such group pressure served to keep problems minimized. In extreme cases (such as a serious crime) a person could be banished from the group or village. Such punishment would generally result in that person dying. Without the support and cooperation of others it was almost impossible for one person to exist on their own in a northern climate.

Between different Aboriginal groups retribution for murder was common. Algonquian people, based on what we know, only had two types of murder: by allies or by enemies. If an ally or friendly family killed someone, the victim’s family would seek compensation of some form. Once paid, justice was considered to have been met by everyone. If this compensation was not provided that family or group became an enemy. Murder by an enemy called for retribution. There was no real attempt to find and kill the murderer, but to kill someone from the group (i.e.: family, village or clan) that the murderer belonged to. Sometimes a person from the enemy group would be abducted, and adopted into the victim’s group to replace the victim. This was common in northeastern North America. Research has also been done about First Nations’ justice in western Canada and the United States. It indicates that ‘blood revenge’ was an element of First Nations’ justice in the 1700s and 1800s in that part of North America as well.

In the northeast, First Nations people could not understand why the French would not accept compensation for murders committed by members of allied First Nations groups. In European law murder is personal. The murderer has to be discovered, and made to personally suffer for their crime. Compensation was (and is) not an element of European based criminal law.

Some French traders/explorers were killed because they broke Aboriginal laws. Etienne Brulé, for example, was killed (or executed, if one considers that he broke a law). Brulé had switched his allegiance to the English when they conquered the small French settlement at Quebec in the early 1600s. When the French retook Quebec the Huron killed Brulé because of his treachery. Nicholas Vignau, another French explorer, was killed by the Algonquian. He had lied to Champlain. Vignau told Champlain that the Algonquian had taken him to a far northern sea. The Algonquian denied this, and were angry that Vignau had jeopardized their new relationship with Champlain by lying. Champlain noted in his diary that he gave Vignau to the Algonquians to deal with. Vignau is not mentioned again in any French documents, indicating that he had been killed.

Amongst some First Nations there were clear rules about trespassing on someone’s trapping/hunting grounds. Sometimes this was a due to tribal boundaries being cross. The Blackfoot of Alberta, for example, fought wars with the Plains Cree and other prairie First Nations when one side or the other hunted buffalo in another nation’s territory. Amongst other First Nations, such as the Ojibwa of northern Ontario, there were rules about trespassing, In general, if some asked permission to hunt or trap on someone else’s territory it was granted. However, if permission was not asked than matters could become dangerous. One early fur trader in 1830s in northern Ontario wrote in his journal that amongst the Ojibwa:

…family territorial divisions seem to be long established and cherished [however] they are very prone to poach upon another’s hunting grounds and the Beaver…often falls prey to such [hunting] which sometimes occasions dangerous feuds between families.[3]

Amongst the Dene of the Northwest Territories there were various stages a person went through to get justice. A problem between two people would first be handled by them. If they failed to find a solution the problem would be brought to an elder for advice. If a problem was so large it affected the entire community they would decide which of the people was at fault, and render a decision. Because the entire community would agree to support one person and disagree with the other this put incredible pressure on the offending person to accept the ruling.

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The Legal Treatment of Aboriginal People in Canada

Aboriginal peoples in the past did not have equal access to Canadian laws. The Indian Act banned treaty Indians from hiring lawyers to advance land claims against the federal government. In western Canada laws were passed to stop traditional ceremonies such as the potlatch. On the prairies a series of laws were designed to prevent First Nations from leaving reserves to travel to other reserves. Called the pass-card system, a person would have to obtain permission (and a card) from their Indian agent to travel from their reserve to a different reserve. The card specified where the person could travel to, and how long they could stay. Such laws were created to prevent different reserves from cooperating politically to press their demands on the government, or (the greatest fear of the Canadian government) start an armed uprising. It was also illegal under the Indian Act for an Indian to possess any alcohol. Treatment in residential schools and other government institutions created distrust amongst some Aboriginal peoples regarding the Canadian government and its laws.

While there are currently problems and deficiencies in the use of translators in modern courts, in the past Aboriginal people who did not speak English or French were given no translators. An Aboriginal person who only spoke their traditional language could end up in court, but not understand what was being said. Obtaining a fair trial in these circumstances was impossible.

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Aboriginal Prison Population

Statistics about the Aboriginal prison population are numerous. To go through all of them would be impossible in a single chapter. Examining some of the web links provided in the web resource page will direct you to some of the studies that this chapter is based on. However, some understanding of the numbers of Aboriginal people in prison and their backgrounds will help show how serious this problem is.

As noted in the introduction Aboriginal people make up approximately 3% of the Canadian population, but almost 40% of the total prison population (in federal, provincial and territorial institutions). Numbers from every province, however, vary considerably. In Quebec, for example, Aboriginal people make up less than 1% of the prison population. However, in Alberta, Saskatchewan and Manitoba they make up 39%, 72% and 61% of the prison populations respectively.[4] The Saskatchewan rate is particularly high considering that Aboriginal people make up 9% of the province’s population. Put another way, in Saskatchewan 1,600 Aboriginals per 100,000 population is in some form of correctional institution compared to 48 per 100,000 for non-Aboriginal people.

Just within federal prisons Aboriginal people make up approximately 17% of the prison population. However, this too varies across the country. In the Atlantic Provinces they make up 4% of the federal prison population, but constitute 64% of prisoners in federal institutions in the Prairie Provinces.

In 1994 Corrections Service Canada undertook a study of the Aboriginal prisoners in federal prisons. They wanted to know about their background, and if there were any similarities between Aboriginal inmates that would explain why they were over-represented in prison populations. The majority of these prisoners were from northern parts of Canada: Inuit, Dene, Métis and others. Particularly revealing was the analysis of the offender’s case files. They revealed a number of similarities about the types of problems these people faced before being incarcerated:

Problems faced by Aboriginal Inmates
Problem Area Identified in Case File (as Youth) Percentage
Parental Neglect 39.1%
Absent Parent(s) 35.9%
Group/Foster Homes 10.9%
Runaway 9.4%
Poverty 35.9%
Alcohol Abuse 84.4%
Drug Use 50%
Learning Problems 15.6%
Behavioural Problems 65.6%
Emotional Problems 21.9%
Physical Abuse 50%
Sexual Abuse 21.9%
[5]

A number of statistics stand out. A very large number reported abusing alcohol and drugs at a young age. There was also a high reporting of poor parenting and abuse. While these statistics will certainly vary across the country the generally higher level of alcoholism and other social problems due to poverty and other conditions amongst Aboriginal peoples is an important factor to explain their higher levels of incarceration.

It was also apparent from the same study that Aboriginal inmates reported lower levels of education or skills training. People with lower levels of education or training are more likely to live in poverty and endure other social problems.

Grade Levels Reached by Aboriginal Inmates
Highest Grade Achieved Percentage of Respondents
Grade 6 or less 12.5%
Grades 7, 8, or 9 46.9%
Grades 10, 11, or 12 37.5%
Post-Graduate 3.1%
[6]

Similar numbers were reported about the vocational (skills training) of Aboriginal inmates:

Vocational Skills {training} of Aboriginal Inmates
Vocational Skills Percentage of Respondents
No Response 7.8%
Unskilled 45.3%
Semi-Skilled 23.4%
Skilled (Non-traditional skills) 18.8%
Craftwork/Artwork 4.7%
[7]

A further study in 1997 of Aboriginal inmates in federal prisons supports these findings. Based on case files the following were listed as problems for the following percentage of Aboriginal inmates:

Needs of Aboriginal Inmates
Needs Percentage
Substance Abuse Treatment 88%
Personal/Emotional Counselling 82%
Employment Counselling 63%
Education and Training 54%

Another study in 1995 of Aboriginal people living in four large Canadian says that 75% of the people interviewed suffered some form of child abuse. Of this number, 25% said they suffered severe abuse. There were a large number who reported problems with alcohol, and drug abuse. The people interviewed also reported low levels of education and job skills training. As a result unemployment was a constant problem for them.

Based on this overview of basic statistical information the earlier quotation from the RCAP report in the introduction to this chapter takes on new meaning. Aboriginal involvement with the prison system is linked to the many other economic and social issues affecting them. It is important to note that non-Aboriginal offenders reported the same issues and problems prior to their being arrested. What is clear is that such factors affect Aboriginal peoples more, and results in their higher population within the prison system.

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Treatment in the Justice System

A number of studies have been undertaken to determine if Aboriginal peoples are treated differently within the justice system, particularly by the police. High profile cases in Canada have refocused attention on Canada’s police forces. It was discovered in Regina, for example, that local police would take First Nations men arrested for public drunkenness to industrial parks on the edge of town and leave them there even in the middle of winter. In one instance a man froze to death. Clearly within some police departments there are serious issues with how Aboriginal people are treated.

Treatment of Aboriginal peoples by police forces is not as simple as police arresting someone without cause. There are some factors which create a higher Aboriginal arrest rate. First, police are more likely to patrol areas of cities that have a higher Aboriginal population. Since these areas have a higher incidence of poverty and other social problems there is a higher crime rate. However, it can result in Aboriginal peoples being arrested for minor offences simply because there are more police in the area. Fewer non-Aboriginal people are arrested for the same offence because there are fewer police in their area. It is a vicious circle. Police patrol an area because of a higher crime rate, but this in itself leads to more arrests for minor issues that are often overlooked in other areas. There is also evidence that police are less likely to arrest a non-Aboriginal for being drunk in a public place than an Aboriginal person.

There can also be different community standard for behaviour in cities and towns compared to reserves. Reserves tend to be smaller than other communities, and there is a great deal of interconnectedness between people. A person’s behaviour on a reserve which might be considered criminal off the reserve is tolerated on the reserve. People see such behaviour as being part of who that person is. It is an element of many small, close-knit communities. However, such behaviour in a city can lead to confrontations with police for small infractions such as public disturbance, drunk and disorderly or assault. Being arrested in a city usually results in the accused being dealt with through the formal, legal justice system.

Within Aboriginal communities, however, there is some criticism of this tolerance towards anti-social behaviour. As outlined below, some Aboriginal peoples (women in particular) argue that too much violence is tolerated on reserves and in Aboriginal communities. They believe that a ‘culture of silence’ exists in some communities which creates social pressure on victims not to report violence and criminal behaviour.

There are also issues regarding the treatment of Aboriginal peoples once they are in the court system. These are outlined below in the section on sentencing circles and restorative justice.

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Reforming the Justice System

Sentencing Circles/Restorative Justice

Canada has the one of the highest rates of imprisonment in the world. With this fact in mind ask yourself the following questions. What is the purpose of prison? Is it to punish the offender, or is it to rehabilitate the offender? Is prison always the answer to criminal activity? Is the incarceration of all offenders always the best option?

For Aboriginal peoples various reforms have been implemented in the justice system. Some are experimental, and are being used on an irregular basis. An example are sentencing circles. Such systems are designed to allow the aboriginal community to decide a person’s punishment. However, there is more than punishment to a sentencing circle. In addition, the offender is expected to make amends not just to their victim but to the community. Having the offender recognize that they have harmed a person(s) and their community, and having them make amends, is called restorative justice. Restorative justice has been defined as:

…a philosophy which holds community healing as its cornerstone…Unlike the current adversarial system which is based on punishment, restorative justice encourages dialogue and responsibility for past behaviour, while focusing on future problem-solving and offender accountability. Ideally, the victim, the offender and the community should be involved in ‘making things right’…Restorative justice views crime as a violation of one person by another not simply as a breaking of the law.[8]

There are currently no formal rules for a sentencing circle. The Native Law Centre at the University of Saskatchewan, however, has done extensive research into sentencing circles. Based on this research the Law Centre has put together general guidelines. The following conditions have to be met before a sentencing circle can be held:

  • The accused has been found guilty by a judge, or admits that he or she is guilty
  • The accused will accept responsibility for his or her actions
  • There are no disputed facts/evidence regarding the case
  • The accused agrees to a sentencing circle
  • The accused must be a long-time member of the community
  • The victim(s) agrees to participate in the sentencing circle, and has not been forced to.
  • In the case of a female victim it should be established if she is suffering from Battered Woman’s Syndrome. Women suffering from this require counseling and support in the sentencing circle

Sentencing circles should not be held, in the opinion of the Law Centre, if any of the following is true:

  • The accused is a repeat offender
  • The crime was serious (i.e.: requires a prison sentence over 2 years in length)
  • The community will not become involved in the case
  • The accused will not admit guilt, or has not been found guilty by a court.[9]

Ross Green, a lawyer who has worked in northern communities, has written extensively on sentencing circles and Aboriginal concepts of justice. Green writes that for many Aboriginal communities, justice is meant to create peace within a community. This is in stark contrast with the punishment focus of western justice systems. Green quotes extensively from a number of people he interviewed about sentencing circles. Harry Morin is a Cree from Sandy Bay who was involved in the creation of a sentencing circle in his community. Morin told Green that:

…the [current] system is right now just a punishing system…They’re not looking at what’s causing these problems, they’re looking at, hey, we have to punish this guy for what he’s done…a lot of these guys go to jail, and they sit around this ten-by-twelve cell…And they get very bitter. …Here in a sentencing circle, we make sure somebody tells the offender that we’re here to help, for support…if recommendations are made that he takes some kind of programming to better himself back in society, he’s not only promising the magistrate or probation officer, he’s promising it to his own community.[10]

Green also notes that the results Aboriginal communities want from the justice system are the same as non-Aboriginal peoples: deterrence of people from committing crimes, condemning offenders, rehabilitation of offenders, punishment (if necessary), and helping the victims.

Green argues that sentencing circles are useful for remote northern Aboriginal communities in particular. Small communities do not have full time lawyers and judges. They rely on the “circuit court” to deal with crimes. Once a month (or more) a judge and defence and crown (prosecution) lawyers fly into a community to deal with all the recent criminal charges. Cases are handled very quickly, and there is little opportunity for the judge or the lawyers to understand all the details about the case or the accused person. Green remembers a single judge handling more than 50 cases in one day. One judge told Green that the circuit court system in the north is not a justice system: “So what we have at the moment, I believe, is an offender-processing system. It’s not a criminal justice system because we’re not achieving justice. We’re not resolving the conflicts.”

Other factors make sentencing circles attractive for remote northern communities. For example, under the circuit court system it is difficult to impose a punishment on someone because there is nothing in place to make sure they comply (obey) the court’s ruling. If a person is told to stop harassing someone (i.e.: a restraining order is placed on them), for example, there may not be any police in the community to oversee and enforce this. Harry Morin states that with the sentencing circle there are many people in the community who watch over the guilty person to insure that they comply with the judgment of the circle, and to help that person if they are having difficulties with their problems.

Sentencing circles can be more effective at times because the accused is being judged by his community not strangers who fly in to the reserve, spend a few days there, and then fly out. Police Officer Brennan, who has worked in the Cree community of Sandy Bay, says that sentencing circles are often more difficult for the accused to deal with:

And it really actually confronts the accused a lot more [when he is standing]…before his community and admitting that he was wrong and explaining why he did it, than to stand before a stranger [the judge]. It’s easier to stand before a stranger for four to five minutes while the judge sentences you and be alone with it, than to sit for an hour or two, maybe even three, and have a number of people criticize your character and your actions, and you have to defend yourself.[11]

Lastly, sentencing circles are often useful because they allow the accused to represent and defend himself in his own language. While the courts do provide translators there are not enough who speak Aboriginal languages. Translation is also difficult because some words in English do not translate directly into Aboriginal languages.

Existing police services are attempting to set up similar systems. The Royal Canadian Mounted Police (RCMP) has started a program called Community Justice Forums (CJF). These are designed to deal with Aboriginal offenders outside of the court system. Family and friends of both the victim and the offender are brought together. The CJF can be set up after a formal charge has been laid, or due to a dispute between the two people. The group tries to find some sort of solution to the problem. Police discretion is an important part of the process. This RCMP program, however, is not the same as a sentencing circle.

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Criticisms of Sentencing Circles

Some people are critical of sentencing circles. At times punishments have been too lenient. Others have argued that victims have been pressured to take part in a sentencing circle when they did not want to. Two examples will help to highlight some of the problems that have emerged with sentencing circles. Alternate opinions regarding sentencing circles will then be considered.

In 2000, a prominent former First Nations chief in the Yukon was sentenced for a sexual assault that took place in the 1960s against a young boy. Clara Schinkel, an elder with the Council of Yukon First Nations, complained that the victim was being ostracized by the community for bring these charges against the former chief. Schinkel claimed that members of the sentencing circle were intimidating and pressuring people to support the circle’s decision.

In 2003, an Innu male in Newfoundland sexually assaulted a woman. He had 16 prior assaults against the same woman. His community convened a sentencing circle, and sentenced him to 2 years of in house probation. Crown prosecutors were not happy with this and appealed the decision to the Newfoundland Court of Appeal. They wanted the offender sentenced to 6 years in prison. However, the court supported the sentencing circle’s decision. They noted that offender had stopped drinking, had not re-offended, and was now caring for his children as their sole parent. The court did not know, however, that the victim was pressured by her family to take part in the sentencing circle.

These examples relate one of the main concerns regarding sentencing circles: social pressure placed on the victim(s) to agree to the circle. While such pressure is now allowed, Aboriginal communities are often so small that many people know both the victim and the offender. This close contact can make it difficult for a victim to make a decision that will suit them.

The RCAP encountered similar fears. Aboriginal women’s organizations in particular have expressed concerns about sentencing circles. They argue that a number of reserves are patriarchal (i.e.: controlled by men). They are worried that a sentencing circle may be manipulated to maintain women in a subservient (lower) position. Other women told RCAP that women on some reserves will not speak out about violence because of their fear of retaliation by other band members. Speaking out could bring in outside government agencies. It could result in Aboriginal children being taken from their parents and being placed in non-Aboriginal homes.

Aboriginal women’s groups, however, have argued that the Charter of Rights and Freedoms must always be applied on reserves and in Aboriginal communities. When the RCAP held hearings a number of Aboriginal women testified that sentencing circles will be used by the men on reserves to pressure women not to lay formal criminal charges against men. They argue that the rights of Aboriginal peoples, under the Charter of Rights, must be protected.

Some believe that sentencing circles are not in fact traditional, but a recent creation. Marilyn Fontaine of the Aboriginal Women’s Unity Coalition spoke to the RCAP in 1992. She questioned what is meant by a return to traditional forms of government, and if this will only result in the mistreatment of women:

Tradition is invoked by most politicians in defence of certain choices. Women must always ask, whose tradition? Is ‘tradition’ beyond critique? How often is tradition cited to advance or deny our women’s positions?…Some Aboriginal men put forward the proposition that a return to traditional government would remedy the abusive and inequitable conditions of women’s lives. We have no reason to put our trust in a return to ‘tradition’, especially tradition defined, structured and implemented by the same men who now routinely marginalize and victimize us for political activism.[12]

Emma LaRocque, a Plains Cree Métis historian at the University of Manitoba, is very critical of sentencing circles.[13] Her dislike grew out of an incident involving a sentencing circle on the Hollow Water Reserve in Manitoba. A husband and wife were found guilty of sexually assaulting and (in the case of the husband) raping their two daughters. The sentencing circle put them both on 3 years probation in the community. LaRocque found the sentence handed down to be inadequate. LaRocque outlines that, historically, traditional Aboriginal justice was quite harsh and not focused on healing. Retribution and an ‘eye for an eye’ was a common form of First Nations’ justice. LaRocque believes that sentencing circles are not a traditional form of Aboriginal justice, but part of a blending of Aboriginal cultures and Christianity that has occurred over time. The focus on healing, she believes, is an element of Christian belief: forgiving people for their crimes. The result, she says, is over-concern for the offender and not enough attention to the victim. LaRocque thinks sentencing circles may be useful for certain crimes (i.e.: theft, minor offences, disputes, etc.), but not serious crimes (i.e.: sexual assault, rape, murder, violent assaults, domestic assault, repeat violent offenders).

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Provisional Sentencing and Aboriginal Peoples

In addition to sentencing circles there are other ways for courts to deal with Aboriginal peoples who are brought up on charges. Canada’s Criminal Code has provisions in it to deal with offenders who may not require a formal prison sentence, but Aboriginal offenders in particular are mentioned. Section 718.2(e) states:

All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.[14]

This section of the code applies to all Canadians. It gives the courts the freedom to decide what is best for someone found guilty of a crime. However, it was also developed because of the large number of Aboriginal people in Canada’s prisons.

Questions about sentencing Aboriginal peoples in court have been analyzed in a 1999 Supreme Court decision. In R. v. Gladue the Supreme Court of Canada dealt with the sentencing of an Aboriginal woman and the use of s. 718.2(e) by the courts. A portion of the court judgment is in the documents section of the web page. In short, an Aboriginal woman stabbed and killed her common-law husband. Her blood alcohol was very high. She had accused her husband of having an affair with her sister. She also has a medical condition which makes her very emotional. She and her husband were not living on their reserve when the attack took place.

The trial judge said the woman did not qualify for s.718.2 (e) consideration, and sentenced her to 3 years in prison and a ten year weapon prohibition. The woman appealed the decision, but the British Columbia Court of Appeal agreed with the trial judge. Since the woman made statements prior to the incident that “the next time he [the husband] fools around on me, I’ll kill him” the Court of Appeal believed the woman was not acting on the ‘spur of the moment’ when she killed her husband. However, the Supreme Court said that the trial judge and Court of Appeal should have considered s.718.2 (e) more carefully.

In its decision the Supreme Court said that s.718.2 (e) is not meant to treat all Aboriginal offenders leniently. Serious crimes require serious punishment. However, the woman had no previous record apart from a drunk driving charge. She also had 3 children. She had also enrolled in an alcohol counseling service. The Supreme Court said it did not matter that the woman did not live on her reserve as s.718.2 (e) applied to all Aboriginal people regardless of where they live. The trial judge also did not consider “the systemic or background factors which may have influenced the accused.”[15] By the time the Supreme Court ruled the woman had already been released on full parole, and enrolled in alcohol and substance abuse programs so there was no need to retry her.

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Prison Based Programs

Correction Service Canada and provincial correctional institutions have started to implement programs that are specific to Aboriginal inmates. These programs exist because of recognition that Aboriginal inmates have needs that are more specific to them. For example, an Aboriginal inmate might find traditional pastoral services (i.e.: visits from Christian priests or ministers) insulting because of his/her opinions regarding residential schools and the treatment of Aboriginal people in the past by Christian missionaries.

Aboriginal healing lodges exist in some federal prisons. In total 9 healing lodges exist. Most of the staff for these healing lodge programs are Aboriginal. One such example is the Pê Sâkâstêw Centre in Hobema, Alberta. Pê Sâkâstêw is a minimum security prison housing approximately 60 Aboriginal prisoners, elders run sweat lodges, group talking circles, and provide counseling to individual inmates. By 1998 approximately 100 Aboriginal inmates (all male) had gone through the Pê Sâkâstêw program. Of that group only 3 had returned to prison after their release.

A similar program exists for Aboriginal women in Saskatchewan. Called the Okimaw Ohci Healing Lodge it offers both contemporary programs for substance abuse and anger management and traditional Aboriginal ceremonies such as sweet grass ceremonies, sweat lodges and feasts. Some women are also allowed to look after the children (toddlers) while at Okimaw Ohci.

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Aboriginal Policing

Aboriginal policing on First Nations reserves was formally started in June 1991 when the federal government created the First Nations Policing Policy (FNPP). However, it has a history that goes back further than that. As noted earlier, some First Nations groups (particularly those that organized large buffalo hunts) selected men who oversaw the hunt and enforced rules and regulations. In the late 1800s and early 1900s Indian bands had band constables. However, people in these positions had limited power compared to the Indian agent. In 1977 the Dakota Ojibwa Tribal Council Police department was created in southern Manitoba. It is the first self-administered, Aboriginal police force in Canada. Since then other Aboriginal police services have been developed for First Nations communities across Canada.

This desire to bring more Aboriginal peoples into police work has led the Royal Canadian Mounted Police (RCMP) to start programs to work with reserves and Aboriginal communities to develop policing programs that are suited to a particular community. In total there are 131 FNPP agreements that service a total of 313 Aboriginal communities. There are 884 police officers in the program. The majority of these officers are of Aboriginal ancestry.

Community policing is being developed for a number of reasons. First, having officers from the community creates a greater sense of respect amongst community members for the police. Officers are no longer outsiders who only come onto a reserve when there is a problem. Locally based police officers also have a greater sense of a community’s nature and the best means of dealing with problems and difficulties without first resorting to force (i.e.: arrest). RCMP officers are also receiving training in conferencing techniques: meeting with people who have become involved with the law, talking with them, and trying to resolve problems without turning to the courts.

Under the FNPP a number of options are available for Aboriginal communities as regards policing. A First Nation can organize its own police services on a band, tribal/treaty, regional or provincial basis. The Nishnawbe-Aski Police Services, for example, provides for a number of First Nations communities in northern Ontario. The Dakota Ojibway Police Service works with five different communities with a combined population of approximately 7500 people. If a First Nation(s) is not able to develop this, or unwilling to, they can request First Nations officers for their local RCMP, provincial or municipal police detachment. These officers would be assigned to work permanently in the community. At all times these police officers and services have to meet the standards of the province that the First Nation community is located in. Once appointed to work in a community Aboriginal police officers have the powers and responsibilities of any police officer.

This growth in the number of Aboriginal police forces led to the creation of the First Nations Chiefs of Police Association (FNCPA). The FNCPA exists to represent the needs of Aboriginal police forces, and to insure that its officers receive professional training. There have been concerns expressed, however, that Aboriginal police forces are not given sufficient funding. Some police chiefs have argued that non-Aboriginal police forces for similar small communities receive more funding and support. Inadequate funding, some note, can only condemn Aboriginal policing to failure. ^Top^

Conclusion

Clearly there are many issues and concerns regarding Aboriginal peoples and their relationship with Canada’s justice system. The high rate of imprisonment for Aboriginal peoples, compared to their actual population, is very disturbing. Alternate forms of treatment, both in the court system and in the correctional system, will hopefully work to address this problem. However, as is often the case with social policy, there are no easy answers to difficult questions. Whether these solutions will work, provide temporary or minor relief, or fail is difficult to ascertain. There are some success stories, but the size of the issue certainly means that complete success will not come quickly.

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Review Questions

1. Read the section pertaining to the Aboriginal prison population. If you could institute provincial or nation wide social programs to reduce the Aboriginal prison population what would they be? In a group choose what you see as the 3 leading reasons for the high Aboriginal prison population, and develop 3 general ideas to address these factors.

2. Read the section pertaining to sentencing circles and restorative justice. Based on this information do you think that sentencing circles are useful? If you think they are useful, how would you respond to someone who disagrees with sentencing circles? If you think they are not useful, how would you change the court system to accommodate Aboriginal peoples?

3. Consider the recommendations of the Native Law Centre regarding sentencing circles. If these recommendations were followed would they address the concerns expressed by critics of sentencing circles?

4. Examine the web sites of the various Aboriginal police services provided in the resource section. Do you find any commonalties between the various services? Do any of the police services have programs in place to work with the community?

5. Read the article about the Pe Sakastew Healing Lodge. What sorts of programs are in place at the lodge to deal with the specific needs of the Aboriginal inmates?

6. Do you think that Aboriginal inmates should only be incarcerated in Aboriginal only prisons? Why or why not?

7. Examine the website for Poundmaker’s Lodge Treatment Centre. How is this centre working to help Aboriginal peoples with addiction problems overcome these difficulties? How are its programs reflective of Aboriginal beliefs and spirituality?

8. What services are provided by the Nishnawbe-Aski Legal Services? How do these services reflect their efforts to help Nishnawbe-Aski people with the existing court system?

9. Analyze the Nishnawbe-Aski Legal Services web pages on restorative justice. How does it match with the explanation given by the Native Law Centre at the University of Saskatchewan? What benefits and drawbacks do you see with the system supported by the Nishnawbe-Aski Legal Services?

10. Explore all of the elements of the restorative justice program of the Nishnawbe-Aski Legal Services. How are they attempting to handle some of the concerns raised by others regarding restorative justice?

11. Examine the article by James Youngblood Henderson. What is his opinion regarding restorative justice and sentencing circles? What evidence does he present to support his opinion? Do you agree with him completely, in part, or not at all?

12. Examine the web site from the Alberta Summit on Justice. What recommendations were made by the various Aboriginal groups regarding Canada’s justice system and Aboriginal peoples? What common features do you see in these proposals?

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Web Resources

Notes

  1. ↑ Cited in Pamela Williamson and John Roberts, First Nations People. 2nd edition (Toronto: Edward Montgomery Publications, 2004): 185-186.
  2. ↑ Bruce Trigger, Natives and Newcomers: Canada’s Heroic Age Reconsidered (Montreal: McGill-Queen’s University Press, 1985): 247.
  3. ↑ Cited in Lise Hanson, “The Anishnabek Land Claim and the Participation of the Indian People Living on the North shore of Lake Superior in the Robinson Superior Treaty of 1850.” (Toronto: Ministry of Natural Resources, nd.): 145.
  4. ↑ Aboriginal Initiatives Branch, “Demographic Overview of Aboriginal Peoples in Canada and Aboriginal Offenders in Federal Corrections.” (Ottawa: Correctional Services Branch, 1999). Accessed January 9, 2006
  5. ↑ Joseph C. Johnston, “Northern Aboriginal Offenders in Federal Custody: A Profile.” (Ottawa: Aboriginal Initiatives Branch, Correctional Services Canada, 1994)
  6. ↑ Joseph C. Johnston, “Northern Aboriginal Offenders in Federal Custody: A Profile.” (Ottawa: Aboriginal Initiatives Branch, Correctional Services Canada, 1994)
  7. ↑ Joseph C. Johnston, “Northern Aboriginal Offenders in Federal Custody: A Profile.” (Ottawa: Aboriginal Initiatives Branch, Correctional Services Canada, 1994)'
  8. ↑ Royal Canadian Mounted Police, “Community Justice Forum: Facilitator’s Guide to the RCMP Learning Map.”
  9. ↑ Native Law Centre of Canada, “Sentencing Circle: A General Overview and Guidelines.” Accessed January 20, 2006.
  10. ↑ Ross Green, Justice in Aboriginal Communities: Sentencing Alternatives (Saskatoon: Purich Publishing, 1998). Extract. Accessed January 20, 2006.
  11. ↑ Green, Justice in Aboriginal Communities: Sentencing Alternatives
  12. ↑ Royal Commission on Aboriginal Peoples, Volume 3: Gathering Strength. Accessed January 21, 2006
  13. ↑ Emma LaRocque, “Re-examining Culturally Appropriate Models in Criminal Justice Applications.” Aboriginal and Treaty Rights in Canada: Essays on Law, Equality, and Respect for Difference. Michael Asch ed. (Vancouver: University of British Columbia Press, 1997): 75-96.
  14. ↑ Canadian Criminal Code, section 718.2(e). Accessed January 21, 2006.
  15. ↑ Supreme Court of Canada, R. v. Gladue. Accessed January 21, 2006.

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 E. Aboriginal People and First Nations Today Gallery → 1. Land Claims → 2. Self Government → 3. Resource Rights →→ 4. Health and Demographics → 5. Education → 6. First Nations and the Justice System →
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