Consultation Reports

INDEX
- Report
- Recommendations
- Corrections and Conditional Release Act

A Saskatchewan study brings home the implication of its findings by indicating that a Treaty Indian boy turning 16 in 1976 had a 70 per cent chance of at least one stay in prison by the age of 25 (that age being the one with the highest risk of imprisonment). The corresponding figure for non-Status or Metis was 34 per cent. For a non-Native Saskatchewan boy, the figure was 8 per cent. Put another way, this means that in Saskatchewan, prison has become for young Native men, the promise of a just society which high school and college represents for the rest of us. Placed in a historical context, the prison has become for young Native people the contemporary equivalent of what Indian residential schools represented for their parents. (Locking up Natives in Canada, page 215)

This quotation, although dated, presents some astounding statistics. (1) It was sad to see that First Nations peoples were more likely to spend time in jail than complete high school. It demonstrates that the Canadian Criminal Justice system is not working for First Nations. It also suggests that something needs to be done to get our people out of the existing criminal justice system and to address the systemic issues embedded in these numbers. This could include utilizing traditional `justice' (2) practices but it is crucial to envision a wide and diverse range of possibilities.

In this report to the Treaty 8 First Nations of Alberta, I will first focus on the problem of the over-representation of First Nations in the criminal justice system. Specifically, I will examine some of the statistics from Alberta and Saskatchewan that demonstrate the problems faced by First Nations' `offenders'. Second, there will be a brief look at some of the reasons for over-representation. Third, I want to assess some of the potential solutions to over-representation. This will make very clear the need for the Treaty 8 First Nations of Alberta to have a conference on Justice to begin to consider what is needed for their people.

There have been numerous studies and Royal Commissions conducted on First Nations' problems with the justice system, issues related to child welfare, Treaty rights, self-government, health, etc. One constant, in all of these reports, is inaction on their recommendations by both the Federal and Provincial Governments. Both levels of Government are willing to spend millions of dollars to find out what some of the First Nations problems are but they are unfortunately unwilling to put similar resources into implementation. The aftermath of the recent Royal Commission on Aboriginal Peoples is merely the most recent example of this. The Federal Government spent $68 million to supposedly listen to First Nations but the five volume report is just sitting on the desk of the current Minister of Indian Affairs, Jane Stewart. Our relationship has come to the point where First Nations state that there is a problem and the Federal Government responds by setting up a Royal Commission. First Nations are tired of that approach. We want to see the implementation of the recommendations made to the various justice inquiries.

So what is the problem? The answer is easy. The current criminal justice system is not working for First Nations because First Nations are disproportionately represented in the prison populations. This is not a new phenomena. Many government justice inquiries have been conducted throughout Canada. These include the Donald Marshall Inquiry, the Manitoba Justice Inquiry, the Cawsey Report, and more recently, the Royal Commission on Aboriginal Peoples - Bridging the Cultural Divide. Each of these studies found that First Nations are grossly over-represented in the criminal justice system. For example, the Royal Commission on Aboriginal Peoples found that:

Aboriginal over-representation is getting worse in the province of Alberta. Indeed, because Alberta has the second highest rate of imprisonment per person charged in the whole country, over-representation has even harsher effects as compared to elsewhere. Aboriginal men now make up 30 per cent of the male population in provincial jails and Aboriginal women 45 per cent of the female jail population. The most alarming conclusion of the task force is that for Aboriginal young offenders, "over-representation is even more dramatic" than it is for adults, and future population projections indicate that the situation is getting worse.

These figures are alarming and what is worse is that nothing is being done. Instead, the Federal Government's answer is to have another Royal Commission. With just the financial resources of all of these Commissions, the problems with over-representation could be alleviated. Unfortunately, it is not the case. The Royal Commission on Aboriginal Peoples also found:

Projections indicate that by the year 2011, Aboriginal offenders will account for 38.5 per cent of all admissions to federal and provincial correctional centres, compared to 29.5 per cent of all offenders in 1989... In some age categories, for example, the 12-18 years of age group, Aboriginal offenders are projected to account for 40 per cent of the admissions of population to correctional centres by the year 2011.

These statistics should alarm any rational thinking person. What is truly horrifying are the figures for young offenders. It is common knowledge that most young offenders learn how to become better criminals in the youth detention centres. If this holds true for First Nations' young offenders, then the figure of 38.5 per cent will be grossly underestimated. The question then becomes what will this mean for future First Nations leadership.

It is sad to see that First Nations over-representation is not restricted to Alberta. It is a problem throughout Canada. For example, in Saskatchewan:

1. Between 1976-77 and 1992-93, the numbers of admissions to Saskatchewan correctional centres increased from 4,712 to 6,889, a 46 per cent increase, during a time when the provincial population remained virtually unchanged. The rate of increase was 40.7 per cent for female admissions and 111 per cent for female admissions.

2. During the same period, the numbers of Aboriginal people admitted to Saskatchewan correctional centres increased from 3,082 to 4,757, an increase of 54 per cent. Male Aboriginal admissions increased by 48 per cent, while female Aboriginal admissions increased by 107 per cent.

3. In terms of overall rates of admissions, Aboriginals were 65.4 per cent in 1976-77 and 69.1 per cent in 1992-93.

4. Increases in Aboriginal admissions accounted for 77 per cent of the increases in total admissions between 1976-77 and 1992-93.

These data indicate clearly that the problem of disproportionate representation of Aboriginal people in Saskatchewan's justice system is getting worse and not better.

The numbers speak for themselves. First Nations are severely over-represented in the criminal justice system. If the numbers are this high for Saskatchewan, then it is more than likely that the earlier estimation are much lower than they actually are. In addition, it is probable that these numbers are underestimated. It is possible that there are many inmates who are unwilling to admit that they are of Aboriginal ancestry. If that is the case then these figures are actually higher.

Now that the problem has been demonstrated, what are some of the reasons for this over-representation? The Manitoba Justice Inquiry (1991) found:

- more than half of the inmates of jails are Aboriginal.

- Aboriginal accused are more likely to be denied bail.

- Aboriginal people spend more time in pre-trial detention than do non-Aboriginal people.

- Aboriginal accused are more likely to be charged with multiple offenses than are non-Aboriginal accused.

- Lawyers spend less time with their clients than with their non-Aboriginal clients.

- Aboriginal offenders are more than twice as likely as non-Aboriginal people to be incarcerated.

The over-representation occurs at virtually every step of the judicial process, from the charging of individuals to their sentencing.

One of the main reasons that First Nations are disadvantaged before they enter the judicial process is due to their financial situation. Since there are high numbers of First Nations' peoples without paying jobs and adequate sources of income, the judges are unwilling to release the offenders. It is not likely that the accused are flight risks but the judges are more inclined to follow established court procedures. This is also why First Nations spend more time in pre-trial detention as compared to non-Native offenders. The problem with the detention is that it keeps the accused away from their communities and exacerbates displacement and dysfunction for the offenders and their families.

Another aspect of the finances is the First Nations inability to afford private lawyers. Since a majority of First Nations people are unemployed, the court appoints Legal Aid lawyers. Most of Legal Aid programs are understaffed and the people overworked. The situation has degenerated to the point that the lawyers do not even have enough time to meet with their clients. They are, therefore, likely to recommend to their First Nations clients to plead guilty and hope for the leniency of the court. There are three problems with this scenario. First, many First Nations do not understand the legal process. Both the judges and lawyers use language that is difficult even for the average Canadian to understand. This situation is compounded for those First Nations whose first language is Cree or Dene. It is even more important for Legal Aid lawyers to spend time these clients. Second, the First Nations' accused may actually have a defence to the charges filed against them. Unfortunately, by not spending time with their clients, it might lead to many First Nations people in jail for crimes they did not commit. Third, by pleading guilty and hoping for the leniency, First Nations are setting themselves up for long records. By the time they are charged with their third or fourth offence, the judge is ready to give the accused a long sentence.

Another issue that First Nations have to deal with is racism within the current system. It can be racist actions by the judges, police officers, Crown Prosecutors, juries, basically every step from the laying of the charge to sentencing. There are many examples where judges have given longer sentences to First Nations as compared to a non-Native person who has committed the same offence. There are many cases at each level of the court where the presiding judge has made some questionable statements or findings (3) that have adversely affected First Nations. A case in point is the Muldoon J. decision in the Sawridge case. He stated that the main reason First Nations signed the numbered Treaties in Alberta was to ensure our dependent status on the Federal government. His decision contained many other biased statements. Fortunately, the Court of Appeal overturned his judgment. Therefore, when a First Nations' case is to be heard then the chances that the accused will receive a fair hearing is debatable.

The issue of racism in the police force is a controversial one. I want to make it clear that not all police officers are overtly racist. There may only a few in some of the detachments across the country but that is a few too many. The larger issue is systemic racism. The problem that occurs is that the police forces are focussing on areas where there may be a predominantly First Nations population. For example, Tim Quigley found:

Police use race as an indicator for patrols, arrests, detentions ... For instance, police in cities tend to patrol bars and streets where Aboriginal peoples congregate, rather than the clubs frequented by white business people ... This does not necessarily indicate that the police are invariably racist (although some are) since there is some empirical basis for the police view that proportionately more Aboriginal people are involved in criminality. But to operate patrols or to allocate police on ... [this] basis ... can become a self-fulfilling prophesy: patrols in areas frequented by the groups that they believe are involved in crime will undoubtedly discover some criminality; when more police are assigned to detachments where there is a high Aboriginal population, their added presence will most assuredly detect more criminal activity.

Consider, for instance, the provincial offence of being intoxicated in a public place. The police rarely arrest whites for being intoxicated in public. No wonder there is resentment on the part of Aboriginal people arrested for simply being intoxicated. This situation often results in the Aboriginal person being charged with obstruction, resisting arrest or assaulting a peace officer. An almost invariable consequence is incarceration... Yet, the whole sequence of events is, at least to some extent, a product of policing criteria that includes race as a factor and selective enforcement of the law. (Continuing Poundmaker's and Riel's Quest, pages 273-74)

By concentrating the patrols in First Nations' communities, the police are going to find crime. The despicable aspect of all of this is that there may be just as much crime in other parts of the city. Unfortunately, First Nations are suffering the consequences from this over-policing.

There are many other reasons for the over-representation of First Nations in the criminal justice system but I want to examine some of the potential solutions to this predicament. With respect to racism within the courts and in police forces, one of the answers is cultural awareness training. In these workshops, the non-Native officers and judges learn about First Nations' traditions, culture, beliefs, rights, and other important issues. By the end of the workshops, it is hoped that the participants have a better understanding of what First Nations are going through and why we Aboriginal and Treaty rights and why we are in the situation that we are currently in. The one problem with this solution is that the success of the program is dependent on the willingness of the people to listen with an open mind and heart. There are going to be a lot of instances where the participants are just attending because their superiors wanted them there. For the most part, these people will gain nothing from these programs. However, if these workshops are able to shift the thinking of some of the participants then it should be considered a success. We have to be aware that we are not going to change the minds of all the people that we encounter.

Another factor in dealing with racism is to hire and train more First Nations police officers. The R.C.M.P. have instituted a policy where the majority of the new recruits hired will be either women, First Nations or from a visible minority. There are three problems that I see with this process. First, there are going to be many officers who will be upset that the new recruits have taken away jobs from some of their friends, family and other non-Native people who would have normally been hired. Unfortunately, this policy is creating more racial tensions and thereby, making it even tougher for those First Nations who decide to become police officers. Second, there is the issue raised by the Treaty 8 First Nations of Alberta that the First Nations officers trained by the R.C.M.P. are not receiving the same funding as their fellow officers. This is creating an inequitable situation because the First Nations' officers are facing the same dangers. It is incumbent on the Federal Government or whatever funding agency, depending on the location of the police force, to finance the First Nations' officers properly. Third, the issue of hiring more First Nations police officers or the whole notion of indigenization is not the answer to First Nations' over-representation. What is happening is that the arresting officers may now have a brown face instead of only a white face. There are still many issues with the current justice system that have to be resolved and it must be remembered that indigenization is only a temporary solution.

Another important issue raised by the Treaty 8 First Nations of Alberta is the question of jurisdiction. Treaty 8 wants jurisdiction over the major highways running through reserve lands. The R.C.M.P. does not have the resources to police these roads but the First Nations are not allowed to police these highways. The issue of jurisdiction was addressed by former Chief of the Federation of Saskatchewan Indian Nations, Blaine Favel. He stated:

Our people have the inherent right of self-government that includes the administration of justice. This position has been examined in over thirty different justice inquiries since 1967 and the position remains the same. The position of First Nations' people about the justice system also remains unchanged because of the over-incarceration of First Nations people in the criminal justice system and its lack of flexibility and accountability to First Nations people. (Continuing Poundmaker's and Riel's Quest, page 136)

First Nations should have the jurisdiction to establish their own traditional justice system because we did not give up the right of self-government, justice, or other important areas during the Treaty negotiations. Instead, we reserved those rights for our people. Therefore, what should be occurring is the Federal and Provincial governments begin negotiations with the Treaty 8 First Nations of Alberta to recognize our jurisdiction over justice. It will be a long process but if we are successful then the problem of over-incarceration should be lessened.

Another related issue with jurisdiction is the right of First Nations to receive the revenue from the enforcement of the Highway Traffic Act violations. One of the things that I would caution the Treaty 8 First Nations of Alberta to be wary of is to consider who will be caught with increased enforcement. It will mainly be First Nations. In the present system, one of the major problems encountered by First Nations is the inability to pay fines as compared to the rest of Canadian society. This leads to more First Nations being incarcerated. The question is do we really want to be compounding the problems with over-representation or do we want to be part of the solution. If we start enforcing the Highway Traffic Act, then we will be making the situation even worse.

1. I would like to commend the Alberta Summit on Justice for all of the work that they are doing on the issue of justice. Hopefully, there will be a lot of valuable information that comes from their Justice Summit in January 1999. However, I believe that the Justice Summit will not meet the needs of the Treaty 8 First Nations of Alberta. Spending one and half hours to deal with both First Nations and Metis issues on justice is quite insufficient. To deal with the issue of over-representation, there needs to be a Justice Conference that is devoted entirely to concerns of the Treaty 8 First Nations.

2. The First Nations justice conference will address a number of very important justice issues. For example, the participants should consider:

a) What is traditional Cree and Dene justice? How did it work? Was it successful? How can it be modified to address the issues of First Nations as we move into the next millennium?

b) What are some of the current issues of justice? The conference could examine some of the current justice initiatives: The Bigstone First Nations dispute resolution process; Hollow Water First Nations Community Holistic Circle Healing Project; Onion Lake Community Justice Committee; Navajo Justice; Sentencing Circles; and other Justice Initiatives that the Treaty 8 First Nations of Alberta want to explore. The importance of hearing about these initiatives is that Treaty 8 First Nations could learn from the experiences of these groups, any difficulties that they encountered and the desirability of these initiatives for their people.

c) There should be a section to deal with the issue of policing. First Nations could talk about jurisdictional issues, hiring, training, funding, cross cultural awareness training, racism, and other important topics.

d) First Nations could explore Bill C-36 which calls for the return of offenders to the community. In addition, it sets up financing for programs to address the needs of Aboriginal offenders. This will allow First Nations to work on healing the offender and restoring harmony to the community.

e) Another important issue is what can we do to keep First Nations out of jail? Spirituality, education, pride, employment and many other related areas should be examined.

f) This is only a small list of areas to be examined in a Treaty 8 First Nations Conference on Justice. There are many others but it should be up to the Treaty 8 First Nations of Alberta to prioritize the areas to be considered.

g) Another important consideration is the participants. It will be critical to invite the Elders in order to provide information on traditional Cree and Dene justice. Representatives of the initiatives mentioned above should be invited. Judge Tom Goodson, Judge Murray Sinclair, and Judge Mary Ellen Turpel-Lafond should be invited to address their roles in court. Treaty 8 should also consider inviting some academics who have a lot of experience on justice issues. For example, Patricia Monture- Angus (UofS) , Michael Jackson (UBC), Leroy LittleBear (Harvard), Rupert Ross, Willie Littlechild, etc.

2
It is important to keep in mind substantial differences in the term `justice'. Unfortunately, the Euro-Canadian system utilizes justice to punish offenders with the hope that punishment will deter other people from committing the same actions. The First Nations concept of justice is focused on healing the victim and the offender with the end result of restoring harmony in the community. One of the issues that needs to be addressed in any forum on First Nations' justice is to explore the meaning of justice for Treaty 8 First Nations, what it means, how it was applied and to see how we should modify our system of justice for the next millennium.

3
An important issue for the Treaty 8 First Nations of Alberta to keep in mind is the fact that whenever we bring a case to court, we might lose. It may not matter how strong our facts are, whether the judicial precedents are in our favour, or how good our lawyers are, there are judges out there who have the Reform Party mentality and will rule against us each and every time.

This makes it important for the Treaty 8 First Nations of Alberta to start a meaningful dialogue with the Minister of Indian Affairs whereby we can discuss and negotiate issues that affect our Treaty rights. We should be trying to set up a bilateral commission where we can deal with Treaty grievances. If this process fails, then and only then should we go to the courts.

Chapter 20, SC.
(Bill C-36 assented to June 18, 1992)

Aboriginal Offenders:

79 In sections 80 to 84,

"aboriginal" means Indian, Inuit or Métis;

"aboriginal community" means a first nation, tribal council, band, community, organization or other group with a predominantly aboriginal leadership;

"correctional services" means services or programs for offenders, including their care and custody.

80 Without limiting the generality of section 76, the Service shall provide programs designed particularly to address the needs of aboriginal offenders.

81 (1) The Minister, or person authorized by the Minister, may enter into an agreement with an aboriginal community for the provision of correctional services to aboriginal offenders and for payment by the Minister, or by a person authorized by the Minister, in respect of the provision of those services.

(2) Notwithstanding subsection (1), an agreement entered into under that subsection may provide for the provision of correctional services to a non-aboriginal offender.

(3) In accordance with any agreement entered into under subsection (1), the Commissioner may transfer an offender to the care and custody of an aboriginal community, with the consent of the offender and of the aboriginal community.

82 (1) The Service shall establish a National Aboriginal Advisory Committee, and may establish regional and local aboriginal advisory committees, which shall provide advice to the Service on the provision of correctional services to aboriginal offenders.

(2) For the purpose of carrying out their function under subsection (1), all committees shall consult regularly with aboriginal communities and other appropriate persons with knowledge of aboriginal matters.

83 (1) For greater certainty, aboriginal spirituality and aboriginal spiritual leaders and elders have the same status as other religions and religious leaders.

(2) The Service shall take all reasonable steps to make available to aboriginal inmates the services of an aboriginal spiritual leader or elder after consultation with

(a) the National Aboriginal Advisory Committee mentioned in section 82; and

(b) the appropriate regional and local aboriginal advisory committees, if such committees have been established pursuant to that section.

84 Where an inmate who is applying for parole has expressed an interest in being released to an aboriginal community, the Service shall, if the inmate consents, give the aboriginal community

(a) adequate notice of the inmate's parole application; and

(b) an opportunity to propose a plan for the inmate's release to, and integration into, the aboriginal community.

Programs for Offenders:

76 The Service shall provide a range of programs designed to address the needs of offenders and contribute to their successful reintegration into the community.