The Justice System and Aboriginal People

The Aboriginal Justice Implementation Commission


Chapter 4

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Aboriginal Criminal Behaviour
Aboriginal Crime Rates
Criminological Theories
The Social Roots of Crime
The Socio-Economic Situation of Aboriginal People
The Justice System and Aboriginal Poverty

Systemic Discrimination in the Justice System

The Law and Discrimination
Systemic Discrimination
The Evidence
Discriminatory Factors
Where Discrimination Occurs in the Justice System



Aboriginal Over-Representation TOP

Introduction TOP

As we noted earlier, Aboriginal people constitute approximately 12% of the Manitoba population. Yet, Aboriginal people account for over one-half of the 1,600 people incarcerated on any given day of the year in Manitoba’s correctional institutions.

This is a shocking fact. Why, in a society where justice is supposed to be blind, are the inmates of our prisons selected so overwhelmingly from a single ethnic group? Two answers suggest themselves immediately: either Aboriginal people commit a disproportionate number of crimes, or they are the victims of a discriminatory justice system. We believe that both answers are correct, but not in the simplistic sense that some people might interpret them. We do not believe, for instance, that there is anything about Aboriginal people or their culture that predisposes them to criminal behaviour. Instead, we believe that the causes of Aboriginal criminal behaviour are rooted in a long history of discrimination and social inequality that has impoverished Aboriginal people and consigned them to the margins of Manitoban society.

Since racism exists throughout Manitoban and Canadian society, we have found that overt racism also exists in the administration of Manitoba’s justice system. As in society generally, overt racism must be confronted and condemned when discovered. There is no room in the administration of justice for those who are racist, because the power that rests in the justice system is enormous.

However, for Aboriginal people a more serious problem exists. We find that a system that seeks to provide justice on the principle that all Canadians share common values and experiences cannot help but discriminate against Aboriginal people, who come to the system with cultural values and experiences that differ substantially from those of the dominant society.

Cultural oppression, social inequality, the loss of self-government and systemic discrimination, which are the legacy of the Canadian government’s treatment of Aboriginal people, are intertwined and interdependent factors, and in very few cases is it possible to draw a simple and direct correlation between any one of them and the events which lead an individual Aboriginal person to commit a crime or to become incarcerated. We believe that the overall weight of the evidence makes it clear that these factors are crucial in explaining the reasons why Aboriginal people are over-represented in Manitoba’s jails.

It is also important to recognize that while this over-representation is the most graphic and disturbing example of the adverse impacts these factors have on Aboriginal people, it is not an isolated problem. Aboriginal over-representation is the end point of a series of decisions made by those with decision-making power in the justice system. An examination of each of these decisions suggests that the way that decisions are made within the justice system discriminates against Aboriginal people at virtually every point. We discuss how that happens in this chapter. We begin, however, by pointing out a number of the disproportionate and adverse impacts that characterize the dealings of Aboriginal people in the justice system.

• More than half of the inmates of Manitoba’s 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 offences than are non-Aboriginal accused.

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

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

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

In subsequent chapters we address each of these issues and make specific proposals as to how these impacts can be reduced or eliminated. Just as the causes of these impacts are complex and interrelated, our proposals are also multifacetted and attempt to deal with both the legacy of cultural oppression of Aboriginal people and the systemic discrimination that exists within the system. TOP


Aboriginal Criminal Behaviour TOP

As we stated in the introduction to this chapter, we believe that the fact that large numbers of Manitoba’s Aboriginal people come into conflict with the law stems from a mixture of discrimination on the part of the justice system and actual criminal behaviour on the part of Aboriginal people. In this section we examine the available statistics relating to Aboriginal crime rates and then examine the causes of criminal behaviour among Aboriginal people.

One might expect the police, courts and jails to be rich sources of information for such a discussion. However, these agencies simply do not keep meaningful statistics, especially ones that compare the experiences of Aboriginal and non-Aboriginal persons. This makes it extremely difficult to understand why Aboriginal people are so over-represented, or to propose meaningful reforms. Almost everything that is "known" about the system is based on personal observation or occasional, limited attempts to gather information.

Crime rates are indeed higher in Aboriginal communities. Why this is so is what we want to explore. Whether the system responds appropriately is another, equally significant issue.

The problem is magnified because of difficulties in defining "crime," and because different societies have different concepts of crime. For example, many Aboriginal peoples continue to exercise their rights to hunt and fish, although they risk prosecution under provincial and federal laws for doing so. In addition, society’s "criminals" are part of a larger group, some of which escape detection or conviction. We know next to nothing about the group that does not get caught or convicted. TOP


Aboriginal Crime Rates TOP

National crime rates for Indian bands are available from the Department of Indian Affairs. According to the department, the national crime rate is 92.7 per 1,000 population, while the crime rate for Indian bands is 165.6 per 1,000 population (1.8 times the national rate). Nationally, the violent crime rate is 9.0 per 1,000, while for Indian bands the violent crime rate is 33.1 per 1,000 (3.67 times the national rate). Departmental figures also make it clear that members of Indian bands are far more likely to be the victims of violent crime than other Canadians.1

The 1989–90 crime rate for areas of Manitoba policed by the RCMP, excluding reserves, was 10,025 offences for every 100,000 persons. The rate on reserves was 15,053 offences for every 100,000 persons, or 1.5 times greater. Another way of viewing this information is that approximately 17.5% of the offences occurred on reserves, while the reserve population was approximately 12.3% of the total population policed by the RCMP (according to Statistics Canada figures).2

Our analysis of information provided from a study of Provincial Court data3 shows that on the reserves surveyed, 35% of crime fell into a group of four offences: common assault, break and enter, theft under $1,000 and public mischief. Aboriginal persons were charged with fewer property offences, and more offences against the person and provincial statute violations, than non-Aboriginal persons.

These trends were also found by criminologists Mary Hyde and Carol LaPrairie, whose study showed that Aboriginal crime was quite different from non-Aboriginal crime. For Aboriginal people, their study found more violent offences, fewer property offences, more social disorder offences, higher overall rates of crime, and a strong relationship between alcohol abuse and crime. Almost conspicuously absent were crimes for profit, such as drug trafficking, prostitution, fraud and armed robberies. Although there were more violent offences than non-Aboriginal people committed, the majority of crimes committed were petty offences.4

Hyde and LaPrairie found that a very high proportion of Aboriginal violent crimes were directed against family members—a minimum of 41.4%. The actual figure may be much higher, because in another 50.2% of the files they studied, the relationship between attacker and victim is not known. It is known, however, that violent offences most frequently take place in private residences.5

It would be both unfair and inaccurate to stereotype all reserves as having a high crime rate. While some reserves have very high rates, other reserves have crime rates that are much lower than the provincial average.

The reserves that the Provincial Court data reported on had a considerably higher crime rate than other reserves in Manitoba, and at the same time had higher average incomes than other reserves. The reserves in the Provincial Court database had crime rates of 9,233 offences for every 10,000 persons aged 15 years or older, compared to a rate of 4,480 for every 10,000 persons aged 15 years or older on all other reserves in Manitoba. These reserves had more than twice the crime of other reserves (or were more likely to bring crime to the attention of the police). On the other hand, the median household incomes were $15,528 for the reserves examined by the Provincial Court study and $9,756 for non-Provincial Court study reserves.

It is important to note also that the statistics say nothing about Aboriginal crime off-reserve. In Manitoba, the majority of the Aboriginal population live off reserves (in large part because the Metis population almost entirely does not live on Indian reserves).

In conclusion, we believe that there is a higher rate of crime among Aboriginal people, but we also believe that over-policing and systemic discrimination within the justice system contribute greatly to it.

Studies of Canadian prison admissions indicate that alcohol abuse is a factor in many of the crimes committed by Aboriginal people. These include violation of liquor laws, crimes committed while the offender was under the influence of alcohol and offences committed to obtain additional alcohol supplies.6 Despite this strong correlation, we do not believe alcohol abuse should be viewed as a "cause" of Aboriginal crime. Rather, we believe that Aboriginal alcohol abuse arises from the same conditions which have created high Aboriginal crime rates. TOP


Criminological Theories TOP

An entire field of study, criminology, is devoted to determining causes of crime, and a great deal of academic attention has been directed toward explaining Aboriginal over-representation in the criminal justice system. Theories about the causes of crime generally fail to explain crime satisfactorily, in part because there is so little information about crime, police and the courts, and in part because there is so much confusion about correlations, causes and crime.

When it comes to explaining disproportionate crime rates, there can be many different conclusions, often based on widely different interpretations of the same data. Many of the theoretical differences are based on the ideologies of their proponents. Some criminologists tend to downplay social explanations for crime, preferring to attribute criminality to purely individual factors. Others rely almost completely on social explanations of deviance.

Often, the theories merely describe conditions in which crime frequently occurs, without trying to explain why it occurs. Many theories do try to explain what the causative factor is, but they rarely explain why the factor affects some persons and not others.7 Many theories overlap and describe the same conflicts within society, using a variety of different labels. Many of the theories are plausible, but few are completely persuasive or satisfactory. The interaction of human motivation and social forces resists neatly compartmentalized explanations or solutions. Even a quick review of some of the theoretical approaches demonstrates the variety of explanations which can be brought to bear.

Some theories are of no use at all in explaining the complex interaction of factors causing crime. One such theory relates to genetic causes of crime. There may well be certain biological or genetic conditions which affect a particular individual’s ability to make rational choices and to behave in socially accepted ways. The notion that these individual problems occur across entire races or ethnic groups has no basis in fact. Crime is universal and its causes are not related to race or ethnicity.

One school of thought is called functionalist theory, which suggests that because crime exists in all societies, it must have a function. The function suggested is that crime is required by societies to help define normalcy, to make some behaviours more attractive and to induce greater social cohesion.8 The superiority theory suggests that humans are conditioned to strive for superiority and, therefore, some people turn to crime as a means of achieving superiority.9 Strain theory suggests that people whose ambitions are severely frustrated will experience anger, which will lead to rebellion against the real or perceived causes of those frustrations.10

Conflict theory suggests that when a person is influenced strongly by two conflicting cultures, the attachment to the rules of either one is weakened and can produce deviant behaviour.11 Social disorganization theory explains deviance as a side effect of rapidly changing society—industrialization, urbanization, rapid technological change, and so on.12 Ecological theory identifies conditions in which crime flourishes, focussing mostly on physical conditions such as high density population, poverty, mixed use (i.e., residential and industrial), transience (homeless people, renters) and dilapidation.13 A specific condition that has been studied is crowded housing. Overcrowding has numerous consequences which may lead to interpersonal conflicts by itself, or simply add to the various stresses with which individuals must cope.14

Differential association theory provides that crime is learned by associating with others who have already rejected conduct norms and have committed themselves to deviance as a way to satisfy their desires.15 Criminality may be learned through films and other media.16 Another theory holds that persons will be more likely to conform when they stand to benefit by conforming.17 Other theories suggest that childhood exposure to violence and victimization in turn leads to violence. More than a dozen studies were done between 1978 and 1986 that offer evidence that violence begets violence.18  TOP


The Social Roots of Crime TOP

If you accept our assertion that much of the root cause of Indian peoples’ disproportionate conflict with the justice system lies in their poverty and marginal position in Canadian society, then what do you think is going to happen in the next 10 or 20 years, if radical changes do not occur?

Ovide Mercredi

Berens River

It is difficult not to concur with Ovide Mercredi’s assertion that the root causes of Aboriginal over-representation in the criminal justice system can be found in the poverty and marginalization of Aboriginal people. The Canadian justice system is, at its heart, a system of individual responsibility, where sanctions are levelled at specific individuals for specific actions which can be demonstrated, in a court of law, to have taken place, but it is also clear that there are social roots to criminal behaviour. It is extremely difficult not to conclude that there exists a significant relationship between social inequality and criminal behaviour.

To the extent that poverty does play a causative role in crime, it is not at all clear exactly how the causation process operates. To begin with, the majority of poor persons, of whatever race or circumstance, are not criminals. Further, the incidence of crime does not coincide consistently with income or employment levels. However, we cannot ignore the fact that Aboriginal people occupy the bottom rung on Canada’s socio-economic ladder and simultaneously are vastly over-represented in our prisons. Our survey of inmates, for example, reveals that only 30% of Aboriginal respondents were employed full time prior to their most recent arrests.

A variety of international studies point to the link between poverty and criminal behaviour. A British study concluded that working-class boys were twice as likely to become delinquents if they came from low-income families.19 A Danish study that examined the lives of people born in Copenhagen between 1941 and 1952 discovered that those children who had grown up in low-income families and lived in slum areas had a rate of imprisonment that was four times higher than all children born in the city during that period.20 Similar American studies have concluded that youths from lower socio-economic backgrounds are more likely to commit more, and more serious, crimes than youths from more privileged backgrounds.21

Some theories argue that it is not simply having few material things that plays a causative role, it is a question of being poor compared to others in the society; i.e., a sense of being hindered from attaining what others in society are able to attain. This point has particular relevance to Aboriginal people, given the unjust and repressive treatment they have received at the hands of the Canadian government. A recent study found that inequality was a better predictor of homicides than was poverty alone. This was true of economic inequality and even more true of racial inequality. This study concluded that:

[W]hat most predictably generates violent crime is not the simple absence of material goods, but rather the deeper attitudes of hopelessness and alienation produced by inequalities that are perceived as unjust.... Violence results “not so much from lack of advantage as from being taken advantage of.”22

One criminologist gives the example of Third World countries with low crime rates, and suggests that this can be explained by "a strong and encompassing community life that offers meaningful work and family roles in the midst of material deprivation."23 A study in rural India found that strong family relationships are important deterrents to interpersonal violence "because they provide a fundamental sense of belonging to a larger supportive community and because they provide the setting in which informal social sanctions against aggression and crime can operate effectively."24

Hyde and LaPrairie conducted a study of crime on 25 Indian reserves in Quebec. The study used four categories of Indian communities. It found that the communities that assimilated the least, that were the most remote and had the lowest incomes, had the least crime (below the national average), while the communities that were closest to urban centres and that had the greatest integration, the highest incomes and formal education, had the highest rates of property crime and the second highest rates of violent crime among the four community types.25

Aboriginal crime does not fit easily into any one of these various theories, perhaps because it appears to fit easily into all of them. From our review of the information available to us, including the nature of the crimes committed by Aboriginal people, and after hearing the hundreds of submissions presented to us in the course of our hearings, we believe that the relatively higher rates of crime among Aboriginal people are a result of the despair, dependency, anger, frustration and sense of injustice prevalent in Aboriginal communities, stemming from the cultural and community breakdown that has occurred over the past century. TOP


The Socio-Economic Situation of Aboriginal People TOP

So we find ourselves in the fertile breeding grounds of crime: high unemployment, lack of educational opportunities, substandard housing, inadequate health care, tradition, hunting, fishing and trapping rights being violated, a shortage of recreation facilities, and being subject to the law and which many times we don’t understand, laws which do not fit with our culture, values and traditions.

Chief Dennis Shorting

Little Saskatchewan Band

It is these substandard living conditions, unfair and unequal opportunities, unequal education, chronic high unemployment, and inadequate housing which generates the frustration and anger that leads to offences and criminal activity.

Chief Louis Stevenson

Assembly of Manitoba Chiefs

In Manitoba, Aboriginal people undoubtedly are the poorest of the poor. Low incomes, unemployment, poor health care, inadequate levels of education, crowded and substandard housing conditions—all are characteristic of Aboriginal life in Canada. It is crucial to recognize that the social condition of Aboriginal people is a direct result of the discriminatory and repressive policies that successive European and Canadian governments have directed towards Aboriginal people. The assault on Aboriginal self-government and culture that we outlined in the previous chapter served to impoverish and subordinate Aboriginal people. The overview of Aboriginal socio-economic conditions that we present now should be seen as the adverse impact of the European civilization of North America. TOP


An analysis of the 1986 census data provides a disturbing overview of the depth of Aboriginal poverty. The reported average income of persons with "total Aboriginal origins" in Manitoba is $10,672, compared to the average income of $16,796 for the province as a whole. There were 21.8% of status Indians who reported no income, compared to 11.5% of the total Manitoba population.26

Aboriginal people experience poverty more frequently than do non-Aboriginal people. According to a study conducted by Winnipeg’s Social Planning Council, more than one-half of Aboriginal households exist below the poverty line, compared to about 20% of non-Aboriginal households.27

This is part of a disturbing trend. Between 1981 and 1986, every Aboriginal group experienced an increase in the proportion of the population relying on government transfer payments as the major source of income.28


Unemployment rates are notoriously subject to wide interpretation because the statistics only count as "unemployed" those persons actively searching for work. If a person is not looking for work, and this could be for any number of reasons, including the obvious one for many reserve residents that there are simply no jobs to be had, then the person is not considered "unemployed" in official statistics.

Even with this underestimation of the true level of employment, the Indian unemployment rate is four times the non-Indian rate. According to the 1986 census, the labour force participation rate for Indians on reserves (those employed or included in unemployment statistics) averaged 53%, compared to 66.6% for non-Indian persons. The unemployment rate for Manitoba’s Indian population was 26.3%, compared to 7.6% for the total provincial population.29 We believe that the actual rate of unemployment among Aboriginal people in some communities is two to three times higher than that.

While the statistics reveal there is a positive relationship between employment and education, the employment benefits of an education are far less evident for Indian persons. According to 1981 figures, those Indians with high school education had unemployment rates three times higher than non-Indian persons with high school education. Non-Indian persons without high school had much lower unemployment rates than Indians without high school education. 30

Age, Birth and Families

Indian people have a much different age distribution than the general population in Manitoba. In 1971, 51% of the Indian population were under 15 years of age. For 1991, this is estimated to have declined to 38%. The corresponding 1991 figure for non-Indian people was 22%.31 Because there continues to be a high number of Aboriginal youth entering their child-bearing years, it is expected the Aboriginal birth rate will continue to remain higher than the provincial rate for some time.32

Indian families are more likely to be single-parent families, especially off-reserve, where 36% are single-parent families, compared to the provincial and reserve average, both at 18%.33

One important factor to take into account when considering over-representation is that young people are represented disproportionately in crime in all cultures. Thus, at least some of the Aboriginal over-representation is simply a reflection of the different age structure in their population.

Health and Death

The Indian death rate for persons between 25 and 44 years of age is five times higher than the non-Indian rate. For Indian men, the average age at death is 25 years younger than for non-Indian men. For Indian women, it is 28 years younger.34

Infant mortality rates also are higher, as are dietary problems.35 The suicide rate for Indian persons is more than double the non-Indian rate.36


In 1981 on-reserve residents in Manitoba lived in the most crowded housing conditions in Canada.37 This was the situation before the passage of Bill C-31, which reinstated thousands of Indians to their status, a proportion of whom have returned to their reserves. In addition, there has been a decade of high birth rates since then. The average Aboriginal household has twice as many people as non-Indian households.38

Indian housing is of inferior condition. Their homes are three times more likely to be in need of major repair. Only 40% of Indian homes have central heating, compared to 82% for non-Indian homes. Only 44% of Indian dwellings on-reserve, and 34% of Manitoba’s total Indian population, have indoor plumbing. This is well below the national average for Indian homes of 82%, and the non-Indian average of 94%.39

Indian people rent accommodations and change residences more frequently than non-Indian people. This is especially true for off-reserve Indian people. Non-Indian families were two and a half times more likely than off-reserve Indian households to live at their present address for six years or more (48% vs. 18%). Seven of 10 non-Indian households lived at their present address for three years or more, compared to only 35% of off-reserve Indian households.40


According to the 1986 census, 34.2% of Manitoba’s Indian population over the age of 15 had less than grade nine education, compared to 18.2% of the total provincial population.41

Aboriginal education has suffered from a long history of being primarily a tool of cultural assimilation. Aboriginal students, particularly on-reserve, are being instructed in a second language. Only recently has Aboriginal education attempted to prepare Aboriginal students for skilled employment or post-secondary education.

Even today, Aboriginal education is culturally biased. The materials and subjects used for teaching are largely designed for and by non-Aboriginal persons, with little or no regard for the cultures, histories and realities of Aboriginal life. Although residential schools have disappeared, it is still the case in many reserves that children must leave the community to attend high school, resulting in the absence of family support and parental involvement in the education system. TOP


The Justice System and Aboriginal Poverty TOP

We can trace an unbroken record of injustice back through generations, to our grandfathers and our grandmothers, our great-grandfathers and to those before them. We can trace them back to the time when a label was put on our people, legitimate victim. Other people learned that they could victimize us and nothing would happen because the laws, your laws, did not protect us.

Rufus Prince

Long Plain

From the perspective of Aboriginal people, the justice system has contributed to Aboriginal poverty by failing to provide them with the means to fight the oppressive conditions imposed upon them. It has not assisted Aboriginal peoples in defending their claim to their lands or in enforcing their treaty promises. In fact, at one time it was illegal for lawyers to represent Aboriginal persons without the consent of the federal government or for Aboriginal people to raise money to press their land claims. The loss of Aboriginal land is a clear contributor to poverty.

Nor has the justice system assisted Aboriginal peoples in defending their freedoms of belief, religion and association. The law forced Aboriginal parents, under threat of prosecution from the justice system, to send their children to residential schools. The justice system also failed to protect Aboriginal families from the child welfare practices of the 1960s and 1970s, which continue to create problems off reserves today. The separation of families, the oppression of culture and language, and the lack of Aboriginal control over decisions within their communities have contributed to inadequate education and to community breakdown, which in turn lead to poverty, as community resources are underdeveloped. TOP


Stress TOP

Another link between poverty and crime focusses on how the various social conditions associated with poverty contribute to stress. A recent study shows that while stress factors may increase one by one, the proportion of people unable to cope with stress multiplies with each additional stress—some social scientists refer to this as a "compound interest effect."42 Most people can deal well with one or two and even three major stresses at once, but after a point, more and more people lose the ability to cope. Their manner of ceasing to function varies: some withdraw into passivity or illness, while others act out violently against themselves or others.43

There is a wide array of stresses affecting Aboriginal people. One of the stresses is poverty, with its related effects. Other stresses are just as important, and perhaps more important, than poverty. Primary among these are the cultural conflicts and frustrations faced by Aboriginal people. They are confronted with acts of discrimination on a regular basis. Aboriginal people are the objects of education, health care, child welfare and justice systems that have historically denied the value of Aboriginal beliefs and practices. Aboriginal people have been denied the opportunity to make decisions to control their own lives and communities. Aboriginal people have been forced to conform to foreign systems without being fully accepted or respected by those systems. At the same time, Aboriginal people have had their own cultures attacked and denigrated. All these factors have created enormous stresses and frustration.

Lisa Hobbs Birnie, a former member of the National Parole Board, offers this description of Aboriginal crime :

The native crime that I saw seemed to spring out of spontaneous rage and fury, as if the heart and mind had been one long-smouldering fire that had finally been ignited into an explosion. The planning, the conspiracies, the calculated risk, the cool and deliberate scheming that characterize so many white crimes are usually absent from the average native pattern. In fact, many native crimes occur in bars, or at parties, or in the middle of the street, and often in the middle of the day when all the world is around to see. There is nothing hidden about them. The offender has no hope of avoiding detection, no hope of getting away with it. There is in much native crime a terrible element of self-destruction, a certitude of punishment to follow, a hopeless despair, and a loathing of self. No one who felt his or her life was worth living would act in this way.44 TOP


Conclusion TOP

In concluding our discussion of the roots of Aboriginal crime, we wish to stress the links between the anger and frustration created by Aboriginal poverty and criminal behaviour. The poverty experienced by Aboriginal people has a number of unique—and oppressive—aspects. The avenues through which Aboriginal people might be able to escape from their current social conditions, such as the justice system, the education system, economic development in their communities and the institutions of local government, are perceived by Aboriginal people to be under the control of external governments.

As we stated at the outset of this chapter, the over-representation of Aboriginal people in the province’s criminal justice system is not related solely to high Aboriginal crime rates. We believe that Aboriginal over-representation also arises because the current justice system, in many ways, is culturally inappropriate and discriminatory in its treatment of Aboriginal people. There can be no question that the poor are vastly over-represented in the criminal justice system. Since Aboriginal people are vastly over-represented among the poor, any discrimination felt by poor people has a disproportionate impact on Aboriginal people.

What constitutes criminal conduct and how it is punished are also related in part to economic considerations. The criminal law has made illegal some acts that are linked directly to poverty, such as vagrancy, public intoxication and stealing, and incarcerates those who are unable to pay fines, or holds in custody those who cannot post bail. There are other discrimantory barriers facing Aboriginal people as well, including cultural ones. We will now discuss the role discrimination plays in the over-representation of Aboriginal people in the criminal justice system. TOP


Systemic Discrimination in the Justice System

Overview TOP

Prejudice, racism and discrimination have existed since the beginning of human history. They are particularly likely to develop when there is close association of separate groups of people, especially if they have different cultures, religions or skin colours. Canada has a long and tragic history of discrimination and racism.

Racism in Canada is not confined to any particular group. Racist government policies authorized slavery in Canada until 1834; created segregated schools for blacks and Indians; prohibited Chinese persons from certain kinds of jobs or activities; expropriated property and confined Japanese-Canadians to internment camps during World War II; permitted the expulsion of the Acadians from the Maritimes; virtually prohibited the entry of Jewish refugees into Canada during the Holocaust; discriminated against Indians, Chinese, Japanese, East Indians and others with regards to voting rights; and established racist immigration classifications and quotas.45

Aboriginal peoples have experienced the most entrenched racial discrimination of any group in Canada. Discrimination against Aboriginal people has been a central policy of Canadian governments since Confederation.

Thus a policy devised in the 1830’s was reiterated, elaborated, and carried forward to Confederation. Almost intact it has served up to this day as the guiding star for administrators of Indian affairs. Probably in no other sphere has such continuity or consistency of clarity of policy prevailed; probably in no other area has there been such a marked failure to realize ultimate objectives.46

The discrimination against Aboriginal people by our governments and permitted by the general Canadian population represents a monumental symbol of intolerance. Government policies have been singularly aimed, for over a century, at reducing the differences that exist between Aboriginal life and the mainstream of Canadian society, in the hope that Aboriginal peoples would disappear as distinct societies. The extent to which Aboriginal peoples have retained their distinctiveness is a testimonial to their strength and endurance as peoples.

In the previous section we concluded that Aboriginal communities are experiencing more crime than other communities. We reviewed the causes for this and concluded that much of this crime results from conditions that are the legacy of past policies of oppression and discrimination. Conditions have been created in Aboriginal communities to which some individuals will respond by acting in deviant ways.

Here, we discuss discrimination that is related directly to the current operation of the justice system, discrimination that affects individuals who may not be guilty of the charges made against them, or discrimination that imposes greater hardships on Aboriginal offenders than on others. TOP


The Law and Discrimination TOP

Racism, prejudice and discrimination are widely used terms in our society, and are generally well understood. However, each term has its own interpretation difficulties. "Prejudice" is a word with origins from Latin, and means literally to "pre-judge." Typically, prejudice means forming negative opinions about persons because of specific attributes, such as skin colour, religion, physical handicap, or other attributes. Discrimination is doing something or failing to do something because of prejudice.

Racism is a form of discrimination. Usually, the term "race" in this context is meant to refer not only to skin colour, but also to religion, language or country of origin. Precise definitions of race are elusive, and serve only to make unjustifiably broad generalizations about groups of people who have considerable differences among them. However, racism is a fact. There are many people who form negative opinions and act on those opinions because of what they think a person’s race is.

The 1948 Universal Declaration of Human Rights of the United Nations declares:

All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. (Art. 7)

[Article 2 provides every right in the Declaration is for the benefit of] everyone ... without distinctions of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The United Nation’s International Covenant on Civil and Political Rights provides:

26. All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

27. In those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.

The International Covenant on Economic, Social and Cultural Rights and the Optional Protocol to the International Covenant on Civil and Political Rights, combined with the two documents quoted above, are known collectively as the International Bill of Human Rights. In total, there are approximately 60 international documents proclaiming the importance of human rights, including the 1965 Convention on the Elimination of All Forms of Racial Discrimination.

Canada has ratified the latter Convention as well as the International Bill of Human Rights. It also proclaimed its acceptance of these principles domestically in 1960, through the passage of the Canadian Bill of Rights. This proved to be largely ineffective in advancing the primacy of human rights, in part because it was an ordinary statute and not part of an entrenched constitution. In 1982, the new Constitution Act included the Charter of Rights and Freedoms. One of its provisions dealt with equality. It did not come into force until 1985, to allow governments time to prepare for this new standard of judging legislation. Section 15 states:

15 (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

In addition, each province has its own human rights legislation. One of the more recent and comprehensive is the 1987 Manitoba Human Rights Code, which states:

9 (1) In this Code, “discrimination” means

(a) differential treatment of an individual on the basis of the individual’s actual or presumed membership in or association with some class or group of persons, rather than on the basis of personal merit; or

(b) differential treatment of an individual or group on the basis of any characteristic referred to in subsection (2); or

(c) differential treatment of an individual or group on the basis of the individual’s or group’s actual or presumed association with another individual or group whose identity or membership is determined by any characteristic referred to in subsection (2); or

(d) failure to make reasonable accommodation for the special needs of any individual or group, if those special needs are based upon any characteristic found in subsection (2).[Our emphasis]

The applicable characteristics for the purposes of clauses 1(b) to (d) include "ancestry, including colour and perceived race," "nationality," "ethnic background," "religion or creed" and "political activity," among others. Subsection 9(3) provides:

(3) In this Code, “discrimination” includes any act or omission that results in discrimination within the meaning of subsection (1), regardless of the form that the act or omission takes and regardless of whether the person responsible for the act or omission intended to discriminate. [Our emphasis]

The Human Rights Code prohibits discrimination in various areas of human activity, such as in housing, public contracts and employment practices. An exception is permitted in employment if the discrimination is based upon bona fide and reasonable requirements or qualifications for the position. (s. 14)

The Supreme Court of Canada now has had the opportunity to comment on discrimination several times since the passage of the Charter of Rights and Freedoms, and it is important to understand how the court views discrimination.

[D]iscrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed.47 TOP


Systemic Discrimination TOP

Two common terms used when discussing discrimination are "overt" and "systemic." Generally, "overt" discrimination is discrimination which is open and deliberate, and intended to be discriminatory. The term "systemic" discrimination is used where the application of a standard or criterion, or the use of a "standard practice," creates an adverse impact upon an identifiable group that is not consciously intended.

What section 9(3) of the Manitoba Human Rights Code makes explicit for Manitoba, the Supreme Court in Andrews makes clear for the whole country: discrimination does not necessarily require intent, but can be established upon proof of adverse impact. Mr. Justice McIntyre adopted this leading statement from the Report of the Federal Royal Commission on Equality in Employment:

It is not a question of whether this discrimination is motivated by an intentional desire to obstruct someone’s potential, or whether it is the accidental by-product of innocently motivated practices or systems. If the barrier is affecting certain groups in a disproportionately negative way, it is a signal that the practices that lead to this adverse impact may be discriminatory.48

A good example of systemic discrimination, which has recently been acknowledged and remedied, at least partly, involves height and weight restrictions employed by many police departments in past years for their recruits. Although these standards are neither racially nor gender based, their imposition had the effect of eliminating most women and many visible minorities. Criteria which appear to be neutral in this situation had an adverse impact upon those particular groups. While one could not argue with the wish of police forces to have members who could withstand the physical demands of the work, it was universally recognized that there were better ways of achieving that goal.

In principle, the justice system applies apparently neutral laws and policies to all Manitobans in an equal manner. In reality, those laws and policies are developed by leaders of a society that is culturally distinct from (and to some extent antagonistic to) Aboriginal societies. As a result, there are wide differences in services available across the province and for specific groups. There exist numerous laws and practices that discriminate in a systemic manner against Aboriginal people. To give but a few examples, translation services are inadequate, court sittings in Aboriginal communities are infrequent, and the law discriminates against low-income people in the granting of bail and imprisonment for non-payment of fines.

Of equal importance is the manner in which the decision-maker applies the law to the individual. "Is this a dangerous person?" and "Is this a person who can be trusted?" are important, yet inherently subjective, questions. Such questions are necessarily influenced by one’s own culture and one’s own perception of other cultures.

A significant part of the problem is the inherent biases of those with decision-making or discretionary authority in the justice system. Unconscious attitudes and perceptions are applied when making decisions. Many opportunities for subjective decision making exist within the justice system and there are few checks on the subjective criteria being used to make those decisions. We believe that part of the problem is that while Aboriginal people are the objects of such discretion within the justice system, they do not "benefit" from discretionary decision making, and that even the well-intentioned exercise of discretion can lead to inappropriate results because of cultural or value differences. Winnipeg lawyer Greg Rodin, in a presentation on behalf of B’nai Brith, made this point:

It is plain to us, however, that native people are victims of discrimination of the most insidious kind; the kind which rarely can be remedied through our legal processes because it is often subtle and well camouflaged.

The real source of this discrimination is the well-meaning individual who does not consider himself a bigot but who, without realizing it, adheres to stereotypical views concerning natives. When these individuals hold positions of authority in our institutions, the result is institutional discrimination against native people and perpetuation of injustice and lack of equal opportunity.

However one understands discrimination, it is clear that Aboriginal people have been subject to it. They clearly have been the victims of the openly hostile bigot and they also have been victims of discrimination that is unintended, but is rooted in policy and law. TOP


The Evidence TOP

The best evidence of systemic discrimination lies in the adverse impacts that the system has on Aboriginal people.


The over-representation of Aboriginal people in our prisons has been getting significantly worse over the past 25 years. Prior to the Second World War, Aboriginal prison populations were no greater than Aboriginal representation in the population. By 1965, however, 22% of the inmates at the Stony Mountain penitentiary were Aboriginal. In the subsequent years this trend has continued and accelerated.

In 1984 Aboriginal people accounted for 33%49 of the population at Stony Mountain federal penitentiary and by 1989 they accounted for 46% of the penitentiary population. In 1983 Aboriginal people accounted for 37%50 of the population of the Headingley Correctional Institution; by 1989 they accounted for 41% of the institution’s population. In 1989 Aboriginal people accounted for 67% of the inmate population at the Portage Correctional Institution for women. The Aboriginal population in institutions for young people in 1989 was 61%.

The Aboriginal population of all provincial correctional institutions in 1989 was 57%. The Aboriginal population of all correctional institutions in Manitoba (both federally and provincially administered) in 1989 was 56% (according to figures provided by the Manitoba Department of Justice and the Correctional Services of Canada).

Thus, Aboriginal people, depending on their age and sex, are present in the jails up to five times more than their presence in the general population. Moreover, "the full extent of the problem is not known because statistics underestimate the extent of Aboriginal representation in the ... correctional system."51

Over-Charging of Aboriginal People

According to our analysis of the Provincial Court study statistics, 22% of Aboriginal persons appearing in Provincial Court faced four or more charges, compared to only 13% of non-Aboriginal persons. At the other end of the scale, while 50% of non-Aboriginal charged persons faced only one charge, this was true for only 37% of the Aboriginal persons.

The data showed that Aboriginal persons who were charged faced 2.72 charges per person, compared to 2.19 for non-Aboriginal persons (almost 25% more charges per Aboriginal person).

The Denial of Bail and Pre-Trial Detention

Studies of Provincial Court data reveal that:

• Aboriginal charged persons were 1.34 times more likely (55% versus 41% of non-Aboriginal charged persons) to be held in pre-trial detention.

• Of adult males between the ages of 18 and 34, Aboriginal persons spent approximately 1.5 times longer in pre-trial detention.

• Aboriginal charged women aged 18–34 were 2.4 times (48% compared to 20% of non-Aboriginal charged women) more likely to be held in pre-trial detention.

• In Winnipeg, Aboriginal detained persons spent more than twice as long in pre-trial detention as non-Aboriginal persons. Of persons held in pre-trial detention but subsequently released on bail, Aboriginal persons spent more time in custody before release.

• Aboriginal youth in pre-trial detention were detained an average of 29.3 days, compared to 10.8 days for non-Aboriginal youth.

Less Time with Lawyers

Our survey of inmates revealed that Aboriginal inmates spend considerably less time with their lawyers. In fact, Aboriginal accused are more likely than non-Aboriginal accused to appear in court without a lawyer. While 61% of Aboriginal respondents saw their lawyers three or fewer times, 63% of non-Aboriginal respondents saw their lawyers four or more times. Forty-eight per cent of the Aboriginal respondents spent less than an hour in total with their lawyers, compared to 46% of non-Aboriginal inmates who saw their lawyers for three or more hours. The lack of time spent with a lawyer can have significant consequences for how an accused is dealt with in the system, because the lawyer may be less informed about the circumstances of the offence, the potential defences and the resources available as alternatives to detention.

Sentencing and Guilty Pleas

According to our analysis of Provincial Court study data, Aboriginal persons pleaded guilty in 60% of the cases, compared to 50% for non-Aboriginal persons.

Our analysis of the data also reveals that approximately 25% of Aboriginal persons received sentences that involved some degree of incarceration, compared to approximately 10% of non-Aboriginal persons, or 2.5 times more for Aboriginal persons.

In the sentencing of males between 18 and 34 years of age, Manitoba courts handed sentences involving some degree of incarceration to 29.5% of the Aboriginal offenders and 10.9% of the non-Aboriginal offenders. In the sentencing of females between 18 and 34 years of age, Manitoba courts handed sentences involving some degree of incarceration to 19.2% of the Aboriginal offenders and 3.7% of the non-Aboriginal offenders.

Our analysis showed that 79% of Aboriginal offenders received a "full sentence" (one in which the most serious charge is not reduced or where the sentence is not a discharge or suspended sentence), compared to 65% of non-Aboriginal offenders. Forty-two per cent of Aboriginal accused received "minimum sentences" (absolute and conditional discharges, suspended sentences and reprimands), while 58% of non-Aboriginal accused received such sentences. However, the data revealed no difference between Aboriginal and non-Aboriginal persons in the number of previous convictions, so the prior criminal record does not explain this discrepancy.

These statistics are dramatic. There is something inherently wrong with a system which takes such harsh measures against an identifiable minority. It is also improbable that systemic discrimination has not played a major role in bringing this state of affairs into being. TOP


Discriminatory Factors TOP

There are a variety of systemically discriminatory factors at play which are likely to be present at most steps of the criminal law process and which lead to adverse impacts on Aboriginal people. These include the economic disadvantages that Aboriginal people experience, the impact of the poor quality of educational service provided to Aboriginal people, cultural differences between Aboriginal and non-Aboriginal people in their approach to the law, the lack of Aboriginal people employed in the justice system and the level of service that the justice system provides to Aboriginal people. We shall examine these factors in turn and then look at their impact on the various steps in the judicial process.

Economic Disadvantage

Many judges take employment into account when considering what an appropriate sentence might be. Employment can be interpreted by some as an indication of trustworthiness or as an indication that the individual would not risk his or her job by getting into more trouble. Judges also may want to ensure employment is continued, out of a concern for the economic dependants of the accused.

Employment can be important in deciding whether to release a person on bail or whether to impose a jail sentence. Employment potential or plans can be used as a reason to release a person on parole. Since Aboriginal people have less access to employment, this factor has a disproportionately negative impact on Aboriginal people.

Educational and Language Factors

Given the poor quality of educational services provided to Aboriginal people, any justice system program that relies on educational credentials to enable persons to benefit from the program will result in disproportionately less benefit for Aboriginal persons, due to literacy problems.

The presumption that ignorance of the law is no excuse has a disproportionate impact on Aboriginal people, who are less likely to be able to read the law, to have access to libraries or government offices for legal information, and are less likely to learn about the law in school. Since Aboriginal concepts of the law are also different, it is unfair to presume that Aboriginal people should know what non-Aboriginal law deems to be wrong behaviour.

The justice system does virtually nothing to reach Aboriginal people in their first languages. It does not produce pamphlets or even signs in Aboriginal syllabics; it does not produce information videos in Aboriginal languages; it does not permit persons who speak only their Aboriginal language to sit on juries; and it does not provide for translation to the public who attend court in their communities. Any translation provided is for the benefit of the accused and the court party only. The accused’s family, the victim (when not testifying), the chief and council, and any other spectators must rely on English, even when all persons concerned in a particular incident are more comfortable using the local Aboriginal language.

The justice system does make a token effort to accommodate Aboriginal languages for the accused through the Court Communicator program, which recently has been converted to an Aboriginal Court Worker program and is undergoing a re-examination of its goals. Court communicators are not widely available to assist persons, spend even less time with accused persons than lawyers and are unavailable particularly in urban centres. Even when communicators are present, their effectiveness is limited since their instruction is minimal and has not included training in legal terminology or translation problems. Court communicators are not trained interpreters, although they have been relied upon in that way from time to time.

Cultural Factors

Our earlier chapter on Aboriginal concepts of justice outlined the ways in which differing cultural views of justice and justice systems can lead to systemic discrimination against Aboriginal people within the Canadian justice system.

To briefly recap the findings of that chapter, systemic discrimination based on cultural factors can arise from differing concepts of crime and justice, conceptual misunderstandings and communication difficulties. Different cultures can have differing concepts of crime. There can also exist different concepts as to the purpose of a legal system. Aboriginal cultures seek to promote individual autonomy and personal freedom, while protecting community harmony and preserving personal relationships. These values are in conflict with the Canadian justice system, which stresses confrontation, a restriction of those issues which can be addressed by the courts, and the use of adversarial counsel, and makes extensive use of punitive rather than restitutive sanctions. The point was made by Harvey Blacksmith in his testimony at Cross Lake:

The way the law is run is complicated and frustrating. It’s a clash between two completely different races, different opinions, different thoughts, feelings and so on.

The clashing values lead to a variety of conceptual misunderstandings. In the Canadian legal system, guilt is a technically defined term; for example, to be guilty of certain crimes a person must not only have committed an act, he or she must have had a criminal intent. It is quite proper for people who have committed certain acts to plead not guilty and, indeed, to be acquitted. It should not be seen as surprising that this intricate definition of guilt and innocence does not translate easily into other cultures and languages. As a result, an Aboriginal person might feel compelled to plead guilty to a charge if he or she had committed the act, even if that person had not had a criminal intent, or had some technical defence.

In addition, many Aboriginal languages simply do not have words which are equivalent to the language of the Canadian judicial system. Words such as "arrest," "bail" and "probation," to name only a few, resist easy and clear translation. Those translations which do exist often give the terms a coloured or loaded meaning. Also, Aboriginal cultures may place less significance on measured distance, time and location than do non-Aboriginal cultures—leading to difficulties when Aboriginal witnesses are questioned as to when something happened or where something happened.

The 1986 census reported 28% of all Manitoba’s Aboriginal population had an Aboriginal language as the first language spoken as a child and still understood. For persons identified in the census as "North American Indian only," the proportion with an Aboriginal language as a mother tongue was reported at 52%.52 It was reported that 84% of residents on-reserve retained their Aboriginal mother language in the home, compared to only 31% off-reserve.53

The fact is that one of the most frequent complaints we heard during the hearings was that Aboriginal people did not understand the court process and did not understand their options at various stages in the process.

A probation officer came across a certain client who had gone through the system three times. Three times he had failed to do his community service order. [The] probation officer found that the boy didn’t understand English. [He] spoke to the boy in Saulteaux and explained to him what his community service obligations were and within a week the boy had done them.

Ron Richard

Manitoba Metis Federation

Most of the time when a native person is charged, they don’t always fully understand what is said, or understand the charge. They don’t understand what the judge is saying, and it’s these people that plead guilty.

Joan Soulier

South Indian Lake

As important as it is to understand what is going on in court, it is more important to understand one’s rights when dealing with the police. Statements made to the police are the primary tool of the prosecution to convince persons to plead guilty, and are the primary evidence for the prosecution in trials. While the police must advise accused persons of their rights to remain silent and to consult a lawyer, it is not at all clear that these rights are being fully understood. An ability to communicate in English is no assurance of an ability to understand fine distinctions and interpretations of legal terms. There are no court communicators available at the police interview stage, which is arguably more important than having them present in court.

Level of Service Provided

Generally, the justice system is designed for a population that is highly urbanized, literate in English or in French, and has a basic understanding of how to take advantage of existing support services.

The justice system serves Winnipeg best, and then the other large non-Aboriginal centres. Remote reserves in the North are the absolutely last priority of the justice system. Getting protection from police and obtaining access to courts, justice services, lawyers and jails are all the more difficult for Aboriginal people because these services involve added cost and travel.

Approximately 37% of Manitoba’s Aboriginal population live on reserves (62% of registered Indians). We estimate that 36% of Manitoba’s Aboriginal population live in the north of the province, compared to only three per cent of the rest of the population. We estimate that a further 31% of Manitoba’s Aboriginal population live in the city of Winnipeg, compared to 60% of Manitoba’s non-Aboriginal population.54

A lack of facilities, resources and services in Aboriginal communities becomes another factor in the poor treatment of Aboriginal people. Decisions not to release a person on bail, probation or parole sometimes stem from the fact that needed supervision or counselling services do not exist in the person’s home community.55

The Under-Employment of Aboriginal People in the Justice System

According to the Province’s affirmative action statistics, as of April 4, 1991, only 3.16% or 36 of the Department of Justice’s 1,141 employees (excluding corrections) were Aboriginal. Of these 36, 12 were court communicators (which are positions only available to Aboriginal persons), two were human rights officers, two were sheriffs and one was an accountant. There is only one judge, and no one in management positions within the department, no lawyers, and no policy and research officers.

In the correctional field, the numbers are somewhat better, with 6.43% or 77 Aboriginal employees out of 1,197 total employees. Of these 77 people, 48 are correctional officers and 27 are counsellors (including probation officers).

This under-employment represents a clear systemic bias against Aboriginal people. We also believe the exclusion of Aboriginal people from decision-making positions within the justice system virtually guarantees that none of the discretionary decisions made by system personnel will be culturally appropriate to Aboriginal people. TOP


Where Discrimination Occurs in the Justice System TOP

The factors that we have considered above come into play at a variety of points in the justice system and help to bring about the adverse impacts that we have identified earlier. In this section we identify the major points of discrimination in the criminal justice system. Subsequent chapters will provide detailed analyses of these issues and propose a variety of reforms.

The Selection of Who Is to be Policed

Differences in crime statistics between Aboriginal and non-Aboriginal people result, at least in part, from the manner in which the behaviour of Aboriginal people becomes categorized and stigmatized. This may happen because, to a certain extent, police tend to view the world in terms of "respectable" people and "criminal" types. Criminal types are thought to exhibit certain characteristics which provide cues to the officer to initiate action. Thus, the police may tend to stop a higher proportion of people who are visibly different from the dominant society, including Aboriginal people, for minor offences, simply because they believe that such people may tend to commit more serious crimes. Members of groups that are perceived to be a danger to the public order are given much less latitude in their behaviour before the police take action. An example might be a group of Aboriginal youth who gather in a park. Because it is believed that their presence may be a precursor to more deviant action, they are subjected to controlling activities by the police.

Some studies of the causal relationship between poverty and crime have focussed on the attention which police forces and legislators give to the activities of the poor, while upper-class conduct, such as tax evasion, conflicts of interest, unsafe working conditions, polluting, etc., go relatively unregulated and unenforced. "Crime and delinquency are ‘found’ among the poor because that is where they are sought."56

Many who appeared before us complained about being stopped on the street or on a country road and questioned about their activities. We heard complaints that Aboriginal people are charged with offences more often than their non-Aboriginal counterparts. They may also be charged with a multiplicity of offences arising out of the same incident. Many charges are never proceeded with, and appear to have been unnecessary. We believe that many Aboriginal people are arrested and held in custody, where a non-Aboriginal person in the same circumstances either might not be arrested at all, or might not be held.

Pre-Trial Detention

Judges traditionally consider factors such as employment, mobility, family ties, whether the accused is employed, whether the accused has a fixed address and the accused’s links with the community when determining whether to grant bail. Because of their disadvantaged position, the impact on Aboriginal people is negative.

Legal Representation

Because of their low incomes, Aboriginal people are not as able as non-Aboriginal people to obtain legal representation. Legal Aid rejects more than 6,500 applications per year, and has rules that severely limit the availability of Legal Aid services for civil and family cases and for certain "minor" criminal cases—even though any criminal conviction results in a criminal record with its consequent negative influence. Further, Legal Aid financial guidelines mean that the "working poor," who earn too much to qualify for Legal Aid but cannot afford a lawyer, go without representation.

The Hearing Process

Accused persons usually face a variety of court hearings before the charges against them are disposed of. As we noted above, the court procedures are often quite culturally foreign to Aboriginal people. Not only may certain terms and concepts be unfamiliar to them, but Aboriginal people may feel that, out of respect to the officers of the court, they should provide the answers which they believe the officials are expecting.

But the court system itself discriminates against Aboriginal people in its rules and procedures. The court system involves several court hearings. When the period of time between court hearings is a minimum of one month, as in the case of circuit court, even a simple matter can take several months to resolve. This delay has a negative impact on the entire Aboriginal community—victims, witnesses and their family members, as well as the accused. We were told that people often plead guilty simply to bring this prolonged period of anxiety to an end.

The circuit courts do not provide separate adult, youth and family court sittings, something which is unheard of in the city of Winnipeg.

In addition, the Court of Queen’s Bench, the only court in Manitoba which holds jury trials, does not hold any trials in Aboriginal communities. As a result, Aboriginal people accused of serious crimes are rarely tried by juries comprised of members of their home community.


Another factor in Aboriginal incarceration is the employment and income status of the accused. Our survey of lawyers found that 79% (67 of 85) felt that the employment and income status of the accused was important or very important to the sentencing judge.

Some studies report that pre-trial detention contributes to more convictions and harsher sentences, as the sentencing judge already knows that the police and, in many cases, another judge have found the offender should be in jail.57 The high rates of Aboriginal pre-trial detention thus may contribute to incarceration rates.

It is often said that pleading guilty is a mitigating factor in sentencing, being an indication that the offender accepts responsibility for the crime and is remorseful. If that is true, Aboriginal persons do not appear to benefit as much as they should, because they are pleading guilty more often than non-Aboriginal persons, but are being sentenced more harshly.

It is also said that Aboriginal persons receive harsher treatment in the justice system because they commit more crimes, have longer criminal records, face a greater number of charges or face more serious charges. Our analysis of Provincial Court data shows that, while Aboriginal offenders are incarcerated 2.5 times as much as non-Aboriginal offenders, on average Aboriginal and non-Aboriginal accused had the same number of previous convictions, Aboriginal accused faced 1.24 times as many charges, and 1.35 times as many Aboriginal accused faced more than one charge.

On the other hand, the available data indicate that Aboriginal persons are more likely to commit offences against the person. Reserves are experiencing as much as six times the rate of offences against the person as non-reserve areas.

There are other indications, however, that seriousness of the offence is not an adequate explanation for Aboriginal incarceration rates. The Provincial Court data indicate that for "common offences" (mischief, wilful damage, theft of less than $1,000 and common assault), Aboriginal men aged 18–34 were more likely to receive sentences of incarceration and the sentences they received tended to be longer than those given to non-Aboriginal men in the same age category. Aboriginal women aged 18–34 were more likely than non-Aboriginal women to receive sentences of incarceration, but sentences were not significantly different from those given to non-Aboriginal women in the same age category.

In addition, Aboriginal persons consistently have represented approximately 60% of total fine defaulters admitted to jails, even though Aboriginal offenders had fewer outstanding fines.58

For these reasons we conclude the number of charges and the seriousness of charges do not adequately account for Aboriginal rates of incarceration. TOP


Conclusion TOP

Historically, the justice system has discriminated against Aboriginal people by providing legal sanction for their oppression. This oppression of previous generations forced Aboriginal people into their current state of social and economic distress. Now, a seemingly neutral justice system discriminates against current generations of Aboriginal people by applying laws which have an adverse impact on people of lower socio-economic status. This is no less racial discrimination; it is merely "laundered" racial discrimination. It is untenable to say that discrimination which builds upon the effects of racial discrimination is not racial discrimination itself. Past injustices cannot be ignored or built upon.

Whatever legal niceties may be made as to how to classify the discrimination that is going on, whether it offends the Charter or not, the point is that Aboriginal people are experiencing adverse impacts. The justice system should be trying to find ways to alleviate these adverse impacts.

A century of paternalism and duplicity in government policies has had disastrous consequences. Canada’s original citizens have lost much of their land and livelihood, family life has been ruptured, and community leadership and cohesion have broken down. These policies have left many Aboriginal people not only impoverished, but also dependent and demoralized. These government policies must also be held ultimately responsible for a good portion of the high rates of Aboriginal crime, which are the almost inevitable result of social breakdown and poverty.

The conclusion that Aboriginal over-representation in criminal behaviour has deep social and historical roots is not unique to Canada. Another country dealing with the same issues is Australia. The 1991 Royal Commission into Aboriginal Deaths in Custody investigated 99 deaths of Aboriginal persons while in jail. Many of the comments of the Australian Royal Commission apply equally to Canadian-Aboriginal relations.

From that history many things flow which are of central importance to the issue of Aboriginal over-representation in custody. The first is the deliberate and systematic disempowerment of Aboriginal people starting with dispossession from their land and proceeding to almost every aspect of their life....

Every turn in the policy of government and the practice of the non-Aboriginal community was postulated on the inferiority of the Aboriginal people; the original expropriation of their land was based on the idea that the land was not occupied and the people uncivilised; the protection policy was based on the view that Aboriginal people could not achieve a place in the non-Aboriginal society and that they must be protected against themselves while the race died out; the assimilationist policy assumed that their culture and way of life is without value and that we confer a favour on them by assimilating them into our ways; even to the point of taking their children and removing them from family....59

We believe it is clear that the social situation of Aboriginal people is a direct result of a history of social, economic and cultural repression, all carried out under a cloak of legality. This is a disturbing picture. But it also makes it clear that the high crime rates that characterize Aboriginal communities are not a natural phenomenon, but a direct result of government policies.

To change this situation will require a real commitment to ending social inequality in Canadian society, something to which no government in Canada has committed itself to date. This will be a far-reaching endeavour and involve much more than the justice system as it is understood currently. It will require governments to commit themselves to economic and social policies that will allow Aboriginal citizens to participate fully in Canadian life. In the case of Aboriginal people, it will also involve a significant redistribution of political and economic power as governments honour the historical commitments made to Aboriginal people through treaties and other formal agreements.

Despite the magnitude of the problems, there is much the justice system can do to assist in reducing the degree to which Aboriginal people come into conflict with the law. It can reduce the ways in which it discriminates against Aboriginal people and the ways in which it adds to Aboriginal alienation.

More importantly, it can give to Aboriginal people the opportunity to direct their own lives and communities through significant involvement within the existing system and by assisting them in the development of their own justice systems.

Such a development would increase the level of fairness and equality for Aboriginal people in the system. As Rosalie Abella, the commissioner of the 1984 federal Commission on Equality in Employment, has stated, "Equality is evolutionary, in process as well as in substance, it is cumulative, it is contextual, and it is persistent."60 She describes equality this way:

Equality is, at the very least, freedom from adverse discrimination. But what constitutes adverse discrimination changes with time, with information, with experience and with insight. What we tolerated as a society 100, 50 or even 10 years ago is no longer necessarily tolerable. Equality is thus a process—a process of constant and flexible examination, of vigilant introspection, and of aggressive open-mindedness.... If in this ongoing process we are not always sure what “equality” means, most of us have a good understanding of what is “fair”. And what is happening today in Canada to women, native people, disabled persons and many racial and ethnic minorities is not fair.

It is not fair that many people in these groups have restricted employment opportunities, limited access to decision-making processes that critically affect them, little public visibility as contributing Canadians, and a circumscribed range of options generally. It may be understandable, given history, culture, economics, and even human nature, but by no standards is it fair.61

Chief Justice Dickson, on behalf of the majority of the Supreme Court of Canada, said, "The interests of true equality may well require differentiation in treatment."62 In Andrews v. Law Society of British Columbia, at 299, Mr. Justice McIntyre said:

It must be recognized ... that every difference in treatment between individuals under the law will not necessarily result in inequality and, as well, that identical treatment may frequently produce serious inequality.

Madame Justice Wilson, writing for the Supreme Court of Canada in R. v. Turpin et al. (1989), 69 C.R. (3d) 97, at 126–28, says:

In concluding that s. 15 is not violated in this case, I realize that I am rejecting the proposition accepted by several Courts of Appeal in Canada that it is a fundamental principle under s. 15 of the Charter that the criminal law apply equally throughout the country.... I do not think ... that this can be stated in terms of “fundamental principle” and in bald and absolute form for the purposes of s. 15. In my view, s. 15 mandates a case by case analysis.

It is important that a concept of equality be developed that respects differences more fully and that understands how different cultures may have different concepts of equality. Rosalie Abella expanded on the importance of accommodating differences as a part of equality.

Sometimes equality means treating people the same, despite their differences, and sometimes it means treating them as equals by accommodating their differences.

Formerly, we thought that equality only meant sameness and that treating persons as equals meant treating everyone the same. We now know that to treat everyone the same may be to offend the notion of equality. Ignoring differences may mean ignoring legitimate needs. Equality means nothing if it does not mean that we are of equal worth regardless of differences in gender, race, ethnicity, or disability. The projected, mythical, and attributed meaning of these differences cannot be permitted to exclude full participation.

Ignoring differences and refusing to accommodate them is a denial of equal access and opportunity. It is discrimination. To reduce discrimination, we must create and maintain barrier-free environments so that individuals can have genuine access free from arbitrary obstructions to demonstrate and exercise fully their potential. This may mean treating some people differently by removing the obstacles to equality of opportunity they alone face for no demonstrably justifiable reason....63

Discriminatory distinctions are only those which are unreasonably exclusionary, which are not objectively justifiable by standards of necessity, safety or civility, as opposed to standards of preference, economic exigency or tradition. This includes too the concept of reasonable accommodation imported from human rights jurisprudence; namely, is there an alternative available which is equally conducive to the achievement of the law’s or program’s purpose which has a lesser adverse impact? 64 [Our emphasis]

The notion of differing concepts of equality was well presented to the Royal Commission on Bilingualism and Biculturalism by an unidentified Quebec lawyer:

When they speak of equality, English Canadians mean equality of individual civil rights, that is of persons considered individually, while when we French Canadians speak of equality we do not mean civil rights at all, we mean collective national rights, we mean the rights of the French Canadian nation to develop in accordance with its own characteristics.65

This raises the important question of how we view individuals, and especially how we view their relationship to their group identity. Professor Sarah Salter, in a thoughtful paper entitled "Inherent Bias in Liberal Thought,"66 argues that the equality with which we are most familiar is based on a concept where the individual identifies himself or herself as a person separate from others. Equality, therefore, means dealing with separate, autonomous individuals. Professor Salter argues that we must also acknowledge the concept of "extended identity," where individuals identify themselves with others.

Those whose identity is based on notions of autonomy place higher value on property or power as a means to secure the autonomy, whereas those whose identity is based on notions of extended identity place greater emphasis on relationships.

It is clear that the idea of extended identity applies to the Aboriginal experience. Aboriginal people identify themselves in relation to their group. Whatever harms the group, harms the identification of persons within the group. Aboriginal people place very great emphasis on the interdependence of all things.

One often hears the question of rights discussed as a conflict between individual and collective rights. For Aboriginal people and others who have a philosophy of extended identity, there is no conflict—the individual and the group are connected so closely that a choice cannot be made between them. The interests of both the individual and the group must be pursued.

One expression of an Aboriginal view of equality is found in the 1988 Report of the Task Force on Aboriginal Peoples in Federal Corrections:

Many Aboriginal nations recognize four sacred colours: black, red, white and yellow. These colours may be seen as representing the four primary peoples of mankind. As with all other creations, the four peoples have their own place in the Sacred Circle.

To maintain the Creator’s design of balance and harmony within Creation, each people must recognize their own place in the Circle and recognize that, while different, they must treat each other equally. If one people were to try to become the same as another, the result would be imbalance and disharmony. Disservice is done to the Creator if the differences of the four peoples are not recognized and honoured. The Sacred Circle would lose its harmony if the four peoples were not treated equally. Because of many Aboriginal peoples’ deep roots in their own culture, the delivery of service to those individuals must take their spiritual and cultural background into account, including such values as art, language, family and community. Aboriginal-specific programs and services are thus warranted whenever they are required to ensure the same opportunity of results.67

Equality and fairness must, in the future, be the hallmarks of Canadian society’s treatment of Aboriginal people. This will involve addressing the legacy of centuries of oppression and exploitation that has marked Canadian policy to the present day. The justice system has been a central instrument of the destructive policies of the past. We believe it can play a positive role in the future in helping to make reasonable accommodation for Aboriginal peoples as it deals with individuals who come into conflict with the law, and with the larger Aboriginal community as that community takes control of its own justice system. TOP

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