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Dreamcatcher 22 : commissions of inquiry and Aboriginal criminal justice reforms Schlecker, Regan Dawn 2001

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DREAMCATCHER 22: COMMISSIONS OF INQUIRY AND ABORIGINAL CRIMINAL JUSTICE REFORMS By REGAN DAWN SCHLECKER B.A.Hon. (Political Science), University of Calgary, 2000 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARTS in THE FACULTY OF GRADUATE STUDIES (DEPARTMENT OF POLITICAL SCIENCE) We accept this thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA September 2001 © Regan Dawn Schlecker, 2001 In presenting- t h i s thesis i n p a r t i a l f u l f i l m e n t of the requirements for an advanced degree at the U n i v e r s i t y of B r i t i s h Columbia, I agree that the Library s h a l l make i t f r e e l y a v a i l a b l e for reference and study. I further agree that permission for extensive copying of t h i s thesis for s c h o l a r l y purposes may be granted by the head of my department or by his or her representatives. It i s understood that copying or p u b l i c a t i o n of t h i s thesis for f i n a n c i a l gain s h a l l not be allowed without my written permission. Department of T^ViT\co\ <ScC&ac«£-The U n i v e r s i t y of B r i t i s h Columbia Vancouver, Canada Abstract The last decade has seen the development of an unprecedented profile for aboriginal concerns over the inadequacies of the criminal justice system. This thesis examines the major commissions of inquiry that were established to address criminal justice reforms for aboriginal Canadians. Through a comparison of these inquiries, it is my intention to provide a greater understanding as to why some commissions have had a more positive role to play in initiating policy change, while others have been less than satisfactory in promoting the needs of aboriginal persons. Analysis reveals that commissions of inquiry are most often established to address more general concerns about the impact of the criminal justice system on aboriginal peoples, rather than to investigate specific cases in which there was a miscarriage of justice. My findings also reveal that the current criminal justice system can and should be improved, without in any way detracting from the movement toward the larger social, political and economic goal of self- determination. Due to the fact that autonomous solutions remain prevalent in the academic literature, future inquiries will be required to acknowledge this perspective. An appreciation of the variety of concerns held by aboriginal individuals can only be made possible through extensive consultation with aboriginal communities and utilizing creative and innovative means of gathering research. By providing an open process, commissions will be able to encompass views that may not be prevalent in academic circles, but accepted at a grass roots level. On the much larger question of the policy impact of commissions of inquiry, they have been useful institutions for opening up the policy debate in regards to criminal justice reforms for aboriginal Canadians. Frequently these inquiries have been faulted because their specific recommendations are not accepted. However, inquiries are valuable because they provide one of the few occasions for defining public issues, including debate about reformist and radical conceptions of the issues. Consequently it is more useful to assess commissions of inquiry for their role in the development of policy debate. ii Table of Contents Abstract ii Acknowledgments i v Introduction.. 1-2 An Overview: Commissions of Inquiry 2-5 The Framework 5-8 Cases of Unresolved Justice 8-10 A Review of the Commissions of Inquiry: I Alberta Board of Review: Native People in the Administration of Justice in the Provincial Courts of Alberta, 1978 11-13 II The Justice Reform Committee of British Columbia, 1988 14-19 III The Royal Commission on the Donald Marshall Jr., Prosecution, 1989 ..20-23 IV The Aboriginal Justice Inquiry of Manitoba, 1991 24-31 V The Task Force on the Canadian Justice System and its Impact on Indian and Metis People of Alberta, 1991 32-36 VI The Saskatchewan Indian and Metis Justice Review Committees, 1992 37-43 VII The Cariboo- Chilcotin Justice Inquiry, 1993 44-47 VIII The Indian Policing Policy Review Task Force, 1990 48-51 IX Task Force on Federally Sentenced Women, 1991 52-55 X Law Reform Commission of Canada: Aboriginal Peoples and Criminal Justice, 1991 56-59 Discussion 60-72 Final Discussion: Policy Implications 73-76 Conclusions 77-81 References. 82-88 iii Acknowledgments I would like to thank my advisor Paul Tennant who gave so generously of his time to read early drafts and to provide comments that have been instrumental in revising particular arguments and discussions. Although we both found humour in my ability to handle regular doses of constructive criticism, I truly appreciate how you challenged me to produce my best academic work. Many thanks to my family and friends, for all your support. Thank you for reminding me that there is more to life than a thesis, but little more to life than love and friendship. My special thanks to Ryan and Tina for being so supportive of me throughout my entire degree. Celebrating with both you made each accomplishment all that more meaningful. Finally, my parents, Don and Dene, have blessed me with a lifetime of encouragement. My academic pursuits would not have been possible without their loving sacrifices. They taught me to embrace each opportunity life presents with dedication and integrity. I only hope to have made them proud. iv Introduction In Canada, recognition of the serious problem of the over- representation of indigenous peoples in prisons and other custodial settings has increased substantially in recent years. An important aspect of this rising profile has been the establishment of a series of public commissions of inquiry into the problems associated with the criminal justice system's treatment of indigenous peoples. These inquiries have highlighted the huge dimensions of the problem of over- incarceration of Indian, Metis and Inuit peoples. In addition, these inquiries have highlighted the wider issue of systemic discrimination, that indigenous peoples routinely face when in contact with the main agencies of Canadian criminal justice administration: the police, courts and prisons1. The need for change is abundantly obvious, with the relationship between aboriginal persons and the Canadian justice system having been described by some as Canada's national disgrace2. The last decade has seen the development of an unprecedented profile for aboriginal concerns over the inadequacies of the criminal justice system. Justice has emerged as a key element on the aboriginal political agenda and aboriginal justice has evolved into a distinct field of academic research. Recent criticisms of the justice system for its failure to deal effectively with aboriginal people have not been offered in isolation, but increasingly are explicitly linked to the pattern of non- Aboriginal domination in which the Indian Act and the criminal justice system were, and continue to be, two of the most powerful legal mechanisms3. As a topic of investigation and action, then, aboriginal justice is now more strongly aligned with broader aboriginal autonomy aspirations and political activity than it is with criminology's critiques of the operation of criminal laws and the way justice is administered in this and similar countries. Although the magnitude of the problem is now well known, the question of what to do remains. In that regard, an array of royal commissions, provincial boards of inquiry, and a myriad of policy articles 1 Commissiioners A C . Hamilton & C M . Sinclair: Public Inquiry into the Administration of Justice and Aboriginal people, Report of the Aboriginal Justice inquiry of Manitoba (hereinafter UAJI Reporf), vol. 1: The Justice System and Aboriginal people (Winnipeg: Province of Manitoba, 1991) p. 101; and R A . Cawsey: Task Force on the Criminal Justice System and Its Impact on the Indian and Metis People of Alberta, Justice on Trial. Summary Report, vol. 1 (Edmonton: Province of Alberta, 1991) (hereinafter "Alberta Task Force, vol. 1") pp. 1-5. 2 Michael Jackson, "In search of pathways to justice: Alternative dispute resolution in Aboriginal communities" (1992) U.B.C. Law Review (Special Edition) p.152. 3 AJI Report, vol. 1pp. 62-72. has offered advice that can be conceived as falling into a continuum of possibilities that, at its extremes, promotes either accommodation or autonomy. My thesis examines the major commissions of inquiry that were established in regards to mistreatment of aboriginal persons by the Canadian criminal justice system. Through a comparison of these commissions of inquiry, according to a set of ten questions for evaluation, it is my intention to provide a greater understanding as to why some commissions have had a more positive role to play in initiating policy change, while others have been less than satisfactory in promoting the needs of aboriginal Canadians. In a sense, this paper can serve as a guide for future commissions of inquiry regarding concerns relating to aboriginal peoples and the criminal justice system. An Overview: Commissions of Inquiry The Canadian commission of inquiry is one mechanism that can be used for articulating interests directly to decision- makers. Although they are commonly used by federal and provincial governments, commissions of inquiry remain difficult institutions to define. The Law Reform Commission of Canada tried to define commissions by referring to statutory sources of commission mandates, but was not successful4. One of the reasons that the nature of inquiries may be confusing is that governments often fail to distinguish between the different kinds of inquiries. It is rare that the orders in council establishing an inquiry actually give' it a name. For example, commissions of inquiry are sometimes referred to as royal commissions or task forces. However, despite the various terminology used, in legal terms there is no real distinction between a public inquiry and a royal commission. In practical terms, the latter title is generally reserved for matters of national significance. There are no clear rules, however5. Although no two commissions of inquiry are alike, they do have more in common than may be immediately apparent. Alan Cairns points out that "[their] limited duration, absence of routinization, task specificity and independent status" distinguish [them] from 4 Law Reform Commission of Canada, Commissions of Inquiry (Ottawa:L.R.C.C, 1977) p. 6. 5 A. Wayne MacKay. "Mandates, Legal Foundations, Powers and Conduct of Commissions of Inquiry", in A. Paul Pross, Innis Chrisite & John A. Yogis (Eds.) Commissions of Inquiry (Toronto: Carswell, 1990) p. 31. 2 ongoing departments of government6. A commission of inquiry is made up of a temporary assemblage of personnel drawn from many backgrounds that have only a short- term commitment to each other, to the organization and to their common task. Also, each commission of inquiry commences with a clean slate . Commissions of inquiry have been popular with Canadian governments as a means to address an urgent public concern that is politically sensitive9. In general, the task that commissioners are given is difficult at best, and they are expected to deal with it competently, economically, and, above all, expeditiously, while operating under intense public scrutiny10. Despite a widespread view that commissions of inquiry "provide governments with the opportunity to delay, obfuscate and defuse political, controversy, and with advice that they are free to ignore11," it is a fact that commissions of inquiry have repeatedly, and often highly successfully, served as vehicles for analyzing policy, for evaluating outworn or failed policy, for identifying a consensus about policy and building support for new policy directions12. Peter Aucoin suggests three reasons for why commissions of inquiry appointed to analyze major matters of public policy constitute an important organizational instrument in governance. First, their establishment enables decision-makers in government to delay or postpone decisions without being criticized for doing nothing at all. Policy analysis in this circumstance may be an excuse for a "non- decision" but at least it ensures that the issue at hand stays on the policy agenda in a certain fashion. Second, such commissions provide for a process whereby the views of special interest groups and the interested public can be presented in a forum that is not subject to direct government control. Third, and perhaps most relevant, commissions of inquiry of this sort represent the most effective option available to government for policy analysis to be undertaken by an independent and objective, and yet official, organization. Commissions are the most effective option in this regard because they have a greater capacity to be, and to be seen 6 Alan C. Cairns. "Reflections on Commissions Research", in A. Paul Pross et al. (Eds.) p. 91. I Ibid. 8 Innis Christie & A. Paul Pross. "Introduction", in A. Paul Pross et al (Eds.) p. 51. 9 David M. Grenville. "The Role of the Commission Secretary", in A. Paul Pross et al. (Eds.) p.51. 10 Ibid. I I Liora Salter. "The Two Contradictions in Public Inquiries", in A. Paul Pross et al. (Eds.) p. 174. 1 2 Christie and Pross p. 1. 3 to be, independent and objective than do other governmental instruments of public policy analysis13. Some inquiries have wide- ranging mandates, commission extensive research and actively solicit public commentary, while others have mandates that are limited to the investigation of a particular case. Grouping such different objectives and activities under a single category, namely 'inquiries', is intrinsically problematic. However, inquiries may still be differentiated according to their mandates: one is the quasi-judicial investigation that has as its purpose to establish the facts and to determine whether any act was negligent or contrary to the law or the public interest; the other is the consultative inquiry that seeks the best informed opinion in a particular area of public concern so that it may analyze the options and make policy recommendations to government14. In a trail-blazing work on Canadian public inquiries, Liora Salter and Debra Slaco set out two major categories. The first type is an inquiry as a research study. By their definition, it must have some means, either within or separate from it, of generating independent data15. The second category of inquiry, as defined by Salter and Slaco, is called arbitration. An inquiry that uses the arbitration model is highly dependent upon the quality of research brought into the process. This type of inquiry reduces complexities to problems that are manageable and seen to have important public effects, in addition to, forcing closure on issues. Salter and Slaco also point out that some inquiries could adopt both models at different stages in their operation16. Another attempt at categorizing commissions of inquiry, one that contrasts with the attempt by Salter and Slaco, is A.Wayne MacKay's. He identifies the dichotomy between policy advisory and investigatory commissions that is also utilized by the Law Reform Commission of Canada. Salter and Slaco reject the long- standing practice favoured by the Law Reform Commission of Canada because, they argue, there is no dichotomy separating types of commissions. As a result, because it allows them to insert a third type of inquiry, one that is both "fact- finding" and "policy- making"17, Salter and Peter Aucoin. " "Contributions of Commissions of Inquiry to Policy Analysis: An Evaluation", in A. Paul Pross et al. (Eds.) p. 197. 1 4 Grenville p. 51. 1 5 MacKay p. 32. 1 6 MacKay p. 32. 1 7 Christie & Pross p. 6. 4 Slaco prefer to use a continuum ranging from inquiries into "public issues" to investigations into "individual misconduct". I shall utilize the Law Reform Commission's dichotomy for classifying inquiries because it provides for more clear distinction when comparing inquiry mandates. However, in cases where an inquiry may be classified as a mixture of both types, I shall use Salter and Slaco's continuum for further clarification. The Framework To explain the causes of policy outcomes, that is the consequences of public inquiries, I shall rely upon the theoretical underpinnings of historical institutionalism, which I define using the writings of Sven Steinmo, Kathleen Thelen and Frank Longstreth. At its broadest, historical institutionalism is an academic approach that attempts to illuminate how political struggles "are mediated by the institutional setting in 18 * which they take place" . What is implicit but crucial to historical institutionalism, as it presents the real world of politics, is that institutions constrain and refract politics but are never the sole "cause" of outcomes. Institutional analysts do not deny the broad political forces that animate various theories of politics, instead they point to the ways that institutions structure these conflicts and, in doing so, influence their outcomes19. Historical institutionalism emphasizes what Peter Hall refers to as the "relational character" of institutions, in that institutional configurations shape the political interactions among contending societal groups20. Furthermore, historical institutionalism recognizes that the development of public policy is not only about the resolution of societal conflicts but, if it is to be effective, must promote social learning21. Sven Steinmo, Kathleen Thelen & Frank Longstreth (Eds.): Structuring Politics: Historical Institutionalism in Comparative Analysis (Cambridge: Cambridge University Press, 1992) p. 10. 19 Ibid. p. 3. 2 0 Peter Hall. "The Role of Interests, Institutions, and Ideas in Comparative Political Economy of the Industrialized Nations, in Mark Irving Lichbach & Alan S. Zuckerman (Eds.) Comparative politics: Rationality, Culture and Structure (Cambridge: Cambridge University Press, 1997) p. 6. 2 1 Steven Berstein & Ben Cashore. "Globalization, four Paths of Internationalization, and Domestic Policy Change". Canadian Journal of Political Science 33, 1 (March 2000) p. 8. 5 In order to establish an empirical base for comparing the commissions of inquiry, I discuss ten initial topics in terms if specific questions. a) Purpose/Mandate: What initiated the establishment of an inquiry? What was the commission directed to do and what was the scope of its mandate? b) Type: What type of inquiry was established? i.e.: policy advisory, investigatory or a combination of both. c) Time Constraints: What was the duration given to the commission? d) Composition: What was the composition or professional background of the commissioners? e) Process: How was the process of mquiry undertaken by the commission? What approaches were involved? Was the public effectively consulted and was the best information obtained? Were all interests represented and considered? e.g. Public hearings... f) Participants: What groups were provided the opportunity to participate in the inquiry's process? g) Findings: What main conclusions did the commission draw from the inquiry? Did it get the facts straight? h) Recommendations (Categorized as either accommodative or autonomous): What were the most relevant and or unique recommendations given by the commission in reaching its conclusions? Did the recommendations primarily call for accommodative reforms within the current criminal justice system? Or did the recommendations necessitate the establishment of autonomous aboriginal justice systems? i) What are the underlying assumptions or guiding principle of the commission of inquiry? Did the commission stick to the initial question or did it expand the scope of its mandate? j) Response: What was the response, given by both the government and the aboriginal community(ies)22, involved towards the commission's recommendations? What, if any, recommendations were implemented? Did it raise consciousness about the understanding of the issue? To provide the basis for further discussion, I raised and addressed a further set of questions. 1) Given that only some incidents of injustice involving an aboriginal person and the Canadian criminal justice system lead to the establishment of a commission of inquiry, what types of cases are more and or least likely to lead to an inquiry? What are the reasons for not establishing an inquiry when there have been demands by the aboriginal community or other groups involved? 2) What factors increase the likelihood that a commission's recommendations will be implemented? What do governments and aboriginal communities require in order to increase the likelihood that they will have a positive response to the recommendations? 3) Why, given their capacity to incorporate radical alternatives and debate, do inquiries seldom reach beyond the narrow limits of pragmatic politics and accommodative reforms? 4) What procedural approaches have the most positive response? What is the impact of public hearings? 5) Which of the ten commissions of inquiry was most effective in carrying out its mandate? Were the recommendations implemented? 6) Was the commission of inquiry well suited as an institutional mechanism for policy analysis? 2 2 This is not intended to be an exhaustive coverage of aboriginal responses to a commission's report. »Rather, the particular responses to which reference is made are used simply to illustrate the general tone of comments by representatives from aboriginal communities following the report's release, as demonstrated in local media treatments and other available material. 6 Having answered these questions, I shall discuss the broad policy implications of accommodative criminal justice reform. I intend to go beyond discussing what commissions of inquiry have achieved and to present an alternative perspective that emphasizes aboriginal concerns for self- determination and the implementation of more autonomous solutions to criminal justice issues. Iri addition, I feel it important to briefly highlight four cases of apparent injustice towards aboriginal individuals that did not lead to the establishment of a commission of inquiry. In each of the cases the victim was a native man whose death occurred as a result of police misconduct. Both the community and family members of each of the victims called for a public inquiry into the cause of death, however, no inquiry was established in any of the cases. From this review, recognition of the type of cases that evolve into inquiries may become more apparent. I will also attempt to uncover some of the possible reasons given for not pursuing an inquiry when there has been aboriginal demands for one. The commissions of inquiry I examine all focus on the criminal justice system's treatment of indigenous peoples. In its Report of the National Round Table on Aboriginal Justice Issues, the Royal Commission on Aboriginal People listed seven earlier federal and provincial commission, inquiry and task force reports on aboriginal justice matters. The provincial inquiries were: the Royal Commission on the Donald Marshall, Jr., Prosecution (Nova Scotia, 1989); the Aboriginal Justice Inquiry of Manitoba (1991); the Task Force on the Criminal Justice System and its Impact on the Indian and Metis People of Alberta (1991); and the Reports of the Saskatchewan Indian and Metis Justice Review Committee (1992). The federal inquiries were: the Task Force on Federally Sentenced Women (1991); and the Law Reform Commission of Canada's Report on Aboriginal Peoples and Criminal Justice (1991). In addition to the list of reports included in the Royal Commission on Aboriginal Peoples, I have also included Access to Justice: the Report of the Justice Reform Committee (1988) from the province of British Columbia, the Report on the Cariboo-Chilcotin Justice Inquiry (1993), and the Alberta Provincial Board of Review's Report Native People in the Administration of Justice in the Provincial Courts of Alberta (1978). 7 It was important to include the Report of the Justice Reform Committee within the analysis because it provided for the first regionally held Native Justice Consultations across the province with a mandate for change to make B.C.'s justice system more accessible, relevant and responsive to all native British Columbians. The Cariboo-Chilcotin Justice Inquiry is included because it was established to deal specifically with complaints brought forward by aboriginal peoples of the area in regards to the treatment they have received from the various components of the justice system. The Alberta Provincial Board of Review's report was addressed in this paper because it dealt specifically with those aspects of the administration of justice in Alberta affecting native persons in order to bring about a more sensitive recognition of their culture, customs and language. Cases of Unresolved Injustice: Over the past five years, news headlines have made it abundantly clear that there remain several unresolved issues between aboriginal persons and the criminal justice system. This section is not intended to be an exhaustive review, but rather to briefly highlight cases of apparent injustice towards aboriginal individuals that did not lead to the establishment of a commission of inquiry despite community demands. The reasoning behind rejecting calls for an inquiry will be addressed within the discussion portion of this paper. The deaths of Anthony Dudley George, Anthany Dawson23, Rodney Naistus and Lawrence Wegner will be reviewed. Anthony Dudley George was fatally shot in September, 1995 by an Ontario Provincial Police (O.P.P.) sergeant while participating in a non- violent protest at Ipperwash Provincial Park. On April 28,1977, Sergeant Deane was convicted and found guilty of criminal negligence causing death, receiving a conditional sentence of imprisonment of two years less one day. The Supreme Court of Canada rejected Sergeant Dean's appeal. Labour groups, aboriginal rights activists, civil rights organizations and churches remain dissatisfied with the results of the internal police investigation and The name Anthany has been spelled according to documentation. 8 continue to make demands for a public inquiry24. Currently, all calls for such an inquiry have been rejected25. The second fatality case involved Anthany Dawson, a 29 year old Musgamgw Tsawataineuk artist, who died two days after being forcibly apprehended by Victoria City Police in August 1999. Victoria City Police officers were investigated, by order of the British Columbia Police Complaint Commissioner, for their role in the arrest and restraint of Dawson. The investigation was to probe whether there was excessive force and racism involved in police action26. The coroner's inquest ruled that the Dawson's death was accidental and that the manner in which police restrained him was a contributing factor in his death. In the internal police report, issued August 13,2001, the Victoria City Police Chief, Paul Battershill, stated that his five officers would not be disciplined for their role in the death of Dawson and that there was no need for any further action . However, the Dawson family and the Mausgamgw Tsawataineuk community remain outraged and frustrated by this incident. They continue to argue for the necessity of a public inquiry because the police report was not the result of an open process and the coroner's inquest had not specifically addressed the issue of excessive police force. The deaths of Rodney Naistus and Lawrence Wegner are the last to be reviewed. Both Naistus and Wegner were found frozen to death on the outskirts of Saskatoon during January, 2000. Shortly after the bodies were discovered, a third native man, Darrell Night, filed a formal complaint that he too was driven to the outskirts of Saskatoon in freezing temperatures by Saskatoon police. The suspicious deaths of three other native men by the names Neil Stonechild, Lloyd Joseph Dutyhorn and Darcy Ironchild, have also been brought up for investigation. Although a coroner's inquest into Naistus' death is not set to begin until October 30, 2001, it is intended for fact- finding only and provincial justice authorities have already ruled out any criminal charges against Saskatoon police. Meanwhile, Naistus' death and the others prompted a special RCMP 2 4 CUPE 3902. "Pressure for Inquiry into Anthony Dudley George Death". January 1998, found at the following website: http:cupe3902.org/newsletters/1998-01george.htm. 2 5 Post- Graduate Student's Society of McGill University. Letter to Prime Minister Jean Chretien. Found at the following website: http://ww2.mcgill.ca/PGSS/let_justafsen.html. 2 6 Chief Paul Battershill. Media Release 99-143 (September 1, 1999). Found at the following website: http://www.vpd.city.victoria.be... .t%20medrel%2099-143%20dawson.htm. 9 task force investigation that has led to the revelation of widespread complaints of abuse of aboriginal persons by police . The mysterious deaths of these native Saskatoon men and the allegations of police involvement have prompted a massive outcry for a full- scale independent inquiry. Critics of the RCMP investigation in Saskatoon say an inquiry that allows one police force to investigate another lacks creditability. Alberta Senator Thelma Chalifoux also entered the fray, suggesting that the RCMP investigation would do nothing to restore native peoples faith in the police and questioned whether the investigation would be unbiased. Until recently, the FSIN had also been demanding that a full- scale, pubic inquiry be launched into the deaths of Naistus and Wegner. However, FSIN leader, Chief Bellegarde, softened his demands for an immediate inquiry after meeting with Saskatchewan Justice Minister Chris Axworthy on March 1, 2000. Bellegarde said it would be unreasonable to expect that an independent inquiry would be launched while the RCMP investigation is still underway. The FSIN still wants a public inquiry, but it is willing to wait until the RCMP investigation is complete29. These unresolved cases of injustice have compelled organizations like Amnesty International to criticize Canada for both human rights issues involving aboriginal individuals and the government's unwillingness to follow through with the calls for public inquiries. The national Chief of the Assembly of First Nations, Matthew Coon Come, while also calling for a national inquiry into how the justice system treats aboriginal persons across Canada, has suggested Amnesty International as a possible lead agency in the event such an inquiry is established . The Aboriginal Youth Network. "Anthany Dawson: Mysterious Death of Native Artist. Family, Lawyer, Aboriginal Community Want Answers" (March 21, 2000). Found at the following website: http://ayn-O.ayn.ca/news/ 2 8 Federation of Saskatchewan Indian Nations. "Deaths of Rodney Naistus and Lawrence Wegner. Found at the following website: www.fsin.com/justice/index.htm. 2 9 "Deaths Intensify Push for Parallel Justice System". SAGE (March 2000), vol. 4. Issue 6. Saskatoon. 10 A Review of the Commissions of Inquiry: /: Board of Review: Native People in the Administration of Justice in the Provincial Courts of Alberta 1. The Purpose The Board of Review on Native Peoples in the Administration of Justice in the Provincial Courts of Alberta was established under the Public Inquiries Act June 5th, 1973. The purpose of this review was to provide policy advice on the "those aspects of the administration of justice in Alberta affecting native people which can and should be corrected31." Both the Indian an Metis Associations of Alberta wanted to draw the Board's attention to aspects of the provincial justice system in which they believed departed from standards to which they felt entitled32. 2. The Process and Participants The Board of Review was chaired by Mr. Justice W. J.C. Kirby of the Trial Division of the Supreme Court of Alberta in Calgary and included Dr.. M. Wyman, the President of the University of Alberta, and J.E. Bower, the Editor of the Advocate in Red Deer33. Beginning in September 1973, the Board held public hearings and accepted briefs that were submitted by all interested parties. Early on in the process, the Indian Association of Alberta asked the Board to hold additional hearings, more accessible to Indians living in reserves and for the Board to receive submissions dealing with their particular problems in the administration of justice in the Provincial Courts. In response to this request, hearings were scheduled and held at the following places: Fort Macleod, Westaskiwin, High Level, Peace River, Slave Lake and Fort McMurray34 Members of the Board also visited several reserves and detoxification centres around Alberta, in J" Turtle Island Native Network. Found at the following website: www.turtleisland.org/news/news-justice.htm. 3 1 W.J.C. Kirby: Provincial Courts Board of Review. Native People and the Administration of Justice in the Provincial Courts of Alberta. Report No. 4 (hereinafter "Report No. 4") (Edmonton: Province of Alberta, 1978) p. 1. 3 2 Ibid. 3 3 Report No. 4 p. iii. M Ibid, p. viii. 11 addition, to traveling to Indian reserves and Metis settlements in Northern Manitoba. The Board submitted its final Report, No. 4, to June 5, 1978; five years after its creation. 3. The Findings and Recommendations The intention of the Board of Review's recommendations was to bring about a more sensitive recognition in the provincial justice system of the culture, customs and language of native persons35. The Board identified problems under four sections: Native People and the Police, Native People and the Courts, Native People and the Problem of Alcohol and Native People and the Enforcement of the Wildlife Act and Related Statutes. Recommendations were then offered at the end of each section. In total, 36 recommendations were included in the final ReportNo.4. What is clear from reviewing the Board's recommendations was that it was solely interested in accommodative strategies and no attempt was made to incorporate autonomous institutions for the native communities involved The first two sections of recommendations were most relevant to the administration of criminal justice. In regards to the relationship native persons had with the RCMP, the Board repeatedly emphasized in its findings that the underlying cause of these complaints was a lack of understanding by junior police officers of Indian culture and customs36. Although most of the problems brought to the attention of the Board related to the RCMP, a few submissions contained specific reference to discriminatory action by city police officers. With that in mind, the Board recommended that appropriate administrative directions should be given to city police to ensure that all complaints by native persons about suspected discrimination by officers are brought to the immediate attention of the chief of the police force . Of the many Indian bands with Band Police, the Board found expressed dissatisfaction by these communities with the manner in which they were required to operate. Bands considered the program of training by the RCMP to be inadequate38. As a result, the Board recommended that Band Police and Special Constables be given a Ibid. p. l . Ibid. p.lS. Report No.4 p.21. 12 longer and more comprehensive course of training39. In addition, the Native Special Constable program was deemed by the Board to have great potential for improving the administration of justice with respect to Indians because it not only afforded an opportunity for Indians to assume greater responsibility in law enforcement on reserves, but was also a means to solve the problem of communication between Indians and the RCMP 4 0 The second portion of recommendations pertained to native people and the courts. The Board recommended several ways in which this problem should be dealt with and these were considered under the following headings: Court Sittings; Native Courtworkers; Legal Aid; Native Court Interpreters; and Sentencing41. Within it's recommendations, the Board found that one solution rested in the Provincial Court and Family and Juvenile Court sittings being held on reserves42. In addition, the Native Counselling Services were found by the board to have earned a high degree of credibility and acceptance among native people and because of this, they merit being considered an integral and essential part of the justice system in Alberta 4 3 . Also, it was imperative to the Board, that if justice was to be done, that native people must be provided with competent, objective interpreters and that this service should be uniform throughout the province44. Finally, the Board contended that due to the disproportionate number of native persons being confined in provincial correctional institutions for non- payment of fines, there is an urgent need for more productive ways of imposing sanctions than confinement45. Although it would have enhanced the research endeavour of this paper, I was unable to locate responses by either the provincial government or aboriginal groups concerned. In light of the fact that the recommendations were accommodational rather than autonomous in nature, it is fair to infer that the government would have reacted favourably to most initiatives pending resources and that leaders of the Indian and Metis Associations would have, perhaps, desired more fundamental reforms. 3S Ibid. p.26. 40Ibid.p.2S. 41 ReportNo.4. p. 29. 42 Ibid. p. 30. 43 Ibid. p. 41. 44 Ibid. p. 48. 13 IIAccess to Justice: the Report of the Justice Reform Committee, 1988 1. The Purpose The Government of British Columbia appointed the Justice Reform Committee in November, 1987. It began its work in January of 1988 with a mandate that extended into every corner of the provincial justice system. The Terms of Reference stated that the goal of the Committee was "to cause the justice system of the Province of British Columbia to be accessible, understandable, relevant and efficient to all those it seeks to serve46. Towards that end, the Committee was given the mandate to both "investigate the attitudes of citizens towards the justice system," and to offer policy advice to "address any dissatisfaction which may be felt on account of the system being too complicated, too costly, or too slow47." In particular, the Justice Reform Committee addressed the areas of civil law, criminal law, the jurisdiction and structure of courts, and alternative dispute resolutions48. 2. The Process and Participants The eight- member Committee benefited from the diversity of experience of its members. The chairman, Hon. Ted Hughes, was a former superior court judge with many years of experience on the Bench. Five of the Committee members were barristers practicing in all of the courts of the Province, in both criminal and civil cases. The remaining two members were lay people with their own perspectives as users of the justice system. One was a mayor of a municipality, chairman of a police board and chairman of the Capital Regional District. The other had long experience as a civic administrator. Finally, the Hon. Mr. Justice Wilfred J. Wallace, a member of the British Columbia Court of Appeal, served as Special Advisor to the Committee49. At the outset the Committee saw its task as a list of problems looking for solutions, but as the work proceeded another approach began to take shape. From a focus 4 5 Report No. 4p.49. 4 6 British Columbia. Justice Reform Committee: Access to Justice: Report of the Justice Reform Committee (hereinafter "Access to Justice Report) (British Columbia: Ministry of Attorney General, 1988) p. iv. 4 7 Access to Justice Report p. iv. 4 8 Access to Justice Report, pp. iv- v. 4 9 Ibid. p. 2. 14 on isolated problems, the Committee turned to a process of formulating a set of goals for the justice system of British Columbia and then looking for the means of attaining those goals50. The Committee traveled across the province and held public hearings in 9 communities. In hotel meeting rooms, courthouses and municipal halls, they heard from lawyers and litigants, Bar Associations and volunteer groups, judges and local politicians. Some came forward spontaneously and told stories of personal experiences, while other submissions were the result of many hours of careful research by individuals or committees. In all, about 175 individuals and groups appeared before the Committee and more than 200 others wrote letters. In addition to pubic hearings, the Committee searched the relevant literature and commissioned studies on selected topics. Experiences with judicial reform in the United States, England, Australia and elsewhere in Canada were also studied51. The final report, Access to Justice, was released on December 1,1988; approximately one year since the Committee was created. 3. The Findings and Recommendations In its final report, the Justice Reform Committee made 182 recommendations for changes to the provincial justice system. The concept of an aboriginal justice system was presented to the Committee as one that is receiving a great deal of interest and attention. However, the Committee "favour[ed] a mainstream justice system for all British Columbians which serves the needs of all of the people of this Province ". At the same time, the Committee recognized that native persons have traditional values and customary ways that the justice system can and should "accommodate ". In its findings, the Committee observed that many native British Columbians had little or no confidence in the existing justice system, and that many view the Canadian criminal justice system as imposing values that are at odds with traditional native justice54. The concerns of aboriginal communities were acknowledged in the Access to Justice Report, p. 1. Ibid. 50 51 Ibid. 5 2 Ibid. p. 203 "Ibid. 54 Ibid. 15 recommendations section entitled "Justice Requirements of Particular Groups"". The Committee found that unquestionably there was a disproportionate number of native persons in conflict with the criminal law and this posed serious problems for the justice system. The critical issue was the system's ability to balance the needs of native people with those of the remainder of the population. The Committee stated that in many respects this was a national problem, but there were initiatives that could be taken at the provincial level. It suggested that the provincial government should assume a leadership role in assessing what those initiatives might be and then moving toward their implementation. That process, maintained the Committee, must include participation by representatives of native organizations56. As a starting point, the Committee suggested consideration of the recommendations contained in Chapter 15 of the 1988 Report of the Standing Committee on Justice and Solicitor General entitled, Taking Responsibility, otherwise referred to as the Daubney Report. Those recommendations included an emphasis on the development and delivery of institutional programs in a way that is sensitive to the needs of native inmates, delivered where possible by native instructors. The Committee also recommended that Native communities should be encouraged to develop their own diversion and courtworker programs and be supported in this endeavour by those with the responsibility of leadership in the justice system57. In addition, the Chief Judge of the Provincial Court was encouraged to arrange for sittings of the Court on Indian Reserves whenever possible, particularly in remote areas . 4. The Response After receiving the Justice Reform Committee's report, the Attorney General, Bud Smith, toured the province in December and January to discuss its recommendations with the public and members of the legal community. In addition, over 100 written responses were received by the Attorney General. Response to the report was characterized as "very 5 5 British Columbia: Native Justice Consultations: Progress Report and Action Plan (hereinafter "Native Justice Consultations") (British Columbia: Ministries of Solicitor General, Attorney General and Native Affairs, 1990) p. 196. 5 6 Native Justice Consultations p. 204. 57 Native Justice Consultations p.203. 5 8 Ibid. p. 204. 16 positive59". In January, 1989, the Attorney General established an advisory committee on implementation of legal and procedural reforms60 An extensive, three- month review of the Justice Reform Committee's report, however, revealed that the Native community had not significantly participated in the committee's information- gathering process. This limited participation, caused primarily by a lack of confidence in the justice system, meant that native British Columbians had a limited voice in determining the recommendations made by the committee61. Following this extensive review and consultation process, the Provincial Government delivered, Access to Justice: A Response to the Report of the Justice Reform Committee by the Government of British Columbia, on the 9th of May, 1989 to announce the policy direction for the Ministry. In regards to native persons, the provincial government maintained that justice needs of native individuals would be identified and appropriate responses implemented and tested. In addition, immediate consultations would take place with Elders, band councils, native communities and organizations to determine how justice services could be tailored to make them more accessible and useful to native people. These consultations were to include the Ministers of Solicitor General and Native Affairs. 5. An Overview of the Native Justice Consultations In order to determine exactly how much scope there was for integrating native values and customs into the criminal justice system, and to fully understand the views, interests and concerns of native persons, a series of local consultations began in the fall of 1989. At that time, seven regional consultation committees, comprised of representatives from police services, the RCMP, crown counsel, and corrections, with advice from the provincial judiciary, were established to meet with representatives from local native bands and off-reserve native organizations. These meetings were intended to identify specific priorities raised in local consultations and to implement local- level changes62. 5 9 British Columbia. Attorney General Hon. Bud Smith, Q.C.: Access to Justice: A Response to the Report of the Justice Reform Committee by the Government of British Columbia (hereinafter "Access to Justice Response") (British Columbia: Minister of Attorney General, 1989) p. 3. 60 Ibid. 61 Native Justice Consultations p. 4. 62 Ibid. p. 5. 17 There have been 34 regional consultation meetings across the province between November 1989 and the beginning of April 1990. The results of which have been released in the Progress Report and Action Plan in July 1990. The report identified the key issues and common themes revealed through the regional discussions, and outlined the local- level responses already initiated within the regions. The plan also provided direction for further changes to the administration of justice at both the local and provincial levels . Most of the justice consultations have been informal round-table discussions, reflecting the Native people's traditional method of resolving issues through discussion and consensus. These individual issues generally reflect the unique nature and specific priorities of each Native community. Five larger themes, however, have proved to be fundamental to all Native communities and all discussions. First, individual Native communities should assume increasing responsibility for providing justice services to their own people. Second, Native people should be encouraged to better understand the existing justice system and justice system personnel should likewise be encouraged to better understand Native people, their traditions and culture. The next theme is that regular communication between Native people and the agencies of the justice system should be established. Fourth, a holistic approach to justice should be developed in Native communities. Finally, there is a recurring theme that career opportunities should be created for more Native people to become involved in the delivery of justice 64 services . 6. The Provincial Government's Response to the Native Justice Consultations Each regional consultation committee has begun to implement immediate, local level responses to both the specific issues raised in their regional discussions and the common themes identified throughout the province. For instance, the RCMP within all regions are designing and delivering programs to specifically address the issues and proposals in the three primary areas of pre-trail, the courts, and post- court65. Ibid. p. 3. Native Justice Consultations p. 8. Ibid. p. 9. 18 The Provincial Steering Committee on Native Justice Issues developed a co-operative action plan to build on and extend the local- level responses already initiated in each region of the province66. As well, The provincial government allocated a budget of $2.5 million over two years, from 1991 to 1993, for developing new native- run victim assistance, diversion, legal education, cross-cultural awareness and other innovative programs . Despite the usefulness of presenting what the aboriginal communities' response to the consultation process was, I was unable to locate such material. Ibid p. 12. Ibid. p. 17. 19 7/7 The Royal Commission on the Donald Marshall Jr. Prosecution, 1989. 1. The Purpose The Royal Commission on the Donald Marshall, Jr. Prosecution was appointed on October 28,1986 with the principle purpose "to determine why Donald Marshall, Jr. was wrongfully convicted and to make recommendations to ensure that such a miscarriage of justice does not happen again68". The scope of the Commission therefore, encompassed an examination of one specific case within the broader context of the administration of criminal justice within Nova Scotia. It was an inquiry that combined both investigative and policy advising functions. As a result, the final Report contained not only findings of "fact" concerning the Marshall affair, but also specific recommendations dealing with everything from the role of the police and Crown prosecutors in the criminal justice system, ways to ensure more equitable treatment of blacks and natives in the criminal justice system, and new mechanisms to deal with cases in which there are allegations of wrongful conviction. However, the Commission made no recommendations on the issue if whether any criminal charges should be laid as a result of its findings, and the issue of whether Donald Marshall should receive additional compensation69. 2. The Process and Participants There were three members sitting on the Royal Commission: Chief Justice T. Alexander Hickman was Chairman, and Associate Chief Justice Lawrence A. Poitras alongside the Hon. Mr. Gregory T. Evans sat as Commissioners70. Aside from the individuals involved in the case itself, parties that were granted standing included: the RCMP; the Department of Justice Canada; the City of Sydney Police Commission; the Union of Nova Scotia Indians; and the Black United Front. Observer status was given to the Police Association of Nova Scotia and the Nova Scotia Branch Canadian Bar Association71. 6 8 Chief Justice Alexander Hickman. Royal Commission on the Donald Marshall, Jr., Prosecution: Commissioner's Report: Findings and Recommendation, vol. 1. (hereinafter "Marshall Findings and Recommendations, vol 1") (Halifax: Province of Nova Scotia, 1989) p.l. 6 9 Nova Scotia. Royal Commission on the Donald Marshall Jr., Prosecution: Digest of Findings and Recommendations (herinafter "Marshall Digest of Findings and Recommendations") (Halifax: Province of Nova Scotia, 1989) p.l. 70 Marshall Findings and Recommendations, vol 1, p.303. 71 Marshall Findings and Recommendations, vol. lp.304. 20 The Royal Commission reached its conclusions only after sifting through 16,390 pages of transcript evidence given by 113 witnesses during 93 days of public hearings in Halifax and Sydney in 1987 and 1988 in which 176 exhibits were submitted into evidence. There were also two-and-one-half days of presentations by experts on the criminal justice system's treatment of blacks and natives and on the role of the office of Attorney General in that system. In addition, the Commission examined five volumes of research material prepared especially for the Royal Commission by leading academics and researchers72. The final Report was submitted in December 1989; approximately three years after the Royal Commission was appointed. 3. The Findings and Recommendations The Commission found that the criminal justice system failed Donald Marshall, Jr. at virtually every turn from his arrest and wrongful conviction for murder in 1971 up to, and even beyond, his acquittal by the Court of Appeal in 1983. Furthermore, the Commissioners found that that tragedy of this failure was compounded by evidence that this miscarriage of justice could- and should- have been prevented if those involved in the system had not acted in a discriminatory way towards a native person73. The Commission made 82 recommendations that broadly fell within five areas of the criminal justice system. The first area of recommendations pertained to dealing with the wrongfully convicted and the establishment of an independent review mechanism to "facilitate the reinvestigation of alleged cases of wrongful conviction74" In regards to visible minorities in the criminal justice system, the Commission recommended that the Departments of the Attorney General and Solicitor General should "adopt and publicize a Policy on Race Relations75." The third set of recommendations specifically dealt with the Mi'Kmaq of Nova Scotia and the criminal justice system with calls for a community- controlled Native Criminal Court, a Native Justice Institute and a tripartite forum to be established in order to both mediate and resolve outstanding issues between the Mi'Kmaq and the provincial 72 Marshall Digest of Findings and Recommendations p. 1. 73 Marshall Digest of Findings and Recommendations p. 19. 74 Ibid. p.25. 75 Ibid. p.26. 21 and federal governments76. Other recommendations highlighted aspects of the Criminal Code that should be amended77, in addition to, cultural training and affirmative recruiting for the RCMP and municipal police78. This summary of the recommendations by and large illustrates that the Commission was only interested in making accommodative reforms to the criminal justice system of Nova Scotia. The only recommendation made that entertained the possibility of an autonomous native justice instrument was their call for a community- controlled Native Criminal Court. 4. The Response In its initial response to the Report of the Marshall Inquiry, the provincial government indicated that none of the recommendations would be rejected. The government has since accepted all recommendations within its jurisdiction, endorsed those that fall outside its jurisdiction, and accepted the intent of several others that the government believes could be implemented in a manner different from that proposed by the Commissioners . The intent of major recommendations concerning Mi'Kmaqs and the criminal justice system, such as the Native Criminal Court and the Native Justice Institute, have been accepted, but the government has not indicated how it intends to implement these proposals. One recommendation that has received much attention is the tripartite forum, which has been recognized by the Nova Scotia government "as the cornerstone for addressing the issues raised by other recommendations dealing with Native Justice Issues ". The tripartite forum is composed of representatives from the federal government, the provincial government, and three aboriginal organizations. The agenda of the tripartite forum in not limited to justice and issues deriving from the Marshall Inquiry, however, it currently includes sub- committees on Justice, Policing, and Human Rights. The Justice Sub- committee approved in the early 1990's a preliminary court workers project and the adult diversion project at Shubenacadie, which is now formally 76 Ibid p.28. 77 Marshall Digest of Findings and Recommenadtions p. 3 5. 78 Ibid. p.37. 7 9 Nova Scotia. Ministry of Attorney General: Marshall Update/Justice Reform Review (Halifax:Province of Nova Scotia, 1992) pp.4-56. 90 Ibid, p. 18. 22 under way, and negotiations are also under way concerning the establishment of a 81 Mi'Kmaq regional police force in Cape Breton . The Aboriginal communities of Nova Scotia have generally supported the findings of the Marshall Inquiry and the recommended Tripartite Forum. Concerns have been raised, however, with respect to the extent to which the report and initiatives stemming from it address more fundamental issues, such as racism and poverty. Aboriginal communities felt that reforms to the justice system alone would not eliminate or redress the socio- economic conditions that continues to bring many aboriginal people into conflict with that system82. The Confederacy of Mainland Mi'Kmaqs, one of the three Aboriginal organizations invited to participate in the tripartite forum, temporarily withdrew from the process because it objected to the inclusion of the Native Council of Nova Scotia, which advocates for non- status and registered off- reserve aboriginal people in Nova Scotia. The Native Council of Nova Scotia reported that they are not encouraged by the level of commitment to the tripartite forum demonstrated by the federal government . 8 1 Research Directorate, Royal Commission on Aboriginal Peoples. "Aboriginal Justice Inquiries, Task Forces and Commissions: An Update, in the Royal Commission on Aboriginal Peoples Aboriginal Peoples and the Justice System: Report of the National Round Table on Aboriginal Justice Issues (hereinafter "RCAP") (Ottawa: Minister of Supply and Services Canada, 1993) p. 18. 82i?G4Ppp.l8-19. 83 Ibid. p. 19. 23 TV The Aboriginal Justice Inquiry of Manitoba, 1991 1. The Purpose The Aboriginal Justice Inquiry of was created in response to two specific incidents in late 1987 and early 1988. The first of these was the November 1987 trial of two men for the 1971 murder of a native woman, Helen Betty Osborne, in The Pas, Manitoba. The second incident occurred on March 9, 1988 when J.J. Harper, executive director of the Island Lake Tribal Council died following an encounter with a City of Winnipeg police officer. The province's aboriginal community believed that there were many questions that had been left unanswered by the police department's internal investigation into the Harper case and requested the creation of a judicial inquiry8 4. On April 13, 1988, the Manitoba government created the Public Inquiry into the Administration of Justice and Aboriginal People. The Commissioners were asked to "investigate, report and make recommendations to the Minister of Justice on the relationship between the administration of justice and aboriginal peoples of Manitoba 8 5". The Inquiry was directed to consider all aspects of the cases of J. J. Harper and Helen Betty Osborne. In essence, the Inquiry functioned as both an investigative and policy advising body. The Inquiry's scope of general investigation was broad: The scope of the commission is to include all components of the justice system, that is, policing, courts and correctional services. The commission is to consider whether and the extent to which aboriginal and non- aboriginal persons are treated differently by the justice system and whether there are specific adverse effects, including possible systemic discrimination against aboriginal people, in the justice system. The commission is to consider the manner in which the justice system now operates and whether there are alternative methods of dealing with aboriginal persons involved with the law86. 2. The Process and Participants The Aboriginal Justice Inquiry of Manitoba had two commissioners presiding over the process. They were Associate Chief Justice Alvin Hamilton, former Associate Chief Justice of Manitoba of the Court of Queen's Bench, and Judge Murray Sinclair, an Associate Chief Judge of the Provincial Court. The Inquiry employed a variety of methods in its effort to satisfy the terms of reference, which it interpreted broadly. It held formal judicial hearings in relation to the two cases that had sparked the investigation. 84 AJIReport, vol 1, p.2. 85 Ibid. p.3. 24 Meanwhile, on the broader question of aboriginal contact with the justice system, the Inquiry held open community hearings in 36 aboriginal communities, seven other Manitoba communities (including several hearings in Winnipeg) and five provincial correctional institutions. The Commissioners heard from approximately 1000 presenters at these hearings , and received more than 60 submissions from people who were unable to appear88. The Inquiry also embarked on several major research projects. Forty- one research papers were completed either by the Inquiry's research staff or by independent consultants . In addition, the Commissioners visited several tribal courts m the United States and organized two conferences: a symposium on tribal courts, and a meeting of aboriginal elders. During its more than three years of operation, the Inquiry accumulated an impressive collection of materials. In August 1991, Commissioners A C . Hamilton and C. M. Sinclair officially presented the Aboriginal Justice Inquiry of Manitoba's final report to the Minister of Justice; approximately three and a half years since the creation of the Inquiry. It consisted of two volumes. Volume 1- The Justice System and Aboriginal People90, was the culmination of the Inquiry's exhaustive analysis of the broader issue of aboriginal contact with the criminal justice system, while Volume 2 dealt specifically with the Osborne and Harper cases91. Overall, the report represents a major contribution to the Canadian body of aboriginal justice literature. 3. The Findings and Recommendations In August 1991, the Aboriginal Justice Inquiry of Manitoba presented 293 recommendations in its final report. The Commissioners made specific conclusions and recommendations in a separate report dealing with the deaths of Helen Betty Osborne and J. J. Harper92. Amongst these findings the Commissioners were critical of the conduct of the RCMP in relation to the Osborne case, and, perhaps more seriously, that of the 86 AJIReport, vol. 1 p.3. 87 Ibid. pp. 769-82, 783-85. 8 8 Listed Ibid. pp. 782-83. 8 9 Listed Ibid, pp.721-22. 90 AJI Report, vol. 1. 9 1 A C . Hamilton & C M . Sinclair. Public Inquiry into the Administration df Justice and Aboriginal People: Report of the Aboriginal Justice Inquiry of Manitoba. Volume 2: The Deaths of Helen Betty Osborne and John Joseph Harper (hereinafter "AJI Report, vol. 2") (Winnipeg: Province of Manitoba, 1991). 25 Winnipeg Police Department in relation to the Harper case. On a broader level, both were condemned for racist policing practices and inadequate investigation and review strategies93. What is immediately striking about this 700 page report is the breadth of issues which it considers, and the perspective on the justice system which it assumes. The volume opens with a discussion of "Aboriginal concepts of justice94," thus setting the tone for the detailed investigations which follows. One of the strongest themes of the report is the incompatibility between the principles and procedures of the Canadian criminal justice system, and aboriginal culture and law95. Against this background the report examines the current problem of aboriginal over- representation. This section explores the social roots of crime and the socio- economic situation of aboriginal people before addressing the specific issue of discrimination in the justice system96. The remaining chapters of the report deal with how best to alter this pattern. However, it is indicative of the fresh approach taken by the Commissioners that the report does not turn immediately to the question of reforming the existing justice system, but instead undertakes a detailed examination of Aboriginal and treaty rights97, thereby highlighting the political and legal context for the analysis and recommendations which follow. The inquiry's damning assessment of the Manitoba court system, and its earlier discussion of aboriginal rights and concepts of justice sets the scene for its support of aboriginal justice systems. From a law reform perspective, the justification for this approach is that "[sjimply providing additional court services in aboriginal communities or otherwise improving what is inherently a flawed approach to justice is not, in our no view, the answer ". As the Commissioners observed, governments have traditionally preferred a pattern of limited internal reforms, but as a solution this approach "has been unproductive for government and unacceptable to aboriginal people99." The AJI Report represents "an important break from this pattern by 'factoring in' aboriginal autonomy AJI Report, vol. 2. Ibid, part I p.98 & part U p.93. AJI Report, vol. 1pp. 17-46. AJI Report, vol. 1 p.83. Ibid. p. 109. Ibid. pp. 115-210. Ibid, p.252. Ibid, p.252. 26 aspirations as a legitimate and fundamental component of the justice reform equation ". The highlight of the report's "Strategy for Action" is its proposal that aboriginal communities on their own geographically defined reserves be empowered to establish their own justice systems101. The Commissioners reached this position after noting that "[t]he call for separate, Aboriginally controlled justice systems was made repeatedly in our public hearings throughout Manitoba...102". In terms of the structure of proposed aboriginal justice systems, the Commissioners recommended a high degree of flexibility which would allow individual aboriginal communities to develop "culturally appropriate rules and processes103." The essence of the proposal was that every component of the justice system operational within an aboriginal community- from police, to prosecutor, to court, to probation, to jails- must be controlled by aboriginal people. Chapters 8 to 16 of the report address specific components and groups within the existing justice system. The topics addressed are court reform, juries, alternatives to incarceration, jails, parole, aboriginal women, child welfare, young offenders, and policing. Recommendations for reforms in these areas were made by the Inquiry on the basis that, while the establishment of aboriginal justice systems is crucial and the key to genuine change, this strategy is not the "total answer"104. The common element of the recommendations summarized here105, was the need to alleviate the injustices faced by aboriginal people in their contact with the justice system. Finally, the Commission recommended a strategy for action that included the establishment of an Aboriginal Justice Commission, that would be given the mandate to "monitor and assist government implementation of the recommendations of the Inquiry106". Luke McNamara: Aboriginal Peoples, the Administration of Justice and the Autonomy Agenda: An Assessment of the Status of Criminal Justice Reform in Canada with Reference to the Prairie Region, Research Report No. $. (Winnipeg: Legal Research Institute of the University of Manitoba, 1993) p.55. 101 AJI Report, vol. 1 p.642. 102 Ibid. 103 Ibid, p.315. 104/ta/.p.258. 1 0 5 This selected outline is based on the individual chapters, the "strategy for action" described in chapter 17, and the summary of recommendations in Appendix lof the report. 106 AJIReport, vol. 1 p.657. 27 4. The Response Representatives of aboriginal organizations in Manitoba and across the country registered their approval of the Inquiry's conclusions about the impact of the justice system on aboriginal people, and generally endorsed its plan for change. For example, the report was described by Phil Fontaine, the Grand Chief of the Assembly of Manitoba Chiefs as "a solid piece of work with recommendations that represent fundamental social change in this province and elsewhere107." Ovide Mercredi, the National Chief of the Assembly of First Nations, responded by calling on federal and provincial governments 108 to "recognize that aboriginal people are entitled to a parallel system of justice ". The President of the Indigenous Women's Collective, Winnie Giesbreacht, expressed "relief that the particular concerns of aboriginal women had been addressed by the commissioners109. The overwhelming positive response to the report appears to have been based on a belief that the justice concerns of aboriginal people had finally been addressed in a serious and constructive manner by an independent inquiry. The mood was optimistic, as reflected in the comments of a spokesperson for the Assembly of First Nations when he concluded that if the Manitoba Government acted upon the recommendations, it could set a precedent for the entire country110. This response was indicative of a conviction that the Report of the Aboriginal Justice Inquiry of Manitoba endorsed a departure from the era of internal reforms and 'tinkering' within the justice system that had failed to significantly improve the system's capacity to deal successfully with aboriginal people. The strategy outlined in the report reflected a decision to move beyond the conventional pattern of choosing only from a necessarily limited pool of justice reforms, electing instead to acknowledge the fundamental connection between aboriginal justice concerns and political aspirations. On the 28th of January 1992, the provincial government released its formal response to the Report of the Aboriginal Justice Inquiry of Manitoba. Justice Minister Jim 1 0 7 A. Santin, "Findings, recommendations 'exactly' what natives expected'," [Winnipeg] Free Press (30 August 1991) 5. 1 0 8 G. Young, "Self- rule stand 'reinforced'" [Winnipeg] Free Press (30 August 1991) 14. 1 0 9 Winnie Giesbrecht cited in "Women react" [Winnipeg] Sun (30 August 1991) 5. 1 1 0 Bill Wilson, British Columbia Vice- Chief of the Assembly of First Nations: Press Release, 29 August 1991. 28 McCrae announced a number of reforms which would, he promised, result in a "better justice system in Manitoba for aboriginal people than anywhere in the country111. Proposed changes included placing more aboriginal people in charge of decision- making within the system, institution of pretrial diversions including more conflict resolution, mediation and 'peacemaking' approaches to disputes, a reassessment of sentencing practices so as to reduce incarceration levels, greater access to aboriginal cultural activities in provincial jails, and an investigation of the possibility of expanding tribal policing services112. However, the Manitoba Government refused to endorse the autonomous justice direction charted by the Aboriginal Justice Inquiry of Manitoba on the basis that "[s]uch key... recommendations as an aboriginal justice system, separate criminal codes, civil codes and charters of rights for First Nations are not achievable within the current constitutional framework113." The Government also declined to establish a commission to oversee implementation of the recommendation, opting instead for the appointment of working groups to consult in four areas: justice, native affairs, family services, and natural resources. Aboriginal organizations have expressed dissatisfaction with the provincial government's current working group strategy because the initial terms of the invitations would have involved aboriginal representatives in consultative rather than decision-making capacity. They argued that this arrangement would not give aboriginal organizations any opportunity for equal and effective participation114. Aboriginal groups have roundly criticized the government's inaction, which was described by the Grand Chief of the Assembly of First Nations as "an insult to Indian people in Manitoba U 5 . After jointly considering the government's official response to the Report of the Aboriginal Justice Inquiry ofManitoba, the Assembly of Manitoba Chiefs, the Manitoba Metis Federation, the Indigenous Women's Collective, and the Aboriginal Council of Winnipeg registered their "profound disappointment with the 1 1 1 D. Campbell & T. Weber, "Province rejects separate native justice system" [Winnipeg] Free Press (29 January 1992) A l , A2. 112 Ibid; and D. Roberts, "Separate native justice rejected for Manitoba" Globe and Mail (29 January 1992) A l . 1 1 3 Roberts, ibid. A6. U4RCAP p.22. 1 1 5 T. Weber & D. Campbell, "McCrae, chiefs in AJI showdown" [Winnipeg] Free Press (30 January 1992) A l . 29 limited vision and political will reflected in the Province's response116. Representatives of the province's Metis community expressed their disbelief at the government's failure to even acknowledge their particular concerns. The President of the Manitoba Metis Federation noted that the governments formal response "completely ignores the Metis" 117 except to the extent that it "identifies areas in which the Province will not act ". These organizations indicated that they would not participate in the implementation process unless the government agreed to reconsider several key issues, including the relationship between self- government and aboriginal jurisdiction over justice. At the heart of the dissatisfaction registered by aboriginal organizations was their view that "[t]he same government that has accepted the recognition of the inherent right to self- government simultaneously refuses to recognize one of the most vital components of inherent jurisdiction, i.e. the right of jurisdiction over justice118". In late November 1999, almost a decade after the release of the Report of the Aboriginal Justice Inquiry, the Manitoba government established an Aboriginal Justice Implementation Commission (AJIC) to develop an action plan based on the original Aboriginal Justice Inquiry recommendations. The commission was led by Commissioners Paul Chartrand and Wendy Whitecloud and assisted by Elder Advisors Eva McKay and Doris Young. The Commission was also aided by a co-ordinator from the Department of Justice who served as a link between the AJIC and the various departments and programs of government119. The AJIC was given an operating fund of $180,000, from the Justice Initiatives Fund, and a mandate to review recommendations of the AJI and to develop implementation strategies for recommendations aimed at improving justice programs and services for First Nations and Metis people in Manitoba. Aboriginal and Northern Affairs Minister Eric Robinson welcomed the AJIC, noting that it will be an "action- oriented" commission that is focused on making practical recommendations. Robinson further commented that "the establishment of the AJIC is a solid first step, but a decade of neglect of aboriginal justice concerns means that we have a lot of ground to make up. 1 1 6 Assembly of Manitoba Chiefs, "Aboriginal organizations Propose Partnership With Province in A.J.I. Implementation," News Release, 3 February 1992. 1 1 7 W. Yvon Dumont, Letter to the Premier of Manitoba, 3 February 1992. 1 1 8 T. Weber, "Natives agree to talk on AJT' [Winnipeg] Free Press (4 February 1992) B14. 1 1 9 Manitoba Government, "Manitoba Government Established Aboriginal Justice Implementation Commission," News Release, 29 November 1999. 30 Significant changes in the justice system are necessary if we are to restore trust among aboriginal people in Manitoba120." On April 17,2000, the Manitoba government received the first quarterly report of the AJIC and said 'yes' to their recommendations121. The AJIC has since been dissolved after it submitted its final report on June 29,2001, in which it made four main recommendations. When the AJIC released its final report, Eric Robinson, Minister of Aboriginal and Northern Affairs, stated that the four recommendations have been accepted and are in various stages of implementation122. 1 2 0 Ibid. 1 2 1 Manitoba Government, "Manitoba Government Received Aboriginal Justice Report. Province Says Yes to AJIC Recommendations," News Release, 17 April 2000. 1 2 1 Ibid. 31 V Task Force on the Canadian Justice System and its Impact on Indian and Metis People of Alberta, 1991 1. The Purpose The Alberta Task Force was created by the provincial government on January 11, 1990. It was not established as a judicial inquiry, public inquiry or royal commission123, but rather as a response to more general concerns about the impact of the criminal justice system on aboriginal peoples. The overall objective of the Task Force was to complete a review of the criminal justice system and to provide a report which would "identify any problems and propose solutions to ensure the Indian and Metis peoples receive fair, just and equitable treatment at all stages of the criminal justice process in Alberta124 The review included an examination of the criminal justice system according to how aboriginal people are treated differently from non- aboriginal people, and to assess whether that different treatment is desirable or detrimental. Furthermore, the Task Force attempted to identify areas where, and to what extent, aboriginal people should be treated differently from non- aboriginals within the system. Having done this, the Task Force was then able to consider alternative methods of approaching justice for aboriginal people125. To achieve the overall objective, the Task Force adopted a number of guiding principles. It believed that law cannot be separated form its cultural base and that to achieve harmony between the justice system and the aboriginal people, they must be fully involved in any policy development, program planning, implementation and service delivery with respect to the criminal justice system126. 2. The Process and Participants The following seven members were appointed to the Task Force: Hon. Mr. Justice Robert Allen Cawsey, who was a Justice in the Court of Queen's Bench in Alberta and who served as the Chairman; Mr. Leroy Little Bear, an associate professor in the Native 123 Alberta Task Force, vol 1 pp.1-3. 124 Ibid. p. Appendix 2:1. 1 2 5 R. A. Cawsey. Task Force on the Criminal Justice System and Its Impact on the Indian and Metis People of Alberta, Justice on Trial. Summary Report: Volume 2.(hereinafter "Alberta Task Force, vol. 2)fEdmonton: Province of Alberta, 1991) p. 1. ™ Alberta Task Force, vol. 1 p.1-1. 32 American Studies Department of the University of Lethbridge; Ms. Cynthia Bertolin, a member of the Canadian and Indigenous Bar Associations and the Metis Association of Alberta; Superintendent Cleve Cooper, an RCMP Co-ordinator for the Policing Inquiry, Blood Tribe; Ms. Janet Franklin, a prosecutor in the Criminal Justice Division of the Alberta Department of the Attorney General; Mr. Arnold Galet, Executive Director of the Young Offender Branch, Correctional Services Division; and Mr. Michael Gallagher, Warden of the Edmonton Institution127. The Task Force did not perceive their role to be one of engaging in yet another study or survey of aboriginai people. As a result, the consultative process set out by the Terms of Reference and the time limit of one year shaped the content and format of the Task Force's final Report. Due to the fact that it was not established as judicial inquiry, public inquiry or royal commission, the Task Force did not retain counsel, record proceedings or commission external research studies128. However, it did visit aboriginal communities, meet with Indian and Metis organizations, hear oral presentations, and receive some 56 written submissions129. The consultation process instructed the Task Force to visit various locations in the province to receive representations and submissions from interested Indian and Metis groups, organizations and associations130. 3. The Findings and Recommendations The Task Force made 340 detailed recommendations dealing with each stage of the existing justice system. It also assessed the operation of the Native Counseling Services of Alberta and gave attention to a number of general considerations such as socio- economic factors, cross- cultural training, and the problems faced by aboriginal women and youth . Most of these recommendations required the 'indigenization' of the current justice system. By indigenization, the Task Force meant an effort to ensure that native accused understand the legal processes that involve them, and, especially, Alberta Task Force, vol.1 p. Appendix 3:1. 128 Ibid. p. 1-3. 129 Ibid. 130 Alberta Task Force, vol. 1 pp. Appendix 2:1, 5:2. 131 Alberta Task Force, vol. 2 pp.3-14. 33 representation by aboriginals at all levels of the criminal justice planning and program delivery process132. The Task Force;, for example, stated: It is our position that numerous changes can be made relatively quickly to the existing criminal justice system to make it more sensitive to the needs of aboriginal people. The first step in this process is the 'indigenization' of the criminal justice system... [which] can, in fact, go a long way However, the Task Force also made recommendations that departed substantially from the traditional approach of'tinkering' with the existing criminal justice system. This Report added a powerful voice to its predecessors by underlining the essential nature of Canada's recognition of its historic mistreatment of aboriginal nations. It acknowledged that aboriginal people are victims of racism, discrimination and systemic discrimination, both from within the criminal justice system and from society at large134. The Task Force was also to be commended for its attempts to convey the significance and texture of cultural difference in the perception of every aspect of reality, including the legal structure 1 3 5 . Part of the long- term perspective adopted by the Task Force was a commitment to community- based control of the justice system. This perspective reflects the confidence with which the Task Force viewed the abilities of aboriginal communities to assume greater control over the criminal justice process . Although the Task Force's Report has taken pains to make incremental suggestions for improvement in the criminal justice system, there is at the very outset a clear acknowledgment of the salience of cultural difference. "This means that when a minority group is culturally different from a larger society, its perception of law and justice will be different137". The Report demonstrated its recognition that the criminal justice system cannot deal with all social problems, although "this is currently One of the roles it fills138". Commissioner Cawsey concluded that the social problems experienced by aboriginal people are the result of socio- economic conditions and that such problems "are 1 3 2 The Honourable Tom Siddon, "The Road to Self- Determination", in F. Cassidy (EA) Aboriginal Self-Determination. (Lantzville, B.C.: Oolichan Books, 1991)p.l60. 133 Alberta Task Force, vol. 1 pp. 1-7. lMIbid.vp. 2-5. 1 3 5 H. Archibald Kaiser, "The Criminal Code of Canada: A Review Based on the Ministries Reference" (1992) U.B.C. Law Review (Special Edition) p.71. 136 Ibid. p.72. 137 Alberta Task Force, vol. 1 p.1-1., 138 Ibid. p. 1-2. 34 symptoms of powerlessness. They are not the cause of it ". Most importantly, Cawsey recognizes that although the criminal justice system could be made more sensitive to the needs of aboriginal people, this shift alone would be wholly inadequate. However, no meaningful and lasting changes can be made to the involvement of aboriginal people with the criminal justice system without an integrated and comprehensive approach to improve the socio-economic factors which contribute to the problem140. The Report was unequivocal in its conclusion that "the imposition of the majority's justice system on the aboriginal minority results frequently in unfairness and inequity141". The Report demanded that Canadian society, as a whole, recognize that the cultural and spiritual views and expectations of aboriginal people differ from mainstream society and that many "issues of fundamental concern to aboriginal people remain unresolved142. Only with the resolution of such issues as land claims settlements would there be a diminution of the involvement of aboriginal people in the social welfare and criminal justice systems. Cawsey emphatically states that "the plight of the Indians is proof that the policies [heretofore] adopted have either been ineffective or have utterly failed143." The Report urged that the "problems of sovereignty, Treaty, land and aboriginal rights must be given priority by government144." 4. The Response At a. Justice on Trial symposium held in Edmonton in May 1992, Chairman Cawsey commented that more than twelve months after the release of the report in March 1991, the Government of Alberta had yet to issue a formal response. He "observe[d] sarcastically that it has taken longer for the government to respond than it did for us to draft the report145." Although certain of the Task Force's recommendations have been implemented, a comprehensive response to the report has been delayed, apparently to facilitate extensive consultation with representatives of aboriginal organizations. 139 Ibid 140 Ibid. p. 1-2. 141 Alberta Task Force, vol. 1 p. 1-2. 142 Ibid ™Jbid. p. 1-5. 1 4 5 See IDanylchuk, "Government reply on natives late- judge" Edmonton Journal (5 May 1992) p.7. 35 In 1989, shortly after the appointment of the Task Force, J. Morrow stated: The government of Alberta, for one, has not yet caught on that Native people are entitled to their own forms of justice as indicated in their treaties. While there has been a wave of similar inquiries across Canada analyzing the justice system deficiencies facing native people, there is a sense of skepticism over the validity of the Alberta probe1 4 6. The Alberta Government's reluctance to offer firm support for the recommendations contained in Justice on Trial would appear to confirm that there was considerable justification for this pessimism. After the Task Force report was tabled in the Alberta legislature, the steering Committee, which has overseen the Task Force and is still in place, was asked to provide a report on an implementation strategy for the recommendations. Accordingly, the Alberta government contracted the services of retired RCMP Assistant Commissioner Gordon Greig to undertake consultations with Aboriginal organizations and individuals regarding implementation. These consultations began in August 199land were summarized in a report by Mr. Greig. Official responses to this report have yet to be formulated 1 4 7 . The report of the Task Force was well received by the Aboriginal community in Alberta, however, impressions of events since the release of the Task Force are varied. The Indian Association of Alberta reported that because of the lack of adequate financial resources, a proper consultation with the Aboriginal community was not possible. The recommended All-Chiefs Assembly for all First Nations of Treaties 6,7 and 8 within Alberta has not occurred. However, an Alberta Summit on Justice took place January 27-29,1999 in which all of the above groups participated148. The Metis Nation of Alberta reported that they were satisfied with their own involvement in the consultation process. The Metis nations have also indicated that they are satisfied with the progress made to date in moving toward implementation of recommendations and have expressed confidence that the political will to resolve the Aboriginal criminal justice dilemma does J. Morrow, "In Search of Native Justice," (May 1989) Can. Law. 14. RCAP p.24. See Alberta Government. Justice Summit at the following website: www.gov.as.ca/justicesummit/ RCAP p.25. 36 VI The Saskatchewan Indian and Metis Justice Review Committees, 1992. 1. The Purpose On June 5,1991, the Saskatchewan Government and the Government of Canada agreed to the establishment of two parallel committees to review aboriginal justice issues in the province. Justice Minister Gary Lane explained that two separate committees were established to ensure that the varying circumstances of Saskatchewan Indians and the Metis were properly accommodated by the review process 1 5 0 The primary objective of the committees was: To make recommendations relating to the delivery of criminal justice services to Saskatchewan Indian[/Metis] people and communities and in particular, relating to the development and operation of practical, community- based initiatives intended to enhance such services151. The Aboriginal Justice Reviews were not intended to be inquiries because problems with the justice system had already been studied and well documented. Therefore, instead of examining individual cases of past injustices, the committees were to study the current justice system and practical solutions in order to determine how it could be more responsive to the problems faced by aboriginal people152. 2. The Process and Participants The Indian Justice Review Committee was composed of Vice- Chief Dan Bellegarde and FSIN lawyer Blaine Faval. Isabelle Impey and Noble Shanks represented the Metis Society of Saskatchewan on the Metis Justice Review Committee. Government representatives on both committees were Terry Thompson and Betty Arm Pottruff of Saskatchewan Justice, Susan Mak of Justice Canada, and Allen Phibbs of the Federal Ministry of the Solicitor General. Provincial Court Judge Patricia Linn chaired both committees. While clearly prompted by the same concerns about over- representation in the justice systems as were exhibited in the Aboriginal Justice Inquiry of Manitoba and the 1 5 0 Vivienne Beisel-McKay, "Justice System Under Scrutiny," Saskatchewan Indian (Summer 1991) vol. 20, no. 3, p.6. 1 5 1 Saskatchewan Indian Justice Review Committee, Report (Regina, 1992) (hereinafter "Saskatchewan Indian Justice Report') at 1; and Saskatchwean Metis Justice Review Committee, Report (Regina, 1992) (hereinafter "Saskatchewan Metis Justice Report') p. 1. 1 5 2 Biesel-McKay p.6. 37 Alberta Task Force, the review process in Saskatchewan was "very different form the inquiries recently completed in Manitoba and Alberta153." The primary difference was that the committees operated only for a six month period, and their "over- riding concern was to make timely recommendations which are action- orientated154." Therefore, the Indian Justice Review Committee did not, for example, conduct the detailed original research that formed an important part of the process in Alberta and Manitoba, but "builft] upon the framework155" established in a 1985 study, Reflecting Indian Concerns and Values in the Justice System156. However, due to the fact that this previous report did not address the concerns of the Metis in Saskatchewan, the Report of the Saskatchewan Metis Justice Review Committee was considered to be, "[I]n every sense of the word,... a beginning for the Metis...157." Despite the limited period of activity of both committees, consultations were held with or submissions were received from hundreds of individuals, organizations and communities. All Indian and Metis people were encouraged to be involved in the process of the justice review and both Committees received written and verbal presentation by 1 C O individual groups, including people in incarceration . The committees also released interim reports in October 1991, and organized public hearings in locations throughout the province. This component of the committee's process was developed in response to initial concerns about the inadequate community involvement in committee meetings159. 3. The Findings and Recommendations Reflecting the position that "this Committee does not have a mandate to consider or make recommendations in relation to Indian self- government160," the report outlined a reform strategy that was relatively limited in scope. The Committee made Saskatchewan Indian Justice Report p. 1. 154 Ibid, p.4. 155 Ibid p.2. 1 5 6 Government of Canada, Government of Saskatchewan, Federation of Saskatchewan Indian Nations, Reflecting Indian Concerns and Values in the Justice System (Ottawa: Department of Justice Canada, 1985). 157 Saskatchewan Metis Justice Report p.2. 1 5 8 Beisel- McKay p.6. 1 5 9 D. Yanko, "Public meetings slated on aboriginal justice" The [Saskatoon] StarPhoenix (31 July 1991). 1 6 0 Indian Justice Review Committee Terms of Reference (Appendix 2 to Report): Saskatchewan Indian Justice Report at 2; also Saskatchewan Metis Justice Report p.2. 38 recommendations in relation to each of the following aspects of the criminal justice system: youth justice, policing legal representation, sentencing alternatives, court services, and corrections. The most striking finding of the Saskatchewan Indian Justice Review Committee was that indigenous admissions accounted for 68 per cent of all sentenced admissions to correctional centres in the province of Saskatchewan. As a result, the Committee observed that two important points must be borne in mind in the context of implementing criminal justice reform in aboriginal communities: 1) that lneaningful changes can only come about when the Indian community is actively involved in deciding what changes are to be made, how they are to happen, and shares responsibility for the changes; and 2) that because each Indian community is at a different stage of development, they are also at different stages of readiness for change. A project or initiative that may be right for one community may not be right for another. The unique and special circumstances of each community must be recognized161. The following summary of recommendations is based primarily on the Report of the Saskatchewan Indian Justice Review Committee that was released on January 31 1992. The recommendations contained in this report have been described as "almost identical" to those in the Report of the Saskatchewan Metis Justice Review Committee that was released on March 16 1992 . To begin with, the Committee responded to the overwhelming evidence of indigenous peoples' over-representation in custody by calling for a number of changes in the way indigenous offenders are dealt with by the various agencies of criminal justice administration163. The Committee's discussion of alternatives to existing sentencing practices highlighted the value of alternative dispute resolution mechanisms. The Committee recommended the establishment of mediation/diversion/ reconciliation programs which are "culturally appropriate and embody a holistic approach to offender rehabilitation164. Part 9 of the report addressed the adequacy of court services, particularly in remote aboriginal communities. The concerns expressed here are very similar to those identified by the Aboriginal Justice Inquiry of Manitoba. Key problems 161 Saskatchewan Indian Justice Report p. 3. 1 6 2 McNamara p.69. 163 Saskatchewan Indian Justice Report p. 13. 164 Ibid. p.41. 39 include inadequate interpretation and translation services, and the inaccessibility of court services165. The Committee also considered the role of Indian Justices of the Peace. In response to a submission from the Buffalo River Dene Nation and the Meadow Lake Tribal Council, it recommended that" a 2- year pilot Indian Justice of the Peace Program be established for the 9 First Nations of the Meadow Lake Tribal Council166." While not in the same category as the Aboriginal Justice Inquiry's recommendation for the establishment of aboriginal justice systems, the Commission's support for this initiative, and generally for greater use of Aboriginal Justices of the Peace, represents the most 'autonomous' of the Committee's recommendations in terms of aboriginal control over the administration of justice167. It was also of considerable importance that the report addressed the specific concerns of Aboriginal women who constituted 85 percent of the female population in Saskatchewan's provincial facilities168. The Committee recommended the implementation of programming to enhance access to pre- and post- release planning services to be delivered by local aboriginal service providers; more culturally sensitive, gender appropriate and accessible programs, greater access to aboriginal elders and spiritual advisors; and the adoption of a policy that prisoners should serve their sentences in a correctional facility near to their home. The report concluded with a discussion of several overarching concerns that impact upon the criminal justice system169. These include concerns about racism and the impact of systemic discrimination, the importance of cross cultural and race relations sensitivity training at all stages of the system, and the problem of family violence170. 4. The Response The former Minister of Justice and Attorney General of Saskatchewan, Robert Mitchell, has indicated that "subject to operational and fiscal constraints," the 1 6 5 Submission of Judge Moxley, cited ibid, p.44 166 Saskatchewan Indian Justice Report p.46. 161 Ibid. p.45. 168 Ibid. p.55. 169 Ibid p.64. 170 Ibid p.68. 40 Government of Saskatchewan "supports] implementing many of the report's recommendations171." According to Mr. Mitchell, several initiatives have been taken in response to the report: a review of legal aid was initiated in January 1992; a courtworker feasibility study has been initiated; cross- cultural and race relations training for justice staff is underway; changes have b^een made to accommodate Queen's Bench jury sittings in the northern community of La Ronge; and a directive has been issued to Crown prosecutors to ensure that the pre- sentence needs of Aboriginal women with dependent children are adequately considered172. In relation to the report's many other recommendations, the Government of Saskatchewan is "involved in promoting bilateral and tri-partite processes to help monitor Aboriginal justice developments173. The Saskatchewan Department of Justice has indicated that they have and continue to support the recommendations of both the Indian and Metis Justice Review Committee reports, and that recommendations are being addressed through several internal and external bilateral and tripartite processes174. Several recommendations have been implemented. For instance, the Regina Police Service has implemented a comprehensive employment equity plan to increase the representation of aboriginal people on its civilian and non- civilian staff, revised cross-cultural training for provincial government social services staff was launched in September 1992 and the Pine Grove Correctional Centre for Women has developed new programs for female offenders, including the Women's Healing Circle program175. Meanwhile, other initiatives are reportedly in progress, including a feasibility study on the reinstatement of a province- wide aboriginal court worker program. Community-based policing services in urban, rural, northern and reserve contexts are in the process of enhancement. Also, a review of the Provincial Court in the northern region of the province is under way176. Both the Federation of Saskatchewan Indian Nations and the Metis Society of Saskatchewan responded to the release of the respective reports by characterizing the recommendations as an encouraging 'first step' in the task of addressing aboriginal 1 7 1 McNamara p.73. 172 Ibid. 173 Ibid. p. 74. ™RCAPp.26. 175 Ibid. p.27. 176 RCAPp.27'.. 41 justice concerns177. Significantly, despite the relatively conservative nature of the committees' recommendations, representatives of both organizations have indicated that they are broadly consistent with the ultimate goals of autonomous justice systems and aboriginal self- government. Dan Bellegarde, the Vice- Chief of the Saskatchewan Federation of Indian Nations described the review process as "part of a larger drive toward self- government [and] under self- government, our own justice system is inevitable and will occur in the near future under a controlled and developmental process178." The Federation of Saskatchewan Indian Nations (FSIN) has reported satisfaction with the report of the Indian Justice Review Committee, given its limited scope in dealing only with Treaty people in conflict with the present justice system. The spokesperson for the FSIN pointed out that the recommendations "fall far short of the FSIN Justice Commission's stated objective of a First Nations controlled justice system. Such a system would include First Nations law- making powers in our jurisdiction, on reserve First Nations controlled services, on-reserve Tribal Courts, and a First Nations controlled system of sanctions (i.e., corrections facilities) ". Although the FSIN is optimistic about the future, they do not expect large- scale, immediate changes as a result of this report At their annual meeting in October 1992, the Metis Society of Saskatchewan (MSS) held a one- day justice conference at which they solicited feedback from participants on how they thought the report could best be implemented in their communities. The provincial Minister of Justice, who affirmed the provincial government's commitment to Aboriginal justice issues, also attended the justice conference. Although this commitment was positive and encouraging, many initiatives and recommendations have been delayed because of lack of resources on the part of the province. However, one initiative implemented as a result of the Metis Justice Review R. Burton, "Report seeks 'fair' justice for Natives" The [Saskatoon] StarPhoenix (1 February 1992) A l . D. Roberts, "Saskatchewan moves toward native justice" The Globe and Mail (1 February 1992). RCAP p.28. RCAPp.2%. 42 Committee report is the Sentencing Circle. Two circles have been established in northern Metis communities, and more are projected181. 43 VII Report on the Cariboo- Chilcotin Justice Inquiry, 1993 1. The Purpose The Cariboo- Chilcotin Justice Inquiry was established by the provincial government of British Columbia on October 1, 1992. The Terms of Reference stated that: The Commissioner shall inquire into a report on the relationship between the Cariboo- Chilcotin Aboriginal community and the police, Crown prosecutors, courts, probation officers and family court counsellors in the administration of justice in the Cariboo- Chilcotin Region. The Commissioner will inquire into prejudice, or unfair treatment of Aboriginal peoples within the justice system, raised by the 15 bands of the Cariboo- Chilcotin Region, or their members182. The purpose of the inquiry was not to initiate disciplinary action against any individual or group, nor to establish with certainty of a criminal trial the truth of allegations made by the native people . Rather, the Commissioner was to "hear the complaints of native people of the Cariboo- Chilcotin area, to try to understand the causes or reasons for those complaints and to propose remedies184." No specific complaint or allegation of sexual abuse experienced at the St. Joseph's Mission residential school near Williams Lake was brought before the Commission. Accordingly, the Commissioner determined that further inquiry into such general allegations were beyond the scope of this commission185. 2. The Process and Participants The Attorney General of British Columbia appointed Judge Anthony Sarich as the sole Commissioner to inquire into the relationship between the native people of the Cariboo- Chilcotin and the provincial justice system. Fourteen other participants in this Inquiry were representatives of one of the following: the 15 Native bands of the Chilcotin, Shuswap and South Carrier Nations; the Nenqay Deni Yajelhtig Law Centre; the province of British Columbia; the Attorney General of Canada; the Royal Canadian Mounted Police; and the Legal Services Society of British Columbia During the initial stages of the Inquiry, Commissioner Sarich decided that for any chance of success, he would have to hear not only from the people who voiced 1 8 2 The Honourable Anthony Sarich: Report on the Cariboo- Chilcotin Justice Inquiry (hereinafter "CCJ/ Report") (Province of British Columbia, 1993) p.47. 1 8 3 CCJ7Report p. 16. mIbid.p.6. lKIbid. p. 18. 44 complaints, but also from those who are considered knowledgeable or experts in the interpersonal relations between natives and non- natives187. Accordingly, he divided the proceedings into two phases. The first, the longest and perhaps most intense phase was listening to the many native people who came forward with complaints188. Although the first phase began in early December of 1992, Sarich realized after a meeting with the chiefs in June, 1992, that the public hearings could not be held in a courthouse nor could the hearings be conducted in the manner of a regular trial. As a result, he sat in 10 of the 15 reserves of the area and held hearings in community halls and other venues that were large enough to hold the participants189. The second phase was directed to the receipt of submissions, both written and oral, from all of the parties with standing before the Commissioner. This was to be an evaluation of the evidence heard in the first phase, as well as any proposed solutions. The second phase was concluded on June 16,1993, and Commissioner Sarich's final Report was presented to the B.C. Attorney General on September 15, 1993. 3. The Findings and Recommendations Commissioner Sarich found that the native people of the Cariboo- Chilcotin were complaining not only about the police and justice system, but also about all non- native authority structures bearing on their lives. During the hearings, a consistent message that native people want to control their own lives and manage their own affairs was heard. The Commissioner found that this meant "a process of justice that is comprehensible and culturally acceptable to them" and "[t]o achieve these ends some of the communities wil l institute their own justice process and others will experiment with an adaptation of the non- native process190." However, during the time that it takes aboriginal communities to develop a justice system suitable to themselves, Sarich believed that "the non- native court system must be made more accessible and responsive to natives1 9 1." He unquestionable found that some members of the R C M P used excessive force and 186 CCJIReport p.3. l i l Ibid. p.6. 188 Ibid. p.7. 189 Ibid. p.48. 190 CCJI Report p.28. 191 Ibid 45 intimidation against the native people, and this was a reason among many to accommodate the needs of native persons through reforms to the current criminal justice system192. Interestingly though, Sarich also found that the RCMP continued to be highly • • 193 respected in reserve communities In total, Sarich made between 50 and 55 specific recommendations and policy suggestions in his final Report. His recommendations were divide into seven main categories in which he considered government agencies, police, search and rescue, courts, legal aid, native courtworkers, and community law centres194. Sarich's recommendations may be distinguished from other similar inquiries by his use of suggestive pursuasion, rather than enumerating a set list for implementation. For instance, one of the most important recommendations made by Commissioner Sarich dealt with establishing a public complaints process for native persons against the RCMP. Although he did not have the evidence to base a firm recommendation in that regard, he listed some criteria that he felt should be included in the structuring of such a process195. 4. The Response At first, the response of the aboriginal peoples of the Cariboo- Chilcotin was that they were reluctant and afraid to come forward at the public hearings, while others were cynical and thought that there was no use in participating if nothing would result in the end. Still others were hesitant because the complaints involved some of the their own people in compromising situations. However, numerous individuals overcame their reluctance and fear and came forward willingly196. The provincial government gave its initial response on April 11,1994, when the Attorney General, Hon. C. Gabelmann, spoke of the changing directions of the justice system in British Columbia. Justice concerns of aboriginal people were identified as a top priority alongside the issues of crime prevention and the need for "community- based solutions." The commitment, stated Hon. C. Gabelmann," is that we will attempt as much as possible to empower people in their own communities to help provide inIbidp.26. 193 Ibid.p.21. 194 CCJI Report pp.21-49. 195 Ibid. p.35. 46 solutions." The government, in other words, is committed to supporting the creativity and innovation in communities and it was going to involve communities in this development through consultation and cooperation. Furthermore, Justice Sarich's "reforms are also being looked at with a view to implementation, but in consultation and together with the native community in the Cariboo- Chilcotin197." In addition, Hon. J. Cashore, the minister of Aboriginal Affairs, in a discussion on what the provincial government was doing to ensure aboriginal input into the resolution of native justice issues, stated: It is a primary responsibility of the Ministry of Attorney General... [to]...have a lead role is in organizing those meetings, which bring together the Premier and six or seven members of cabinet to meet on a government-to-government basis with the leaders of various First Nations representative entities... [W]ith regard to the findings, for instance, of the Sarich Commission, which dealt with justice and the aboriginal people in the Cariboo- Chilcotin area. That's an area where... we are watching very closely1 8 . CCJI Report p. 7. Hansard Volume 13, Number 25, page 9852. Hansard Volume 14, Number 23, page 10505. 47 VIII Indian Policing Policy Review, 1990 1. The Purpose The Indian Policing Policy Review Task Force was established in 1986 to conduct a national review of on- reserve Indian policing policy199, and to respond to several concerns. Aboriginal communities and their leaders were concerned with the rapid increase in the levels of crime in aboriginal communities and both the sensitivity and adequacy of existing police services. The federal, provincial and territorial governments were additionally concerned with the increasing costs associated with policing on reserves. The lack of a co-ordinated policy framework in the area of on- reserve policing exacerbated these problems and prompted this comprehensive review200. The purpose of the Task Force was to develop a clear statement of federal policy objectives in relation to on-reserve Indian policing; to clarify the obligations of various federal departments and agencies; to examine the issue of the future responsibilities of federal, provincial, territorial and Indian governments; and to make recommendations regarding resources, standards of service, and delivery systems for policing services to Indian people living on 201 reserves 2. The Process and Participants The Task Force was made up of representatives from interested federal departments and agencies under the chairmanship of Hon. Pierre H. Cadieux of the Department of Indian Affairs and Northern Development202. The review addressed current on- reserve policing programs in two phases. The first phase spanned the years 1960- 73, while the second phase covered the years 1973- 88. The Task Force focused on the 12 programs currently running at the time of their review. Each of the on- reserve policy programs were then evaluated according to a set of 13 criteria using both government and academic- based research and statistics203. The Task Force urged the federal government to use the principles and conclusions it outlined in its Report to 1 9 9 Canada. Department of Indian and Northern Affairs: Indian Policing Policy Review/Task Force Report (hereinafter "TaskForce Tteport")(Ottawa: Supply and Services, 1990) p.l. 200 Ibid. 201 Task Force Report p.2. 202 Task Force Report p.l. 203 Ibid. p.26. 48 develop federal policy recommendations and to provide a clear focus for further consultations with other parties204. 3. The Findings and Recommendations The Task Force Report began with a general examination of the current situation and the factors that have had an impact on the provision of on- reserve policing services, such as Indian demographics, the legal and political contexts, and expenditures. The Report then turned to a discussion and analysis of specific key issues and problems, and provided a series of principles and conclusions, as opposed to stating recommendations. In the area of programs and needs, the Task Forces concluded that consultation and negotiation were required on: access to general policing services; access to culturally sensitive policing services; provision of services meeting mutually acceptable regional standards; and the jurisdiction of constables, in terms of both location and authority On the topic of Indian participation, the Task Force found that greater participation of Indian communities in the governing structures for on- reserve policing should be ensured, and policing and the administration of justice should be included in self-government negotiations206. With respect to government roles and responsibilities, the Task Force concluded that consistent federal financial support for on- reserve policing services that meet mutually agreed criteria should continue, and that any new federal policy should be introduced and implemented in phases The Task Force's findings were premised on the notion that Indian communities are entitled to effective and culturally sensitive law enforcement services. In addition, Indian people could also legitimately expect to increase their control over their own future and be policed increasingly by members of their community, irrespective of which policing program was responsible for providing the services in question208. Although the principle impediment to improving on- reserve law enforcement needs was the absence of 204 Ibid. p.22. 205 Ibid. p. 15. 2 0 6 Task Force Report p. 17. 207 Ibid.-p.2\. 208 Ibid. p.22. 49 clear jurisdictions, the Task Force believed that acceptable solutions could be found through tripartite negotiations209. 4. The Response The federal government responded to the Task Force report by establishing a new First Nations Policing Policy, which was to be administered by the newly initiated Aboriginal Policing Directorate. Responsibility for the First Nations Policing Program was transferred from Indian Affairs and Northern Development to the Solicitor General as of April 1,1992. This new policy was intended to improve the level and quality of policing services for aboriginal communities through the establishment of tripartite policing agreements worked out between the aboriginal community, the provincial or territorial government involved, and the federal government. The policy was also accompanied by a federal budget of $116.8 million over five years210. The Royal Commission on Aboriginal Peoples stated that it was too early to comment on the success or failure of the implementation of this policy. The situation in Manitoba, however, illustrated how the policy and the opportunities it provided may fail to be realized in cases where dialogue between the three parties is impeded The RCMP responded to the Task Force's findings by establishing the Commissioner's National Aboriginal Advisory Committee that is comprised of thirteen Aboriginal people who meet in various communities across the country. It had its first meeting in Edmonton during May 1990 and has met twice a year since then. The mandate of this committee was to provide a forum for the continuing discussion of recruiting, training and community relations with respect to Aboriginal people, intercultural relations and other related matters that may emerge. The RCMP, in conjunction with the Department of Justice, has also committed itself to the Aboriginal Justice Initiative of which Community Justice Forums (CJF) are one component. In addition, the Canadian Police College and RCMP are working on a multidimensional package on CJF that will °RCAPp30. 1 Ibid 50 be made accessible to all police forces in Canada . As a final note, an Aboriginal Police Officer Development Workshop occurred in Saskatchewan in October 1995, and was the first of its kind in Canada. Approximately 85 aboriginal police officers met to address the significant barriers they encounter213. 2 1 2 Royal Canadian Mounted Police (RCMP). The Commissioner's National Aboriginal Advisory Committee and Community Justice Forums. Found at the following website: www.rcmp-ccaps.com/aborig. 2 1 3 Solicitor General Canada. Aboriginal Policing, found at the following website: www. sgc.gc. ca/whoarewe/aboriginal/orpnewslet/efall95. htm. 51 IX Task Force on Federally Sentenced Women, 1991 1. The Purpose The Commissioner of the Correctional Service of Canada established the Task Force on Federally Sentenced Women iri March, 1989, in collaboration with the Canadian Association of Elizabeth Fry Societies. Initially, the mandate of the Task Force required members to examine the correctional management of federally sentenced women "from the commencement of sentence to the date of warrant expiry", and to develop a policy and a plan which would guide and direct this process in an manner that was responsive to the unique and special needs of this group214. However, following a review by the Task Force, the original Terms of Reference were revised to emphasize the over- representation of aboriginal people in the Canadian criminal justice system, as well as, the significant impact of aboriginal experience in clarifying the unresolved problems affecting federally sentenced women 2. The Process and Participants The Task Force was organized into two committees; a Steering Committee, comprised of senior officials from various relevant agencies and organizations and a Working Group, staffed by government and non- government representatives with direct expertise pertaining to federally sentenced women. A variety of different perspectives and experiences were represented on the Task Force. The membership included federally sentenced women, community, aboriginal and women's groups, along with a variety of government agencies216. The Steering Committee was co- chaired by Bonnie Diamond, Executive Director of the Canadian Association of Elizabeth Fry Societies, and Jim Phelps, Deputy Commissioner, Correctional Programs and Operations, Correctional Service of Canada. This committee provided overall direction, perspective, and a broad context for the work of the Task Force217. The Working Group was co-chaired by Jane Miller-Ashton, Director of Native and Female Offender Programs, Correctional Service Canada., Correctional Services of Canada: Creating Choices: The Report of the Task Force on Federally Sentenced Women (hereinafter "Creating Choices11) (Ottawa: Correctional Services Canada, 1990) p.88. 215 Creating Choices p.90. 216 Creating Choices p. 89. 2 1 7 / t a £ p . 9 0 . 52 of Canada, and Felicity Hawthorn, Board Member and Past President, Canadian Association of Elizabeth Fry Societies. The Working Group defined goals, developed work plans, assessed research needs, directed researchers, conducted the consultations, scheduled the discussions and drafted the report. At the first Steering Committee meeting, the need for stronger representation from aboriginal women was raised by the Native Women's Association of Canada. Consequently, prior to the first Working Group Meeting, aboriginal membership was enhanced from one to four on the Steering Committee and from one to two on the Working Group During the Task Force's first meeting it was agreed that consultations with federally sentenced women and with the community should be as broad- based as possible219. Task Force members placed a strong emphasis on women- centered research, and particularly on research which included interviews with federally sentenced women 2 2 0 . Through the consultation process, over 30G individuals and organizations made submissions or presentations to the Task Force221. The Task Force members also believed that their knowledge base should be as multidimensional as possible. Accordingly, to expand the breadth of the consultation process, five research projects were commissioned by the Task Force222. Creating Choices, the Task Force's Report, was presented to the Commissioner of Correctional Service Canada by the Steering Committee on February 14,1990. 3. The Findings and Recommendations The Task Force found that: the Prison for Women was not meeting the needs of aboriginal women223; culturally appropriate programs for aboriginal women were limited224; access to elders and shamans was difficult because these individuals were not given the same status as chaplains225; existing medical and psychological services were 218 Ibid. 2 , 9 Ibid. 220 Creating Choices p.48. 221 Ibid. p.25. 222 Ibid. p.45. 223 Ibid. p.36. 224 Ibid. p. 132. 225 Ibid. p. 133. 53 delivered mainly by white males ; and for most aboriginal women incarceration in the Prison for Women entailed long distance separation from home communities227. In light of their findings, members of the Task Force believed that society must move towards the long- term goal of creating and using an alternative aboriginal justice system. Yet, the Task Force also concluded that substantial and significant changes must be made immediately. The Task Force examined the possibility of an aboriginal justice system but concluded that such a system was an integral aspect of the broader aboriginal goal of self-determination228. The Task Force further recognized that the process of creating the social and political will to support fundamental legislative change in corrections would require significant time. Therefore, the Task Force decided to develop a recommended plan as an interim step that would respect the fundamental premises of the long- term goal229. This recommended plan included the establishment of five regional women's facilities across Canada, the creation of an Aboriginal Healing Lodge and a Community Release Strategy230. 4. The Response Aboriginal women on the Task Force initially felt that their mandate was too narrow to suit their needs and reflect their concerns231. In addition, these members expressed a "strong concern that the existence of the Task Force, and subsequently of its report, could be used as an excuse to delay urgently needed action232." It is also crucial to mention that the original consultations planned by the Task Force failed to effectively reach aboriginal communities The Task Force did not consider this failure acceptable and recognized that, for any future initiatives, efforts must be made to develop a more sensitive aboriginal consultation strategy. This failure also sensitized the Task Force to the need for innovative approaches to information gathering233. 226 Ibid. p. 105. 227 Ibid p. 123. 228 Ibid. p.95. 229 Creating Choices p.96. 2 3 0 p. 138. 231 Ibid p.2\. 232 Ibid p.92. 233 Creating Choices p.91. 54 The recommendation concerning the creation of an Aboriginal Women's Healing Lodge was accepted and implementation was completed in September, 1995. The creation of the Lodge has been considered to be the most autonomous of the Task Force's recommendations. The site selected for the lodge was on the Nekaneet reserve, at Maple Creek, Saskatchewan. Local support is reported to be very positive, and overall, implementation of the Healing Lodge is reported to be achieving a balance between speed and attention to aboriginal concerns. The Native Women's Association of Canada (NWAC) has been closely involved in the Healing Lodge initiative since its inception and reported that they are satisfied with progress to date on its implementation234. 2 3 4 Coirectional Services Canada. First Nations Healing Lodge. Found at the following website: www.csc-scc.gc.ca/text/prgrms/fsw/ 55 XLaw Reform Commission of Canada, 1991 1. The Purpose In a letter dated June 8,1990, the Minister of Justice asked the Commission to study, as a matter of special priority, the Criminal Code and related statutes and to examine the extent to which those laws ensure that aboriginal persons have equal access to justice and are treated equitably and with respect. In carrying out its mandate, the Commission was requested by the Minister to focus on "the development of new approaches to and new concepts of the law in keeping with and responsive to the changing needs of modern Canadian society and of individual members of society235." However, the Commission interpreted the reference quite broadly and considered issues quite beyond the question of proposals to amend the Criminal Code. Indeed, Aboriginal Peoples and Criminal Justice represents something of a departure from the Commission's traditional commitment to "the principles of uniformity and consistency236" in relation to the reform of the criminal process. 2. The Process and Participants Four members made up the Law Reform Commission at the time this study was initiated. Mr. Gilles Letourneau was the acting President, Madam Justice Ellen Picard was Vice- President, and both Mr. John Frecker and Professor Jaques Fremont were commissioners. The process adopted by the Commission included holding a number of consultation sessions with Aboriginal representatives237, soliciting the views of "representatives of the affected communities and recognized experts, as well as the government ministries and institutions having direct responsibilities with respect to Aboriginal people and the justice system238," and commissioning a series of background studies. As well, the Commission benefited from the opinions and advice of experienced individuals in the fields of policing and law enforcement, law teaching, the practice of 2 3 5 Law Reform Commission of Canada, Aboriginal Peoples and Criminal Justice: Equality, Respect and the Search for Justice (Report No. 34) (hereinafter "LRCC Report) (Ottawa: Law Reform Commission of Canada, 1991) p.l. 2 3 6 Ibid. p. 1. For a critique of the Commission's traditional approach, see R. Hastings & R.P. Saunders, "Social Control, State Autonomy and Legal Reform: The Law Reform Commission of Canada" in RS. Rater & J.L. McMullan, eds., State Control: Criminal Justice Politics in Canada (Vancouver: University o British Columbia Press, 1987). 2 3 7 The consultations are listed in the LRCC Report p. 109. 56 law, the judiciary and corrections. Also consulted were various federal and provincial government representatives and members of previous provincial inquiries into aboriginal 239 justice 3. The Findings and Recommendations The Commission made 15 recommendations that included over 70 sub-recommendations throughout their report. Similar to the perspective taken by both Justice A.C. Hamilton and Justice C M . Sinclair in the Aboriginal Justice Inquiry of Manitoba, the Law Reform Commission also viewed the differences between Euro- Canadian and traditional aboriginal justice systems as to great to defy any mutual accommodation between the two systems. The Law Reform Commission accepted the necessity to effect fundamental changes to the criminal justice system in order to ensure that aboriginal persons are treated equitably and with respect Equal access to justice in this context, stated the Commission, " means equal access to a system that is sensitive to the needs and aspirations of aboriginal people240". The Commission maintained that this type of system would not be uniform, as it must be a system that aboriginal peoples themselves have shaped and moulded to their particular needs241. Wfiile less overtly politically supportive of Aboriginal self- government aspirations than the Aboriginal Justice Inquiry of Manitoba, the Commission adopted a similar two- pronged reform strategy. One track was short- term and admittedly did not address the more fundamental issues, while the other staked out a course that ultimately arrived at a destination far removed from the , . 742 present reality . The Law Reform Commission of Canada's long- term plan is rather less detailed than its short- term plan, but perhaps even more worthy of attention. The Commission recommended that: 23SLRCCReport p.3. 239 Ibid. p.xv. 240 Ibid. p.94. 2 4 1 LRCCReport p.94. 242 Ibid. p.3. 57 Aboriginal communities identified by the legitimate representatives of Aboriginal peoples as being willing and capable should have the authority to establish Aboriginal justice systems. The federal and provincial governments should enter into negotiations to transfer that authority to those Aboriginal communities243. While stressing that it should be left to individual communities to determine the precise make- up of their justice system, the Commission suggested that the following features might be incorporated: (a) relying on customary law; (b) traditional dispute resolution procedures with dispositional alternatives stressing mediation, arbitration and reconciliation; (c) the involvement of elders and Elders' Councils; (d) the use of Peacemakers; (e) tribal courts having Aboriginal judges and Aboriginal personnel in other mainstream justice roles; (f) autonomous Aboriginal police forces with police commissions and other accountability mechanisms; (g) community- based and - controlled correctional facilities, probation and after care services; and (h) an Aboriginal justice Institute244. Unlike the Aboriginal Justice Inquiry of Manitoba, the Law Reform Commission did not locate its recommendations for the creation of Aboriginal justice systems within the context of Aboriginal self- government. In fact, the Commission expressly distanced itself from the whole self- government debate: We recognize that the call for completely separate justice systems is part of a political agenda primarily concerned with self- government. We need not enter that debate. Aboriginal- controlled justice systems have merits quite apart from political considerations245. 4. The Response There has been no direct implementation of any of the recommendations made in the Report and the Law Reform Commission itself was dissolved after the federal budget of 1993. Recent federal initiatives in aboriginal justice have included the Aboriginal Justice Directorate, which was established as of April 1, 1992, however, the Directorate has been described as only an indirect response to the Commission's report246. The Directorate administers a discretionary contribution fund, called the Aboriginal Justice Ibid. p. 16. Ibid, pp.22-23. LRCC Report p. 14. RCAP p.34. 58 Fund, that provides money for the development of programs and services, cross- cultural training, consultations undertaken by national aboriginal organizations and research studies related to aboriginal justice issues. The program has been initiated only recently, and no projects are under way247. Despite these accommodative efforts, the Head of the Assembly of First Nations, Ovide Mercredi, has gone on record to state the desirability of separate justice systems248, as have numerous other aboriginal leaders and their representatives249. Therefore, making it evident that the Commission's unwillingness to address the more fundamental issue of self- determination was perceived as unsatisfactory. Although aboriginal groups share interest in aboriginal justice projects that have been created within the accommodational framework, they are seen by some aboriginal participants as only prospective stepping stones to full- fledged aboriginal justice. I have yet to hear or read of any aboriginal leaders arguing against having the choice of developing such a system, in the general context of further elaborating aboriginal self- determination. Don Clairmont & Rick Linden, "Developing and Evaluating Justice Projects in aboriginal Communities: A review of the Literature", found at the website for the Solicitor General of Canada. 2 4 8 LRCCReport p. 13. 2 4 9 See Daniel Bellegarde, "Sharing Power: How Can First Nations Governments Work?", in F. Cassidy (Ed.) Aboriginal Self- Determination (Lantzville, B.C.: Oolicahn books, 1991) p.77; and PA. Monture-59 Discussion: At this stage in my thesis, I will now turn to answering my second set of six questions, initially listed in the framework section, that will provide the basis for further discussion of the commissions of inquiry as they relate to aboriginal people and the criminal justice system. 1. Given that some incidents of injustice involving an aboriginal person and the Canadian criminal justice system led to the establishment of a commission of inquiry, what types of cases are more and or least likely to lead to an inquiry? What are the reasons for not establishing an inquiry when there have been demands by the aboriginal community or other groups involved? The types of incidents that have lead to the establishment of a commission of inquiry have been varied but a few patterns can be discerned from the ten inquiries studied. First, only two of the inquiries were created to investigate specific cases of misconduct. The Nova Scotia Royal Commission on the Donald Marshall, Jr. Prosecution dealt with one specific case of the wrongful conviction of Donald Marshall Jr. in 1971. The Manitoba Aboriginal Justice Inquiry was established in response to both the 1987 trial of two men for the murder of Helen Betty Osborne and the death of John Joseph Harper in 1988 following an encounter with a City of Winnipeg police officer. However, these inquiries did not end at an investigative level, but rather their function was extended to that of policy advising in order to address more general concerns about the impact of the criminal justice system on aboriginal peoples. For example, the scope of the Marshall Inquiry was to examine one specific case within the broader context of the administration of criminal justice in Nova Scotia and the Manitoba Inquiry had a mandate to inquire and make findings about the overall state of conditions with respect to aboriginal peoples in the provincial justice system. The remaining eight inquiries were created to provide policy advice on more general concerns regarding aboriginal persons and the criminal justice system. Inquiries that were established to investigate misconduct generally dealt with complaints made by aboriginal persons against the RCMP. Only a few submissions contained specific reference to city police. This is one of my most intriguing findings Okanee & M E . Turpel, "Aboriginal peoples and Canadian criminal law: Rethinking justice" (1992) U.B.C. Law Review (Special Edition) p.249. 60 because the RCMP, as a national force, has placed much emphasis on cultural training in order to sensitize its officers to the multicultural make- up of Canadian society. In addition, because the RCMP serve as a symbol of Canada abroad and are held in high repute by other police forces, it is surprising that the RCMP remain the focus of the majority of complaints brought forth during inquiry proceedings. Another finding that is equally interesting is in relation to the nature of the police force involved in a particular case of misconduct. As the reader may recall, each of the four cases in which there was an absence of thorough governmental investigation and a rejection of calls for a public inquiry involved either city or provincial forces such as the O.P.P., Victoria City Police and Saskatoon City Police. Although one can only speculate as to why this has been the case, I believe that the provincial and municipal police forces may not have been subjected to public hearings because responsibility for wrongdoing found in relation to these forces would ultimately rest with the provincial Attorney General. One could reasonably infer that provincial governments would not be in favour of such an outcome and would, as a result, take necessary action to avoid public scrutiny. On the other hand, provincial governments would not have to claim responsibility for any wrongdoing committed by the federal police force, thus, being more receptive to calls for a public inquiry involving the RCMP. This may be the reason for why cases involving allegations of provincial and or municipal police misconduct made by an aboriginal person were investigated either by the police department in question or by an RCMP task force In these cases, allegations were investigated either internally by the police department in question or by an RCMP task force. The investigations were also concluded with the release of these reports, regardless of whether disciplinary action was taken or not, and further investigations were deemed unnecessary. For the aboriginal persons affected by police misconduct, this type of internal resolution was perceived to be unsatisfactory. 61 2. What factors increase the likelihood that a commission's recommendations will be implemented? What do governments and aboriginal communities require in order to increase the likelihood that they will have a positive response to the recommendations? The ten inquiries studied revealed that governments are more likely to respond positively to recommendations with the intention to implement if they are for the most part accommodative initiatives. These initiatives have included: youth justice, policing, legal representation, sentencing alternatives, court services, and corrections. These examples represent the range of aboriginal justice initiatives in which the federal and provincial governments have expressed an interest and have been willing to fund. Although each is a positive effort, it is also the case that the alternatives suggested do not call into serious question the applicability of the dominant justice system for aboriginal persons, nor do any of the alternatives pose a threat to the constitutionally recognized, as opposed to inherent, philosophy of aboriginal rights that the federal and provincial governments have preferred. As a result it is fair to conclude that if either the provincial or federal government is taken by surprise as a result of sweeping changes recommended by a commission's report and fears that political flack may result if the recommendations are implemented, the government will likely enact the minimal necessary for damage control250 On the other hand, aboriginal community leaders and scholars are more likely to respond positively to recommendations that surpass accommodative initiatives and mere reforms of the system and embrace more autonomous aboriginal institutions. To the extent that an inquiry promises the opportunity for radical debate, but produces a report that displays little sensitivity to the submissions it has received, the response is likely to be cynical or angry. It is therefore, reasonable to conclude that if inquiries are commissioned, in part, to defuse controversy, such inquiries succeed only in fuelling it further and adding to the frustration already felt by some aboriginal participants Critical commentary on the accommodative strategies has been abundant. This is particularly so for the 'indigenization' alternatives that try and accommodate native accused by offering translation services and native courtworkers, or which suggest that a 2 5 0 Alan C. Cairns, JS. Grange & E.C. Harris, "The Commission and Its Report: Public Education, Advocacy and Lobbying. In A. Paul Pross et al. (Eds.) Commissions of Inquiry (Carswell: Toronto, 1990) p.165. 62 sprinkling of native police officers, corrections officers and justices of the peace will somehow sensitize and humanize the system regarding what are often construed as the problems of aboriginal communities. The major advantages perceived by government seems to be that they are the easiest and most practical steps to take. However, advocates of more fundamental reforms to the criminal justice system consider such changes mere appeasements, which only postpone, rather than preclude, failure 3. Why, given their capacity to incorporate radical alternatives and debate, do inquiries seldom reach beyond the narrow limits of pragmatic politics and accommodative reforms? My research confirms what Liora Salter has previously suggested as the fundamental contradiction with the inquiry process. The contradiction lies in the almost unprecedented opportunity provided by inquiries to expand the discussion of public issues, while at the same time being mandated by and having to report to the government. The inquiry can gather information from those directly affected by particular policies, including those who have no experience with political participation. It can also consider a range of proposals as broad as measures to restructure the government or in the context of this paper, the criminal justice system. However, at the same time and perhaps more than any other advisory body, their members are focused on the task of persuasion and the need to create recommendations that are agreeable, or at least feasible, to those who will receive them. The contradiction, then, lies in the potential of inquiries to incorporate radical debate while maintaining an orientation to the very limited and pragmatic policy goals 2 5 3 . Another scholar, Richard Simeon, provides a rare insight into the pragmatic and reformist nature of the inquiry process. Simeon notes that commissions are bound by conventional wisdom and the political pressures under which they operate254 and argues that structural constraints in the way inquiries are organized results in their fundamentally reformist orientation. He suggests: Salter p. 182. AJI Report, vol.1 p.265. Salter p. 174. Ibid. p.m. 63 Royal Commissions are appointed by governments in power. By their very nature, they can be no more than meliorative and reformist, rather than revolutionary. Commissioners are also creatures of their times; perhaps the best that can be expected is that they collect, and then express, a shifting conventional wisdom, tilting it in one direction or other way but working well within the bounds of the existing order255. On the other hand, the radical potential of inquiries originates from the fact that they present an open field to their possible participants because few, if any, constraints are imposed upon the public submissions. Simeon's contention about the potential of inquiries for radical debate is that it would be naive to believe that such contributions would be taken seriously or that they would not be transformed within the inquiry into something much more reformist in orientation. He suggests that to argue that the problems are profoundly structural is also to argue that they can only be solved by fundamental, sweeping change. The problem with this approach is that it can end up generating proposals easily dismissed by the commissioners as extreme. On the other hand, some may deem it just as futile to argue for incremental reforms because it forces commissioners to work within the logic of the existing system However, I would argue that Simeon is perhaps mistaken in his conclusions relating to the radical potential for inquiries. Take for example the Aboriginal Justice Inquiry of Manitoba that proved to be radical in the sense of redefining its task to encompass the self- determination aspirations of aboriginal people and aboriginal concepts of justice257. The fresh approach taken by the commissioners was illustrated by the fact that the report did not turn immediately to the question of reforming the existing justice system, but instead undertook a detailed examination of aboriginal and treaty rights258, thereby highlighting the political and legal context for the analysis and recommendations which followed. As a result of this inquiry both government and members of the public learned that an inquiry could be used to debate issues in greater detail than is possible in Parliament, within government or in the normal course of media coverage. In addition, it illustrated that by changing the language used, in the mandate or by the commissioners, an inquiry could expand or delimit the problem to be addressed. 2 5 5 Salter p. 178. 2 5 6 Ibid. p. 191. 2 5 7 AJI Report, vol. 1 pp. 17-46. 64 By stretching the parameters of aboriginal justice to incorporate the pressing political demands of aboriginal people, the Aboriginal Justice Inquiry of Manitoba entered into largely unchartered justice reform territory. The recommendations for the establishment of aboriginal justice systems within the context of self- government set this inquiry apart from the other nine reports. In summary, it goes without saying that the fundamentally reformist nature of inquiries and their capacity to incorporate radical alternatives and debate send out mixed messages. To the public, inquiries offer the possibility of a discussion about public policy that knows few limits in terms of its participants, the information it can gather or the proposals in can entertain. Relating back to Simeon's contention that inquiries are fundamentally reformist in nature, I have argued that his conclusion is premature and that inquiries do have the potential to incorporate a debate that goes beyond mainstream politics. In general, however, inquiries such as the Aboriginal Justice Inquiry of Manitoba are exceptional and Simeon's perception is accurate for the most part. 4. What procedural approaches undertaken by commissions of inquiry have the most positive response? What is the impact of public hearings? The most striking finding resulting from comparing the procedural approaches is that the inquiries that elicited a more positive response from aboriginal communities utilized public hearings. The five inquiries to use public hearings from the beginning were: the Alberta Board of Review; the Justice Reform Committee of British Columbia, and subsequent Native Justice Consultations; the Royal Commission on the Donald Marshall, Jr. Prosecution; the Aboriginal Justice Inquiry of Manitoba; and the Cariboo-Chilcotin Justice Inquiry. These commissions traveled to numerous aboriginal communities and met with all interested organizations and individuals. In addition to the public hearings, the commissions received various types of submissions, attended presentations, and utilized the research projects provided by leading academics and experts. Another important observation in relation to the five inquiries that did not use public hearings was that they unsuccessfully substituted hearings with a consultation 2 5 8 AJI Report, vol. 1 pp. 115-210. 65 process, that included only aboriginal representatives and recognized experts. The Saskatchewan Indian and Metis Justice Review Committees realized that they would have to include public hearings as a component of the process when presenting their interim reports in response to initial concerns about the inadequate aboriginal community involvement in committee meetings. Similar problems arose in the approach used by the Indian Policing and Policy Review and the Law Reform Commission because the consultation sessions failed to provide an adequate means for dialogue for all concerned parties. Also, the Federal Task Force on Federally Sentenced Women reported that the original consultations planned failed to effectively reach aboriginal communities. The Task Force did not consider this failure acceptable and recognized that, for any future initiatives, efforts must be made to develop a more sensitive and innovative approach for including aboriginal interests259. An innovative approach to information gathering was exactly what both the Aboriginal Justice Inquiry of Manitoba and the Cariboo- Chilcotin Justice Inquiry succeeded in providing. In conjunction with public hearings the Aboriginal Justice Inquiry utilized judicial hearings, presentations, submissions, and major research projects that resulted in a vast body of research and literature for the public. The Cariboo-Chilcotin Justice Inquiry stands apart from the other inquiries because its commissioner, Justice Sarich, made an exceptional effort to ensure that the proceedings were both culturally appropriate and innovative for the aboriginal participants. He understood the necessity that the public hearings follow a procedure unlike a regular trial so as not intimidate and discourage native people from coming forward with their complaints260. It appears that the use of public hearings within an inquiry's proceedings has an obvious, positive impact and that the absence of such public participation can prove detrimental to the success of an inquiry. I agree with Alan C. Cairns' assertion that public hearings do more than simply legitimize an inquiry and build a consensus that will ultimately support the commissioners' recommendations. The hearings can be seen as learning mechanisms for the commissioners and a means of testing the feasibility of potential recommendations against the voiced concerns of the aboriginal communities Creating Choices p.91. CCJI Report p. 15. 6 6 they serve. Furthermore, public hearings enhance a commission's interaction with all parties sharing a concern in the issues and help to ensure that all the interests that were required to be considered by the commission were in fact represented and considered261. My research has indicated that public hearings provided an opportunity for advocates of both accommodative and autonomous solutions to participate. Surprisingly; most non-academic and non- elite aboriginal participants requested changes to the criminal justice system that did not necessarily require a fundamental overhaul of the existing system. For instance, in the area of policing, the reader may recall that although complaints were made in relation to RCMP misconduct, participants rarely voiced a desire to have the RCMP removed from their jurisdiction. Rather, aboriginal participants often indicated that police officers should undergo training to enhance their cultural-sensitivity. This aligns with the general finding that, as an organization, the RCMP, was respected by aboriginal communities. My findings have illustrated that for the most part, commissions of inquiry did not succumb to the pressure exerted by advocates of autonomous solutions. Instead, cormriissions seem to be listening to the voices of grass root aboriginal citizens that steer clear of political rhetoric in favour of more practical reforms. 5. Which of the ten commissions of inquiry were most effective in carrying out its mandate? Were the recommendations given by an inquiry implemented? Deciding whether a commission of inquiry effectively carried out its mandate requires careful attention to its function and objectives. What constitutes success will vary with the environment encountered by the commission. As already mentioned, it may be that the role of the commission is primarily to give definition to a question or issue than to resolve it. It may also be the case that the problem is not capable of resolution or that the necessary facts cannot be established. Therefore, a real assessment of whether the commission was effective will require not only an appreciation of the flexible nature of its role and attention to its objectives, but also some assessment of how it interacted with Christie and Pross p. 12. 67 262 its environment . Central to any evaluation of the activities of a commission one should consider issues of procedure and whether or not only necessary and appropriate issues were considered. Commissions of inquiry should also be assessed against the standards of efficiency, economy and effectiveness. Answers to issues of efficiency may be dependent on the commission's role and function because if the commission sought only to define issues to establish facts, accomplishing only this may fulfill the commission's 263 mandate . On the topic of economy, there are many factors that must be weighed in considering if the cost of a commission was excessive. The commission must make its own judgment about the degree to which it must follow more formalized procedure, allow a broader representation of interests, conduct broader and more fundamental research, travel to a greater or lesser degree or hear a broader spectrum of views264. Finally, in considering the effectiveness of a commission of inquiry, there inevitably will be a tendency to conclude that the final measure of the effectiveness of a commission is the degree to which the activities and recommendations are accepted by other institutions of society and by the public. Although this may sound like a good bottom line test, I would argue that is not an accurate test of the overall value of policy commission, and one must be cautious in employing such a measure. It is far more important to question whether the work of the commission influenced the course of public policy; a much more difficult question to answer265. Also, efficiency may also be determined by the degree to which the commission meshes with other instruments of government266, in addition to, the body of research that is, in fact, published and made available267. This framework for evaluation has allowed me to draw some conclusions about which inquiries were most effective in carrying out their mandate. All ten of the inquiries were effective in further defining the issue outlined in their Terms of Reference. However, only four inquiries were successful in broadening the scope of their mandate 2 6 2 Frank Iacobucci, "Commissions of Inquiry and Public Policy in Canada, in Pross et al. (ed.) (Carswell: Toronto, 1990) p.26. 2 6 3 Iacobucci p.27. 2MIbid. 2 6 5 J.G. Godsoe, "Comment on inquiry Management", in Pross et al. (Eds.) (Carswell: Toronto, 1990) pp. 72-73. Iacobucci p.27. 2 6 7 Godsoe p. 73. 68 and addressing more complex and controversial issues. Each of the Aboriginal Justice Inquiry of Manitoba, the Cariboo- Chilcotin Justice Inquiry, the Task Force on Federally Sentenced Women and that Law Reform Commission went beyond the limitations of its mandate and addressed more fundamental issues for aboriginal Canadians. These issues encompassed self- determination, treaty rights, socio-economic issues and cultural concerns. This direction stands in contrast to the logic of the other six commissions that made a conscious effort not to go beyond their mandates. In consideration of the previously discussed methods for evaluating the effectiveness of the approach undertaken and the ability of a commission to influence the course of public policy, I conclude that the Aboriginal Justice Inquiry of Manitoba has been the most effective commission of inquiry for the following reasons. First, this Inquiry's recommendation to create an Aboriginal Justice Implementation Commission (AJIC) was successfully implemented and provided the means to "mesh" with other departments of the provincial government. The AJIC served as a link between the Department of Justice and the various departments and programs of government such as child welfare, family services and housing. Secondly, the Aboriginal Justice Inquiry utilized public hearings and various other means of gathering research. This approach was only rivaled by the process undertaken by Commissioner Sarich in the Cariboo-Chilcotin Jusice Inquiry. Finally, it is unnecessary to reiterate the Aboriginal Justice Inquiry's success in contributing to the policy debate by opening up the discussion on self- government and treaty rights for aboriginal peoples- pioneering steps in the realm of criminal justice reform in Canada. 6. Was the commission of inquiry well suited as an institutional mechanism for policy analysis? As a starting point, it is valuable to note that commissions do not have to equivocate or qualify their questions or answers to take account of political realities. A commission can have great flexibility in respect to its procedure, who appears before it and with respect to the questions it addresses within the scope of its mandate. It appears, then, that if a government seeks to conduct a flexible, impartial inquiry on either a specific or a general topic, to consider numerous sources of information, and to canvass 69 innovative solutions to problems without necessarily being bound to identified or 268 recommended courses of action, a commission of inquiry should be considered . Before one can evaluate the initial choice to follow the commission route, however, one must also consider the broad range of alternatives to inquiries. The function of inquiring into issues, discovering facts and reporting on these findings with a set of recommendations is not unique to commissions of inquiry. There are many institutions that from time to time may carry out such functions, most notably, of course, Parliament and the courts. Commissions of inquiry are not courts, structured to reach the most reliable final conclusions about facts, nor can they make the representative decisions about values which Parliament may be required to make269. The possibility that the bureaucracy might be appropriate to address the issues must also be considered. However, many issues, which commissions consider, will be issues that the executive or bureaucracy might have handled but which, because of reasons such as the need for open public input or a perceived need for an independent and impartial approach, cannot be 270 resolved internally by governmenr . It is also important in making this assessment to recall that in addition to the basic functions of gathering information and formulating recommendations, commissions of inquiry have a variety of subsidiary uses and purposes. These include "educating the public or the legislature in order to generate pressure for intended legislation, sampling public opinion, carrying out specific investigations into the other branches of government, permitting the voicing of grievances and enabling the government to postpone action on a question where the imperative to act is not yet clear271." It may be that in some circumstances these subsidiary functions have had a great influence on the choice of a commission of inquiry to address an issue. Each of these characteristics can be seen as important to policy analysis as an activity of governance. Commissions of inquiry provide time for analysis as an intellectual exercise, an opportunity to examine and assess demands and support for various policy options, as well as, providing an opportunity for analysts who are generally unable to evaluate policy options free from the 2 6 8 Iacobucci p.24. 2 6 9 Iacabucci p.24.. 270 Ibid. p.25. 2 7 1 Iacobucci p.26. 70 constraints of partisan controls or institutional limitations. However, these characteristics, 272 individually or collectively, do not ensure "good" policy analysis On the basis of literature in political science and public administration, one could in fact come to the conclusion that the policy analyses of commissions are generally held in high regard. At the same time, however, it must be pointed out that there exists no systematic evaluation of the contributions of commissions to policy analysis. Aside from the questions of costs and logistics, there are two reasons to doubt the value of any such undertaking. First, by its very nature policy analysis is an intellectual exercise and is ultimately a subjective enterprise. Second, policy analysis, as applied to social science, is an activity that also involves "creativity" in the development of policy options; there are no objective standards273. If it follows that an evaluation of the contributions of commissions to policy analysis in inherently limited by the previous considerations, then what accounts for the perception that such commissions are an ideal institutional mechanism for independent and objective policy analysis? Why is there the assumption that such commissions have contributed and can contribute to policy analysis? The answers to these questions lie in the fact that policy analysis is not only an intellectual exercise of applied social science, it is also a social and or political activity. As such, the institutional context and its organizing mechanism are equally critical to its understanding274. My research confirms that commissions of inquiry are well suited as institutional mechanisms for policy analysis if the following conditions are met: 1. Mdtimember commissions rather than single member commissions 2. Multi-disciplinary staff 3. A mixture of experienced administrators and outside expertise 4. A public hearing process 5. A diffused a decentralized operational system for research, discussion and deliberation 6. Public mssernination of studies as well as report275 In conclusion, it appears that a commission of inquiry's greatest utility is when a public perception of independence and objectivity is deemed to be of the highest priority. In cases of apparent injustices towards aboriginal persons by the criminal justice system, 2 7 2 Aucoinp.198. 2 7 3 Ibid p. 199. 2 7 4 Aucoin p.200. 2 7 5Aucoin pp.200-201. 71 independence from the government and or police departments is crucial if a review is to be perceived as unbiased. This may explain why public inquiries are often demanded by the aboriginal communities and families of victims of police misconduct when internal investigations fail to lay blame or implement disciplinary action. 72 Final Discussion: Policy Implications Underlying each of the discussion questions is the fundamental question of what is still necessary in order to resolve the concerns between aboriginal peoples and the Canadian criminal justice system. This section is intended to facilitate a more fundamental discussion of justice in light of the experience of aboriginal peoples in the criminal justice system. It may also be used to sensitize future commissions of inquiry to the larger political and cultural context of aboriginal -Canadian relations. In essence, an alternate view that proposes the creation of autonomous aboriginal justice systems will be addressed as a means of illustrating what some individuals perceive as necessary, but abundantly absent from current reform initiatives. From this perspective, the mandates of the commissions of inquiry are faulted for accepting the parameters oi" existing legal provisions as the basis from which their work commences. Advocates of autonomous solutions clearly suggest that this is not an acceptable parameter for the work of commissions, such as the ones reviewed in this thesis, which were anticipated by some to be expansive and progressive. Accordingly, this perspective requires that commissions of inquiry, relating to aboriginal concerns with the criminal justice system, must address the structural and cultural problems inherent within the system in a substantial way, even if it requires commissions to go beyond their mandate. Although this view is most prevalent among aboriginal scholars and leaders, it is important to note that it is not necessarily representative of the grass roots opinions held by most aboriginal persons276. Advocates of this alternative viewpoint believe that aboriginal communities need a criminal justice system over which they have control and that is shaped according to the values, traditions and beliefs of each community. In their view, no amount of tinkering 277 with the non- aboriginal justice system will fully and finally answer that need . Len Sawatsky refers to this emphasis on gradual improvement to the system as "evolutionary" For a critique of the autonomous aboriginal justice system perspective, see Emma LaRocque, "Re-examining Culturally Appropriate Models in Criminal Justice Applications", in Michael Asch (Ed.) Aboriginal and Treaty Rights in Canada: Essays on Law, Equality and Respect for Difference (Vancouver. U.B.C. Press, 1997) pp.75-96. 2 7 7 Susan Zimmerman, "The revolving door of despair": Aboriginal involvement in the criminal justice system (1992)U.B.C. Law Review (Special Edition) p.369. 73 change, which, in this instance, he finds completely problematic2'8. The cause for concern, he suggests, is that "when faced with the need for change, the evolutionary approach does not seriously challenge the institution itself or those who work within it. In fact, it enhances its power. Gradually improving the system... and simply legitimizing that structure279." Don McCaskill agrees, suggesting that efforts to patch up the system in this manner miss the point that it is the system itself that must be questioned, particularly in terms of the respect it shows for the "differing values and customs of native culture280 " Those who subscribe to autonomous aboriginal justice initiatives argue that for any changes to be meaningful, aboriginal participation must be facilitated in order to define the meaning, institutions and standards of justice in their own communities281. One academic, Michael Jackson, suggests that without involvement and responsibility, an aboriginal community will be unable to identify with a system that is seen as both foreign and oppressive . Another scholar, Donna Greschner, also states that building 'just' criminal justice systems necessarily involves not only including aboriginal peoples as participants in the system's substance and process, but "ensuring that they are the system's dreamers, architects and caretakers283." It becomes clear from these advocacy statements that the existing system cannot move towards the goals and values represented by aboriginal justice initiatives without fundamental change. Indeed, a fundamental aspect underlying this autonomy- oriented perspective is the need for aboriginal communities to have self- determination284. In the context of criminal justice, self determination means officially recognizing aboriginal peoples' interest in jurisdictional authority and providing the resources necessary to sustain their 2 7 8 Len Sawatsky, "Self Determination and the criminal justice system", in D. Englestad and J. Bird (Eds.) Nation to Nation: Aboriginal Sovereignty and the Future of Canada (Concord: House of Anansi Press, 1992) p.89. 279 Ibid. pp. 89-90. 2 8 0 Don McCAskill, "Native people and the justice system", in Ian A.L. Getty & Antoine S. Lussier (Eds.) As Long as the Sun Shines and Water Flows: A Reader in Canadian Native Studies (Vancouver: UBC Press, 1983) p.297. 2 8 1 Monture- Okanne & Turpel p.249. 2 8 2 Jackson p.229. 2 8 3 Donna Greschner, " Aboriginal women, the constitution and criminal justice" (1992) UBC Law Review (Special Edittion) pp.341-342. 2 8 4 ft id. p.261. 74 communities and culture285. Self- determination, then, encompasses, at least from a community- based perspective, control over civil and criminal justice matters including dispute resolution structures. Within many reserve communities, this means the internal development and control over powers of criminal law. For off-reserve or external matters, there is a desire for an increased aboriginal presence in the administration of criminal justice and a greater awareness of racism and the differential impact of norms and processes on aboriginal individuals286. However, compounding the issue of what type of criminal justice reform is necessary, is the issue of who has control over the process of change. The Minister of Indian Affairs, Hon. Tom Siddon, indicated that he and the Prime Minister were "committed" to finding"...practical ways to ensure that aboriginal communities can exercise greater control over the administration of justice287", after which he immediately added. "However, we must keep in mind that there will clearly be some limitations on this control. ... Indians must respect the laws of this country and the rights of its non-citizens288." On the other hand, advocates of autonomous aboriginal justice systems argue that notwithstanding the dilemmas associated with self- governing powers and self-sufficiency, responsibility for First Nations governance must lie with First Nations. For instance, Bernice Hammersmith notes that it would be a mistake to look for the federal government to place "strings" on further aboriginal autonomy . In essence, they believe that the appropriate role for non- aboriginal Canadians and their governments is not only to recognize the rights of aboriginal Canadians, as peoples, to self- government and self-determination, but also to refrain from either expecting or imposing unitary solutions which deny the rights of individual First Nations to make choices which reflect their own • • 290 priorities Within the particular realm of aboriginal justice, the policy implications of this prevalent alternative are several. First, advocates clearly suggest that the contemporary Euro- Canadian justice system has by and large completely failed in bringing justice to 2 8 5 Jackson p. 160. 2 8 6 Monture- Okanee & Turpel p.264 287 Siddon p. 160. 288 Ibid. 2 8 9 Bernice Hammersmith, "Aboriginal women and self- government", in Englestad & Bird. (Concord: House of Anansi Press, 1992) p.58. 75 aboriginal peoples. Second, the previous analysis suggests that aboriginal justice, at least in its traditional forms, is in many ways incompatible with the dominant Euro- Canadian model, to the extent that justice delivery within aboriginal communities must allow an appearance which differs radically from that in the dominant system. Third, subscribers of autonomous aboriginal justice systems believe that the diversity of aboriginal First Nations must be acknowledged by allowing a diversity of arrangements to be made depending on the priorities and practices of individual First Nations. Jackson p. 188. 76 Conclusions: The future of proposals for the creation of aboriginal justice systems in Canada is anything but clear. However, my research has allowed me to reach some conclusions on the utility of commissions of inquiry to address aboriginal concerns with the criminal justice system. At this point, it will be useful to have my discussion questions presented once again to allow for easy reference. There are as follows: 1) Given that some incidents of injustice involving an aboriginal person and the Canadian aiminal justice system lead to the establishment of a commission of inquiry, what types of cases are more and or least likely to lead to an inquiry? What are the reasons for not establishing an inquiry when there have been demands by the aboriginal community or other groups involved? 2) What factors increase the likelihood that a commission's recommendations will be implemented? What do governments and Aboriginal communities require in order to increase the likelihood that they will have a positive response to the recommendations? 3) Why, given their capacity to incorporate radical alternatives and debate, do inquiries seldom reach beyond the narrow limits of pragmatic politics and accommodative reforms? 4) What procedural approaches had the most positive response? What is the impact of public hearings? 5) Which of the ten commissions of inquiry were most effective in carrying out its mandate? Were the recommendations given by an inquiry implemented? 6) Was the commission of inquiry well suited as an institutional mechanism for policy analysis? My research suggests that commissions of inquiry are most often established to address more general concerns about the impact of the criminal justice system on aboriginal peoples, rather than to investigate specific cases in which there was a miscarriage of justice. Also, each of the inquiries that were initially created with an investigative function extended into the realm of policy advising. Most inquiries that were established to investigate misconduct generally dealt with complaints made by aboriginal persons against Canada's federal force, the RCMP. This is one of my most intriguing findings because the RCMP, as a national force, has placed much emphasis on cultural training in order to sensitize its officers to the multicultural make- up of Canadian society. In addition, because the RCMP serve as a symbol of Canada abroad and are held iii high repute by other police forces, it is surprising that the RCMP remain the focus of the majority of complaints brought forth during inquiry proceedings. On the other hand, cases in which there was an absence of thorough governmental investigation and a rejection of calls for a public inquiry involved either city or provincial police forces. Although one can only speculate as to why this has been the case, it is 77 reasonable to draw the following conclusion. Provincial and municipal police forces may not have been subjected to public hearings because responsibility for wrongdoing found in relation to these forces would ultimately rest with the provincial Attorney General. Provincial governments, in an attempt to avoid public scrutiny, would have cases involving allegations of provincial and or municipal police misconduct made by an aboriginal person investigated either by the police department in question or by an RCMP task force. Unfortunately, it is precisely this type of closed- door resolution that has left many concerned aboriginal persons dissatisfied. In contrast, the provincial governments would not have to claim responsibility for any wrongdoing committed by the federal police force, thus, being more receptive to calls for a public inquiry involving the RCMP. My research findings further revealed that governments, after release of an inquiry's recommendations, are more likely to respond positively if the recommendations are for the most part accommodative in nature. Although accommodative reforms can be seen as a step in the right direction, aboriginal academics and elites that advocate more autonomous solutions have criticized such measures because they do not call into serious question the applicability of the dominant justice system for aboriginal individuals. Therefore, leaders of aboriginal communities and their academic counter-parts are more likely to respond positively to recommendations that go beyond mere reforms and embrace more autonomous aboriginal institutions. Furthermore, my research has indicated that at public hearings, most aboriginal participants, who are not involved in leadership or academic roles, have requested changes to the criminal justice system that do not necessarily require a fundamental overhaul of the existing system. One may recall that although complaints were made in relation to RCMP misconduct, participants rarely voiced a desire to have the RCMP removed from their jurisdiction. Rather, aboriginal participants often indicated that police officers should undergo training to enhance their cultural- sensitivity. This type of solution complements the general finding that the RCMP, as our national force, continued to be respected by aboriginal communities. My findings have illustrated that for the most part, commissions of inquiry did not succumb to the pressure exerted by advocates of autonomous solutions. Instead, commissions seem to be listening to the voices of grass root aboriginal citizens that steer clear of political rhetoric in favour of more practical reforms. Although it remains to be seen whether community- based autonomy will be the guiding principle of future reform strategies, involving aboriginal persons and the criminal justice system, it is clear that such a transition will not occur immediately. In the meantime, there is much that can be changed in the way the criminal justice system operates to render it more responsive to the particular circumstances and long- neglected needs of aboriginal people. The current criminal justice system can and should be improved, without in any way detracting from the movement toward the larger social, political and economic goal of self- determination. The significance of this discovery is that through consideration of the proposals of aboriginal communities to achieve a greater accommodation between their system of justice and the larger Canadian system, non-aboriginal Canadians may also be provided an opportunity to learn from the experience and accumulated wisdom of Canada's First Nations. Future commissions of inquiry should acknowledge the diversity of aboriginal communities by allowing a diversity of arrangements to be made depending on the priorities and practices of each First Nation community. In practical terms, this would allow some First Nations to pursue more traditional forms of justice, while others may prefer either an 'indigenization' of the existing system or things as they currently stand. Due to the fact that autonomous solutions remain prevalent in the academic literature, future commissions of inquiry will be required to acknowledge this perspective. This is not to suggest that a commission must unqualifiedly embrace all the political objectives advocated by this group in its study of criminal justice. Rather, commissions should provide a forum through which the many diverse opinions may be voiced. An appreciation of the variety of concerns held by aboriginal individuals can only be made possible through extensive consultation with aboriginal communities and utilizing creative and innovative means of gathering research. It is apparent from reviewing the studies and reports of the commissions of inquiry and task forces that initiatives for reform in the area of aboriginal justice cover a broad spectrum. That this should be the case is indeed a reflection of the diversity of aboriginal peoples. The important point being that culturally sensitive and appropriate consultation processes are 79 undertaken in order to recognize the distinctiveness of aboriginal communities and to ensure that non- aboriginal policy makers refrain from imposing a unitary solution. By providing an open process, commissions will be able to encompass views that may not be prevalent in academic circles, but accepted at a grass roots level. On the much larger question of the policy impact of commissions of mquiry, they have been useful institutions for opening up the policy debate m regards to criminal justice reforms for aboriginal Canadians. Too frequently these inquiries have been faulted because their specific recommendations are not accepted. However, it would be more beneficial if one understood that even if none of their recommendations is accepted, inquiries are still important because they provide one of the few occasions for defining public issues, including debate about reformist and radical conceptions of the issues. Inquiries prepare the ground for public sentiment and policies, even if they themselves do not propose policies that governments accept. Consequently it is more useful to assess commissions of inquiry for their role in the development of policy debate. In this sense, government appointed commissions of inquiry, like the Aboriginal Justice Inquiry of Manitoba, are not condemned to be merely reformist and to work within the bounds of the existing order. Commissions can be used to debate issues in greater detail and may expand the scope of the problem to be addressed to incorporate the pressing political demands of aboriginal people. Toward this end, I feel that I am in good company in reaching the conclusion that treating the criminal justice system as if it existed in isolation from the broader injustices suffered by aboriginal people would be inadequate. The ten commissions of inquiry reviewed in my paper, in addition to the autonomous view addressed in my final discussion, illustrate that it is absolutely essential that historic systemic injustices to aboriginal peoples be comprehensively addressed and reversed. This process can only begin by acknowledging the desire of aboriginal communities to be included in the making of criminal justice reforms that affect them. In return, First Nations must also accept equal responsibility for both the implementation and maintenance of such reforms. 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'The revolving door of despair": Aboriginal involvement in the criminal justice system. University of British Columbia Law Review (Special edition), pp. 367-426. 88 

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