The Supreme Court has said the fact that more than a quarter of our prisoners are Indigenous is a crisis in the justice system, so then when the same criminal justice system appears to fail either the missing Indigenous women and girls or, many people would say, Colten Boushie, then it’s kind of a ground for despair. Like many problems, it's complex and the way to resolution starts with understanding the many issues. Almost half of the people in Manitoba agree there is a problem with the Canadian justice system when it comes to treatment of Indigenous Peoples according to a recent report in the Winnipeg Free Press ("Manitobans divided on justice system," April 16, 2018). This surface indigenization also damages Aboriginal communities. I’m a little worried because the minister of justice has said this requires study. people and the criminal justice system, with particular emphasis on the situation of Aboriginal people in Ontario. About Indigenous Peoples and human rights in Canada In Canada, anti-discrimination legislation exists to protect and advocate for the human rights of Aboriginal peoples. The verdict in the Colten Boushie case has provoked outrage across the country and prompted reflection about how the justice system treats Indigenous people. In this case, I think a troubling factor is the Crown didn’t ask the jurors who actually served on the jury whether racial bias against an Indigenous victim would prevent them from deciding the case impartially. Many Aboriginal organizations have spoken out against Harper’s policies and Bill C-10, such as the Ontario Federation of Indian Friendship Centres, which wrote to the prime minister, “It will be Aboriginal offenders, those most disproportionately represented in prisons and at every stage of the justice system in Canada, who will be most affected by this draconian legislation.” The Women’s Legal Education and Action Fund also wrote, “Through its [ . Canadian institutions of justice have not merely failed Indigenous peoples but were not designed to protect Indigenous interests to begin with. As I wrote in the Globe and Mail, reform has come too late in the Boushie case. Kent Roach, a professor of law and public policy in the University of Toronto’s Faculty of Law, says many Indigenous people are excluded from juries through peremptory challenges. Background. Beyond Gladue: How the Justice System Is Still Failing Indigenous Offenders In 1999, the Supreme Court ruled ‘particular attention’ must be paid in their sentencing. And that’s because the defence that Mr. Stanley mounted is a defence of accident, and the way it works in Canadian law is that if you believe that the discharge was accidental, then that means there’s at least a reasonable doubt that he didn't have the intent to kill. The compromise charge was there. Unfortunately, the Harper government seems disinterested in rectifying the situation. Prime Minister Justin Trudeau has publicly declared his commitment to beginning a new prosperous relationship between Canada and its indigenous people. Nearly 20 years ago, Gladue reports were part of a series of justice changes that sought to reduce the vast over-representation of Indigenous people in the criminal justice system. We don’t know how many of those were Indigenous, but all of the evidence points to Indigenous people being under-represented for various reasons among that 200. These Courts divert matters from the traditional criminal justice system within Canada. It was … Their experiences within the system are interwoven with issues of colonialism and discrimination. What’s more, numerous justice inquiries and commissions have found that racism is pervasive in Canada’s entire justice system; from police to prosecutors to judges. I think this is an awakening, but I’m a little bit concerned, like so much these days, it’s becoming a polarized sort of debate. Firstly, their relationship to the Canadian state is complicated by a history of genocide and colonialism. I’m a little worried that in the last day or so public debate has really gotten sidetracked about whether Prime Minister Trudeau and Minister of Justice Wilson-Raybould have overstepped in their comments. Since that time, it has failed to live up to its ameliorative intent as evidenced by a steady increase in the rate of over-incarceration. Like many problems, it's complex and the way to resolution starts with understanding the many issues. Canada was created on top of Indigenous territories. Decades ago, the Marshall Inquiry found the police and justice system were systematically biased against Black peoples and Indigenous peoples, but little has changed. Canada has a very high remand rate; there is blatant discrimination against Aboriginals because their rate is significantly higher in comparison to their counterparts (Mildren, 2008). Furthermore, according to the findings of the 1991 Aboriginal Justice Inquiry, Aboriginal people, if convicted, were greater than 2.5 times more likely than non-Aboriginal people to be sentenced to some form of incarceration; this rate is considerably higher for Aboriginal women. Furthermore, according to the National Council of Welfare, the increase in market output if educational and labour standards for Aboriginal people matched other Canadians by 2026 would be $36.5 billion. Although overt bias against Indigenous peoples in the justice system was more prevalent in the past, systemic discrimination remains a serious problem. And we need to have the humility to recognize that our criminal justice system has failed Indigenous people both as offenders and as victims, and to have the humility to say to Indigenous communities: Maybe you can do better with your own Indigenous justice systems. However, restorative justice can only truly reflect Aboriginal traditions in the context of self-government. We know that three or four visibly Indigenous prospective jurors were subject to a peremptory challenge by the accused. The Canadian justice system, like other justice systems in the European tradition, is adversarial. The presence of systemic racism in Canada's justice system; and; How traditional sentencing principles and practices were failing to properly address the needs and realities of Indigenous peoples. Cries for justice for Indigenous people killed by police or failed by the legal system are reverberating across Canada, from coast to coast to coast. How hopeful are you that this is a turning point? We've known about those systemic problems for an awful long time. They had no prisons, yet had fully functioning societies for thousands of years. It’s hard to say what the chances are that an appeal would be successful without seeing the trial or a full transcript of its proceedings. The dozen Dakota indigenous people who danced on the days between July 17-19, 1902 were all sentenced and convicted with violating the amended Indian Act They were jailed for two to six months. There are only a few national data sources that provide criminal justice statistics disaggregated by Indigenous identity. It is not only a matter for concern, but an indicator of the health of our society as a whole. It focuses on the experiences of Indigenous peoples residing in the four major Anglo-settler-colonial jurisdictions of Australia, New Zealand, Canada, and the United States. Their 2012 omnibus crime bill, Bill C-10—which imposes mandatory minimum sentences—is expected to carry a price tag of $19 billion. It was also found that Aboriginal people on average faced 25 per cent more charges than non-Aboriginal people, and that Aboriginal people had only a 21 per cent chance of being granted bail compared with 56 per cent for non-Aboriginal people. Brantford – Wilfrid Laurier University has launched the Gladue Principles: Indigenous Peoples and the Canadian Criminal Justice System courses to help students and professionals learn practice and theory related to this important aspect of Canada’s Criminal Code.. ‘one size fits all’ approach to sentencing, Bill C-10 adopts a formalistic approach to equality that will serve to perpetuate the historic disadvantage of marginalized groups.”. The Canadian Charter of Rights and Freedoms and the Canadian Human Rights Act – including the repeal of section 67 – are dedicated to maintaining every individual’s rights under the law. … I was very surprised that the jury did not come in with at least a manslaughter verdict. Is there a limit to how many peremptory challenges you can make? Canadian Criminal Justice System By Shaista Asmi Social Connectedness Fellow 2019 Samuel Centre for Social Connectedness www.socialconnectedness.org August 2019 . Nearly 20 years ago, Gladue reports were part of a series of justice changes that sought to reduce the vast over-representation of Indigenous people in the criminal justice system. Roach says that in the Stanley trial, peremptory challenges were used to keep Indigenous people off the jury, and that the Crown never asked jurors whether they had a racial bias against Indigenous people. The justice system has failed Indigenous people and it has failed us miserably. Canada has a very high remand rate; there is blatant discrimination against Aboriginals because their rate is significantly higher in comparison to their counterparts (Mildren, 2008). Gladue Courts don't handle trials or preliminary hearings. Usually they only handle bail hearings and sentencing hearings. Furthermore, a recent report by Canada’s Parliamentary Budget Office found that between 2002 and 2012, justice spending increased by 23 per cent, while crime rates have simultaneously fallen that same amount. An Ipsos Reid poll commissioned by Postmedia News revealed that 64% of respondents thought that Indigenous peoples already receive too much support from Canadian taxpayers. Throughout Canada, a number of courts have been created that deal specifically with these forms of justice. This review provides a critical overview of Indigenous peoples’ interactions with criminal justice systems. Gladue Court is also called Indigenous Peoples Court. For example, a Gladue Court might start with a smudging ceremony or have Elders or Knowledge Keepers start with a song or prayer. To be fair, some defence lawyers will oppose that, but I don't think there’s a Charter right to peremptory challenges. The traditions that are left are fragmentary and watered down, further whitewashing Aboriginal identity. Statistics show that the percentage of indigenous people in conflict with the justice system is extreme and in many places those numbers may be on the rise. There are basically two kinds of challenges to prospective jurors. That leads to another kind of problem. In 1991 the Aboriginal Justice Inquiry of Manitoba found systemic failures and systemic discrimination and recommended that peremptory challenges be abolished. https://shiftermagazine.com/opinion/justice-system-is-failing-indigenous-people Specifically, we need to talk about the racism that is so natural and so ingrained in much of the population that most of you don’t realize it is even there. Designed by and for European newcomers who sought to institute their own legal orders, the justice system has functioned as an integral part of the structure of settler colonialism in Canada. Gladue Courts are Canadian courts that apply Canadian law. These so-called restorative justice initiatives erode Aboriginal traditions by taking them out of their intended context and placing them within a western European system that is based on totally incompatible values. This is very different from the United States, where the O.J. The case, he told U of T News, “is just another in a long line of confirmations that to me it’s undeniable that our criminal justice system has horribly failed with respect to our treatment of Indigenous people.”. Of course, if there had been a manslaughter conviction, rightly or wrong, Mr. Stanley would have, subject to a successful appeal, been looking at at least four years in jail because of our mandatory minimum sentences. Neoliberalism, Settler Colonialism, and the Production of Urban Space workshop on August 20th. An October 2012 report by Canada’s Office of the Correctional Investigator found that Aboriginal people constitute only four per cent of the Canadian population but 23 per cent of the federal prison inmate population, and that the population of Aboriginal people incarcerated in Canada has increased by 40 per cent between 2001-2002 and 2010-2011. Are there other problems, in addition to the jury selection? Stanley shot Boushie at close range on Aug. 9, 2016, in what Stanley’s lawyers claimed was a freak accident. Comments. [Simpson] jurors have gone on lots of television shows. In a way, that might actually not deal with either the immediate problems we have with juries or the much larger problem we have with the justice system. Gladue Courts deal with all criminal offences. That the Canadian justice system has failed Aboriginal peoples at every turn is by now well known. The Criminal Justice System has set up this certain criteria, which evidently happens to discriminate more against Indigenous peoples just by the virtue of the questions they have asked (LaPraire, 2002). 204-474-6535, U of M senate approves ‘compassionate grading’ plan, UMSU lobbies provincial, federal governments, UMSU to restart efforts to leave federation of students, UMSU announcement throws student clubs for a loop, on "Canadian justice system failing Aboriginal people", Math prof embroiled in court battle with university, Much-needed changes made for winter festival, Aboriginal Students Gathering at Migizii Agamik. Many say this trial has highlighted systemic problems with the justice system and the way it treats Indigenous people. Witnesses are called to testify for or against the accused; that is, to criticize or explain the actions of another. I think this is obviously going to play out, but as a person who has taught criminal law since 1989, I've seen the ability of Parliament to amend the Criminal Code quickly when they get serious about an issue. (function($) {window.fnames = new Array(); window.ftypes = new Array();fnames[0]='EMAIL';ftypes[0]='email';fnames[1]='FNAME';ftypes[1]='text';fnames[2]='LNAME';ftypes[2]='text';fnames[3]='ADDRESS';ftypes[3]='address';fnames[4]='PHONE';ftypes[4]='phone';fnames[5]='BIRTHDAY';ftypes[5]='birthday';}(jQuery));var $mcj = jQuery.noConflict(true); 109 Helen Glass, University of Manitoba I shall pass this onto the UN Special Rapporteur for Indigenous Rights. I don’t think the reform I’m recommending, which is a fairly simple lawyer's sort of reform – I don’t think that's going to achieve reconciliation. It’s a huge challenge. Clearly, the system lacks legitimacy in the eyes of Aboriginal people, and it is not hard to understand why. The Supreme Court of Canada has called the overrepresentation of Indigenous people “a crisis in the Canadian justice system ” (Rudin, 2005, p. 5). Rather than rely on professionals and authority figures, it places responsibility for solving the conflict in the hands of those parties directly involved in and affected by the crime. 3, a presentation which was a part of the Indigenous Law Speaker Series. Nation-wide, Canadians are living through a “renewed interest” in the systemic failings of the criminal justice system, primarily its treatment of Indigenous and Black people, she says. However, in administering Canadian law they become ‘agency Indians’ for the Canadian state.” For example, the traditional role of elders in Aboriginal communities has been that of teachers and healers, but under the indigenized Canadian justice system, they have become more like judges who aid in sentencing. Special to The Globe and Mail . This July, Paul initiated a Parliamentary petition on creating a national database on police use of force , which disproportionally impacts Black and Indigenous people. But this is a hugely important and, I think, troubling case. They often try to incorporate Indigenous cultural practices and understandings of justice. Obviously, that’s something that’s going to have to be done on a case-by-case, community-by-community, nation-by-nation basis. Before contact with European powers, various Indigenous systems of justice functioned effectively. He is visiting Canada in October and has asked for people to write to him about these matters. The final report of the Aboriginal Justice Inquiry of Manitoba unequivocally summed up the relationship between Indigenous people and the justice system in the following statement: The justice system has failed Manitoba’s Aboriginal people on a massive scale. 1 Rudin J. Indigenous people are the most over-represented population in Canada’s criminal justice system. The Supreme Court has said the fact that more than a quarter of our prisoners are Indigenous is a crisis in the justice system, so then when the same criminal justice system appears to fail either the missing Indigenous women and girls or, many people would say, Colten Boushie, then it’s kind of a … This is a hugely important case. The relationship between Aboriginal people and the Canadian criminal justice system is broken, and evidence is mounting that a radical change is necessary. In 1989, the Report of the Royal Commission on the Donald Marshall Jr., Prosecution on the wrongful arrest, prosecution and imprisonment of a Mi’kmaw man, found that the justice system failed him at every turn due to the fact that he was native. Published November 5, 2020 Updated November 9, 2020 . Indigenous people are overrepresented in the Canadian criminal justice system as both victims/survivors Footnote 8 and accused/convicted persons. The relationship between Aboriginal people and the Canadian criminal justice system is broken, and evidence is mounting that a radical change is necessary. Racism in the justice system is the root cause of wrongful prosecutions and the over-representation of Indigenous peoples in prison today. Tunnel vision, eyewitness misidentification, false admissions of guilt, and ineffective assistance of counsel are all more likely to result in a miscarriage of justice if the accused is Indigenous. Canada has failed its Aboriginal peoples, leaving both sides ensnared in a broken relationship. Not only did the correctional investigator’s report find “no new significant investments at the community level for federal aboriginal initiatives,” but Sapers has said that the government’s response to his report has been to either disagree with every recommendation or simply reinforce what the correctional service is already doing. Get faculty and staff news delivered straight to your inbox. And so if we haven’t seen an amendment by the time Parliament dissolves for the summer, I think it's fair to say I'll be pretty disappointed. Systemic racism in our justice system is: The (in) justice system and Indigenous people. . When analyzing the historical and current situation of the relationship between Indigenous persons and the CJS it becomes apparent why the Supreme Court of Canada refers to this situation as the ‘Crisis in the Canadian Justice System’. Is it the accused or their lawyer who makes the challenge? The Criminal Justice System has set up this certain criteria, which evidently happens to discriminate more against Indigenous peoples just by the virtue of the questions they have asked (LaPraire, 2002). Winnipeg, MB, Canada Colten and Tinas cases are not isolated. Gall, Gerald L., "Justice Systems of Indigenous Peoples in Canada". There are countless and painful examples of where the justice system has failed, including the cases of Colten Boushie, Tina Fontaine, Kristian Ayoungman, Everette Patrick, … After 15 hours of deliberation, the jury acquitted Gerald Stanley, a farmer, of second-degree murder in connection with the death of Boushie, a 22-year-old Cree man from the Red Pheasant First Nation.