Aboriginal Peoples and the Criminal Justice System FRANÇAIS


Over the past thirty years, there have been numerous studies, reports and justice inquiries across the country, and a growing body of statistical information, that confirm that Aboriginal peoples experience disproportionately high rates of crime and victimization, are over-represented in the court and the correctional system, and further, feel a deep alienation from a justice systen that is to them foreign and inaccessible, and reflects both overt and systemic racism. And the costs, in both human and fiscal terms, are seen to be not only exhorbitant, but also spiralling.
Through persistent dialogue with various levels of government, Aboriginal communities across Canada have gradually begun to explore the possibility of administering various components of the criminal justice system. This has been a slow process, with the greatest strides achieved over the past two decades. Unfortunately, many problems still exist within the current relationship between Aboriginal offenders and the judicial system. Of principal concern is the disproportionate number of Aboriginal offenders in the justice system and the necessity to find methods to remedy this situation.
Aboriginal people often experience some of the following problems with respect to the criminal justice system:xci

  • Aboriginal accused are more likely to be denied bail;
  • more time is spent in pre-trial detention by Aboriginal people;
  • Aboriginal accused are more likely to be charged with multiple offences, and often for crimes against the system;
  • Aboriginal people are more likely not to have legal representation at court proceedings;
  • Aboriginal clients, especially in northern communities where the court party flies in the day of the hearing, spend less time with their lawyers;
  • as court schedules in remote areas are poorly planned, judges may have limited time to spend in the community;
  • Aboriginal offenders are more than twice as likely to be incarcerated than non-Aboriginal offenders;
  • Aboriginal Elders, who are also spiritual leaders, are not given the same status as prison priests and chaplains, in all institutions, and
  • Aboriginal people often plead guilty because they are intimidated by the court and simply want to get the proceedings over with.xcii

Criminologists Mary Hyde and Carol LaPrairie discovered that Aboriginal crime is very +different from non-Aboriginal crime. Their study found a higher proportion of violent and social disorder offences were committed by Aboriginal than non-Aboriginal offenders. Fewer property offences and almost no crimes for profit, such as drug trafficking, fraud, and armed robberies, were committed by Aboriginal people. Petty offences constitute the majority of Aboriginal crime and, of the violent crimes committed, a high proportion (a minimum of 41.4%) were directed against family members.xciii
A study of Aboriginal admissions to provincial correctional centres revealed that 50% of the offences committed by these offenders were alcohol-related. Only 10% of crimes committed by all Aboriginal offenders were against persons, with the majority of these being against other Aboriginal people. These trends indicate that Aboriginal offenders are incarcerated in the provincial correctional system for minor infractions and reflect social, rather than criminal, problems.
Disproportionate Levels of Aboriginal Incarceration
Canada's criminal justice system is rooted in a strong reliance on incarceration and, as a result, Canada is placed among the highest users of imprisonment in the world. Despite declining levels of most forms of crime, the Canadian public still supports incarceration and harsh punishment for criminal conduct. This emphasis on incarceration as punishment has had a detrimental effect on offenders, particularly Aboriginal offenders, on whom confinement places particularly onerous pressures, given their traditional relationships with the land.
In addition to the conditions that contribute to crime (poverty, poor education, unemployment, marginalization, substance abuse, sexual abuse and other forms of violence, dysfunctional families etc.) which are particularly prevalent in Aboriginal communities, several other factors contribute to the disproportionate levels of Aboriginal incarceration. These include limited rehabilitative options and resources, imprisonment of First Nations people for offences against the system such as fine default, fail to appear, non-compliance with restriction etc., and inadequate funding for community-based, proactive approaches to crime prevention. Further, a justice system that is not responsive to the experiences and needs of Aboriginal people also contributes to the high Aboriginal incarceration levels.
Language as a Barrier in the Criminal Justice System
During court proceedings, communication problems can result in an unfair trial for the accused Aboriginal individual. The Canadian criminal justice system conducts proceedings in English or French and this can be a barrier if the accused does not understand the charges, the plea options or the availability of counsel. The following comment was made in a survey on Aboriginal involvement with the law:

  "It appears that they have little understanding of their legal rights, of court procedures, or of resources such as legal aid and most Indian people enter guilty pleas because they do not really understand the concept of legal guilt and innocence, or because they are fearful of exercising their rights. In remote areas the Aboriginal people appear confused about the functions of the court, particularly where the Royal Canadian Mounted Police officers also act as Crown prosecutors, or where the magistrates travel about in police aircraft."xciv

Although many First Nations people today are educated in English or French speaking schools, for those who do not understand English or French, many problems can arise. The justice system does not provide pamphlets, signs or informational videos in Aboriginal languages and those who speak only Aboriginal languages are not permitted to be jurors. Translation is provided only for the accused and the court party, thus excluding other community members. Problems can also occur when the individual called upon to interpret for the Aboriginal offender is not trained for this task and has limited knowledge of legal concepts.
Aboriginal Values and the Justice System
The divergence between Aboriginal and Euro-Canadian values has also contributed to the high proportion of incarcerated Aboriginal offenders. Many values common to First Nations groups are fundamentally different to the non-Aboriginal justice system.
The following are values common to many Aboriginal communities:xcv

  • desire for community harmony;
  • avoidance of confrontation and adversarial positions;
  • preservation of relationships;
  • reluctance to show emotions;
  • generosity and sharing;
  • respect for others and individual freedom (non-interference);
  • teaching through example (non-interference and conflict avoidance values), and
  • respect for life (human and otherwise).

Aboriginal peoples have traditionally used ridicule, avoidance, shaming and teasing to maintain order and community harmony. Historically, measures such as banishment and the death sentence were resorted to only where the actions of an individual had placed the survival of the community at risk.
In his article "Justice and Aboriginal People", James Dumont contrasts Aboriginal values with non-Aboriginal values:xcvi

Aboriginal Values Non-Aboriginal Values
Get along with group (conformity) Get ahead, or on top of the group
Get ahead for the group Get ahead for oneself
Focuses on the present Focuses on the future
Does not show fear when faced with difficult situations Does not always face difficult situations with an impassive face
Uses nature and maintains reverence for it (has respect for and a relationship with the land) Uses nature for personal
Awareness of the Creator Spirituality is often in the background of one's life
Acts of religion are spontaneous and can occur at any time Religion is compartmentalized (eg. Religious acts are restricted to certain days of the week)

Conflicts arise when Aboriginal values mix with the Canadian justice system. In many Aboriginal communities it is unacceptable to express emotions such as anger, grief or sorrow. According to Rupert Ross, in his book, Dancing with a Ghost, this tendency to put forward an emotionless front may be traced back in history when the survival of an Aboriginal community depended on the suppression of any emotions which could potentially threaten the family, tribe or clan. Ross, a Crown prosecutor with extensive experience working with Aboriginal people, found that Aboriginal witnesses often described traumatic events in a flat emotionless fashion.xcvii This tendency can often be misunderstood by the court and by psychiatrists responsible for writing psychiatric assessments of offenders. As Ross indicates, many of the assessments indicate that Aboriginal offenders are "Unresponsive", "uncommunicative", and "uncooperative".xcviii
Judge Murray Sinclair notes that the legal concept of innocence/guilt is not granted the same importance by Aboriginal cultures as it is in the Canadian criminal justice system. In Aboriginal communities, guilt is usually secondary to the main issue: the primary concern is that 'something is wrong and it has to be fixed.' Because the main objective is the restoration of harmony rather than the imposition of punishment, the accused is more likely to admit wrongdoing. Judge Sinclair suggests that perhaps this explains why so many Aboriginal people plead guilty when in court.xcix
The following table demonstrates the conflict between Aboriginal and non-Aboriginal values in a court setting:c

  Western justice Traditional Aboriginal justice
Justice system -Adversarial -Non-confrontational
Guilt -European concept of guilty/not guilty -No concept of guilty/not guilty
Pleading guilty -The accused has the right against self- incrimination. Thus, it is not seen as dishonest to plead not guilty when one has actually committed the offence (interference come into play here)

-It is dishonest to plead not guilty if one has committed the crime

(values of honesty and non-interference come into play here)

Testifying -As part of the process, witnesses testify in front of accused

-Reluctance to testify

(it is confrontational to testify against the accused while in his/her presence)

Truth -Expectation to tell the "whole truth" -It is impossible to know the "whole truth" in any situation
Witnesses -Only certain people are called to testify in relation to specific subjects

-Everyone is free to give their say.

-Witnesses do not want to appear adversarial and often make every attempt to give answers that please counsel, thus often changing their testimony

Eye contact -Maintaining eye contact conveys that one is being truthful -In some Aboriginal cultures, maintaining eye contact with a person of authority is a sign of disrespect
Verdict -Accused is expected to show, during proceedings and upon a verdict of guilty, remorse and a desire for rehabilitation -Accused must accept what comes to him/her without a show of emotion
Incarceration / probation -Means of punishing/rehabilitating offender -Completely absolves Aboriginal offender of responsibility of restitution to victim
Function of justice -Ensure conformity, punish deviant behaviour and protect society

-Heal the offender

-Restore peace and harmony to the community
-Reconcile the offender with victim/family that has been wronged
-Punishment is not the objective

Aboriginal Youth
Many Aboriginal youth today face numerous obstacles. They live near or below the poverty line, many of their families are dealing with histories of substance, violence and illness, they have limited access to educational or recreational facilities, and they have few employment opportunities. The ensuing hopelessness, despair, and boredom often leads to petty offences and, for some, going to jail can be an escape from a desperate As a result, Aboriginal youth face an increasing number of charges and young offenders issues have been of primary focus in recent Canadian criminal justice debates.
Aboriginal youth are faced with a hurdle that non-Aboriginal youth do not encounter: "They must try to adapt to mainstream Canadian society while at the same time attempt to learn and retain their traditional culture."cii
Further to input from Aboriginal leaders, and consistent with Sections 4 and 69 of the Young Offenders Act, a number of alternative measures programs and Youth Justice Committees were established within Aboriginal communities. These initiatives aim to keep youth out of the court system and firmly rooted in their communities. However, referrals to alternative measures have not been widely used in cases involving Aboriginal young offenders. This can be seen in the results examined by the Cawsey Task Force in Alberta. This task force studied youth offenders between the years of 1986 and 1989 and found that only 11.1% of Aboriginal young offenders were referred to the alternative measures program, compared with a 33% referral rate for non-Aboriginal offenders.ciii In addition, Aboriginal youth offenders spend, on average, longer periods of times in custody than non-Aboriginal young offenders for the same offences.
Aboriginal young offenders living in remote communities often experience:

  • difficulties with acquiring legal counsel for trial,
  • trial delays due to scheduling and transportation problems of judges, and
  • complications in the maintenance of detainment facilities for youth offenders separate from those for adult offenders because of their remote locations.civ

As a result of these obstacles and the discrepancies in applying alternative measure to Aboriginal youth offenders, Aboriginal communities have been spurred on to take the initiative to implement alternative measure programs as well as Youth Justice Committees to assist their youth.
The Report of the Royal Commission on Aboriginal Peoples clearly demonstrated the judicial system has not always been just or fair to First Nations peoples. The federal and provincial governments have recently undertaken a number of initiatives (as discussed in Part V) designed to reduce the number of Aboriginal offenders within correctional facilities. A comprehensive strategy must advanced and implemented in order to deal with the over-representation of Aboriginal inmates in provincial and federal correctional institutions.
The Canadian criminal justice system is based on Euro-Canadian values and, as a result, often conflicts with Aboriginal values. High levels of incarceration, increased focus from law enforcement, language barriers, conflicting values and conceptual frameworks regarding crime and punishment, as well as particular issues faced by First Nations youth, all contribute to the failure of the criminal justice system to meet the needs of Aboriginal people.

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xciR. Shillington, «Estimates of the Extent of Child Poverty: Census 1986» cited in Aitken and Mitchell, «The Relationship between Poverty and Child Health» as cited in the Report of the Royal Commission on Aboriginal Peoples, supra note 20 at 167.
xciiOp. cit., p. 171.
xciiiReport of the Royal Commission on Aboriginal Peoples, vol. 3, supra note 20 at 167.
xcivIbid. at 167.
xcviIbid. at 174.
xcviiCorinne Mount Pleasant-Jette, «Creating a Climate of Confidence: Providing Services Within Aboriginal Communites», in National Round Table on Economic Issues and Resources (Royal Commission on Aboriginal Issues: Ottawa, April 27-29, 1993) at 11.
xcixIbid. at 12.
cIbid. at 11.
ciZimmerman, supra note 42 at 412.
ciiBasic Departmental Data 1993, supra note 32 at 43.
ciiiPleasant-Jette, supra note 79 at 10.
civFrideres, supra note 5 at 487.