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«Lawrence J. Barkwell, David N. Gray, Manitoba Department of Justice, Manitoba Métis Federation, 77A Redwood Avenue, 408 McGregor Street, Winnipeg, ...»

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When a people are weakened by these factors, which we view as additive as well as interactive, the symptoms of devoluation of which crime is but one, are inevitably found to be in ascendancy.

We have, we think, been able to demonstrate the collective effect on Aboriginal people of the phenomenon of devaluing a group. We would also like to demonstrate some individual and specific effects of this behavior. In particular we want to note certain specific behaviors of devaluation that have resulted in negative consequences either to Aboriginal individuals or to groups of Aboriginal people.

One instructive case can be found in the Aboriginal community of Shammatawa, Manitoba. In that community there had been an outstanding agreement between the Band Council and Justice Officials to hold Provincial Court in the Band Hall. This agreement continued for a period of time until a new school was built in the community.

It is interesting to note that for a number of reasons, the Justice Officials then insisted upon holding Provincial Court in the new school gym. They did this without discussing the issue with the Chief and Council who clearly had jurisdictional control over the reserve. The primary reasons given by the court officials appear to have been a lack of space for interviewing in the Band Hall and access to better bathroom facilities in the school. The argument contrary to this, advanced by the community leaders, was the inappropriateness of students seeing the perpetual run of persons in the court. They felt this exposed them to the negative and unsettling effects of the legal process. This would tend to lead these students into thinking less of themselves as Aboriginal people. This was particularly true in those cases where persons would be incarcerated, as incarceration cases would be served a substantial distance away from the community. The effect would be, it was thought, a reduction in respect for social control.

The court party, however, was unmoved. Rather than taking up a concern with the appropriate leaders, that the facilities for the court party were inferior and should be improved, the officials simply wanted to move to the newer school facility. They did this 144 Barkwell/Gray/Chartrand/Longclaws/Richard presumably on the basis that while the Band Hall and its deficiencies were adequate for the Indian people living in the community, they did not meet the superior hygienic and other standards of the mostly non-Aboriginal persons who travelled with the Provincial Court to dispense justice in Shammatawa. In the end, the Court quit sitting in the community of Shammatawa until they were allowed to hold sessions in the new school. The result was that persons charged with offences from Shammatawa had to travel by air to Thompson for appearances on relatively routine matters. In a community where, as in many northern reserves, nine out of ten family incomes included social assistance, this caused extreme hardship. The individuals were then, if they could not afford to travel, subject to further criminal sanctions and a vicious cycle was started.

We have not escaped the effects of this devaluation as a society either. Examples of this abound. We find that in recent studies, most notably an Angus Reid Poll conducted in September 1989, the Manitoba and Saskatchewan response demonstrated the highest rate of negative opinion to Native self-determination. In addition, there was various evidence in similar polls that elements of racism, as evidenced by devaluing other people, are hardening, particularly in Manitoba. Evidence of this within the system is more difficult to ascertain. This is perhaps because the system has long tolerated the devaluation of people. A noted example (Native Probation Caucus Report to the Inquiry, 1989) is that one official, well known within the Manitoba Department of Justice, continued to deride Aboriginal people with negative stereotypical terms. He continued to do this throughout the Aboriginal Justice Inquiry, despite the fact that it was widely known in the Department. This was allowed to continue despite its effects, known to be traumatic to the individuals to whom he dispensed his from-the-lip justice.

Another example of this type of behavioral devaluation was exhibited by Sheriff's officers during the course of the Aboriginal Justice Inquiry. It was observed that several youths were manacled together and taken through a public place. A guard, in a voice loud enough that others could hear, said to the youths, most of whom were Aboriginal, "[alright you guys get going, lets do] the Sheriff's shuffle". The effect of this upon the youths involved can only be subject to speculation, but it does not take much imagination to recognize that it can only decrease the self esteem of those individuals.

We also draw upon the case Regina vs. Ross (Provincial Judges Court, Norway House, Manitoba, 1989). This court case was cited in the Manitoba Métis Federation Justice Committee Devalued People 145 (1989) presentation at the Manitoba Aboriginal Justice Inquiry. The facts in short are that an accused was charged with a sexual assault after being encouraged by another man to have sex with his wife while she was sleeping and under the effects of alcohol. When she became aware of this she objected and asked that the individuals be charged. They subsequently were.

In appearing in court, counsel for the defence advanced as mitigation the suggestion that it was common amongst Aboriginal people of the north to so share their women. Far from jumping up and objecting, the Crown Attorney sat silently by and allowed this ludicrous statement to go unchallenged. The judge similarly, rather





than challenge the statement, made the comment that:

I accept what your lawyer tells me, that you honestly believe that if the husband said it was okay, it was alright to have sex with her.

He then reinforced this incredible perception with the following

statement:

...It's because of this honest belief (sic), because there may be some belief in the community, that the man can control the situation...

Again one can only speculate that the effects of devaluation upon the individuals experiencing this would be heightened rather than lessened. We believe that such speculation is valid.

This paper would, we think, be incomplete without recommendations as to change. We therefore recommend the following (the substantive body of these recommendations is contained in the Manitoba Métis Federation presentation to the Aboriginal Justice Committee (1989). We suggest that the implementation of these recommendations would have the effect of reducing the devaluation of people that has occurred, and which continues to occur, and would enhance the role of Aboriginal people in the justice system.

It is apparent that these solutions require a committed effort on behalf of the people who make up the system and on behalf of Aboriginal people. It is further apparent that failure to introduce changes will result in further damage to the Aboriginal people of Canada.

We propose that a separate but parallel, alternative, Aboriginal justice system would be a major step in alleviating the dispossession that people feel as a result of the current infliction of the system. We suggest that such a system based upon, as it would be, traditional values and norms would devalue people less and 146 Barkwell/Gray/Chartrand/Longclaws/Richard would allow them to "buy into" the system more readily. This would have the end result of enhancing the respect which people have for the law and would achieve the social control that is clearly the function of all law. This, of course, was supported by, amongst others, the Canadian Bar Association in a report issued in September, 1989. In particular we feel that the following changes

are important:

1. That Aboriginal communities hve the opportunity to divert cases out of the conventional justice system; and

2. That Aboriginal communities and organizations be encouraged and supported in the establishment of separate correctional and after care facilities with specific focus on appropriate treatment, bearing in mind cultural and social norms of the Aboriginal offender; and

3. That the provision for appropriate spiritual, religious and traditional activities be made for Aboriginal offenders and that planning for this take place both in the separate system and in the traditional system.

Additionally we suggest, especially for remote and other predominantly or exclusively Aboriginal communities, that police functions be turned over to Aboriginal agencies which can be more responsive to the needs of the citizens. It is felt, based upon the current situation in the limited operation of the Dakota Ojibway Tribal Police and the Navaho Police, that this is a crucial next step.

The comments of Police specialists before the Aboriginal Justice Inquiry in 1989 that racism among City of Winnipeg Police officers is in fact increasing are a startling revelation and suggest that separate police forces, where practical, would be an appropriate measure.

Similarly we recommend that for others within the system (such as police officers in traditional forces, judges, lawyers, clerks, jail guards, probation officers, and all others) a substantial course be provided in the area of Aboriginal cultural awareness. It is crucial that all players in the system at least begin to understand the Aboriginal societies and values in order to comprehend the characteristics of Aboriginal offenders, victims, and witnesses. In addition, Aboriginal witnesses and victims will be, we suggest, better treated. A greater understanding of Aboriginal peoples will, we suggest, decrease the inclination of justice personnel to devalue these "faceless people".

As well, we recommend that advocates for Aboriginal people be available at the earliest opportunity, and in particular that the Devalued People 147 functions of court communicators and other like agents be committed to ensuring that Aboriginal people involved with the justice system receive appropriate and fair treatment. In particular, we suggest that there is a need for persons involved in the system to be held accountable. A knowledgeable and paid advocacy service for ensuring that Aboriginal people are treated appropriately should thus be established. It is noteworthy, as well, that the Manitoba Law Enforcement Review Agency has not had a substantial overhaul since its inception some four years ago. We suggest that it has proven to be a dismal failure and that substantial changes be made to the system to allow for the better resolution of complaints against police officers with respect to treatment that is not of a suitable standard.

Additionally we suggest that substantial law be amended to provide for a criminal, or a quasi-criminal, offence for persons either advancing or acquiescing in the advancement of racially motivated statements or actions within the justice system. In particular we suggest that comments such as those noted above in the Ross case should be the subject of disciplinary action through either criminal or quasi-criminal action.

Perhaps most importantly we suggest that the number of Aboriginal people employed in this system must begin to approximate the numbers of persons who are Aboriginal within the general population. To this end we suggest that Aboriginal people be hired on a priority basis at all levels of the justice system to increase sensitivity in the criminal justice system. We suggest, as well, that in hiring Aboriginal persons there be substantial supports provided for those Aboriginal persons. It has been a some time practice that Aboriginal persons, once hired, tend to become a part of the current system. This would, we suggest, not alleviate the problems identified in this paper but would in fact increase them. If this is the case, then we suggest that support systems which would allow Aboriginal workers to maintain their role within the system, but not sublimate their own culture, would be an appropriate adjunct to increased hirings.

We suggest that the whole issue of removal of persons from communities needs to be reviewed. A study of the location and existence of programs should be made a priority. We suggest that no new incarceration facilities be constructed but that instead we begin the process of spending dollars on community based alternative programs. These programs would begin to attack the cycle of devalued people and would begin to alleviate some of those concerns.

148 Barkwell/Gray/Chartrand/Longclaws/Richard Tied to this, but not reasonable to study because of the length of the subject matter, would be increased economic opportunities for Aboriginal peoples, particularly in their home communities. This has long been a problem and was advocated as long ago as 1972 by the Manitoba Métis Federation Inc. and the Manitoba Indian Brotherhood. We submit that tying intervention in the current pattern of devaluation to increased economic opportunity is the only reasonable approach to beginning to break the cycle of problems that have been identified within this paper.

We suggest further that if the preceding recommendations, or some reasonable facsimile of same, are not implemented in due course the chronic problem of devaluation within our system will become in fact terminal. We suggest further that modern society can still learn from traditional systems and we note that in the 19th Century the Métis, particularly, maintained social control by the mildest of means. In fact, some commentators have remarked that the current system was far less enlightened than that system and certainly the present results, as the statistics set out herein demonstrate, are far more tragic to Aboriginal people in general.

The system can be changed only through a genuine committment to change which addresses the need for the Aboriginal control and operation of Aboriginal social control and correctional systems. An existing correctional service with the three strikes of massive discrimination and racism, almost wilful ignorance of Aboriginal people, cultures and communities, and a refusal to address systemic problems - such as cross-cultural recognition and major shortcomings in the staffing arena - clearly cannot cope with the present situation. What, then, will happen in the future, if the present trend of increasing overrepresentation of Aboriginal people NOTES

1. The opinions expressed herein are those of the authors, and do not necessarily represent those of their employers.

–  –  –

3. The senior author acknowledges personal communications



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