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Justice System Under Scrutiny

Vivienne Beisel-Mckay

SASKATCHEWAN INDIAN      SUMMER EDITION 1991      v20 n03 p06  
On June 5, 1991, it was announced that two independent Justice Review Committees will examine how the criminal justice system of Saskatchewan deals with aboriginal people. Justice Minister Gary Lane explained that two separate committees were established "to ensure that the varying circumstances of Saskatchewan Indians and the Metis are properly accommodated by the review process." The Indian Justice Review Committee will examine issues that are pertinent to Treaty Indian people.

"The FSIN Executive was directed by a Legislative Assembly Resolution passed by Chiefs and Bands to work with the federal and provincial justice systems to develop a First Nations justice system," said Jake Tootoosis. "The long term goal is for the justice system, as it involves Native people, to be under the control of aboriginal people." The FSIN Executive maintains that the justice review is part of the evolution toward self-government.

Indian people have had self-government and jurisdiction over justice since time immemorial, but this has not yet been recognized by the federal and provincial governments of Canada. Legislation, such as the Indian Act, prevents Indians from exercising full self-government. In order for self-government to become a reality, legislation would have to be changed at both the federal and provincial levels.

FSIN lawyer, Vikas Khaladkar, said that the committees will not be seeking to change legislation. Instead, they will be studying how to make the existing justice system respond to Indian needs. They may, however, make recommendations for future changes.

The Aboriginal Justice Review is not an inquiry. An inquiry, at this point, is seen as unnecessary because the problems with the justice system have already been studied and well documented. The Aboriginal Justice Inquiry in Manitoba (the J.J. Harper and Helen Betty Osborne cases in particular), the Donald Marshall Inquiry in Nova Scotia, and the Blood Tribe Inquiry in Alberta are just a few of the many reports that have dealt with racism in the justice system.

Instead of examining individual cases of past injustices, the committee will be studying the current justice system and practical solutions to how it can be more responsive to the problems Indian people face. Khaladkar explained, "At present, Native people are on the receiving end of the justice system. We will be studying how there can be, for example, more Native representation on the police force rather that seeing just white faces." In 1985, the FSIN and the provincial and federal government did a study into the relationship between Indian people and the justice system. The Indian Justice Review Committee will examine this study to determine die degree to which the incentives described have been or should be implemented.

"When an Indian commits a crime, he commits it against his own people, not against white society," said lawyer and committee member Blaine Favel. "But the Indian offender is punished by members of the white society."

"Our traditional means of dealing with crimes focused on healing rather than punishment. Healing took place in two ways; compensation and reconciliation. First the offender would compensate the person or family he had wronged. Then there would be reconciliation of the offender with the wronged person, family or tribe."

"One of the goals of the Indian Justice Review Committee is to reincorporate traditional values into the present justice system."

The Indian Justice Review Committee will explore practical ways in which the current justice system can be modified to serve Native people more fairly. Four aspects of the justice system will be examined by the Indian Justice Review Committee: policing, corrections, sentencing, and the courts.

POLICING; In urban areas, it may be suggested that there be more Indian city police since most crimes committed by Indian people are committed in urban areas. Native representation at the constable and management level should also be increased. Cross-cultural training for both Natives and Whites should be provided as well as public legal education. On reserve, it may be suggested that responsibility for service delivery and jurisdiction be transferred from the provincial and federal governments to the Band and/or Tribal Councils.

CORRECTIONS; The committee will be looking at the involvement of Elders in the rehabilitation of offenders. This may include means of traditional spiritual healing in correctional institutions. An increased representation of Indians as correctional staff and a greater involvement of communities in the rehabilitation of offenders will also be discussed.

Betty Ann Potruff, Dan Bellegarde, Pat Linn
Betty Ann Potruff, FSIN, Vice-Chief, Dan Bellegarde, Judge Pat Linn

SENTENCING; The Indian Justice Review Committee will be looking at the possibility of establishing sentencing panels composed of Elders and community members. Alternatives to sentencing will be discussed and methods of dealing with young offenders through counselling and rehabilitation on reserve will be examined.

COURTS; The short term goal of the Indian Justice Review Committee is to modify the present justice system to make it more accessible to Native people. The reinstitution of the Native court worker program, cross-cultural training for judges, and court translators are a few of the possibilities. An increased number of Native law students would guarantee a greater Native presence in the judiciary. The development of an independent tribunal to oversee issues of Indians in conflict with the law would ensure the fair and just treatment of Indians.

The long term goal is to have courts on reserve, run by Indian people, enforcing Indian law. This idea is by no means new, as Indian courts have been in operation for may years in the United States. Control of the justice system is crucial to the greater goal of Indian self-government. Without the ability to pass legislation and enforce laws, Native people cannot achieve true self-government.

"These changes will take time," FSIN Vice-Chief Dan Bellegarde explained, "perhaps years." Some communities have the infrastructure in place that would enable them to take more control of justice and are ready to do so. Others are not.

On the Indian Justice Review Committee, Vice-Chief Dan Bellegarde and FSIN lawyer, Blaine Favel, will represent the FSIN. Isabelle Impey and Noble Shanks will represent the Metis Society of Saskatchewan on the Metis Justice Review Committee. Government representatives on both committees are: 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. Both committees are chaired by Provincial Court Judge Patricia Linn.

Reports from both committees are to be completed and presented by December, 1991. The report regarding Indian people will be presented to the federal and provincial governments and the FSIN.

All Indian people are encouraged to be involved in the process of the justice review. The Indian Justice Review Committee will receive written and verbal presentations by individuals and groups, including people in incarceration.

JUSTICE REVIEW: VEHICLE FOR POSITIVE CHANGE

Thee single most important group within the Federation is the Indian Justice Commission in terms of justice development," said Vice-Chief Dan Bellegarde. On the Indian Justice Commission sits two or three representatives from each Tribal Council. These representatives discuss improvements and changes that could be made to the justice system and report their recommendations to the Indian Justice Review Committee which will produce the final report.

On July 5, the Indian Justice Review Committee met with the Indian Justice Commission to introduce themselves and to explain to Commission members what their roles and goals are. Through the Indian Justice Review Committee "has no interest in Indian self-government as such," Bellegarde explained to Commission members, "they will have an influence on the present system."

Some Commission members felt that there should be more Indian representation on the seven person Committee. Terry Thompson, from Saskatchewan Justice, explained that an effort had been made "to get a tri-partheid committee with the federal government, provincial government and FSIN as equals - two members from each, with the chair being independent." Bands who would like to contribute to the justice review can do so either through the Indian Justice Commission or by writing directly to the Indian Justice Review Committee.

Some of the suggestions made by Commission members included: an instalment plan for fines, the reinstitution of the court worker program, a Native police force, and on-reserve court hearings.

Commission members were very concerned about racism against Indian people through out the whole judicial process from arrest to corrections. Judge Pat Linn assured the Commission that "our report will not ignore racism."

There was some discussion about improvements that could be implemented immediately. Terry Thompson, representative of Saskatchewan Justice, said that "the existing system could accommodate the appointment of Native [Justices of the Peace] to deal with certain cases on reserve ... The Indian J.P. program would be affordable [because] if there are more Indian J.P.'s there could be fewer court judges."

Thompson also suggested that there could be service providers on reserves acting as probation officers so people could serve their sentences in their own communities.

Justice Review...
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Justice System Under Scrutiny

Vivienne Beisel-Mckay

SASKATCHEWAN INDIAN      SUMMER EDITION 1991      v20 n03 p07  
Justice Review...
Cont'd

Thompson was of the opinion that penitentiaries should be nearer to where people live. A regional facility is being built for Alberta, Manitoba, and Saskatchewan. Saskatchewan residents can probably expect that they will receive a healing lodge while the penitentiary will be built in another province.

This summer, the Indian Justice Review Committee will be touring Prince Albert, Regina, and La Ronge to bear presentations. If you have any information or suggestions you are encouraged to write to the Committee or the Commission.