Current Problems and Issues in Justice

Protecting incarcerated people amidst the COVID-19 pandemic

First Nations leadership across BC is united in calling for immediate action to protect incarcerated peoples amidst the COVID-19 pandemic. The COVID-19 outbreak at the Mission Institution is now the third largest outbreak in the Province of BC, with the first inmate tragically passing away on April 15, 2020. Senior health and corrections officials have verified that almost 40% of the confirmed cases of COVID-19 at Mission Institution are among Indigenous inmates despite Indigenous people making up just 5% of the population in BC.

Doug White, Chairperson of the BC First Nations Justice Council calls the situation an urgent crisis and a ‘ticking time bomb.’ “Indigenous people are vastly over-represented in prisons and carry more than our share of the burden of health issues and chronic disease. These men were sentenced to a term of years, not to death. The duty of care that is upon the Institution in the midst of this crisis requires immediate and comprehensive action to avoid further tragedy. This situation requires extra-ordinary efforts and collaboration.”  

The BC First Nations Justice Council, BC Assembly of First Nations (BCAFN), the Union of BC Indian Chief (UBCIC), and the First Nations Summit (FNS) call on the Government of Canada and the Province of BC to urgently implement the following safety measures:

  • Immediately test all inmates and staff at the Mission Institution;
  • Increase safety and screening measures for workers entering and exiting the facility;
  • Enhance medical surge capacity onsite via mobile medical units to effectively treat emerging cases;
  • Enact isolation protocols which ensure that inmates who test positive are isolated in health facilities with regular monitoring and as much comfort as any other individual, along with meaningful human contact compliant with social distancing;
  • Increase access to counselling and mental health resources in every federal facility in order to mitigate the psychological and emotional consequences of isolation measures and reduced social contact;
  • Develop release plans for as many people as possible, prioritizing those with pre-existing health conditions who are at increased risk due to COVID-19, and immediately release anyone classified low risk with a home in community where they will be able to self- isolation;
  • Include among release criteria a plan for secure housing, financial aid, and community safety, and provide support in meeting these criteria; and
  • Test and isolate all individuals for 14 days before re-entering community.
Ongoing institutional racism against Indigenous people within Winnipeg Police Services

April 16, 2020 – Despite numerous calls by local Indigenous and human rights groups to address deep-seated institutional racism, WPS members continue to display problematic and oppressive behaviours. Dubbed “Canada’s most racist city” by Maclean’s magazine in 2015, the WPS has provided insufficient training to their members to effectively de-escalate situations, specifically those involving Indigenous youth. This killing – of a 16-year old Indigenous girl – comes less than 5 months from an incident at a Winnipeg convenience store where the WPS shot a 16-year-old Indigenous boy nine times.

The Indigenous Bar Association calls upon the government of Manitoba to call for an independent inquiry into the death of Eishia Hudson under section 7.1(1)(i) and (m) of the Manitoba Fatality Inquiries Act (CCSM. c. F52). The IBA further recommends that an inquest be considered to deal with potential biases within the WPS.   Both an inquiry and inquest into Eisha Hudson’s death must be completed in a timely manner, and should ensure that the officers involved face appropriate sanctions. In preparing for this inquiry, the Indigenous Bar Association urges the government of Manitoba to review section 9 of the Calls for Justice issued by the National Inquiry into Missing and Murdered Indigenous Women and Girls and ensure any steps taken follow the guidance provided therein.

Nunatsiavut government calls for an independent police investigation into RCMP

Nov. 19, 2019 – The Nunatsiavut Government is calling for an independent police investigation into the death of a 23-year-old Inuk woman whose body was removed from a makeshift tent in a wooded area of Happy Valley-Goose Bay during the early morning hours of November 15.
 “We have reason to believe the RCMP made assumptions as to the cause of death before carrying out a thorough investigation,” says Nunatsiavut President Johannes Lampe.

“Concerns have been raised that police neglected to interview key witnesses before issuing a public statement that the woman’s death was not suspicious,” notes President Lampe. “Questions have also been raised as to whether the police properly secured the scene, and may have also left potential evidence behind.” 
Has the RCMP learned anything from the national inquiry into Murdered and Missing Indigenous Women and Girls, which denounced decades of police indifference and systemic racism and which called for fundamental policing reforms?

Excessive increase in the number of Indigenous people and Indigenous women in particular being stopped by Montreal police

Oct. 8, 2019 – Indigenous Peoples were two times more likely to be stopped in 2014, the report shows, they became six times more likely in 2017. The likelihood of an Indigenous woman being checked by officers was also found to be 11 times higher than a white woman. (Montreal Gazette). The researchers behind the report, mandated by the City of Montreal last year, studied police interceptions (“street checks” or “information stops” that didn’t result in charges or tickets) the SPVM carried out between 2014 and 2017. The report found the number of street checks carried out by officers skyrocketed during the four years studied, going from fewer than 19,000 per year to more than 45,000 per year.

Montreal Police Chief Sylvain Caron announced a series of measures it will implement within the next year, matching the report’s five recommendations. They include drafting a clear policy for street checks, mandating an external firm to survey minority communities on race relations, launching a similar study on racial profiling in February and implementing a focus on racial biases into all of its practices and training, with an emphasis placed on Indigenous issues.

Government of Saskatchewan for attempting to shut down First Nations cannabis dispensaries

July 9, 2019 – Saskatchewan Justice Minister Don Morgan urged the federal government to shut down cannabis dispensaries opened in Pheasant Rump Nakota Nation and Muscowpetung First Nation because they do not have provincial licences. Morgan’s comments reflect a deeply held belief in a hierarchy of laws that devalues and delegitimizes the law-making capacity of Indigenous groups. What’s more, he argued that the First Nations’ dispensaries represented an unwelcome source of competition. 
Instead, federal and provincial governments must create a legislative and regulatory atmosphere that fosters cannabis-related economic development within Indigenous communities.

Today, cannabis presents a new and legitimate economic opportunity. Penalizing Indigenous communities for pursuing it would be unconscionable. Doing so would be repeating the wrongs of the past. For example, by the early 1880s, First Nations had developed innovative farming techniques and successfully planted new test crops. These achievements drew the ire of settlers who bristled at the potential for competition. Canada responded to their concerns by enacting a series of oppressive rules and regulations that suffocated agricultural development on reserves.
Policy Options. Jesse Donovan
https://policyoptions.irpp.org/magazines/august-2019/canada-must-respect-indigenous-cannabis-laws/

Public Inquiry Commission on relations between Indigenous Peoples and certain public services in Québec: listening, reconciliation and progress: Final Report (the Viens Commission) – 142 Calls to Action

Sept. 29, 2019 – Submission of “Public Inquiry Commission on relations between Indigenous Peoples and certain public services in Québec: listening, reconciliation and progress: Final Report (the Viens Commission) whose mandate was to investigate, ascertain the facts and make analyses with a view to making recommendations as to the concrete, effective and sustainable measures to be implemented by the Gouvernement du Québec and by the Aboriginal authorities to prevent or eliminate, regardless of their origin or cause, any form of violence or discriminatory practices or differential treatments in the provision of the following public services to the Aboriginals of Québec: police services, correctional services, justice services, health and social services and youth protection services.

The 142 Calls for Action are spread across the following themes:

  • Police Services = 13
  • Justice Services = 16
  • Correctional Services = 18
  • Health and Social Services = 34
  • Youth Protection Services = 30
  • Tracking Mechanism = 5
  • Other = 26

The first two Calls to Action of the Viens Commission Final Report are:

CALL FOR ACTION No. 1

Make a public apology to members of First Nations and Québec’s Inuit for the harm caused by laws, policies, standards and the practices of public service providers.

CALL FOR ACTION No. 2 To National Assembly

Adopt a motion to recognize and implement the United Nations Declaration on the Rights of Indigenous Peoples in Québec.

Federal, Provincial, Territory and Municipal Governments and the Calls to Justice of the National Inquiry into MMIWG

June 3, 2019 – “National Inquiry into Missing and Murdered Indigenous Women and Girl Final Report (MMIWG)” states: 
·       Indigenous women and girls are 12 times more likely to experience violence than non-Indigenous women. 
·       Homicide rates for Indigenous women were nearly seven times higher than for non- Indigenous women. 
·       One quarter of all female homicide victims in Canada in 2015 were Indigenous, up from nine per cent in 1980. (CBC June 6, 2017)
Over the last ten years, the number of Aboriginal women inmates doubled (2005-2015). At the end of March 2018, 40.0% of incarcerated women were of Aboriginal ancestry. (Auditor-General Report 2018)

A permanent commitment to ending the genocide requires addressing the four pathways explored within this report, namely: 
·       historical, multigenerational, and intergenerational trauma; 
·       social and economic marginalization; 
·       maintaining the status quo and institutional lack of will; and 
·       ignoring the agency and expertise of Indigenous women, girls, and 2SLGBTQQIA people. 
Indigenous women make up less than 5% of the population in Canada
https://www.mmiwg-ffada.ca/wp-content/uploads/2019/06/Final_Report_Vol_1a.pdf
https://www.mmiwg-ffada.ca/wp-content/uploads/2019/06/Final_Report_Vol_1b.pdf

It must be understood that these recommendations, which we frame as “Calls for Justice,” are legal imperatives – they are not optional. The Calls for Justice arise from international and domestic human and Indigenous rights laws, including the Charter ̧ the Constitution, and the Honour of the Crown. As such, Canada has a legal obligation to fully implement these Calls for Justice and to ensure Indigenous women, girls, and 2SLGBTQQIA people live in dignity. We demand a world within which First Nations, Inuit, and Métis families can raise their children with the same safety, security, and human rights that non-Indigenous families do, along with full respect for the Indigenous and human rights of First Nations, Inuit, and Métis families. “Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls”. Volume 1b Calls for Justice”

Government of Ontario slashes funding to Legal Aid Ontario by 30%

April 12, 2019 – The provincial government is cutting funding to Legal Aid Ontario by 30% that negatively impacts the Indigenous population who are one of the most disadvantaged and impoverished in Ontario and one of the most over-represented in the criminal justice system.

June 13, 2019 – Cuts to Legal Aid Ontario are “mean-spirited” and will push the province closer to a two-tiered legal system, where Indigenous people, the poor and refugees will be at an even greater disadvantage, Ottawa lawyers warn. (Ottawa Citizen)

Conservative Party of Canada ; Liberal Party of Canada for failure to support Bill S-215 “Sentencing for Violent Offences against Aboriginal Women”

April 10, 2019 –Defeat of “Bill S-215, An Act to Amend the Criminal Code (Sentencing for Violent Offences Against Aboriginal Women)” in the House of Commons during the second reading on April 10, 2019. The Bill would have required a court to take Indigenous female identity into account during the sentencing of offenders. Those “in favour” of Bill S-215:
      NDP = 35;   Green = 1;   Bloc Québécois = 7
Liberals = 2; Conservatives = 0
This legislative defeat occurs at the same time as the imminent release of the MMIWG Final Report on the overrepresentation of Indigenous Women and Girls as victims of violent crimes.
A 2016 report by Amnesty International found that “Indigenous women and girls suffer the highest rates of violence in Canada”

April 12, 2019 – As a supporter of this bill, Native Women’s Association of Canada (NWAC) hoped it would be an important step forward with respect to the urgent issues Indigenous women, girls and gender diverse people face today such as heightened likelihood of disappearance, human trafficking, violent crimes, and forced and coerced sterilization. NWAC hoped the House of Commons would see Bill S-215 as a step towards justice for Indigenous women, girls and gender diverse people who face so much discrimination in Canada’s legal system.
Dec. 4, 2018 – When there’s a large-scale industrial development, when there’s construction camps that are co-located, we have documented increases in the rates of sexual assault, the rates of sexualized violence, the rates of prostitution, the rates of sexually transmitted infections,” said Ginger Gibson, director of the Firelight Group, which does research in Indigenous and local communities in Canada. Firelight’s 2017 report cites a 38 per cent increase in sexual assaults reported to RCMP during the first year of construction on an industrial project in Fort St. James, British Columbia. (Toronto Star)

Province of Saskatchewan for arming Conservation Officers and Vehicle Enforcement Officers with semi-automatic carbines

Oct. 29, 2018 – Province is also ordering semi-automatic carbines for 98 Conservation Officers and 40 Professional Vehicle Enforcement Officers as part of a Protection and Response Team (PRT) to reduce “rural crime”. FSIN Vice Chief Heather Bear said the decision is part of a “continuous assault on Treaty hunters” in Saskatchewan, citing decisions to grant Conservation Officers more policing powers — a move she was also critical of — and the proposal to make changes to the Trespass to Property Act.

RCMP in Nunavut for lack of civilian oversight of police complaints

Oct. 22, 2018 – Nunavut and the Northwest Territories are the only places in Canada that don’t have civilian oversight of police complaints. “The Department of Justice in Nunavut has requested that the Legal Services Board document and share concerns … relating to the allegation that instances of excessive use of force by the Royal Canadian Mounted Police appear to be on the rise in Nunavut,” 2015 letter from the territory’s legal-aid service to then-justice minister Paul Okalik. (CP)

Adam Arreak Lightstone, a member of the legislature from Iqaluit, says he’ll use the legislative sitting that begins Tuesday to demand Nunavut reconsider its police oversight. “It’s really important to ensure there’s accountability in the investigation process,” he said. “There’s a reason why most jurisdictions in Canada have a civilian oversight body to prevent police from investigating police.”

The Ottawa and Calgary police forces currently investigate complaints against Nunavut RCMP. In effect, one police force investigating another which does not have the efficacy or transparency of a civilian oversight body as in all other provincial/territory jurisdictions (except NWT)

Supreme Court ruling on if the application of the Duty to Consult doctrine can be applied to the federal legislation-making process

Oct. 11, 2018 – Mikisew Cree First Nation v. Canada Supreme Court Decision ruling on the application of the Duty to Consult doctrine and if it can be applied to the federal legislation-making process. The case originates from Mikisew Cree First Nation’s challenge of the 2012 Omnibus bills introduced under the previous federal government that made significant changes to environmental, fisheries and waters protection.

The decision negated any meaningful involvement of First Nations in the legislative process, a process that can have deep and lasting impacts on First Nation peoples, lands, waters, and Treaty and Inherent Rights. The Federal Court of Appeal overturned the ruling, saying that including the duty to consult in the legislative process offends the doctrine of the separation of powers and the principle of parliamentary privilege.

Recognizing that the 1764 Treaty of Niagara that had more than 2,000 representatives from Indigenous nations gathered over a month to deliberate how they could share the land with European settlers is a foundational “legal” document. Treaties are also part of the law. Section 35 of the 1982 Constitution Act affirms the recognition of this and other Aboriginal and treaty rights. Internationally, the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, which Canada has adopted, acknowledges the rights of Indigenous nations to have treaties and other agreements recognized by settler governments. If the Treaty of Niagara process had been used as a guide, Indigenous governments would be fully informed of proposed changes in law, with time set aside for representatives to come together in order to discuss, deliberate, debate and decide on the merits of these proposed changes. Indigenous legal orders would be recognized as a foundational source of land-use law.
https://theconversation.com/let-indigenous-treaties-not-the-duty-to-consult-lead-us-to-reconciliation-105473

Federal Government for spending $2.3M in legal costs to avoid settling claims related to St. Anne’s Residential School abuse

Sept. 20, 2018 – (Globe and Mail) The federal government has spent more than $2.3-million over the past five years fighting legal cases related to the claims for compensation lodged by survivors of one of the country’s most notorious residential schools. Despite the results of the OPP probe, some of the claims of St. Anne’s survivors were denied by adjudicators of the Independent Assessment Process (IAP)…after federal officials told the IAP prior to 2013 that there were “no known documents regarding sexual abuse” at the school.

St. Anne’s, where children were forced to eat their own vomit, were whipped with wire straps and were tortured in a homemade electric chair, was the subject of a five-year probe by the Ontario Provincial Police in the 1990s, in which allegations were made against 20 different priests, nuns and laypeople. Five people were eventually convicted, three of them on charges of “indecent assault.” One outcome of the litigation was the Ontario Court of Appeal not allowing documents relating to the criminal case to be used by the applicants to support their IAP claims.

Federal Government and Ministry of Justice for back-to-back acquittals in Colten Boushie and Tina Fontaine murder trials

Feb. 8 & 22, 2018 – Back-to-back acquittals in the murder trials of Colten Boushie and Tina Fontaine amplify the systemic imbalances in the Justice system: peremptory challenges in jury selection, shoddy to indifferent police work, jury selection, court process etc. Both trials reinforced how the justice system is skewed against Indigenous victims: Colten Boushie by a court system that reinforced negative stereotypes of Indigenous youth and that would not allow Indigenous representation on a jury; Tina Fontaine by the institutional indifference to the unending plight of Indigenous women and girls.

March 13, 2019 – Immediate action is required to ensure Indigenous representation on juries and to support First Nations approaches to justice as well as a national action plan to provide safety and security for indigenous women and girls that would include shelters and safe spaces, education and training, transportation, daycare and other supports (AFN) (NetNewsLedger)
Mar. 19, 2019 (Winnipeg Free Press) When 15-year-old Tina Fontaine was trying to survive on Winnipeg streets in the summer of 2014, none of the city’s Indigenous programs that focus on ending child sexual exploitation knew she was out there. When Manitoba’s Advocate for Children and Youth released its long-awaited investigation into the teen’s life and death last week, none of those groups were consulted. 

Secrétariat aux affaires autochtones (SAA) voir failure to grant funding to Quebec Native Women to participate in the Public Inquiry Commission on relations between Indigenous Peoples and certain public services in Quebec

Why?
Oct. 25. 2017 – Refusing funding requests for Quebec Native Women to participate in the Public Inquiry Commission on relations between Indigenous Peoples and certain public services in Quebec.  “We were the only Indigenous organization which has been there continuously,” said Michel, adding that as a not-for-profit, there is no way for them to pay for legal representation and the costs of attending the hearings in Val d’Or. (CBC)
Comment
Absence in future hearings will create a deep imbalance of representation, in comparison to the Ministry of Justice and other instances that are legally represented. This imbalance could be perceived by many as an additional factor contributing to the systemic discrimination against indigenous people in public services, the present case being legal services.
Potential Solution

Saskatchewan Association of Rural Municipalities for expanding property rights over the right to life

Why?
March 15, 2017 – Passing a resolution with 92% in favour at their convention “to expand the rights and justifications for an individual to defend or protect himself, herself, and person under their care and their property.” CBC
Comment
March 15, 2017 – This resolution seeks to allow civilians more power for self-defense and defence of property only seven months after Colten Boushie, a 22-year-old indigenous youth was shot and killed on a Saskatchewan farm on Aug. 9, 2016.
Potential Solution

Ministry of Community Safety and Correctional Services Canada (CSC)

Why?
2017-2018 – Chronic underfunding of Aboriginal Healing Lodges who cannot compete with Healing Lodges managed by Correctional Services Canada (CSC) whose staff have 30-35% higher salaries and benefits. (Annual Report of the Office of the Correctional Investigator 2017-2018)
Comment
In 2009-2010, CSC allocated $21,555,037 for CSC lodges and $4,819,479 for section 81 lodges. This discrepancy in funding means that Section 81 lodges must pay their employees significantly less and may be unable to provide adequate training. A 2012 report by the Office of the Correctional Investigator outlined a discrepancy in funding between community-run healing lodges and those run by Corrections Canada.
Potential Solution
2018 – The new funding formula provides fixed and variable payments that will equal to the negotiated daily rate. The fixed cost which is normally a 60% of the negotiated daily rate is paid whether an offender occupies a bed or not. This allows the Healing Lodge to fund all its fixed recurring financial obligations of managing a facility. The variable cost which is normally the remaining 40% of the negotiated daily rate is paid when a bed is occupied by an offender. This new funding formula which has been deemed fair and respectful by agreement holders, applies to all existing and new Section 81 agreements. It will allow Indigenous agreement holders to have access to funds that will ensure the effective operations of their Healing Lodges including adequately responding to the needs of Indigenous men and women offenders in their care and custody. 

Federal Government and PMO for failure to appoint an Indigenous judge to the Supreme Court of Canada

Why?
Nov. 29, 2017 – Failure to nominate an indigenous candidate to the Supreme Court of Canada despite qualified applicants being available.
Comment
The Indigenous Bar Association recognizes numerous qualified Indigenous candidates who have dedicated years of service to trial level courts to tackle front line problems facing Indigenous peoples. They have invaluable insight into the interaction between Canada’s Indigenous peoples and the justice system and have been overlooked a second time.
Potential Solution
A commitment to truth and reconciliation demands that Canada’s legal system be transformed. It must ensure that Aboriginal peoples have greater ownership of, participation in, and access to its central driving forces. Canada’s constitution must become truly a constitution for all of Canada. Aboriginal peoples need to become the law’s architects and interpreters… (Vol. 6, p. 51) TRC Final Report.

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