Can anyone imagine hundreds of separate justice systems in First Nations communities across Canada?
The March 9, 1988, police shooting of J.J. Harper on the streets of Winnipeg and the much earlier murder of Helen Betty Osborne in The Pas in 1971 led Manitoba Premier Howard Pawley’s government to commission the Aboriginal Justice Inquiry (AJI) on April 13, 1988. This occurred in the middle of the election campaign that delivered his government’s defeat 13 days later. The government had lost the confidence of the Manitoba legislature in a vote on its 1988 budget.
Upon my appointment on May 9, 1988, as attorney general of Manitoba following the election, my attention immediately turned to the arrangements for the inquiry. Cancelling it was not an option; too much public anger had been generated by the two tragedies, with indications that neither of the two cases had been handled well.
The commission had not yet begun its work. Commissioner Murray Sinclair had previously served as then-attorney general Pawley’s special assistant and was later appointed a provincial judge on March 4, 1988, just a little more than a month before his appointment to the AJI. He had been a judge for less than two months.
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I remember wondering whether the two AJI commissioners (Justice Alvin Hamilton and Judge Sinclair, whose biography is that of an Indigenous activist) were sufficiently impartial about Indigenous matters to take on the task. I thought that commissions of inquiry (like courts of appeal) should consist of an odd number of commissioners to allow for potential dissenting opinion(s).
I raised the issue of a possible third commissioner with the two judges and was told in very clear language that I would “regret” any change to Pawley’s makeup, mandate, timeline or budget for the inquiry. I took this as a political threat.
As a brand new lay attorney general and former court reporter accustomed to genuflecting when judges entered courtrooms, I felt intimidated by the judges. The inquiry was left as is, its “independence” (and bias) unfettered. Indeed, later on, its reporting deadline was extended, and its budget increased. I was not at all surprised.
When the inquiry report was made available to me in the summer of 1991, there was tremendous pressure to release it to the public without delay. My department and I had only a few days to review the approximately 300 recommendations. It was decided that the report should be released without comment, other than to commit to consultation with Indigenous representatives before implementing recommendations.
Even then, it was clear to me that separate Indigenous systems of justice – the keystone inquiry recommendation – were not something my government would accept for many reasons, including the implications of a provincial government’s attempting to venture into federal jurisdictional territory, not to mention the fundamental unfairness and absurdity of the idea. Can anyone imagine hundreds of separate justice systems in First Nations communities across Canada?
Federal Justice Minister (and later prime minister) Kim Campbell also rejected separate justice systems as recommended by the AJI. We both had particular concerns about the following language in the report: “The federal and provincial governments recognize the right of Aboriginal people to establish their own justice systems as part of their inherent right to self-government.” And “Aboriginal communities be entitled to enact their own criminal, civil and family laws and to have those laws enforced by their own justice systems.” In Manitoba alone, there are 63 First Nations.
Knowing Sinclair’s views on Indigenous justice, I was astounded when the Stephen Harper government appointed him to chair the Truth and Reconciliation Commission (TRC). Is it possible the then prime minister and his government were unaware of Sinclair’s activism and preference for different rules for Indigenous Canadians?
The CBC hounded me to commit to implementing everything in the AJI report, just as Prime Minister Justin Trudeau committed to everything in the TRC report without, apparently, even reading or understanding the implications of many of the TRC recommendations.
In time, and in response to some of the more balanced, serious and constructive recommendations in the AJI report, numerous changes were made by Manitoba police agencies, other agencies and courts. Pilot projects were introduced in efforts to respond to the inquiry’s many concerns.
Indigenous women were, and are, over-represented as victims of family violence. I commissioned, in December 1991, a review of family violence in Manitoba. Dorothy Pedlar’s review committee consisted of a number of Indigenous experts on the subject, and the review resulted in many positive recommendations, which were implemented.
In the 31 years since the release of the AJI report and the implementation of many of its recommendations, the Indigenous incarceration rate in Manitoba has nevertheless grown from about 40 per cent to about 75 per cent. This is very sad.
So, one might ask, was the AJI worth having?
In my view, for the most part it dealt appropriately with the specific issues surrounding the deaths of Helen Betty Osborne and J.J. Harper. Improvements have been made, especially in Winnipeg police operations and procedures.
However, dealing with two individual cases and making recommendations for improvement is one thing; totally reconstructing the Canadian justice and other systems is quite another.
Back in the days of the inquiry it was argued that public attention to Indigenous justice issues would help bring about improvements to the system. But even with many changes, all the social and justice indicators show that things have only worsened among Indigenous peoples.
Since then, there have been other inquiries, including the TRC, the 1996 Royal Commission on Aboriginal Peoples and, most recently, the inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG). None of these emotionally painful and expensive efforts have resulted, nor will result, in any marked improvement in the lives of Indigenous Canadians.
The only hope for better lives for Indigenous Canadians is that good sense will ultimately prevail, and Indigenous people across Canada will be enabled to join with their fellow Canadian citizens and work toward equal status for everyone.
James C. McCrae is a former Manitoba attorney general and Canadian citizenship judge. This commentary was distributed by the Frontier Centre for Public Policy.
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