|
In April 1997, the
Aboriginal Justice Learning Network (AJLN) held a gathering of
Aboriginal Elders, policy makers and academics in Alymer, Quebec.
Associate Chief Judge Murray Sinclair of the Provincial Court of
Manitoba presented his views on the historical relationship between
the Canadian just ice system and Aboriginal peoples at this meeting.
The AJLN published Mr. Sinclair s views in a book format which is
being distributed through our inventory of resource material. His
speech has become a learning tool for many groups, individuals and
institutions throughout the country.
Transcript of Presentation by Associate Chief Judge Murray Sinclair
Elders-Policy Makers-Academics Constituency Group Meeting
Aylmer, Quebec, April 16-18, 1997
We have a lot of ground to cover, all of us, in a very short period
of time. We only have one lifetime each and we have much to do when
it comes to dealing with Aboriginal people and justice issues. I am
not sure that one lifetime is enough to do all that needs to be
done.
So let us begin with the understanding that we cannot do all of the
things that need to be done in the short time we have together. We
can only do so much with what we have been given and we can only go
so far within the time that we are here together.
As always, I m a bit perplexed about how I can contribute to the
conversation when invited to gatherings like this because I m never
certain what it is that each of you knows, nor am I certain of what
each of you do or want to do and how I can help with whatever you ve
come here for.
So, perhaps, some of you have already heard some of the things I m
going to talk about, however there are many of you here who I have
not previously met and those people have not yet had a chance to
hear
some of the views that I have on the issues that Aboriginal people
face in the Aboriginal justice system. You have also not had an
opportunity to hear, perhaps, some of my thoughts about where it is,
we should be going.
If you have heard some of these thoughts, I hope you can listen once
more, and perhaps they ll help you to get a new insight.
I m always a bit concerned and humbled when I m asked to speak to a
gathering like this, such an august body of people with such
knowledge and I m not talking about you lawyers, incidentally, so
stop sticking out your chests.
I m talking about our Elders here, who have so much information and
knowledge about the things I am only beginning to understand and
have not yet grasped the full ability to apply those things to my
life or for that matter, to the lives of others.
So I want to begin by acknowledging the greater gifts they have and
the greater understanding they can bring to this conversation.
On the other hand however, I also recognize that my law degree seems
to give me instant credibility with some people. My stature as a
judge makes you feel compelled to listen to me. So I will take
advantage of that by doing what it is that you ve asked me to do and
that is to talk to you.
Where do we begin?
It is hard to know where we begin. It really is, because as I said
earlier we have so much ground to cover, so many things that we want
to do.
I have been asked to talk primarily, to address the issue of the
Aboriginal Justice Learning Network and where I see it going, what I
see it being able to do. So as with all good speakers I m told by my
Elders, keep the best part to the end so I m going to do that, I m
going to talk about that at the end just in case you thought I was
leading to a conclusion.
What I do want to talk to you about are some very basic issues I
think you need to keep your mind on as we are going through this
process.
The most important thing that we as human beings have to come to
grips with, is who we are. That is the biggest question in life, who
am I? The biggest question of life necessarily leads us to ask other
questions, such as, Where did I come from? And Why am I here? And
probably the most important question is, Where am I going, and what
s going to happen to me after my life is over on this earth and I go
to the next world? What happens to me over there? And our Elders
always tell us that those questions are very basic to open for every
human being.
What I see for our young people or all Aboriginal people who come
before me in court, is the tremendous imbalance they are confronted
with. How out of balance each and every one of them is in their
life, that they end up coming to me in the process. I m often
involved at the very end of a very tragic set of circumstances and I
m presented with just enough information to decide whether they
should go to jail, and for how long. But I m never presented with
enough information to decide what I can truly do, to help this
person to find his balance.
As a judge, the single most difficult thing for us to accept is that
we don t have the answers. I speak to judges all the time. In fact,
just this week I came from a new judge s training program just north
of
Montreal. All of the new judges in Canada are brought together there
to begin their legal careers. What I try to impress upon them the
most is that if you don t have the answers, don t begin to think
that your appointment as a judicial officer will automatically allow
you to set things right. That you somehow have the ability instantly
because of your appointment to determine not only the truth which is
an impossibility, but to determine how it is that you re going to
change the lives of these people and move society into a better
mode, because we can t do that.
The great flaw of our justice system is that the justice system
somehow assumes by orienting things the way we do, we are able to
correct everything and can do it infallibly. The reality however, is
the system is fallible at virtually every step in the process, and
the challenge of the process is to make it as little fallible as
possible.
The unfortunate thing is what our inquiry and every other inquiry in
Canada has found, concerning Aboriginal people in the justice
system. That is, when the justice system can be fallible where
Aboriginal people are concerned, it is fallible. It fails at
virtually every point in the system in the process.
This is understandable because quite frankly, Aboriginal people and
the Euro-Canadian justice system they come into contact with are
inherently in conflict. So it is understandable that where a system
orients people to do things a certain way vs. Aboriginal people who
come from a system that orients them to do things differently, will
naturally do things at odds with the system.
So the first thing we have to understand is the system is in
conflict with the very people it purports to assist and help, and
our report in Manitoba talked about that.
We spent a lot of time and a lot of words talking about where in the
process the system fails Aboriginal people and how we think the
changes we recommended could address those shortcomings.
But there is an even more fundamental issue at play here we need to
talk about and I want to give you a bit of a history lesson because
it s important for you to learn it, if you are to understand who you
are as players within or outside of the system or if you are to
understand who you are as an Aboriginal person. You have to
understand where it is we have come from, to get to this point in
time.
I am not always the way I am. I was not always this way and I will
not always be this way. And in the same way, our system, our justice
system was not always as we now see it. In the same way, Aboriginal
people were not always as we see them.
In this day and age when we look around us at our communities, at
our young people and our men, we see great discordance, we see great
pain. Our young people are killing themselves at incredibly high
rates, six to eight times the national average rate of suicide among
young people. We have among our women, incredibly high rates of
domestic violence, of sexual abuse. Our men do not know how to treat
our women properly anymore.
We are in a situation in some of our communities bordering on social
chaos and anarchy where people have no respect not only for their
brothers and their sisters but they have no respect for their
parents, they have no respect for their Elders, they have no respect
for their leaders if there are any and they have no respect for
their society, however they see it, which is not to say that we all
live that way.
Sometimes we overstate the problem, with the result being that many
people have the wrong impression about us as Aboriginal people. Many
people have the impression that we are still savages as they were
taught so long ago in our history books.
As a result of the dysfunction within some of our communities,
people believe this is the way all Aboriginal people would tend to
be if it were not for the grand civilizing process we have come
through with the help of the churches and Canadian society.
But the reality is, when you look at that picture, at the way
Aboriginal people are today, and look at it in historical terms, you
come to realize that we have not always been this way.
Aboriginal people did not always kill themselves at a high rate.
Aboriginal men did not always abuse their women and their children.
Aboriginal people did not always represent 70 per cent of the jail
populations of our provinces. Aboriginal people lived a relatively
stable life at long points of our history and very recently.
In fact, our study in Manitoba pointed out, and those of you who
read it know we pointed out in Manitoba at least, until the Second
World War, Aboriginal people were not over-represented in the
justice system. In fact, their presence in the jails was less than
their presence in the population. 12 per cent of Manitoba s
population is Aboriginal today. It was probably in the area of 15 to
20 per cent during the 30s and 40s, and less than 9 per cent of the
people who were incarcerated in Manitoba during that period of time,
were Aboriginal people.
The same with our child welfare system. The number of children in
care today in Manitoba who are of Aboriginal ancestry represent
about 70 per cent, and yet prior to the Second World War the number
of Aboriginal children in care was minimal. In fact, they are unable
to point to any statistical existence whatsoever.
Why is that the case then? Why is it until that period of time we
appeared to have relative stability in our communities, our people
did not appear to be dysfunctional. Our people did not appear to be
acting out and committing crimes at such excessive rates. Our people
did not appear to be abusing themselves and others in the same way
we see today.
A part of it, for me, is because of the way the government has
treated our leadership, the way the government has treated our
families, the way the government has treated our culture. There has
been and there still is great disruption among our people today as a
direct result of some of the laws that have been passed in this
country.
I have spoken many times about this issue, but I think it is always
worth repeating. Beginning with Confederation in 1867, the
government set out on a deliberate attempt to undermine the very
existence of Aboriginal communities, to undermine the very nature of
Aboriginal families within society. The view was, it would be better
for Aboriginal people to assimilate into Canadian society and to
therefore, become more civilized.
There was a belief existent among the policy makers at the time that
Aboriginal people were inherently inferior and needed to be brought
up to a state of civilization more advanced than what they were
offering the rest of the world at that time.
So because of that, they passed laws designed to assimilate us. They
passed laws designed to undermine some of the institutions of our
existence they felt had created our state of inferiority.
They passed laws, for example, that said Indian people living on
reserves were incapable of entering into contracts, were incapable
legally of selling anything that they produced, anything they
manufactured, anything they discovered.
If they had minerals or resources in their community they could
exploit, they were forbidden by law from selling or leasing those
resources unless the government gave its consent. Part of that was
the government believed they were inferior and incapable of
contracting. Another part of it also was the government had a
deliberate policy that it did not want the Aboriginal communities of
this country to flourish economically. They did not want Aboriginal
communities to become self sufficient and stable. They wanted
Aboriginal people to assimilate, to leave their communities and
integrate with the rest of society.
Ultimately, within a few generations, John A. Macdonald was reported
as saying, there will no longer be any Indian reserves, there will
no longer be any Indians and, therefore, there will no longer be any
Indian problem. That is a quotation from the discussions and debates
of Hansard.
The thrust of government policy at that time was not merely to make
it difficult to be an Indian, but it was to make it difficult to be
as an Indian, for they did other things as well to undermine our
existence.
They passed laws for example, that said that all of our children
could be taken away from our families at the age of five and locked
up in residential schools, away from their families until the age of
18, and they did that. In many of our communities, 100 per cent of
the children between the ages of 5 and 18 were taken from their
families and put in residential schools and in some cases we are
told and the whole issue of residential schools incidentally, has
not been adequately discussed and studied they would be removed from
their families at a young age and told they would never see their
families again until they turned 18 and were allowed to leave. Often
however, they were not allowed to leave unless they agreed to marry
someone else who was in the school system with them.
The purpose of that was to further the view that we can t allow
these newly civilized Indians who have been raised in this
residential school to go back to their communities and marry an
uncivilized Indian.
We have to keep these people together and flourishing.
And so marriages were arranged in these schools and children were
often required to marry each other. This happened with my
grandmother and my grandfather. My grandmother was not allowed to
leave the convent where she went to school until she agreed to marry
my grandfather.
We know the natural instinct of a mother when a child is taken away
from her, is to go and do something about that. We know that. All
good parents who lose their children in that way will want to do
something about it. History records that Indian people tried to do
something about that as well.
While all of the treaties and the treaty negotiations of the time
reflected a desire by Indian people for their children to grow up,
be educated and have careers just like the white man, it was not
this form of education they wanted for their children. Indian people
often protested and tried to get their children out of this form of
education, this institutional situation. Well, the government passed
a law that said Indian people could not do that. They made it an
offence for any Indian apparent to interfere with the education of
their child who was taken and placed in an educational system like
that.
Incidentally, compulsory education for Indian people doesn t sound
so bad today because we know all of our children have to go to
school in this day and age. Compulsory education is the norm for
everyone. However, compulsory education was not the norm for
Canadian society until the 1930s, and in some cases, 1940s. In those
days, white children didn t have to go to school compulsorily. They
did not have to go to school until laws were passed in the 30s and
40s. So in some ways, we were 50 years ahead of time.
Parents were prohibited from interfering with their children. The
government inaugurated in the 1880s what came to be known as the
Indian Pass System . It required that any Indian person who was
outside of a reserve who didn t have a written pass, could be
arrested by the police and returned to his community. This
effectively prevented of course, parents from leaving their
communities to go and get their children out of those schools.
They also made it an offence for Indians to protest these things. Of
course, the natural thing was families would get together and say
well, we are going to do something about this, but that was made to
be an offence. It was the Indian conspiracy laws of the 1880s which
said if three or more Indians get together in order to discuss a
grievance against the Government of Canada, then they were guilty of
an offence and could be sent to jail. So, two people could talk
about their grievances, but three Indians couldn t.
Furthermore, they knew that Aboriginal gatherings in the 19th
century such as sun dance and pot latch ceremonies and the huge
gatherings we saw then and see today in pow wows were not just
social events but were important political events as well. Chiefs
would be recognized and births would be acknowledged. Names would be
given, marriages would be performed, property would be shared and
all of those important things. They also represented opportunities
for Indian people to get together in order to grieve their concerns
about Aboriginal people about the Government of Canada. Laws were
then passed in the 1880s saying Indian people could not have those
gatherings anymore. They came to be known as the sun dance and pot
latch laws. They said it was an offence for an Indian to participate
in those ceremonies.
It was also made an offence for Indian people to do other things
like go to sweat lodges or participate in any traditional ceremony
involving the wearing of Indian garb. Art Shofley would have been
guilty of an offence years ago by dancing at pow wow s he s now
famous for.
All of us would have been guilty of an offence last night just by
sitting here and watching those people perform, because attending
those kind of functions was also an offence under those laws.
They were very clear about the nature of the ceremony you could not
participate in and said an Indian was guilty of an offence if he
participated in any ceremony involving the exchange of gifts. This
was intended to address the issue of the pot latch ceremony on the
west coast.
It inadvertently also caught Christmas in its definition, so in 1888
they amended the definition to allow them to participate in
Christmas, a very important Christian event of course.
If you can t go and do something about your child who s in a school
you don t want him to be in, if you can t gather in order to air a
grievance, then perhaps the one thing you want to do is go to court.
A very common reaction to those who feel a grievance against
government is to go to court, and that is why we have lawyers,
lawyers all over the place. We have about 67,000 lawyers in Canada,
all of whom are ready to go to court for you.
In the 19th century there weren t 67,000, but there were still lots
of lawyers ready to go to court for Indians, and all the Indian had
to do was just say the word and they were there. However, the
government had an answer for that too. They said no Indian could go
to court and sue the Government of Canada unless they first got the
permission of the government.
There was never any reported incidence of the government giving its
consent that we were able to discover, but it certainly had a
chilling effect on Indian s accessibility to the legal system. It
also had the effect of making lawyers think twice about doing
anything about these laws, even those who felt the laws were clearly
wrong and there were lawyers who felt that way.
Friendship societies were formed of non Aboriginal people who
supported the Indian cause, who themselves, were willing to go to
court on behalf of Indians. So the government passed a law saying
nobody can go to court on behalf of an Indian person unless they
also got the permission of the Government of Canada.
Another law was passed saying any lawyer who secretly agrees to
represent any Indian person, even as a lobbyist to represent their
interests with the Queen, and there were many cases of people going
to England to speak to the Queen, were guilty of an offence if they
accepted such a retainer and they could lose their licence to
practice law.
So what the government did was effectively take away from Aboriginal
people some very essential civil rights, rights we take for granted.
Not only did they take away the right to demonstrate, the right to
have access to the courts, but they decided by 1890 Indians were so
uncivilized they couldn t vote, either.
Indians had the right to vote incidentally in federal elections
until about that time, but they took that away in a law that said
Indians couldn t vote unless they agreed to be enfranchised.
So all of the recourses to the democratic procedures every citizen
of Canada took for granted in the 19th century, were taken away from
Indian people. But the government wasn t satisfied with that,
because they truly believed these Indians would continue to do
things secretly to keep themselves going, and of course, that is
what we were doing.
We know all about how our Elders continued to protect our
ceremonies. They d often go into the bush miles into the distance
and conduct their secret little sweat lodge and other ceremonies.
Sometimes they d go off on an island in the middle of a lake and do
their ceremonies there. But even that didn t sit well with the
government, so they passed a law saying any person who continues to
represent himself as an individual with medicine or healing
abilities, was guilty of an offence. They attacked our medicine
people, our healers, and said if they continued to say they could
heal people in a traditional way, they were guilty of an offence.
Then a law was passed that I think is ironically titled the Indian
Advancement Act in 1891, which said any Indian community which is
considered by the government to be in an advanced stage of
development — and that is the phrase — an advanced stage of
development would henceforth from that point on, have to elect its
leadership in accordance with rules and regulations created by the
government.
Those rules and regulations said only Indian men over the age of 21
could hold office, and only Indian men over the age of 21 could vote
for them, which of course undermined the status of women in society
and greatly undermined the matriarchal societies of some of our
tribes by creating this form of government, that was modeled on the
form of government that Canadian society followed, its so called
democracy.
But they went further than that and said the forms of government
that are elected in that way, really have no power. If they want,
they can control noxious weeds, decide where houses can be built, or
control where the garbage is to be dumped. If they want, they can
decide whether people coming into their community can sell trinkets
and goods, but beyond that they have no real authority.
And just to keep a handle on it, they passed a law saying whenever
the council wants to meet, they have to give notice to an Indian
agent who is responsible for that territory, and they can t have a
meeting without them, and it was always a man, of course.
The Indian agent had a right to attend those meetings and
furthermore, had the right to chair those meetings and set the
agenda.
So those advanced Indian communities were still subject to the
direction of the local Indian agent. Any Indian leader who held
himself out to be a representative of the community, who said he was
the traditional chief and not these new chiefs, was guilty of an
offence and could go to jail just for declaring these new forms of
government were invalid, and that his traditional form of government
was still valid. Those leaders were prosecuted, and we know of
several instances where they were incarcerated for continuing to do
that.
Incarceration was a relatively easy thing to accomplish because
Indians who were prosecuted under the Indian Act, had to appear
before a Justice of the Peace designated by the Minister of Indian
Affairs, and was prosecuted by someone also designated by the
Minister of Indian Affairs.
Government cutbacks were as important in those days just as they are
today, so they decided to roll that person into one, and the
prosecutor was the Indian agent. Just to keep it easy, the Justice
of the Peace was also the Indian agent.
So as you can see, the rule of law we take for granted in our
system, that everyone is subject to the equal enforcement of the
law, was never there for Indian people. Those laws were in place
until 1951 when the Indian Act was amended. Some of them were
repealed in 1927, but they were there for several generations, and
certainly the Indian residential school legislation is still in the
Indian Act today, it s just not enforced in the same way.
But the Indian residential school system was a part of our lives for
almost one hundred years. When you think of how many generations of
children went through those schools and that kind of lifestyle, you
can begin to see how the lives of those children would become
disrupted, disoriented, and how they would be out of balance with
their Elders and their families.
For when you think about it, you cannot take a child and raise that
child in an institution, and expect that child to be able to
function well and provide a loving or caring environment to his or
her family.
You cannot take a child and separate that child not only from his or
her mother and family, but also separate that child from his
sisters, his brothers, his aunties, his uncles, any adult of any
importance to him and put that child in an environment where they
don t see a loving and caring family environment, and then ask that
child to return and become a parent and expect them to be able to
function properly.
We know the effect of that institutional situation is not going to
be immediate because the first generation of children still have
their parents living back home to help them when they return, those
who did. Even the second and third generations would have their
parents and great grandparents to help them because we know that
older people continue to have that influence with young children,
even to that level.
But eventually, those who were not tainted by the residential school
system began to die off and subsequently, lost their importance
within the family. As each generation returned, the previous
generation would become less and less able to maintain a stable and
balanced influence for them.
So we begin to see the impact of it all after five, six, even seven
generations in the families, and I think that is why we don t see
any change in the statistics until after the Second World War.
A number of things occurred which added a great deal of impetus to
the change. A lot of our men went off to war and returned having
fought in battles as soldiers at the frontlines. Today, we know
about post traumatic stress disorder because of studies that were
done on Vietnam veterans. We know today what the impact fighting in
wars has upon individual human beings and we know today those men
returning from those wars to our communities did not receive
anything near the support, care and rights nonAboriginal veterans
received when they returned.
We know as well that in the 50s a lot of provinces changed their
laws to allow Aboriginal people into places that served liquor in
Manitoba. The famous report is the Bracken Report in 1956, which
allowed Aboriginal people to drink alcohol in a beverage room or
beer parlor, as it was called, and we know the relationship between
alcohol and crime in our communities.
Also in the 1950s, the Department of Indian Affairs decided these
Indians weren t migrating into urban areas fast enough so they
created a native housing program through the federal government
which gave Indians large financial incentives to buy or build houses
in urban communities, as long as they moved away from their
reserves. Anyone wanting to build a house on an Indian reserve
couldn t get any federal money but anybody building a house in an
urban area could get a $10,000 forgivable loan and in those days
that could build you a pretty good house.
So a lot of people migrated into the urban areas in the 1950s as a
direct result of that program and I think we know that.
But I think it is during the start of the family dysfunction s when
we begin to see the statistics change. Stony Mountain Penitentiary
reported in 1962 for the first time, an aberration in their inmate
statistics. They estimated 20 per cent of their population were
Aboriginal, the first reported notice of over representation in the
jail system. Around the same time, in the early 1960s, we begin to
see those statistics increase for all provincial and federal
institutions in Western Canada. Those statistical increases grew
even more as the years went by to the state we see today.
Our educational system functioned much along the same lines as well.
When I went to school and I m sure this is true for every Aboriginal
person today of my generation, or close to it, that we were taught
about the concept of discovery, about the great arrival of
Christopher Columbus. We were taught about Jacques Cartier and
Samuel de Champlain. We were taught about the massacre of father
John Breboeuf by the Indians of Eastern Canada who tore out his
heart, as savages are wont to do, and ate it. We were taught how
Indians were really nothing more than part of the country side when
the white men arrived and had no real rights. We were taught that
Indians were actually pretty lucky that the white men came here and
saved them from their life of barbarism and the terrible living
conditions the white men saw.
We were taught all of that.
It amazes me today that in some cases our children are still taught
that. I know of a young girl back home, the same age as my daughter,
who was expelled from school for two days because she refused to
write a paper on the benefits of Christopher Columbus discovery of
North America.
We have a situation in our lifetime when growing up in that kind of
environment resulted in our inability to find out who we are. The
great question each and every one of us had to answer was beyond our
capability of answering as Aboriginal people, because who we were,
was not who society wanted us to be. I was not what society wanted
me to be, and what society wanted me to be, was not what I saw
myself as being.
I grew up in an era with Elvis Presley and the Beatles, and for a
while that is what I wanted to be. But when I looked in the mirror,
I didn t see Elvis, and when I let my hair grow, it didn t grow into
the same style that the Beatles did. I couldn t speak with an
English accent and the people I grew up with, couldn t function that
way either.
When we looked in the mirror we always saw Aboriginal faces, and for
a long time many of us didn t like what we saw. We didn t like our
ourselves growing up in that day and age because of what we had been
taught about ourselves. We didn t like ourselves because of the
images of Aboriginal people that we saw in books, newspapers,
movies, and on television.
We didn t like the images of the people we saw when we took the bus
to Winnipeg and saw these drunken Indians on Main Street, all of
whom were victims of the same kinds of things we were victims of. We
didn t like those images, and so we didn t want to be that way. But
that was never a positive option for us.
In other words, we were not told how not to be that way. We were
told simply if you don t do what we tell you to do, you will end up
like that. The unarticulated premise of our educational system was,
if you don t grow up to be the way we are saying you should be, then
you re going to be a failure like your uncle, you re going to be a
failure like your cousin who s living in a Main Street hotel, and
that was the great threat we faced.
So the reality then, for us as Aboriginal youth, was growing up with
terrible conflicts over who we were. We did not know who we were and
our young people today, they still do not know who they are. We have
not been able to give our young people their sense of identity
today, just as I was not able to get my sense of identity as a young
person in the
50s and 60s.
This is the great dilemma we face, because each and every young
person who comes before me in court, is weighed down by that burden
and that is why, when I look at the options available to me as
judge, I think well, I can impose a fine. Now, if I fine him $50 is
that going to give him his sense of identity? Well no, maybe not.
Maybe $100 will give him a sense of identity or perhaps $500, but
that will not give him a sense of identity either. So how about if I
put him on probation and make him go and report to a white probation
officer downtown, will that give him his answer of identity? Well, I
don t know, maybe it would. It would depend on the probation
officer.
I have not met too many Aboriginal probation officers, but there are
some out there who have a good sense of what they have to do. But in
our system, probation officers generally function very much like
police officers. They are there to keep an eye on somebody and if
they do something wrong, they report it and end up back in the
system.
It is very rare and I mean no disrespect, but it is very rare to
find probation officers who go that extra mile with their clients.
They are overworked, overburdened, just like everyone else in the
system.
Maybe if I send this person to jail, I think maybe that will give
him a sense of his identity. The sad reality is, there is an awful
truth to that.
Many Aboriginal men who stop a life of crime, tell us the answer for
them was when they learned about their culture, and where did they
learn about their culture? The first time they learned about their
culture was when they were in jail. It s a terrible thing to say,
that you can go to jail to learn about who you are
and find your solution there. If that s the only thing to stop him
from living a life of crime, then couldn t we find a way of doing
that outside of jail? That is the question I ask.
The reality is that some of our men and women do find their answer
through learning their culture while they are incarcerated.
Incarceration for that purpose seems to me to be a little illogical,
but there it is. There are only three things I can do with somebody
who is in front of me as a judge. I can take away their money, and
the money that goes to their family. I can put them on probation and
hope, hope that somebody will help him, or I can send him to jail
and perhaps keep him out of trouble for a while. However, more and
more evidence is coming before us that sending someone to jail
simply increases their criminal activity, and doesn t decrease it.
All of this is what s going to lead me to the conclusion. I told you
I was going to make this sound like I knew where I was going.
We have a situation where too few of our lawyers and too few of our
judges and probation officers know about that history. They think
that Aboriginal people are just like every other criminal that comes
before them, people who commit a crime out of convenience, commit a
crime out of need or commit a crime out of passion.
The reality in my view, is that for most Aboriginal people,
criminality is often a forced state of existence. Criminality is
often a direct result of their inability to function as individuals,
as human beings in society.
Our young people in Winnipeg are joining street gangs in huge
numbers. A year ago they were estimating there were 300 to 400
Aboriginal youth gang members. Now they are saying it is about
1,500. I think it s a scare tactic myself, but even if they are
joining in disproportionately high numbers like that, it s merely a
reflection of the need of our young people to find out who they are,
who am I? This gives them part of the answer. This gives them a
sense of comfort about who they are.
So I think, we in the justice system, are compelled to accept it is
our responsibility for a vast majority of the people who come before
us, Aboriginal and non-Aboriginal, to find a way to help them find
out who they are. Then we can help them to answer those questions I
mentioned earlier, which are, where did I come from, why am I here
and where am I going?
We need to find ways to help them confront those questions and find
answers. For by answering those questions, each person in society is
able to find a way of functioning properly.
The problem with our justice system, as it functions today, is we
are often discouraged from even probing into that. We emphasize in
our system the need to generate numbers. I remember I was talking
one time with judges about doing sentencing circles, and I said the
very first sentencing circle I ever did, involved 500 people who
were in attendance. 150 of them spoke at that sentencing circle. One
judge said, W e can t take all day to sentence somebody., and I
said, W ell, think about it for a moment, you re dealing with the
rest of this person s life. This is probably the most important
thing that will ever happen to this person. Why wouldn t you want to
take all day to do it right?
The reality is we get thousands and thousands of people in our
system who we feel we need to move along. There is a great sense of
discouragement over doing it carefully and doing it right. But that
is a reflection of the numbers, the number game we are caught up in.
The problem is our system is not oriented in my view to doing it
right yet. It needs to be reoriented to doing it right.
Somebody else here said, What is justice? Well, justice is doing the
right thing, that is really what justice is. It is not any more
complicated than that, doing the right thing.
Where Aboriginal people are concerned, we are not doing the right
thing. All of the statistics and all of the studies we know about,
have all come to that conclusion. What is the right thing? Well, we
have to learn that. It s not going to be the same for our friends in
Maniwaki as it is for our friends in Moose Factory.
It is not going to be the same for the Ojibways in Roseau River, as
it will be for the Crees in Lac l Orange.
It will not be the same for the people in the Blood Reservation in
Alberta, as it will be for the west coast Indians in British
Columbia, or the people of the Northwest Territories, or our Inuit
brothers and sisters in Inuvik. They will all have different
solutions based upon their understanding of how to do things because
process is just as important as results. We must never forget that.
The process each will follow will reflect who they are. The results
will be the same I think, for all of us if we let that happen.
The Aboriginal Justice Learning Network arose in a discussion David
Arnot had with a number of people including myself, a couple of
years ago. In that conversation with me, David said there is a
recommendation in the AJI report suggesting we should have a
learning centre. We called it an Aboriginal Justice Institute. We
said all Aboriginal people who want to learn how to deliver justice
to their people should be given a place where they can learn and
study from Elders who will be able to give them that knowledge. Who
can learn from lawyers about how law is supposed to work. Who can
learn from judges about experience and about how justice systems are
supposed to work, but will also allow them ultimately, to do their
own thing.
In the similar way, we said non Aboriginal judges, lawyers, police
officers and probation officers should go there to learn how
Aboriginal justice is supposed to work, and it s all designed, we
said, to allow the implementation of one of the major
recommendations we made, which is Aboriginal people should be
allowed to deliver justice their own way. Aboriginal people should
be allowed to have their own justice systems in their own
communities to do justice for their people, to do what is right for
their people.
This program you re now participating in grew out of that
discussion. Ultimately, in my view, what we need to focus on is how
we can establish a process whereby you, who are Aboriginal, and you,
who are non-Aboriginal, can continue to come together with a view in
mind about how we can do what is right where Aboriginal people are
concerned. We need to think about that and we need to talk about
that.
I want us to have an on going process so when we have new judges
appointed in Saskatchewan, Quebec or the Maritimes, we can say to
them as administrators of our courts, in addition to going to the
new judges training program, put on by the judicial institutes of
our courts, you will also go and spend a couple of days with the
Aboriginal Justice Learning Network, to learn how to deal with
Aboriginal justice issues in our courts and with our communities.
I d like to be able to say that to them, but we need to have an on
going process that is supported by governments, and recognized by
those who are within the justice system. We need to have a way of
continuing this dialogue, so it is not just an opportunity for us to
spend a few days in a very nice hotel, eating some very nice food,
and sitting in some very hard chairs. We need a lot more than that.
So ultimately it rests with you, those of you who are here. It doesn
t depend on David, it doesn t depend on me or Romola. It rests with
you, all of you who are here. You have to commit personally those of
you who think this is important, to see this will continue to
happen.
You have to go back, those of you who represent departments and
programs and governments, you have to go back to your offices on
Monday morning, send a memo to your boss somewhere, whoever that
might be, and say I just came from an interesting program I think we
should make a commitment to.
This is why you have to do that.
You have to be able to see the benefit of this, and if you don t see
it today, maybe you ll see it the next time you come to this
session. Maybe you will need to send somebody there who does see it,
if you re not the right person.
We have a lot of ground to cover, and we have a short time to do it.
I want to be able to leave this life, this earth, thinking I have
moved the conversation along a little bit and I hope you will commit
your life to the same thing, that when you are done whatever it is
you do, you will feel that you have moved the conversation along a
little bit. I hope these words I have shared with you have given you
a little appreciation for how I feel about these things.
I do not pretend to have the answers. I sometimes feel I only have
questions, but I do want you to know that I have strong feelings
about this. A strong feeling about the importance of these issues in
this day and age, and also a strong feeling about the important role
each and every one of you is going to play, and the resolution of
those programs.
So I thank you for listening, meegwetch. |
