Aboriginal People in Manitoba 2000Chapter 5 : Justice |
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Empirical Findings of the Aboriginal Justice Inquiry
According to information compiled by Indian Affairs and the RCMP, and summarized in the 1991 report of Manitoba’s Aboriginal Justice Inquiry (AJI), Indian reserves in Manitoba and Canada in 1990 had rates of reported crime of 1.5 to 1.8 times the provincial and national rates.1 These are average figures, of course. Crime rates vary widely among First Nations; with some being unsafe and others having crime rates less than the provincial average.
Aboriginal crime rates off reserve cannot be quantified, since a crime rate by definition relates to a geographic area and includes large numbers of “unsolved” crimes. The federal Solicitor General Canada department estimates that “70% of all Aboriginal people sentenced to penitentiaries are either residents of urban (non-reserve) communities, or committed their offences while off reserve.” This is not significantly different from the national off-reserve Aboriginal demographic.2
Therefore, the limited empirical evidence that exists suggests that, broadly speaking, Aboriginal crime rates, encompassing all manner of reported Criminal Code and statutory violations, are something less than twice average non-Aboriginal crime rates.
Yet the AJI also found that Aboriginal people in 1990 comprised over half of all inmates in Manitoba’s provincial and federal correctional institutions, and conservatively estimated that Aboriginal adults in Manitoba were six times as likely to be incarcerated as non-Aboriginal adults.
The difference between the crime and incarceration rates is the result of a series of individual decisions made at each stage of the process, between the time a crime is reported to police, and the time when an Aboriginal person is released from prison after having been convicted of that crime. The AJI defined “systemic discrimination” as “the application of a standard or criterion, or the use of a ‘standard practice,’ [which] creates an adverse impact upon an identifiable group that is not consciously intended.”3
The Inquiry found that Aboriginal individuals sent before Provincial Court faced, on average, 25% more charges than non-Aboriginal people did, with 22% of Aboriginal people facing four charges or more. They were, on average, 1.34 times as likely to be held in pre-trial detention. Aboriginal women were 2.4 times as likely to be held as non-Aboriginal women. Overall, the AJI found that “Aboriginal detainees had a 21% chance of being granted bail, while non-Aboriginal detainees had a 56% chance.”4
Aboriginal people spent, on average, 1.5 times as long in pre-trial detention province-wide. In Winnipeg, the average detention was two times as long as for non-Aboriginal people, and in Thompson 6.5 times as long. Aboriginal youth under 18 years in pre-trial detention were held an average of 29.3 days, compared to 10.8 days for non-Aboriginal youth.
Aboriginal inmates were found to have spent far less time with their lawyers before and during their trials, especially when trials were conducted in remote communities by the fly-in circuit courts. In many cases, persons with an Aboriginal first language were unable to communicate effectively with police and lawyers, or to follow court proceedings. Having interpreters present only partly alleviates this difficulty, because many Canadian legal words and concepts do not translate well into Aboriginal languages.
The AJI identified a number of informal factors that may militate against Aboriginal people in court. For example, each court case typically involves a number of court appearances at which the case is remanded to a future date. When these appearances do not occur in the accused’s community, this may involve costly travel from remote communities for the accused and any witnesses who need to attend. Costs are not reimbursed, and failure to appear can add to the accused’s legal troubles.
Legal Aid will cover legal expenses only where the charge potentially leads to imprisonment or loss of employment. Therefore, “many Aboriginal people appear to have developed a record of relatively minor offences prior to their first incarceration.”5 These prior offences are considered at sentencing hearings.
Further, in those serious cases heard before the Court of Queen’s Bench, Aboriginal citizens are less likely to be called to form part of a jury panel and, if called, are far more likely to be “eliminated by stand-asides and challenges advanced by lawyers.” Jury trials are heard in only six Manitoba communities, “none of which is Aboriginal.”6 Aboriginal accused will likely face non-Aboriginal juries, as well as judge and lawyers.
Aboriginal people before Provincial Court pleaded guilty in 60% of cases, compared to 50% for non-Aboriginal people. If convicted, they were 2.5 times more likely to be sentenced to some form of incarceration. Aboriginal women were more than five times as likely to be incarcerated as non-Aboriginal female offenders.
In bail and sentencing hearings, judges may take employment and income status into account. With less access to employment, Aboriginal people are more likely to be considered a flight risk, and less likely to have a steady employment history or the effect of a loss of employment upon dependants factored into the judge’s decision. The AJI linked pre-trial detention to “more convictions and harsher sentences, as the sentencing judge already knows that the police and, in many cases, another judge have found the offender should be in jail.”7 Figures from 1996 show that, nationally, 70% of Aboriginal inmates in provincial jails were not employed at the time of arrest, as compared to 47% of non-Aboriginal inmates.8
Also, at the time the AJI reported, fine defaulters made up about 25% of the prison populations at any given time, and 60% of fine defaulters admitted to jails were Aboriginal.9 Again, Aboriginal men who defaulted on fines were twice as likely to be incarcerated as their non-Aboriginal counterparts, and Aboriginal women were more than three times as likely. The average amount of the fine defaulted was $201.20, and the average length of the resulting incarceration was 23 days.10
The court and inmate records examined by the AJI showed no difference between Aboriginal and non-Aboriginal offenders in the average number of previous convictions, which might otherwise have explained differences in the length of incarceration. Nor were the number or seriousness of charges found to adequately explain the difference in incarceration rates.11
