Aboriginal Justice Inquiry

At the time of the inquiry, Manitoba had the highest proportion of Aboriginal people in its population among the 10 provinces of Canada. (In 1996, Manitoba's population of 1.1 million included about 77,500 First Nations residents and 57,000 Métis and Non-Status Indians.)[1]

Research carried out for the Inquiry on Provincial Court data revealed that:[3]

• Aboriginal people constitute 11.8% of the Manitoba population, yet account for more than 50% of people in correctional institutions;
• Aboriginal males between 18 and 34 years old spend 1.5 times longer in pre-trial detention than other suspects;
• only 1 in 5 Aboriginal accused are successful in obtaining bail, compared to over half of non-Aboriginal defendants; and
• approximately 25% of Aboriginal persons received sentences that involve some degree of incarceration, compared to 10% of non-Aboriginal persons.

The Inquiry was commissioned in 1988 in response to two high-profile incidents:[1][4][5]

• the November 1987 trial of two men for the 1971 murder of Helen Betty Osborne in The Pas. Allegedly, the identity of four (non-Indigenous) people who were present at the murder was known widely in the community shortly after the killing. Although four people were present at the time of the killing, only one was convicted of a crime—which itself took 16 years.
• the March 1988 death of Island Lake Tribal Council executive director John Joseph Harper following an encounter with a Winnipeg Police officer, the internal investigation to which many people believed had left questions unanswered.

With these in mind, the Commission of Inquiry's stated purpose was "to examine the relationship between the Aboriginal peoples of Manitoba and the justice system." The Inquiry was co-chaired by Alvin Hamilton, former Associate Chief Justice of Manitoba of the Court of Queen's Bench, and Murray Sinclair, then-Associate Chief Judge of the Provincial Court and former Justice of the Court of Queen's Bench.[2]

The final report of the Aboriginal Justice Inquiry was presented in the fall of 1991, and made 296 recommendations in total.[1][5]

In its first page, the report summarized the relationship between Indigenous people and the justice system:[6]

The justice system has failed Manitoba’s Aboriginal people on a massive scale. It has been insensitive and inaccessible, and has arrested and imprisoned Aboriginal people in grossly disproportionate numbers. Aboriginal people who are arrested are more likely than non-Aboriginal people to be denied bail, spend more time in pre-trial detention and spend less time with their lawyers, and, if convicted, are more likely to be incarcerated…. It is not merely that the justice system has failed Aboriginal people; justice has also been denied to them. For more than a century the rights of Aboriginal people have been ignored and eroded.

The report said that, during the jury selection process in the Osborne case, defence counsel used its peremptory challenges to eliminate the 6 Indigenous people called from the jury panel. Commissioner Murray Sinclair noted that, at that time, 70% of the people in northern Manitoba were Indigenous, yet none of the people on the jury were Indigenous.[4] The AJI recommended the abolition of the use of peremptory challenges:[4]

While the practice of challenging people without having to give a reason is sanctioned by the Criminal Code, we question the logic and fairness of allowing the practice to continue when its application can prevent Aboriginal people from sitting on a jury solely because they are Aboriginal.

The report also said that delays in responding to summonses can effectively exclude Indigenous participation in jury duty: many Indigenous people in remote areas have limited access to mail and telephones, and those living in urban areas change residences more frequently than non-Indigenous people. As such, the report recommended that when an exemption is granted by a sheriff, the person ought to be replaced by someone from the same community. It also recommended that all jury summonses be enforced, even when a sufficient number jurors have responded.[4]

One of the integral elements of the Inquiry's reform strategy was the recommendation for the establishment of Aboriginal justice systems.[3]

In late November 1999, to develop a plan to act upon the Inquiry's recommendations, the Aboriginal Justice Implementation Commission was created,[1] led by Commissioners Wendy Whitecloud and Paul Chartrand.[2] The Aboriginal Justice Inquiry-Child Welfare Initiative was subsequently created in 2000 to help transition child protection and family support services to Manitoba's Aboriginal communities.[7]

From 1989 to 2020, eleven Royal Commissions or Commissions of Inquiry throughout Canada have addressed the issue of Indigenous justice either directly or as one among many questions regarding Indigenous people in Canada.[6]

On 26 February 2021 (Aboriginal Justice Awareness Day), the Grand Chief of the Assembly of Manitoba Chiefs, Arlen Dumas, called out both the federal and provincial governments on their failure to fully implement the Aboriginal Justice Inquiry.[5]

• Manitoba Justice
• Taman Inquiry
• Phoenix Sinclair Inquiry
• Driskell Inquiry
• Royal Commission on Aboriginal Peoples (national)
• R v Gladue

• McNamara, Luke. 1991. "The Aboriginal Justice Inquiry of Manitoba: A Fresh Approach to the Problem of Over-representation in the Criminal Justice System." Manitoba Law Journal 21(1):47-78. CanLIIDocs 121. Retrieved on 2021-07-20.

• Report of the Aboriginal Justice Inquiry of Manitoba
• Aboriginal Justice Inquiry: Child Welfare Initiative
• AJI-CWI: General Background
• Aboriginal Justice Implementation Commission official site
• Final Report of the Aboriginal Justice Implementation Commission