AUTONOMOUS ABORIGINAL CRIMINAL JUSTICE and the CHARTER of RIGHTS by WILLIAM WAYNE JOHNSTON Q.C

AUTONOMOUS ABORIGINAL CRIMINAL JUSTICE and THE CHARTER OF RIGHTS by WILLIAM WAYNE JOHNSTON Q.C. B.A., Memorial University of Newfoundland, 1964 LL. B., Queen’s University 1968 A. ThESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTERS OF LAW in THE FACULTY OF GRADUATE STUDIES FACULTY OF LAW We accept this thesis as conforming to the required standard ‘THE UNIVERSITY OF BRITISH COLUMBIA June 1992 © WILLIAM WAYNE JOHNSTON ______________ In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. V Department of kJ. The University of British Columbia Vancouver, Canada Date DE-6 (2/88) II ABSTRACT The imminent recognition of an inherent Aboriginal right to self- government signals the beginning of the reversal of a colonization process which threatened the cultural survival of a people. The Report of the Aboriginal Justice Inquiry of Manitoba , hereinafter referred to as the Inquiry, advocates an autonomous Aboriginal criminal justice system as a significant component of this cultural revitalization. This Aboriginal criminal justice system would differ markedly from the conventional system in giving priority to collective rights over conflicting individual rights. The Inquiry rejects the Charter as alien to Aboriginal values and advocates a “tailor-made” Aboriginal charter that would incorporate “only those fundamental freedoms and civil liberties that do not violate the beliefs and paramount collective rights of the Aboriginal peoples.” The conventional justice system’s paramount concern for individual rights is premised on the potential of punishment. The Inquiry’s starkly contrasting paramount emphasis on colleôtive rights is premised on an Aboriginal view of justice which this thesis refers to as the “harmony ethos”: The underlying philosophy in Aboriginal.societies in dealing with crime was the resolution of disputes, the healing of wounds and the restoration of social harmony. Atonement and restoration of harmony were the goals - not punishment. The tension between individual and collective rights apparent in the proposal of the Inquiry is the specific focus of this thesis. The colonization process may justify a separate Aboriginal justice system. However, the harmony ethos premise, while appropriate to the mediation-reconciliation communitarian model of justice advocated by the Inquiry, blinds the Inquiry to the additional, and crucially different, adjudicative-rights imperatives of the contemporary Aboriginal society. Actually existing Indianism reveals conflict-generating fault lines in the harmony premise which challenge the sufficiency of the Inquiry’s group-based Ill justice paradigm and indicate a need and desire for an adjudication justice component and concomitant Charter values. This adjudication hiatus in the Inquiry position is a reflection of a similar void in historical Aboriginal justice which challenges the asserted rationale of cultural survival for the paramountcy of collective rights in the contemporary Aboriginal justice system. This historical adjudication hiatus does not preclude a separate Aboriginal justice system, but favours the inclusion of Charter values to strengthen an adjudication cultural foundation which is frail relative to its reconciliation-mediation strength. This thesis is a modest attempt to address the interface between two systems; one mature, but in need of change, the other, fledging and in need of assistance. The Charter provides a ready and flexible framework to join the Aboriginal community both to the larger society and to the unlanded Aboriginal diaspora by principled standards of justice. These fundamental indicia of fairness, recognized by all civilized self-governing units, constitute no significant threat to the cultural survival of the Aboriginal mediation justice heritage, while buttressing its inherent adjudication frailty. IV TABLE OF CONTENTS ABSTRACT II INTRODUCTION XI ACKNOWLEDGEMENTS X CHAPTER 1-THE COLONIZATION PROCESS 1 INTRODUCTION 1 PART 1: THE COLONIZATION PROCESS lb Introduction lb Subjugation 5 Economic 6 Political 8 Irrelevance 8 Cultural 10 Modern Acceleration of the Process 12 Effects: Crime and Self-Determination 14 Crime: The Mi’kmac Example 16 Self-Determination: The KI uskus Example 18 PART 2: EVOLUTION OF SELF-GOVERNMENT 20 Inertia and Fundamental Change 22 Demand for Change 24 PART 3: EVOLUTION OF AUTONOMOUS JUSTICE 26 The Edmonton Conference 27 Inertia 27 Fundamental Change 28 The Inquiry: Relative Isolation 29 V Contrasting Positions .31 Federal 31 The Penner Report 33 Law Reform Commission of Canada 34 The Royal Commission on Aboriginal Peoples 34 The Canadian Human Rights Commission 35 The Australian Law Reform Commission 36 The Marshall Report 37 The Cawsey Report 37 Ontario 38 Manitoba 38 Saskatchewan 39 Brish Columbia 40 Conclusion 40 CHAPTER 2 - BASIC CONCEPTS & ABORIGINAL CRIME 42 INTRODUCTION 42 PART 1: BASIC CONCEPTS 42 Harmony Ethos 42 Introduction 42 Aboriginal Concept of Justice 42 Aboriginal World View 43 Conventional System Alien 44 Actually Existing Indianism 46 Adjudication Hiatus 47 Introduction 47 Mediation 47 VI Adjudication .49 Conclusion 50 PART 2: CRIME IN THE ABORIGINAL COMMUNITY 51 Introduction 51 Minor crime 54 Major Crime 57 CONCLUSION 62 CHAPTER 3 - COLLECTIVE AND INDIVIDUAL RIGHTS: SECTION 25 64 INTRODUCTION 64 Terminology Confusion 65 Skepticism About Group Rights 67 Recognition of Group Values 70 Possibility of Tyranny of the Group 72 Contemporary Example of the Possibility 73 Section 25: Focus of the Issue 76 PART1:RIGHTS 77 lndMdual Rights 77 Aboriginal Justice: Mediation v. Adjudication 80 Corn munitarianism 81 Aboriginal Person: Different World View 83 The Tyranny Problem 83 Balkanization Community-Constituting Understanding 86 The Aboriginal Community 87 Diaspora VII Rationale for Collective Right: Cultural Survival 89 Precedent for Cultural Survival Rationale 93 The Group as Holder of the Right 95 PART 2: SECTION 25 97 Section 25: Cultural Survival and the Indian Act 97 The Interface: A Principled Balance 99 The Weighted Wording of Section 25 102 Moving the Fulcrum 102 “Minor” Collective Rights? 103 “Unacceptable” Exercise of Collective Rights? 103 Historical Indianism: Adjudication Hiatus 1 04a CHAPTER 4 - THE INQUIRY: ADJUDICATION HIATUS 105 INTRODUCTION 105 PART 1: FAULT LINES IN HARMONY ETHOS 106 Introduction 106 Sharing 109 Community-Constituting Understanding 112 Erosion of Traditional Authority 116 Youth 116 Diaspora 117 Discrete and Insular Minorities 122 Law and Order Attitudes 123 Women 125 Tyranny 126 Rule of Men or Law 132 PART TWO: LOCALNESS 134 VIII Bias . 135 Abuse of Power .136 Mediation v. Adjudication 138 CHAPTER 5 - HISTORICAL ADJUDICATION HIATUS: CHARTER VALUES & CULTURAL SURVIVAL 146 INTRODUCTION 146 HIATUS 149 “Law’ - “Ends” and “Means “ 149 Fairness - the Individual 154 Mediation Heritage - Adjudication Impasse 155 CHARTER VALUES 163 “Not Guilty” - Dishonest or Guarantor of Fairness 163 Adversarial System: Truth and Fairness 164 Benefit All 165 CULTURAL SURVIVAL 166 CONCLUS ION 167 Justifying Inquiry Position: Sections 1, 25 or 33 169 Section 1 169 Section 25 173 Section 33 175 Synthesis 177 BIBUOGRAPHY 188 Articles 188 Books 191 Cases 192 Newspaper Articles (signed) 194 Ix Newspaper Articles (unsigned) .196 Reports . 198 Other .199 x ACKNOWLEDGEMENTS I would like to thank Professor Curt Griffiths, of the School of Criminology, Simon Fraser University, who graciously made the considerable resources of the library of the Northern Justice Institute available to me. I would also like to thank my wife, Marion, who tolerated a husband in law school in the 60’s and never dreamed she would do it again in the 90’s - the same husband. W. W. Johnston June, 1992 INTRODUCTION The Aboriginal peoples of Canada advocate self-government to reverse the oppressive effects of centuries of economic, political and cultural subjugation by the dominant descendants of the original colonizers. An Aboriginal criminal justice system is a component of this revitalization process which would address the over-representation of Aboriginals in the conventional system as a result of this colonization process. At the heart of the Aboriginal drive for recognition of the inherent right to self-government and a special place within Canada is the illusive concept of a “collective right” to distinctive forms of self-governance, including a criminal justice system, as a matter of cultural survival.” Both self-government and justice initiatives vary in their suggested degree of autonomy from the structures, procedures and values of the dominant society. This thesis focuses on the Report of the Aboriginal Justice Inquiry of Manitoba: The Justice System and Aboriginal People,1 which is the most comprehensive, autonomous and recent of the Aboriginal criminal justice suggestions. The Inquiry departs most significantly from the precepts of conventional criminal justice by advocating the displacement of the Canadian Charter of Rights and Freedoms,2 with its emphasis on individual rights, by a “tailor-made”3 Aboriginal charter which would accord paramountcy

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