Aboriginal Justice Inquiry – Reflections of a Former Justice Minister

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 Howard […]
Published on April 25, 2022

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 Howard Pawley’s government to commission the Aboriginal Justice Inquiry (AJI) on April 13, 1988 in the middle of the election campaign which delivered his government’s defeat thirteen days later, on April 26, 1988. The Pawley government had earlier lost the confidence of the Manitoba Legislature in a vote on its 1988 budget.

Upon my appointment May 9, 1988 as Attorney General of Manitoba following the election, my attention immediately turned to the arrangements to be made for the inquiry. Cancelling it was not an option; there was too much public anger generated by the two tragedies, and 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 Howard Pawley’s special assistant (a political job) and later was 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 less than two months.

Sinclair’s biography is that of an Indigenous activist. Fresh from my work as a court reporter, I remember wondering whether the two AJI commissioners (Justice Alvin Hamilton and Judge Murray Sinclair) were sufficiently impartial about Indigenous matters to take on the task, and thinking that commissions of inquiry (like courts of appeal) should consist of an odd number of commissioners. This would 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 make-up, mandate, timeline or budget for the inquiry. I took this as a political threat. 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 alone, its “independence” (and bias) totally 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 in my mind that separate Aboriginal systems of justice – the keystone inquiry recommendation – were not something my government would accept, for many, 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.” Also: “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.

Having learned Sinclair’s views on Aboriginal 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 Murray Sinclair’s activism and preference for different rules for Indigenous Canadians (apartheid)?

I was hounded by the CBC 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. A few months after releasing the AJI report I commissioned, in December, 1991, the Pedlar 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 nonetheless 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 our Canadian justice and other systems is quite another.

Back in the days of the inquiry it was argued that public attention being brought 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 become worse among indigenous peoples. Since the AJI 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

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