LESSON #5: Euro-Canadian "Justice" Systems and Traditional Indigenous Justice

Question 1

Canadian system

Answer 1

relies on incapacitation and other forms of deterrence, is largely driven by capitalism, greed, wealth addiction, and money. It relies heavily on the invocation of police, courts, and corrections systems

Question 2

Because so much emphasis is placed on self-interest in Euro-Canadian society…

(3)

Answer 2

(1) the current social and economic system and present conditions dictate a way of life that is highly individualized, divided, and centred on greed.
(2) This system permits a small number of “elite” people to hold power, and they exploit the earth’s resources for their benefit and profit while disregarding other people, beings, and nature in general.
(3) The system also creates institutions to maintain this hierarchical order by disciplining and incapacitating those who do not follow the rules. One of these institutions is the Euro-Canadian criminal justice system.

Question 3

Rather than actually trying to eliminate crime, the system is set up to fail because…

(2)

Answer 3

(1) its main purpose is to deflect attention away from societal injustice, a root cause of crime, and toward the notion of the poor as a criminal class.
(2) Thus, the criminal justice system “serves the interests of the rich and powerful . . . the very ones who could change criminal justice policy if they were really unhappy with it

Question 4

Reiman contends that the criminal justice system ignores or minimizes the damaging acts of the elite, so crime comes to be conceived of as “the work of the poor.” This view has powerful ideological implications.

(3)

Answer 4

(1) First, it communicates that any danger to society comes from the poor.
(2) Second, it implies that people are in poverty because of their own failings and not because of greater social wrongs or historical legacies.
(3) Third, it characterizes poorer people, especially those who break the rules, as somehow morally inadequate, unrestrained, or lazy

Question 5

Three institutions that are major components of this unequal system.

Answer 5

the police, courts, and corrections

Question 6

“starlight tours,”

(3)

Answer 6

(1) also known as the freezing deaths.
(2) These deaths are the result of police brutality, of the police picking up Indigenous peoples, who typically appear drunk or under the influence of drugs, and then driving them to the outskirts of town, leaving them to fend for themselves in freezing temperatures.
(3) Many of these Indigenous peoples have died from hypothermia or untreated beatings

Question 7

many of the Indigenous peoples being policed and the non-Indigenous officers doing the policing saw as unfavourable, the Department of Indian Affairs and Northern Development (DIAND). Thus, Indigenous and Northern Affairs Canada, introduced

Answer 7

The “Band Constable Program” in 1969

Question 8

Band Constable Program

(2)

Answer 8

(1) Under this program, band councils hired band constables from the Indigenous community being policed to enforce band by-laws.
(2) In 1971, this program was expanded to include the hiring of “special constables” from Indigenous communities to supplement the senior police forces at the local level.

Question 9

Report of Task Force: Policing on Reserves

Answer 9

Issued by the Indian and Northern Affairs recommending options for Indigenous policing

Question 10

The Report of Task Force: Policing on Reserves recommended three options for Indigenous policing

Answer 10

(1) band council policing,
(2) municipal policing, and
(3) provincial policing.

Question 11

the major initiative under which Option 3b was implemented

Answer 11

The RCMP’s Native Special Constable Program

Question 13

The RCMP’s Native Special Constable Program

(2)

Answer 13

(1) Under this program, Indigenous peoples were recruited to police other Indigenous peoples in their own communities.
(2) The Indigenous officers received 16 weeks of training at the RCMP training headquarters in Regina before being posted in their home communities; non-Indigenous recruits received 25 weeks of training

Question 14

The RCMP’s Special Constable Program was criticized for a number of reasons

(4)

Answer 14

(1) it lacked Indigenous peoples’ input into the program and its operations,
(2) it failed to define the role of the participants adequately,
(3) and it provided lower salaries and less training to Indigenous special constables than to regular members of the RCMP.
(4) Indigenous peoples were also reluctant to join the program, given community hostility to this police force and social isolation

Question 15

In 1990, the Native Special Constable Program was terminated and replaced with…

Answer 15

Aboriginal Constable Development Program

Question 16

Aboriginal Constable Development Program

Answer 16

was designed to increase the number of Indigenous peoples eligible to become regular RCMP members

Question 17

programs generally seek to hire more Indigenous police officers and to provide cultural training for non-Indigenous officers; though this plan is not necessarily bad, relying so heavily on one concept

Answer 17

restricts making larger changes that might contribute to a significant reduction in the high rates of over-representation of Indigenous peoples as both victims and those incarcerated within the system.

Question 18

Related to this legitimate distrust of criminal justice officials is the debate over

Answer 18

whether Indigenous peoples are “over-policed” or “under-policed

Question 19

over-policing

(2)

Answer 19

(1) maintains that Indigenous peoples are singled out by police officers—who impose on Indigenous peoples “police control . . . at a level unlikely to occur in the dominant society.”
(2) The argument is that Indigenous peoples are stereotyped by police forces, charged with offences more than non-Indigenous peoples, and generally harassed.

Question 20

under-policing

(2)

Answer 20

(1) contends that the police tend to ignore Indigenous communities in the sense that officers are typically not present on a day-to-day basis to prevent crime or provide other police services to Indigenous peoples
(2) police only come to Indigenous communities to make an arrest

Question 21

In 1996, the federal government decided to use law reform to address the high incidence of Indigenous peoples’ incarceration. Its first action was to…

(2)

Answer 21

(1) add a qualification to restrict the use of incarceration as a sanction
(2) The courts declared that the stated intent of this measure was to decrease the incarceration of Aboriginal offenders

Question 22

Section 718.2(e) of the Criminal Code

Answer 22

All available sanctions other than imprisonment that are reasonable in the circumstances, should be considered for all offenders, with particular attention to the circumstances of Aboriginal Offenders

Question 23

This provision then became the focus of imperative ruling judgements from the Supreme Court of Canada

Answer 23

Section 718.2(e) of the Criminal Code

Question 24

R. v. Gladue

(5)

Answer 24

(1) involved a young Indigenous woman named Jamie Gladue
(2) During a drunken argument, she had stabbed and killed her boyfriend while fighting over whether he had cheated with her sister.
(3) In the Supreme Court of British Columbia, she pled guilty to manslaughter.
(4) She was sentenced to three years in prison. Her appeal was heard in the Supreme Court of Canada, and, although her sentence was not actually changed, the ruling did provide a detailed statement on the operation of section 718.2(e) and on the duty of sentencing judges to find alternatives to incarceration for Indigenous defendants
(5) The court recognized that systemic factors contribute to the overrepresentation of Indigenous peoples in the criminal justice system, explicitly named restorative justice as a solution, and called for creative criminal justice responses fitted to the circumstances of Indigenous peoples.

Question 25

This case called on judges to use a different method of analysis when deciding on a fitting sentence for Indigenous offenders, one giving specific attention to the unique circumstances of those offenders.

Answer 25

R. v. Ipeelee

Question 26

The wording in this case describes the statutory duties of judges sentencing Aboriginal peoples and is much more direct than in Gladue

Answer 26

R. v. Ipeelee

Question 27

Difference between R. v. Ipeelee and R. v. Gladue

Answer 27

R v. Gladue uses the term “may” in regards to considering alternatives to sentencing for Aboriginal peoples, R v. Ipeelee uses “must” and expresses this requirement strongly

Question 28

Supreme Court justices stressed the importance of Gladue reports

(2)

Answer 28

(1) These reports are done for Indigenous offenders and contain case-specific information.
(2) They are tailored to the specific circumstances of Indigenous offenders, providing detailed information about an individual’s life history and unique circumstances, which are presented within the context of the systemic and historical factors faced by all Indigenous peoples

Question 29

Gladue reports

(5)

Answer 29

(1) can be done for any Indigenous offender in any court.
(2) They can be started after a guilty plea or upon a finding of guilt.
(3) They are used in sentencing to help judges take into consideration Indigenous peoples’ circumstances.
(4) Depending on the services offered in the area, Indigenous court workers or probation officers might facilitate the writing of such a report.
(5) In places where more Indigenous court workers are available, they will usually write these reports

Question 30

Gladue Aboriginal Persons Courts

(2)

Answer 30

(1) do not perform differently than other courts; however, they do offer all services in one place, including bail hearings, bail variations, remands, trials, and sentencing.
(2) What differentiates this type of court is that those working in it have specific knowledge of and expertise in the variety of services and programs available to Indigenous peoples

Question 31

first Indigenous-specific court in Canada

Answer 31

Tsuu T’ina First Nation Court in Alberta, which opened in 2000.

Question 32

first urban Aboriginal court in Canada

Answer 32

Toronto’s Gladue court, which opened in 2001,

Question 33

judges frequently rely on this as a justification for ordering a conditional sentence

Answer 33

Gladue

Question 34

net-widening

Answer 34

describes a particular phenomenon that occurs when a program that is set up to divert people away from the criminal justice system—usually by preventing their incarceration—instead causes more people to enter the system, people who might not have entered it otherwise.

Question 35

in the majority of cases, “conditional sentences are being handed down where probations orders, fines, and suspended sentences would normally have been ordered.” As compared to these sanctions…

(3)

Answer 35

(1) conditional sentences can be significantly more “coercive and intense.”
(2) Some people who might not have gone to prison consequently find themselves there.
(3) Research shows that Indigenous offenders who receive conditional sentences are disproportionately prosecuted for breaching conditions.

Question 36

Trial judges might also be tempted to order a conditional sentence instead of probation

(2)

Answer 36

(1) so they could require orders for treatment or medication or impose lengthier community service obligations.
(2) The longer and more arduous conditions become, the more likely that a breach will occur.

Question 37

Roach and Rudin suggest make this makes it unlikely that Gladue-inspired sentencing innovations will have any major effect on lowering the high rates of Indigenous incarceration

Answer 37

problems related to conditional sentencing—combined with a young and growing Indigenous population, a shortage of community programs providing prison alternatives, and a hesitancy to stop ordering prison in serious cases

Question 38

The Corrections and Conditional Release Act contains sections that have specific Indigenous provisions

Answer 38

sections 81 and 84

Question 39

Section 81

(2)

Answer 39

(1) intended to give capacity to CSC to enter into agreements with Indigenous communities for the care and custody of Indigenous offenders
(2) also permits Indigenous communities to play a role in CSC Aboriginal program delivery

Question 40

Section 84

Answer 40

permits Indigenous communities to propose parole conditions to the Parole Board of Canada for offenders wanting to be released to their communities.

Question 41

Two types of healing lodges have been put in place under section 81

Answer 41

(1) CSC-run healing lodges
(2) section 81 healing lodges operated by Indigenous communities in agreement with CSC.

Question 42

The purpose of healing lodges

Answer 42

Is to assist in the successful reintegration of Indigenous offenders by using traditional healing approaches and holistic and culturally appropriate programming.

Question 43

A report released by the Office of the Correctional Investigator in October of 2012 and tabled in parliament in March 2013 pointed out many of the problems with respect to implementing sections 81 and 84. A key finding of the report was that

(5)

Answer 43

(1) from 1992 to March of 2012, only 68 beds were arranged in 4 healing lodges in Indigenous communities under section 81.
(2) No section-81 agreements were in place in Ontario, British Columbia, or Atlantic Canada, or the North,
(3) it was not until 2011 that spaces became available for women.
(4) identified major funding discrepancies between section 81 healing lodges operated by Indigenous communities and those operated by CSC.
(5) Salaries for those employed at CSC-run facilities were also found to be about 50 per cent higher for similar work

Question 44

In regards to section 84, the report identified that…

(2)

Answer 44

(1) although this section was intended to enhance Indigenous community involvement, its implementation had become dominated by lengthy and onerous bureaucratic processes
(2) of CSC’s estimated 19,000 employees in 2012, only 12 were Aboriginal Community Development Officers mandated to help these processes run smoothly and to bridge the interests of incarcerated Indigenous people and the communities into which these people are released.

Question 45

additional key finding regarding staff and funding of the report on Sections 81 & 84…

(3)

Answer 45

(1) was that CSC staff members, particularly the frontline staff at correctional facilities, had limited awareness and understanding of Indigenous peoples, cultures, and approaches to healing.
(2) Gladue principles were not well understood nor were they applied in CSC correctional decision making.
(3) Another problem was that contractual and funding limitations impeded initiatives that put elders inside CSC institutions to provide support, guidance, and ceremonies

Question 46

The report also found inadequate responses to urban Indigenous people

(3)

Answer 46

(1) it was typically assumed that these incarcerated Indigenous individuals would be returning to a reserve after release, but many had no such plans.
(2) The number of interventions offered inside prison walls far outnumbered the number of community reintegration alternatives
(3) the validity of the community reintegration programs that were provided was determined by CSC and not by the Indigenous communities themselves, which many Indigenous peoples and communities found patronizing

Question 47

2012 report, entitled Spirit Matters: Aboriginal People and the Corrections and Conditional Release Act

Answer 47

The findings from various task forces and commissions all point to the failure to adapt correctional systems to meet the needs of the growing Aboriginal offender population

Question 48

The Aboriginal Offender Survey, prepared for CSC in 1997, found that

(2)

Answer 48

(1) some Indigenous peoples who were incarcerated felt they would be most comfortable with an elder, spiritual leader, friend, or family member as their counsellor.
(2) It also revealed that 69 per cent of the incarcerated Indigenous people surveyed wanted more institutional programs tailored specifically to their cultures and traditions

Question 49

A study conducted by James Waldram interviewed 249 Indigenous males incarcerated at federal and provincial facilities in Manitoba and Saskatchewan

Answer 49

found that those who engaged in a “sweat” found it helpful for various reasons, such as helping them to make amends through prayer, encouraging spiritual renewal, enhancing the ability to cope with prison life, and removing a “bad” or “evil” type of essence

Question 50

deterrence

Answer 50

includes the idea that introducing harsh laws and penalties will deter potential lawbreakers from committing crimes by instilling fear in people that they will face excessive sanctions if caught

Question 51

Incapacitation

Answer 51

the confinement in jails and prisons of people convicted of crimes, so they will be isolated from the rest of society and unable to offend while locked up.

Question 52

Western Justice and Traditional Aboriginal Justice:

Justice System

Answer 52

Adversarial/Non-confrontational

Question 53

Western Justice and Traditional Aboriginal Justice:

Guilt

Answer 53

(W) European concept of guilty/not guilty
(A) No concept of guilty/not guilty

Question 54

Western Justice and Traditional Aboriginal Justice:

Pleading not guilty

Answer 54

(W) The accused has the right against self-incrimination. Thus, it is not seen as dishonest to plead not guilty when one has actually committed the offence (interference come[s] into play here)
(A) It is dishonest to plead not guilty if one has committed the crime(values of honesty and non-interference come into play here)

Question 55

Western Justice and Traditional Aboriginal Justice:

Testifying

Answer 55

(W) As part of the process, witnesses testify in front of accused
(A) Reluctance to testify(it is confrontational to testify against the accused while in his/her presence)

Question 56

Western Justice and Traditional Aboriginal Justice:

Truth

Answer 56

(W) Expectation to tell the “whole truth”
(A) It is impossible to know the “whole truth” in any situation

Question 57

Western Justice and Traditional Aboriginal Justice:

Witnesses

Answer 57

(W) Only certain people are called to testify in relation to specific subjects
(A) Everyone is free to give their say
- Witnesses do not want to appear adversarial and often make every attempt to give answers that please counsel, thus often changing their testimony

Question 58

Western Justice and Traditional Aboriginal Justice:

Eye contact

Answer 58

(W) Maintaining eye contact conveys that one is being truthful
(A) In some Aboriginal cultures, maintaining eye contact with a person of authority is a sign of disrespect

Question 59

Western Justice and Traditional Aboriginal Justice:

Verdict

Answer 59

(W) Accused is expected to show, during proceedings and upon a verdict of guilty, remorse and a desire for rehabilitation
(A) Accused must accept what comes to him/her without a show of emotion

Question 60

Western Justice and Traditional Aboriginal Justice:

Incarceration/probation

Answer 60

(W) Means of punishing/rehabilitating offender
(A) Completely absolves Aboriginal offender of responsibility of restitution to victim

Question 61

Western Justice and Traditional Aboriginal Justice:

Function of justice

Answer 61

(W) Ensure conformity, punish deviant behaviour and protect society
(A) Heal the offender
- Restore peace and harmony to the community
- Reconcile the offender with victim/family that has been wronged
- Punishment is not the objective

Question 62

the ethic of non-interference

(3)

Answer 62

(1) People living by this ethic consider interference in any form to be unacceptable.
(2) It would be rude to interfere with, comment on, or give advice about other people’s behaviour unless called upon to do so.
(3) It would be considered very rude to criticize another’s behaviour, talk about someone in a negative way, embarrass an individual, or do anything that might seem as if one were attempting to “show up” another person.

Question 63

Considering the ethic of non-interference in the context of criminal justice processes

(2)

Answer 63

(1) to a person with this view, giving evidence would be seen as very confrontational.
(2) Someone following the ethic of non-interference might not be comfortable testifying against others in a public courtroom, or that person might even think testifying was a greater wrong than the crime that had been committed

Question 64

Lying or minimizing one’s behaviour is also considered very inappropriate and unethical for some Indigenous peoples

(2)

Answer 64

(1) one must acknowledge fully all wrongs done and received.
(2) Truth telling is seen as the first step on the road to reconciliation; it allows for the rehabilitation of wrongdoers and for their reintegration into a community.

Question 65

could be the reason for the high frequency of guilty pleas by Indigenous peoples accused of a crime

(2)

Answer 65

(1) ethic of speaking truth and not remaining silent
(2) many Indigenous peoples might be uncomfortable entering a plea of “not guilty.

Question 66

The Western justice system is set up so that a plea of “not guilty” requires the Crown to prove a charge under the law beyond a reasonable doubt. Even if an Indigenous defendant understands this Western interpretation fully, for many Indigenous accused…

Answer 66

putting the onus on the community by making witnesses testify would be seen as an immoral act, as the rule is not to lie to, burden, or embarrass people

Question 67

ethic of non-interference is also sometimes present in some Indigenous people’s approaches to childrearing

(2)

Answer 67

(1) Rather than withholding privileges or promising rewards, some Indigenous people caring for children model good behaviour
(2) Unfortunately, judges and others working in the criminal justice system might see this modelling approach to parenting as an absence of parental control or discipline.

Question 68

ethic that anger not be shown

(5)

Answer 68

(1) one component of this value is controlling emotions when someone dies
(2) In traditional times, you would not talk of a person’s death and, in some cases, destroy anything that reminded you of that person
(3) According to some traditional Indigenous customs, when someone dies, people are not to speak that person’s name for a full six months, (4) and no one can retell stories about the deceased individual for a full year.
(5) these customs can present difficulties within the context of the Euro-Canadian justice system, as court proceedings often require the names of the deceased to be mentioned several times.

Question 69

Indigenous ethic is not to burden people

(4)

Answer 69

(1) especially when it comes to talking about self or feelings.
(2) It is not considered right to expect others to hear about your problems or comment on what you should be doing or feeling.
(3) Given this difference, some Indigenous peoples might be mistakenly viewed as “unresponsive,” “undemonstrative,” “uncommunicative,” or possibly even “uncooperative” in psychological reports and assessments.
(4) These assessments could very well impact their cases as well as their sentences.

Question 70

“conservation-withdrawal tactic

(2)

Answer 70

(1) Some Indigenous peoples might still follow this rule and quietly turn inward when faced with a stressful situation.
(2) This withdrawal conserves both physical and psychic energy, so a person can make well-informed decisions before taking action.

Question 71

Restorative justice

(6)

Answer 71

(1) encompasses an approach designed to repair the harm caused by crime that affects victims, offenders, and communities.
(2) entails a process that brings together the offender, victim, and community to discuss the crime that has occurred.
(3) Instead of relying on retribution, such as incarceration, probation, or another predetermined sanction, communities and other victims decide their response to the crime or conflict.
(4) harms caused by crime or disputes are determined in a way that seeks to restore harmony in the community and between all of those affected by or involved in the crime or conflict.
(5) typically confronts offenders with the consequences of their crimes, providing a place in which these can be explained to them in detail.
(6) At the same time, it helps the victims in the healing process.

Question 72

restorative justice approach has been applied in many different programs and procedures

(4)

Answer 72

(1) victim-offender mediation,
(2) healing circles,
(3) sentencing circles,
(4) programs to reduce family violence

Question 73

Focus of Restorative Justice

Answer 73

on restoring harmony and bringing back balance

Question 74

The Accessing Justice and Reconciliation Project, a national initiative led by Val Napoleon

Answer 74

its goal to better understand Indigenous legal traditions and consider how they can be applied today.

Question 75

In this case the judge disqualified the defendant from a sentencing circle by concluding he was not sufficiently remorseful or “sincere in his request” to participate in one

Answer 75

R. v. Alaku

Question 76

The literature reveals that sentencing circles were actually developed by

Answer 76

judges in the late 1980s and early 1990s in the Yukon Territory.

Question 77

Why does Pamela argue that Canada is currently in a state of emergency?

(4)

Answer 77

(1) Climate is being destroyed
(2) democratic rights and freedoms being eroded
(3) Murdering and missing Indigenous women
(4) Indigenous children into foster care
(5) Prison population exploded
(6) Live 7-20 years less because of extreme poverty

Question 78

What was the differences in her pictures of pre-tar sands vs. post-tar sands?

Answer 78

The land was coloured vividly with a lot of life pre-tar sands

Question 79

What is currently happening to clean water sources and who are suffering the most?

Answer 79

(1) Becoming contaminated
(2) First Nations in Canada

Question 80

What does she say we need to do to stop the state of emergency?

Answer 80

Stand together to save all of our futures

Question 81

A central mechanism for implementing genocide

Answer 81

the policing system

Question 82

What did the unnamed man at the beginning of the video say he had happen to him?

Answer 82

(1) Police told him they were going to give him a ride home. He feel asleep in the back of the car.

Question 83

How many people did the University of Winnipeg identify as experiencing a Starlight tour?

Answer 83

76

Question 84

What does University of Winnipeg Professor Jim Silver think this practice reflects?

What is it a form of?

Answer 84

(1) The attitude of the Winnipeg police
(2) Racism

Question 85

How often are young Indigenous men being pulled over by the police and on what grounds are they being pulled over?

Answer 85

They are being pulled over constantly because they fit the grounds of description being Aboriginal men

Question 86

True or false - The Tsilhqot’in people have traditionally avoided death as a sanction to protect their waterways?

Answer 86

False

Question 87

example of a restorative justice program operating in a First Nations community is the Wet’suwet’en:

Answer 87

Unlocking Aboriginal Justice Program (UAJ)

Question 88

Unlocking Aboriginal Justice Program (UAJ)

(4)

Answer 88

(1) program was set up due to the communities overall “dissatisfaction” with the standard western system of justice
(2) argely deals with files related to family violence, drugs, or alcohol and accepts referrals from many avenues, such as self-referrals, the RCMP, lawyers, legal aid, probation, and the Crown
(3) Everyone involved in the program are there on their own voluntary consent, and offenders must be willing to take responsibility for what they have done in order to participate
(4) in contrast to the standard criminal justice response which typically waits for a problem to happen before reacting, this program also incorporates prevention.

Question 89

What was Minister of Justice Jody Wilson-Raybould directed to do by the federal government in regards to restorative justice and Indigenous peoples?

Answer 89

to increase the use of Restorative justice measures help criminal offenders move towards rehabilitation instead of incarceration.

Question 90

What was Shawna Davis’s criticism of First Nations courts?

Answer 90

First Nations courts do not go far enough when it comes to reconciling with Canada’s Indigenous people and they should assert their own laws, outside of the mainstream, colonial system.

Question 91

What principles do First Nations courts in B.C follow?

(4)

Answer 91

(1) peacekeeping principles, such as introducing everyone in the courtroom,
(2) allowing members of the gallery to offer their opinions,
(3) sitting on the same level as the judge and
(4) other forms of what is referred to as restorative justice

Question 92

How do these court sessions begin?

(2)

Answer 92

(1) starts with an elder-led smudge, which uses a feather, abalone shell and sacred medicines.
(2) The cleansing smoke is considered to wash away bad energy.

Question 93

What role do elders play in the process?

(3)

Answer 93

(1) take notes,
(2) consult with lawyers and
(3) speak with the judge when they feel it is necessary.

Question 94

What is a “healing plan” and how does it differ from a formal court order?

(2)

Answer 94

(1) is equivalent to a probation order or a sentence in the Canadian criminal justice system.
(2) Instead of a formal court order, the healing plan includes a piece of paper and outline of the medicine wheel that explains how to be spiritually, emotionally, physically and mentally well.