Aboriginal Justice Equal justice?
New legislation formalizes Northern practices
NNSL (OCT 14/96) - A new Criminal Code amendment singling out aboriginal offenders for alternative sentences is a welcome addition to the North's justice system, but will it last?

Roughly 14 per cent of federal prison -- and 80 per cent of the North's -- are aboriginal, despite aboriginal people making up just three per cent of the nation's population.

Because of the high number of aboriginal offenders, Parliament felt they be should be recognized in the legislation, said David Daubney, co-ordinator of the federal justice department's sentencing reform team.

Bill C-41, which took effect in early September, states: "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."

The North's justice department has already welcomed the amendment, which merely backs up the prevailing trend in courtrooms from Fort Liard to Iqaluit.

Territorial Justice Minister Kelvin Ng said Thursday the amendment merely formalized what has already been happening in the North on a more limited basis.

"This provides the ability, if judges so order, for it to happen more frequently and more directly," he said. "It increases the flexibility of the system."

The amendment is a companion to Northern justice initiatives already in wide use, such as sentencing circles, traditional healing centres on the land and using community justice committees as an alternative to courts.

More than 270 adults and youth in the NWT were referred to alternative measures' programs last year, according to Sandra Norris, the assistant deputy minister of justice.

She said up until now those programs have been operating through consensus between justice interest groups: the department, the RCMP and the Crown attorney's office.

"Now there's legislation to back that up," said Norris.

An increase in alternative measures may force the cost of justice to increase dramatically, but Ng said the monetary issues will be outweighed by the decrease in hidden social costs.

"This means keeping our people out of jail, providing better rehabilitation opportunities and a step toward a more traditional method of justice," said Ng.

In southern Canada, however, the amendment isn't quite as welcome.

A Winnipeg judge recently said it's ripe for a constitutional challenge. And what implications a successful challenge would have on Northern justice practices isn't clear.

The issue was raised in Manitoba's Court of Queen's Bench before the sentencing of a Metis woman who was convicted of robbery in September.

Before dealing with the accused, associate chief Justice Jeffrey Oliphant said the legislation raises constitutional concerns as it appears that special consideration must be given to aboriginal offenders.

The Charter of Rights and Freedoms guarantees that all Canadians are to be treated equally under the law.

The judge also wasn't sure whether Metis qualify for the special consideration.

The woman, who has a criminal record of violent crimes, was eventually sentenced to one year in jail for a knife attack on a man.

A constitutional expert said later that the wording of the legislation may create problems.

"If the spin you put on the legislation is somehow that judges should not be as sensitive or imaginative or as understanding in dealing with non-aboriginal offenders, then it may be susceptible to a challenge," said Bryan Schwartz, a law professor at the University of Manitoba.

But Daubney said the intent of the law isn't to create a two-tiered judicial system.

"It's not a question of setting up two standards of treatment," he said.

"I think it's just a reminder to judges that there are other approaches such as hearing circles that seem to work for aboriginal people." . Daubney said while it isn't defined in the Criminal Code, the intent of the new law is to include Metis and Inuit.