Aboriginal Peoples and the Criminal Justice System - Continuing ...

CHAPTER 14 

Aboriginal Peoples and the Criminal Justice System 

1. INTRODUCTION 

This chapter reviews various aspects of the 

relationship between Aboriginal peoples and the 

criminal justice system in Canada. It has 

historically failed the Aboriginal people of 

Canada - Indian, Inuit and Métis, on reserve and 

off reserve, urban and rural, in all territorial and 

governmental jurisdictions. 2 Aboriginal people 

have the highest rate of policing, conviction and 

incarceration of any other identifiable group in 

Canada. Miscarriages of justice such as the 

Donald Marshall case, the murder of Helen Betty 

Osborne, the death of Minnie Sutherland, and the 

killing of Dudley George are examples of this 

failure. 

It is beyond the scope of this chapter to 

analyse why this has happened and provide 

reasons on how it can be remedied. The Appendix 

to this chapter contains an excerpt from the Royal 

Commission on Aboriginal Peoples report on 

Aboriginal Peoples and the Justice System, which 

reviews eight recent commissions of inquiry by 

federal and provincial governments in response to 

a growing recognition that the existing system has 

failed to meet the needs of Aboriginal people. 

This chapter will address the practical aspects of 

the relationship between Aboriginal people and 

the justice system. 

2. JURISDICTION - ON RESERVE 

AND OFF RESERVE 

2.1 Division of Powers 

Jurisdiction respecting criminal law falls 

mainly to the federal Parliament, pursuant to 

subsection 91(27) of the Constitution Act, 1867. 3 

However, the province also has authority which 

flows from the following sources under the 

Constitution: 

• property and civil rights (subsection 92(13)); 

LAW SOCIETY OF UPPER CANADA: 

NOT TO BE USED OR REPRODUCED WITHOUT PERMISSION 

Krista Yao and Patrick Nadjiwan 1 

• establishment, maintenance and management 

of provincial prisons (subsection 92(6)); 

• administration of justice (subsection 92(14)); 

• matters of a local and private nature 

(subsection 92(16)); and 

• the imposition of fines, penalties or 

imprisonment to enforce provincial laws 

(subsection 92(15)). 

2.2 Federal Jurisdiction 

Criminal or quasi-criminal laws enacted by 

the federal Parliament apply to Aboriginal persons 

to the extent that they do not unjustifiably infringe 

upon constitutionally-protected Aboriginal and/or 

treaty rights of the accused person. 4 

Any action by the federal or provincial 

governments which interfere with or restrict the 

existing Aboriginal rights or treaty rights of an 

Aboriginal group infringes those rights. Although 

there is no explicit justification requirement or test 

laid out in section 35 of the Constitution, 1982, 5 

the Supreme Court of Canada has held that 

Aboriginal and treaty rights may be infringed if 

the infringement is “justified” according to tests 

set out by that Court. 

In R. v. Sparrow 6 the Court enunciated a two 

part test for justification. First, the infringement of 

the right must be in furtherance of a legislative 

objective that is compelling and substantial. The 

Court indicated that compelling and substantial 

objectives would include matters of conservation 

and safety. This test was subsequently diluted by 

the Supreme Court in Delgamuukw: “the 

development of agriculture, forestry, mining, 

hydroelectric power, the general economic 

development of an area, protection of the 

environment or endangered species, the building 

of infrastructure and the settlement of foreign 

populations to support those aims, may be 

sufficient to satisfy the first part of the test for 

justification.” 7 

307

CH - 14 CRIMINAL LAW BAC - 2005 

The second part of the test requires an 

assessment of whether the infringement is 

consistent with the special fiduciary relationship 

between the Crown and Aboriginal peoples. The 

theory behind this principle is that the fiduciary 

relationship requires Aboriginal interests be 

considered first, although they need not always be 

given priority. The primacy of the fiduciary duty 

is a function of the nature of the Aboriginal right 

at issue. For example, Aboriginal food fisheries 

were given priority after valid conservation 

measures. 8 However, where the Aboriginal right 

was to sell fish commercially, that right was 

“constitutionally satisfied if the government had 

taken those rights into account and has allocated a 

resource ‘in a manner respectful’ of [the 

Aboriginal] priority.” 9 

2.3 Provincial Jurisdiction 

Provincial laws apply to Aboriginal persons 

in two ways. 10 First, provincial laws apply 

directly to Indians of their own force (ex proprio 

vigore) as long as the laws do not invade 

exclusive federal authority over Indians and lands 

reserved for Indians, or are inconsistent with 

federal law. Therefore, laws such as highway 

traffic legislation, business licensing and 

regulation, and environmental regulations 

normally apply. The major limitation to provincial 

jurisdiction is that a provincial law can not affect 

“Indianness” or derogate from the “status and 

capacities” of Indians, and may not affect Indian 

reserve lands or Aboriginal or treaty rights. 

Second, provincial laws apply to Indians by 

operation of section 88 of the Indian Act: 11 

88. Subject to the terms of any treaty and 

any other Act of the Parliament, all laws of 

general application from time to time in 

force in any province are applicable to and 

in respect of Indians in the province, except 

to the extent that those laws are inconsistent 

with this Act or any order, rule, regulation or 

by-law made thereunder, and except to the 

extent that those laws make provision for 

any matter for which provision is made by 

or under this Act. 

Section 88 of the Indian Act operates to 

incorporate into federal law those provincial laws 

of general application which do invade exclusive 

federal authority. 12 The operation of the 

incorporated provincial statute is, however, 

subject to treaties and federal laws, and is only 

308 



applicable to the extent that such laws are not 

inconsistent with the Indian Act, or any order, 

rule, regulation or band by-law made under the 

Indian Act. 

Subsection 35(1) of the Constitution Act, 

1982 still applies to provincial laws which might 

be referentially incorporated as a result of section 

88. In other words, even if such a law is found to 

apply to Indians as a result of section 88, it must 

still not unjustifiably infringe Aboriginal or treaty 

rights. The province must comply with the same 

tests as the federal Crown to justify infringement 

of rights. Moreover, although the Federal 

government had the capacity to extinguish 

Aboriginal and treaty rights in certain 

circumstances prior to 1982, provincial 

governments have never had jurisdiction to do so. 

Since Aboriginal and treaty rights go to the “core 

of Indianness”, it is not within the jurisdiction of 

the province to legislate in relation thereto. 13 

For example, provincial seizure legislation 

has been held to apply to Indians, except to the 

extent that it calls upon seizure of property which 

is exempt according to section 89 of the Indian 

Act. 14 Some hunting and fishing legislation has 

been held to apply, except where it conflicts with 

the Indian Act, band by-laws and Aboriginal 

and/or treaty rights. 15 It is primarily portions of 

hunting and fishing legislation which have been 

held not to apply to Indians. 16 

3. ADVISING THE ABORIGINAL 

ACCUSED 

3.1 Aboriginal and/or Treaty Rights 

Because of the potential that criminal or 

quasi-criminal legislation may be inapplicable to 

an Aboriginal accused by reason of Aboriginal 

and/or treaty rights, it is important for counsel to 

consider the nature of the charges and the 

accused’s Aboriginal status. Protection of 

Aboriginal and treaty rights applies to Indians, 

Métis and Inuit, as defined in subsection 35(2). 

It should also be kept in mind, however, that 

in most cases, the cost of mounting a defence 

based upon Aboriginal and treaty rights is 

prohibitive for a single accused. A great deal of 

historical, geographical and genealogical research 

is needed in addition to the legal preparation and 

knowledge required. This type of information will 

generally not be immediately available to the 

accused, who may not even be aware of the

BAC - 2005 ABORIGINAL PEOPLES AND THE CRIMINAL JUSTICE SYSTEM CH - 14 

existence or extent of his or her Aboriginal and/or 

treaty rights. 

For this reason, it will generally be important 

for the accused to have the support of his or her 

First Nation or Aboriginal community, who may 

be in a position to provide necessary resources, 

both financial and historical (research) which are 

necessary to establish a defence based upon 

Aboriginal and/or treaty rights. 

Certain types of charges should lead counsel 

to consider whether there may be a defence of 

existing Aboriginal and/or treaty rights. These 

include: 

• all hunting and fishing charges; 

• licensing charges; 

• hunting and fishing safety related charges; 17 

• trespass charges; and 

• firearms charges. 18 

While the legal tests for Métis rights are 

somewhat similar to those for Indians, there are 

some meaningful differences. Most notably, 

while Indians are required to show that an 

aboriginal right existed prior to European contact, 

that test is, by definition, not applicable to Métis 

rights. This changes a key date in a defendants 

case, and is something which must be considered 

early in the preparation of the defence. In 2003 the 

Supreme Court of Canada had its first opportunity 

to address Aboriginal rights of the Métis. In R. v. 

Powley, the Court recognized that members of the 

Métis community near Sault Ste. Marie have sitespecific 

Aboriginal hunting rights which were 

infringed, without justification, by Ontario’s 

hunting legislation. The Court said that the 

relevant date was the date of effective European 

control; which, in the case of the Sault Ste. Marie 

Métis, was 1850. 19 

3.2 Jurisdictional Issues 

There will also be some cases where counsel 

must consider whether the province or Parliament, 

whatever the case may be, has jurisdiction to 

legislate in relation to the charges faced by the 

Aboriginal accused, particularly where the charge 

was laid on reserve land. If the charge is based 

upon a provincial statute or regulation, it must 

first be determined whether the province has 

jurisdiction to regulate the matter according to the 



two ways that provincial laws can apply to 

Indians, as described above. 20 If there is prima 

facie jurisdiction, the issue of paramountcy of 

legislation must be considered. For example, even 

if there is jurisdiction for provincial legislation in 

a particular area, such legislation or regulation 

will not apply on a reserve if there is concurrent 

legislation enacted by the Crown or through a 

First Nation law or by-law. 

Jurisdictional issues may arise for an 

accused, either Aboriginal or non-Aboriginal, who 

has some sort of contact with or on an Indian 

reserve (and in some cases in the traditional 

territory of a First Nation). The following are 

examples of where jurisdictional issues may arise: 

• business regulation/licensing/fees/taxes; 

• trespass charges; 

• hunting and fishing violations; and 

• highway traffic charges. 

The effect of subsection 89(1) of the Indian 

Act should also be noted for its practical 

application in criminal and quasi-criminal law 

matters, particularly in hunting and fishing related 

charges. Subsection 89(1) states: 

Subject to this Act, the real and personal 

property of an Indian or a band situated on a 

reserve is not subject to charge, pledge, 

mortgage, attachment, levy, seizure, distress 

or execution in favour or at the instance of 

any person other than an Indian or a band. 

Although this section provides an exemption 

from seizure for execution of civil judgments, it 

has been held not to apply where there is a seizure 

of property for evidentiary purposes as part of a 

criminal process. However, if the seizure is not for 

the purposes of obtaining evidence but for the 

purposes of penalty, obtaining security, or 

possible sale, the exemption from seizure does 

apply. 21 This exemption from seizure is 

particularly important in hunting and fishing 

related charges, since the Ministry of Natural 

Resources generally has authority to seize all 

hunting and fishing equipment, including 

vehicles, and exercises this power as a matter of 

course. 

4. PROCEDURAL MATTERS 

Once jurisdictional issues have been 

addressed, other procedural issues unique to an 

309


Aboriginal accused must be considered. The two 

issues which impact most directly on an accused 

receiving a fair trial are jury selection and 

sentencing. 

4.1 Jury Selection 

In a criminal jury trial of an Aboriginal 

accused, consideration must be given to the 

potential of racial bias of the jury. The 

impartiality of the jury may be attacked by 

challenging the array itself. Counsel for 

Aboriginal accused have attempted, through 

various arguments, to ensure that a minimum 

number of Aboriginal persons are empanelled on 

the jury. It is argued that this is the only way to 

account for factors of culture, language and 

geography which would impact negatively on the 

accused’s ability to receive a fair trial. However, 

the test to challenge the partiality of an entire 

array is whether there is evidence that certain 

members of a group have been systematically 

excluded from the array. There is only one 

reported case where systematic exclusion has been 

established, where the sheriff’s office admitted 

that all Aboriginal people were struck off the 

potential juror list. 22 

Challenging individual jurors for cause on 

the ground that a potential juror may be partial (or 

biased against Aboriginals) has been more 

successful. The Supreme Court of Canada in R. v. 

Williams, 23 held that where issues of racial 

prejudice arise, it is best to err on the side of 

caution, because one can not expect an individual 

with racist attitudes to set aside bias and act 

impartially just because he or she is called upon as 

a juror. The Court relied upon subsection11(d) of 

the Charter which protects the right of an accused 

to a fair trial, including the right to an impartial 

jury. In R. v. Fleury, 24 the Saskatchewan Queen’s 

Bench was satisfied that the accused had 

established, through expert evidence, that there 

was widespread racism against Aboriginals in the 

community. Therefore, the accused had the right 

to challenge each juror for cause based upon racial 

bias. 

4.2 Sentencing 

On September 3, 1996, Bill C-41 came into 

force. This bill amended the sentencing provisions 

in the Criminal Code 25 to specifically take into 

account Aboriginal offenders and the role of their 

310 



communities in their rehabilitation. Section 

718.2(e) of the Criminal Code states: 

A court that imposes a sentence shall also 

take into consideration the following 

principles: 

(e) 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 Supreme Court of Canada has now had 

an opportunity to comment upon this section and 

to provide direction: 26 

[Paragraph (e)] is not simply a codification 

of existing jurisprudence. Its purpose is to 

ameliorate the serious problem of overrepresentation 

of Aboriginal people in 

prison, and to encourage sentencing judges 

to have recourse to a restorative approach to 

sentencing... It directs judges to undertake 

the sentencing of [Aboriginal] offenders 

individually, but also differently, because 

the circumstances of Aboriginal people are 

unique. The judge must consider: (a) the 

unique systemic or background factors that 

may have played a part in bringing the 

offender before the courts; and (b) the types 

of sentencing procedures and sanctions that 

may be appropriate in the circumstances 

because of his or her particular aboriginal 

heritage or connection. While judges may 

take judicial notice of the broad systemic 

and background factors and the priority 

given to restorative justice, the court should 

be provided with case-specific information 

by counsel or in the pre-sentence report. 

Whether the offender resides on a reserve, in 

a rural or urban area, the judge must be 

made aware of alternatives to incarceration 

that exist whether inside or outside the 

Aboriginal community. This paragraph 

should not, however, be taken as a means of 

automatically reducing the prison sentence 

of Aboriginal offenders. The sentence 

imposed will depend upon all the factors 

that must be taken into account in each 

individual case. It is unreasonable to assume 

that Aboriginal people themselves do not 

believe in the importance of the objectives 

of denunciation, deterrence and separation. 

Generally, the more violent and serious the 

offence the more likely it is as a practical 

reality that the term of imprisonment for 

Aboriginals and non-Aboriginals will be 

close to each other or the same. The class of 

Aboriginal people who come within this


paragraph must be, at least, all who come 

within the scope of s. 25 of the Charter and 

s. 35 of the Constitution Act, 1982, and this 

paragraph applies to all Aboriginal 

offenders, not just those residing on a 

reserve: R. v. Gladue (S.C.C.) 27 

The Youth Criminal Justice Act, S.C. 2002, 

c.1 contains similar sentencing directions for 

Aboriginal youth. Subsection 38(2)(e) states: “all 

available sanctions other than custody that are 

reasonable in the circumstances should be 

considered for all young persons, with particular 

attention to the circumstances of aboriginal young 

persons”. 

When considering other types of sentences or 

sanctions, even prior to the legislative 

amendments, courts have considered: requiring 

attendance at meetings of Clan leaders and 

“healing circles”, 28 “sentencing circles”, 29 

community service in the First Nation community 

under supervision of the band council, 30 and 

banishment. 31 

Although firearms prohibitions are now a 

common element of sentencing, Aboriginal 

defendants may be more severely affected by such 

a prohibition as, for some, hunting may be a 

means of sustenance. However, the argument, 

made in cases such as R. v. Johnson 32 that the 

imposition of a firearms prohibition upon 

someone dependent upon living off the land 

constituted cruel and unusual punishment, is 

regularly rejected by Canadian courts. 

5. CONCLUSION 

In addition to the best of intentions, both 

Crown and defence counsel must be aware of the 

many issues and obstacles facing them when 



dealing with Aboriginal people in the criminal 

justice system. The various jurisdictional and 

procedural issues have been briefly reviewed 

above. Equally important is the recognition of 

cultural bias. 

As the Law Reform Commission of Canada 

states in its report, Aboriginal Peoples and 

Criminal Justice: 

Aboriginal people face unique difficulties in 

the criminal justice system: cultural 

misunderstandings may lead a police officer 

or a prosecutor to lay charges or continue 

charges; conditions of bail that are otherwise 

routine may be unusually arduous for an 

Aboriginal accused; an Aboriginal person 

may have unusual difficulties in 

understanding the trial process; legal 

defences unique to an Aboriginal accused 

may be appropriate; and understanding of 

Aboriginal culture may be necessary for the 

trier of fact to assess credibility; a sentence 

may have unusually harsh effects on an 

Aboriginal accused. In each of these cases 

sensitivity on the part of police, prosecutors, 

judges, juries, and probation officers is 

required, and a failure by any one group can 

have unintended adverse consequences. In 

all of these situations, defence counsel can 

do much to compensate for the 

shortcomings. 

An Aboriginal accused person’s lawyer, 

owing to the protective nature of counsel’s 

role, is the one most intimately engaged in 

ensuring that his or her client is treated not 

only equally, but in an equitable manner and 

with respect. Lawyers acting on behalf of 

Aboriginal accused persons must therefore 

be aware of Aboriginal justice issues and 

able to raise them in a meaningful way. 33 

311


NOTES 

1 Krista Yao and Patrick Nadjiwan, both of Nadjiwan Law Office (Nippissing First Nation, North Bay). Revised 

December 2004. 

2 Royal Commission on Aboriginal Peoples Aboriginal Peoples and the Justice System (Minister of Supply and 

Services Canada, 1993) at 4. 

3 Constitution Act, 1867, (U.K.), 30 & 31 Vict., c.3, reprinted in R.S.C. 1985, App. II, No. 5. 

4 Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11. s.35; see R. v. 

Pamajewon, [1996] 2 S.C.R. 821, [1996] 4 C.N.L.R. 164; R. v. Sparrow, [1990] 1 S.C.R. 1075, [1990] 3 

C.N.L.R. 160. 

5 Note s.1 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule 

B to the Canada Act, 1982 (U.K.), 1982, c.11 (Charter), which mandates limits on Charter rights, does not 

apply to s.35. 

6 R. v. Sparrow, supra note 4. 

7 Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, [1998] 1 C.N.L.R. 14 at para 165. 

8 R. v. Sparrow, supra note 4. 

9 R. v. Gladstone, [1996] 2 S.C.R. 723, [1996] 4 C.N.L.R. 65 at para 62. 

10 Dick v. R., [1985] 2 S.C.R. 309, [1985] 4 C.N.L.R. 55. 

11 Indian Act, R.S.C. 1985, c. I-5. 

12 Shin Imai, The Annotated Indian Act and Aboriginal Constitutional Provisions (Scarborough, Ont.: Carswell, 

1999) at s.88, commentary. 

13 Delgamuukw v. British Columbia, supra note 7 at para. 178. 

14 Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85, [1990] 3 C.N.L.R. 46. 

15 R. v. Napolean, [1985] 6 W.W.R. 302, [1986] 1 C.N.L.R. 86 (B.C.C.A.) - provincial legislation which sets 

safety standards for the use of firearms; R. v. Côté, [1996] 3 S.C.R. 139, [1996] 4 C.N.L.R. 26 - provincial 

legislation requiring payment of a fee for entrance into a controlled harvest zone. 

16 R. v. Sparrow, supra note 4; R. v. Jack (1995), 131 D.L.R. (4th) 165, 103 C.C.C. (3d) 385 (B.C.C.A.); R. v. 

Nikal, [1996] 1 S.C.R. 1013, [1996] 3 C.N.L.R. 178; R. v. Alphonse (1983), 83 C.C.C. (3d) 417, [1993] 4 

C.N.L.R. 19 (B.C.C.A.). 

17 In R. v. Fox, [1994] 3 C.N.L.R. 132 (Ont.C.A.), the Crown argued that the charge wrongfully discharging a 

firearm (from a moving vehicle) infringed a treaty right but that it was justified for safety reasons. The court 

dismissed the Crown’s argument noting that there were provisions for disabled persons to shoot from moving 

motor boats, and therefore, the provision could not be related to safety and was more likely about enforcing the 

hunter’s ethic of giving the game a sporting chance. 

18 In R. v. Nayanokeesic, [2004] 2 C.N.L.R. 273 (Ont. S.C.J.) the court held that the imposition of a licensing fee 

under the Firearms Act and regulations infringed the treaty rights and, therefore, the s.35 Constitutional rights 

of the accuseds. 

19 R. v. Powley, [2003] S.C.C. 43. 

20 With respect to constitutional jurisdiction, it should be kept in mind that s. 91(24) jurisdiction and the Indian 

Act applies to Indians only, and not Métis and Inuit. 

21 Douglas v. R., [1984] 3 C.N.L.R. 65, 10 C.R.R. 197 (BC.Co.Ct.). 

312 


NOT TO BE USED OR REPRODUCED WITHOUT PERMISSION


22 R. v. Butler, (1984), 63 C.C.C. (3d) 243, [1985] 2 C.N.L.R. 107 (B.C.C.A.). See R. v. A.F. , (1994), 30 C.R. 

(4th) 333, [1994] 4 C.N.L.R. 99 (Ont. Gen. Div.), Redhead v. R. (1995), 103 Man. R. (2d) 269, [1996] 3 

C.N.L.R. 217 (Q.B.). 

23 R. v. Williams, [1998] 1 S.C.R. 1128, [1998] 3 C.N.L.R. 257. 

24 R. v. Fleury (1998), 169 Sask. R. 161, [1998] 3 C.N.L.R. 160 (Q.B.). 

25 Criminal Code, R.S.C. 1985, c. C-46. 

26 R. v. Gladue, [1999] 1 S.C.R. 688, [1999] 2 C.N.L.R. 252. 

27 R. v. Gladue, as annotated in Edward L. Greenspan, Martin’s Annual Criminal Code 2000 (Aurora, Ont.: 

Canada Law Book, 1999). 

28 R. v. P.(J.A.), [1991] N.W.T.R. 301, 6 C.R. (4th) 126 (Y.T.Terr.Ct.). 

29 R. v. Cheekinew (1993), 108 Sask. R. 114, [1993] 3 C.N.L.R. 172 (Q.B.). For a discussion on sentencing 

circles see R. v. Manyfingers (1996), 191 A.R. 342, [1996] A.J. No. 1025 (Prov. Ct.) (QL) and R. v. T. (W.B.) 

(1997), 163 Sask. R. 29, 122 C.C.C. (3d) 376 (C.A.). 

30 R. v. Wahpay, unreported decision (October 21, 1991) (Ont. Gen. Div.). 

31 Saila v. R., [1984] N.W.T.R. 176, [1984] 1 C.N.L.R. 173 (S.C.); R. v. Johnson (1994), N.W.T.R. 210 (S.C.). 

32 R. v. Johnson, [1995] 2 C.N.L.R. 158 (YTCA); and see R. v. Weyallon, [1985] N.W.T.R. 264, [1985] 4 

C.N.L.R. 184 (C.A.), leave to appeal to S.C.C. refused, [1985] 2 S.C.R. xiii, [1985] N.W.T.R. xlii, 62 N.R. 

102. 

33 Law Reform Commission of Canada, Aboriginal Peoples and Criminal Justice: Equality, Respect and the 

Search for Justice (Ottawa: Law Reform Commission, 1991), Report 34 at 52-53. 



313

Aboriginal Peoples and the Criminal Justice System - Continuing ...

Create successful ePaper yourself

Delete template?

Save as template?