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An Act to establish and validate The Public Inquiry into the Administration of Justice and Aboriginal People

S.M. 1989-90, c. 1

Bill 28, 2nd Session, 34th Legislature

An Act to establish and validate The Public Inquiry into the Administration of Justice and Aboriginal People

(Assented to June 14, 1989)

WHEREAS aboriginal peoples are a valued and integral part of the Manitoba community;

AND WHEREAS the Province of Manitoba is committed to ensuring the fair and equitable administration of justice to all Manitobans, as guaranteed by the Canadian Charter of Rights and Freedoms;

AND WHEREAS aboriginal peoples have unique problems with and concerns about the administration of justice in Manitoba;

AND WHEREAS there may be reasons for these problems and concerns, including the cultural differences between aboriginal people and the established legal and social structure, the existence of many aboriginal communities in remote and isolated areas of Manitoba, the separation of constitutional responsibilities of provincial and federal governments towards aboriginal peoples, the over-representation of aboriginal peoples in conflict with the criminal law, and the under-representation of aboriginal peoples employed in the administration of justice;

AND WHEREAS leaders of aboriginal peoples in Manitoba have been increasingly concerned about the relationship between the administration of justice in Manitoba and the legitimate aspirations of aboriginal peoples for greater self-government;

AND WHEREAS recent events, including the death of J.J. Harper and the conduct of the Helen Betty Osborne case, have raised additional concerns about systemic discrimination against aboriginal peoples in the administration of justice in Manitoba;

AND WHEREAS the Lieutenant Governor in Council, by Order in Council No. 468/88 dated April 13, l988 appointed The Public Inquiry into the Administration of Justice and Aboriginal People as a committee under section 4 of The Attorney General's Act;

AND WHEREAS the Lieutenant Governor in Council, by Order in Council No. 1308/88 dated November 2, l988, established and continued The Public Inquiry into the Administration of Justice and Aboriginal People as a commission under Part V of The Manitoba Evidence Act and revoked Order in Council No. 468/88;

AND WHEREAS it is considered advisable to validate the establishment and continuation of The Public Inquiry into the Administration of Justice and Aboriginal People, its actions and the actions of the commissioners appointed to it from the date of its first establishment;

THEREFORE HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

Definition

1           In this Act, "commission" means The Public Inquiry into the Administration of Justice and Aboriginal People established in subsection 2(1).

Commission established

2(1)        A commission known as The Public Inquiry into the Administration of Justice and Aboriginal People is hereby established.

Members appointed

2(2)        The members of the commission are the Honourable Associate Chief Justice A.C. Hamilton of the Court of Queen's Bench of Manitoba and His Honour, Associate Chief Judge C.M. Sinclair of the Provincial Court of Manitoba.

Scope of inquiry

3(1)        The commissioners shall investigate, report and make recommendations to the Minister of Justice on the relationship between the administration of justice and aboriginal peoples of Manitoba, guided by but not limited to the terms of reference set out in the Schedule.

Report to minister

3(2)        The report of the commission shall be delivered to the Minister of Justice on or before March 31, 1990 or a later date prescribed by the Lieutenant Governor in Council.

Powers

4           Without restricting the powers granted to the commissioners under this Act, the commissioners may

(a) adopt procedures and methods that they consider necessary or advisable for the full and proper conduct of the inquiry, including the exclusion of the public, or any member of the public, from the hearing;

(b) hold public hearings at the places and times that they consider desirable and necessary; and

(c) engage the services of counsel and investigators to aid and assist in the inquiry as the commissioners consider necessary or advisable.

Access to records

5           The commissioners, or persons that they designate, are hereby authorized to have complete access to personnel and all relevant papers, documents, vouchers, records and books of any kind in the possession of departments and agencies of the Government of Manitoba.

Costs

6           On the certification of the Clerk of the Executive Council, the Minister of Finance shall pay out of the Consolidated Fund, travelling and other incidental expenses incurred in carrying out the inquiry, and fees and salaries of advisors and assistants employed or retained for the purposes of the commission unless the Lieutenant Governor in Council makes further or other provisions respecting the payment of those incidental expenses or fees and salaries.

Powers of inquiry

7           For greater certainty, The Public Inquiry into the Administration of Justice and Aboriginal People and the commissioners appointed to it, without limiting the powers of the commission or the commissioners,

(a) is and are declared to have the right to investigate all aspects of the events leading up to the death of J.J. Harper, the investigation which was conducted by the City of Winnipeg Police Department after the death of J.J. Harper, announcements made by the City of Winnipeg Police Department and the appropriateness of those announcements, the training and regulations of the City of Winnipeg Police Department relating to stopping persons on the street, the arrest of persons, the use and protection of firearms and the manner of dealing with aboriginal people, whether there exists any evidence of racial prejudice with respect to any of the events which led to the death of J.J. Harper or the investigation of his death, the adequacy of procedures for inquiry into the death of persons whose deaths occurred while in contact with the police and all matters on which evidence was led and findings made at the inquest which was conducted into the death of J.J. Harper pursuant to the provisions of The Fatality Inquiries Act;

(b) is and are declared to have the right to investigate all aspects of the police investigation into the death of Helen Betty Osborne and all aspects of the laying and prosecution of charges which followed, including whether the right persons were charged, whether the appropriate charges were laid, whether charges should have been laid earlier, whether immunity from prosecution should have been granted to Lee Colgan, whether there exists any evidence of racial prejudice with respect to the investigation of the death of Helen Betty Osborne, whether the acts or omissions of any persons outside the police department impaired the investigation  and whether the prosecution was properly conducted;

(c) is and are declared to have the right upon completion of the inquiry and the making of its report to make such findings of fact as it deems appropriate, and, where it deems proper, to name the names of persons whose conduct ought, in the opinion of the commissioners, to be called into question; and

(d) may convene a special hearing or hearings to compel the production of documents which, in the opinion of the commissioners, are deemed relevant directly or indirectly to matters before the commission or to the credibility of any person.

Validation of actions of Inquiry

8           All orders, decisions, legal process, proceedings, actions and expenditures of The Public Inquiry into the Administration of Justice and Aboriginal People before this Act receives royal assent are hereby declared to be valid as though done pursuant to this Act and shall not be called into question in any court of law.

Part V of C.C.S.M. c. E150

9(1)        Except as provided by subsection (2), Part V of The Manitoba Evidence Act does not apply to this Act.

Application of Part V of C.C.S.M. c. E150

9(2)        Subsection 83(4), sections 84, 87, 88, 89, 90, 91, 92, 93 and 94 and subsections 95(1), (2) and (4) of Part V of The Manitoba Evidence Act apply to this Act with appropriate changes as the circumstances require.

Act prevails

10          In the event of an inconsistency between this Act and another Act of the Legislature, the provisions of this Act prevail to the extent of the inconsistency.

Powers of the L.G. in C.

11          The Lieutenant Governor in Council may

(a) wind up the commission;

(b) appoint, or revoke the appointment of, a member of the commission;

(c) modify, enlarge or clarify the scope of the commission;

(d) make further or other provisions for the payment of travelling and other incidental expenses and fees and salaries of advisors and assistants employed or retained for purposes of the commission;

(e) prescribe a later date for the delivery of the report of the commission to the Minister of Justice; and

(f) provide for matters and circumstances for which no provision or no adequate provision is made in this Act.

Coming into force

12          This Act is retroactive and deemed to have come into force on April 13, 1988.

SCHEDULE

TERMS OF REFERENCE

Purpose of commission

The purpose of the commission is to inquire into, and make findings about, the state of conditions with respect to aboriginal people in the justice system in Manitoba and produce a final report for the Minister of Justice with conclusions, options and recommendations.

The commission's deliberations are to include consideration of all aspects of the cases of J.J. Harper and Helen Betty Osborne, and the commission may make any additional recommendations that it deems appropriate with respect to those cases, including a recommendation that there be further consideration of particular matters or further inquiry into any aspect of either case.

Scope of inquiry

The scope of the commission is to include all components of the justice system, that is, policing, courts and correctional services.  The commission is to consider whether and the extent to which aboriginal and non-aboriginal persons are treated differently by the justice system and whether there are specific adverse effects, including possible systemic discrimination against aboriginal people, in the justice system.  The commission is to consider the manner in which the justice system now operates and whether there are alternative methods of dealing with aboriginal persons involved with the law.  For example, the commission may review the following issues:

Policing:

- policing issues in relation to aboriginal people;

- deployment of personnel and accessibility of policing services;

- arrest and charging procedures;

- cultural sensitization for police officers and affirmative action programs;

- the conduct and training of wildlife officers relating to aboriginal people.

Access to and adequacy of legal counsel:

- eligibility and access to Legal Aid;

- access in remote communities.

Court processes:

- use of bail and custody;

- prosecutorial discretion and plea bargaining;

- role of court communicators;

- effect of time delays from arrest to trial;

- family proceedings;

- Youth Court;

- child welfare proceedings.

Court dispositions:

- comparative types of dispositions among aboriginal and non-aboriginal people;

- use of custodial sentences;

- availability of sentencing alternatives.

Post sentencing:

- differential success of aboriginal and non-aboriginal groups on probation;

- availability and use of fine option program;

- prison experiences, such as temporary absences and parole;

- use of half-way houses;

- re-integration to communities and reserves.

Other:

- awareness and knowledge of justice system by aboriginal people;

- communication between justice system personnel and aboriginal people;

- employment of aboriginal people in justice system.