This article was originally published in the August 2001 edition of Law Matters.
“How many times can a man turn his head, pretending he just doesn’t see?
The answer, my friend, is blowin’ in the wind ...”
Pete Seeger hated that song. He was an in your face, “you won’t get me I’m part of the union” kind of folk singer. Answers didn’t blow in the wind 'cause Pete would tell you to your face. But Dylan knew. Anyone, even a person of goodwill can, for no apparent reason, be blind to what is going on around him.
Canada’s national blindness is the plight of our Aboriginal citizens and in between 1988 and 1991 Al Hamilton, the Associate Chief Justice of the Family Division of the Manitoba Court of Queen’s Bench got his eyes opened in a big way. Reacting to the death of Aboriginal leader J.J. Harper at the hands of an Aboriginal Police Officer in March of 1988 and the 1988 trial of four accused in the abduction and murder of nineteen year old Helen Betty Osborne (which had been covered up by an eleven year conspiracy of silence) the Manitoba Government called for an Aboriginal Justice Inquiry co-chaired by Justice Hamilton and Provincial Judge Murray Sinclair.
“A Feather Not a Gavel....” by Justice Hamilton is published on the 10th anniversary of the release of the report of the Inquiry and contains many of the Inquiry’s findings and still unimplemented suggestions.
Justice Hamilton, as an experienced jurist, recognizes whatever we say about “justice” and the philosophy behind it, justice remains, in its administration, a commodity dispensed day after day, in industrial quantities. In a methodical way and with the perspective of years of practical experience Justice Hamilton steps through the Aboriginal experience with our justice system from lack of education and unemployment through Child Welfare matters to arrest, bail, criminal trials and sentencing showing how the system stacks the deck against Aboriginal citizens at most stages of the process.
For example, the legislative requirement in Child Welfare cases forces a court to focus on the child need for protection but denies the court the jurisdiction to inquire about the best interests of the child in the longer term. If a child is temporarily in need of protection then the subsequent interest in the reunification with extended families is at the mercy of Child Welfare bureaucracy. Could this be a reason behind the number of Aboriginal children in foster homes and the subsequent turmoil in their lives?
Aboriginal persons charged with crimes are regularly airlifted out of their remote communities to distant circuit points making bail or even contact with their families impossible and making extensive pre-trial custody for even minor matters a virtual certainly.
Occasionally unpleasant to read, this book is still important not only for what it says about the reality of how our justice system serves Aboriginal citizens but also for the more basic necessity to ask both what we expect of our justice system and to periodically audit whether our expectations are being delivered. Justice Hamilton thinks we can do better and sets out a range of suggestions from bail and circuit point reform through to a description of the actual experience of Aboriginal and restorative justice systems in Australia, New Zealand, U.S.A. and (of all places) Scotland.
Even the sub-title of this book (“Working Towards Aboriginal Justice) shows Justice Hamilton recognizes the Canadian justice system as a work in progress. With any luck, a law school or university jurisprudence course will pick this book up as a realistic and practical counter-point to Thomas Hobbs.
“A Feather Not a Gavel” is published by Great Plains Publishers of Winnipeg, Manitoba, and is available from online book retailers.
Fred Fenwick, Q.C., is a partner at McLennan Ross LLP in Calgary, where his current practice focuses on major civil litigation. Fred also has over 20 years’ experience in Aboriginal law, including development and land claims. He recently completed his LL.M. in the family law program at Osgood Hall.