Justice probes a rehash of issues - lawyers

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Life outside the Hobbema Indian reserve in central Alberta taught Louis Threefingers about the cold, harsh realities of the Canadian judicial system.

After spending three years in and out of Edmonton's maximum security prison, the horrible lessons Threefingers learned about society's reluctance to appreciate, or at least, understand the innocence of his culture, strengthened his resentment for the whit man's laws.

Now, 12 years after a provincial court review board discovered a disproportionate number of Natives are in Alberta jails, another study is underway to identify the reasons why people like Threefingers slip through the cracks of justice and despair into the penal system.

The seven-member task force -- a combined effort by the Alberta solicitor general, the Alberta attorney general and the federal Indian affairs' department -- will be reviewing past studies into Native justice and listening to oral and written statements from Native groups to determine what the problems are.

By the year's end, the seven-member panel, headed by Alberta Court of Queen's Bench Mr. Justice Robert Cawsey, will prepare a report for the government based on voluntary testimony from Natives concerned about all facets of the criminal justice system in Alberta including police and court procedures as well as the prison system.

The probe comes on the heels of the Nova Scotia royal commission hearing that turned the tides on Native justice across Canada.

But task force critics maintain the problems in Alberta are already clearly identified. What Native communities are looking for now, they say, are solutions.

The Alberta inquiry will delve into problem areas of the criminal justice system that have tormented Native people of Alberta for more than 100 years. It was spurred by the 1978 Kirby report, which blamed cultural differences and severe social problems on the high rate of imprisonment among the Native population.

Meanwhile, Threefingers, 34, who came to Edmonton three years ago to look for work, believes his hostile feelings toward the judicial process aren't unique in the Native community, but are instead an indication the current rehabilitation system is still badly failing Alberta's Native people.

Threefingers has gone back to Hobbema a bitter man, but he's better educated about Canada's legal system, which continues to swallow up and destroy his brothers.

But unlike Donald Marshall, who spent 11 years locked up in a Nova Scotia prison for a murder he didn't commit, Threefingers can spend the rest of his life only wondering what would have happened if he got lost in a similar pile of mindless paperwork and countless cover-ups.

Threefingers was one of the lucky ones.

Though he insists his life is "back to normal," the police, courts and corrections' services are as foreign to Threefingers now as they were the first day he stepped into Canadian society.

"Nobody ever tried to help me understand," he says.

"I've found people just don't want to understand the ways of my people."

It does seem. however, more Canadians than ever have a better understanding of Native culture. And because of the Marshall tragedy, the average Canadian is now aware of how intolerant their judicial system is of aboriginal people.

There has been a wave of inquiries across Canada analyzing judicial deficiencies facing Native people. But there's a sense of skepticism over the validity of the Alberta probe.

Eileen Powless, vice-president of the newly-created Indigenous Bar Association, fears the recommendations of the Alberta task force are destined for library shelves only if it proceeds without more binding Native representation.

She says the Kirby report, which recommended hiring Native interpreters for provincial court and making the entire court process more understandable to Native defendants, have been conveniently overlooked for too long.

Although there are two Natives on the seven-member panel, Powless says the approach by government-sonsored committees of attempting to shed light on just the symptoms of Native injustice, has become a tiresome chore for Native communities.

Powless says it has already been established Natives should have complete control to make and enforce their own laws.

She says money earmarked for special investigations into why Natives are incarcerated, should go instead towards helping keep Native people out of Alberta jails in the first place. Natives are thrown in Alberta jails more often than non-Natives because it's easier and cheaper than adapting the system to meet the needs of Native defendants, she charged.

Referring to the Kirby report recommendations, Powless says Natives should be subjected to Native justice and Native laws.

Instead of filling up prisons with people, who've been victimized by society all their life, Powless rages, "there should be some more positive initiatives taken to keep people out of jail and to help them restructure their lives so it's possible for them to remain law abiding.

"The whole mentality of institutionalization is counterproductive when it comes to trying to help (Native) people change their lifestyles."

She's baffled as to why the Kirby analysis has been ignored by the Alberta government.

"I'm not sure what they're hoping to accomplish this time," she says.

The Alberta government has been slow to instill cultural mechanisms in the criminal justice system but some headway has been reached in allowing Native people to practice their spirituality. They are, for instance, allowed to smoke sweetgrass in most Alberta prisons. And progress is being made on the Blood Reserve, which recently set up a correctional service. Also on the Blood reserve a new flock of special constables, trained to oversee band regulations, graduated recently.

Meanwhile, Native justice advocates aren't ready to accept government promises without commitments to a better and more exclusive Native-run system.

In the wake of the Marshall royal commission fidings in Nova Scotia and the current hearings in Manitoba and southern Alberta, the latest investigation is being viewed by Edmonton Native rights lawyer Judy Sayers as just another fleeting attempt to appease public opinion.

The task force guidelines are too restricted to the Canadian charter of rights, she says, and completely ignore traditional beliefs and values of Alberta Natives.

Royal commission hearings, where judges listen to specific cases through formal testimony, are far more effective at finding answers to the problems of Native injustice, according to Sayers.

She says the Alberta task force is "doomed to failure from the beginning without the insight and understanding of a complete Native panel."

Sayers says Canadian society has demonstrated its unwillingness to appreciate Native culture and the vague task force guidelines attest to that.

"The guidelines don't encompass the problem. So I don't think it's going to be that helpful," she says.

In 1978 Mr. Justice William Kirby, trial division judge of the Supreme Court of Alberta in Calgary, headed up a government task force into how Native people were handled by the police, courts and correctional administrations.

The judge found Natives made up 25 per cent of Alberta's prison population while Indian and Metis people made up only six peer cent of the total population. He blamed the high rate of Native incarceration on deep-rooted social problems like severe unemployment and poverty, which often drove them to commit crime.

The executive director of the Union of Nova Scotia Indians says the Alberta task force will be successful only if it allows Native people - not the government - to draw the conclusions. "It has to be Indians taking care of Indians. That's the way it's been proven with Donald Marshall. That's the way it should be." said Kevin Christmas.

He says his organization is working an a Native justice system designed for the Micmac Indians of Nova Scotia which simply can't be ignored by he provincial government in the wake of the Donald Marshall inquiry, which found racism widespread in the province.

He credits public pressure and Native persistence for the outcome of the royal commission, which fund Donald Marshall was victimized by the provincial government.

Marshall was convicted in 1971 for the murder of Sandy Seale, a black killed in a Sydney, Nova Scotia park. He was released in 1982 after elderly panhandler Roy Ebsary confessed to the murder.

Marshall's personal hell, as well as the testimony of 112 other people involved in the case are revealed in a 16,000-page report detailing prejudice and irresponsible handling of the case from start to finish.

According to Clayton Ruby, one of the attorneys who represented Marshall during the royal commission hearings, public awareness is usually the most solid result of Native justice inquiries.

"Royal commission are a waste of time. Traditionally, the recommendations go on the shelf and nothing is ever done. When things are done, they're the cheap, easy things. Whereas, the problems with Native justice are expensive and time-consuming and not amenable to royal commission solutions."

He does say the process of holding a public review or royal commission hearing is helpful at getting the public on side of the Native communities.

"We're not in this for the next few months, we're in this for the long haul. We have got to understand the way the system oppresses people."

But for people like Threefingers, whose perception of Canadian justice has been fashioned through oppression, there may never be a reconciliation with society no matter how many studies or royal commission hearings are conducted.

"The only thing my brothers and I had in jail was ourselves and our dignity. And they even tried to take that away."

"I sure found there was no place in society for me."