Law Times

Law Times • may 31, 2010 FOCUS PAGE 13 Turning the tide on aboriginal crime rates BY ROBERT TODD Law Times in Ontario's correctional system by off ering alternative means for handling incidents. Th rough a wide range of servic- A es, Ontario's 11 such programs in 23 communities are helping turn the tide on the startling statistics boriginal community justice programs contin- ue to play a central role on aboriginal crime, advocates say. A 2006 Statistics Canada study re- vealed that while aboriginal peo- ple make up just three per cent of the country's population, they ac- count for about 20 per cent of the prison inmate population. Toronto lawyer Dan John- son, who represents the Criminal Lawyers' Association in a Gladue court operations committee, says aboriginal community justice programs can help turn the tide on this disproportionate rate. "Aboriginal people have a very long history of dealing with problems on a community ba- sis," notes Johnson. "I have been told that there is less recidivism on the part of in- dividuals who have gone through a process where they're more likely to become aware of some of the consequences of their ac- tions, the impact that it had on other people. Th en there's an Bill C-21 a 'first step' Continued from page 9 of electronic web-based disclo- sure is one way of speeding up prosecutions. Quebec's eff orts in this area for cases involving biker gangs have proven greater effi - ciency is possible, he notes. "But that doesn't require legis- lation," says Downes. "Th at just requires really smart policing. It requires some capital investment but it's something that will re- ally help move these things along more quickly." Davis, while generally sup- portive of bill C-21 as a good fi rst step towards tougher fraud protections, would like to see the government create a victims' fund to better compensate those who have been targeted by white-collar crime. He also believes tougher parole provisions would make for better deterrence and says his group is looking forward to addi- tional legislation on that issue. But forensic accountant Al Rosen says Canada now needs more than good intentions on reducing white-collar crime. "People say to me, 'Well, it's a fi rst step,'" says Rosen. "My reply is always, 'Yeah, but the second step is going to come when? A hundred years from now?'" He notes governments in the past have off ered up what they've advertised as "fi rst steps" for a crackdown on white-collar crime and later failed to fi nish the job. For Rosen, the government simply needs to fi nd a way to prosecute more fraud cases. In the meantime, he says eff orts to stiff en sentences merely deal with the problem from the "back end." "By the time you go through a process where a prosecutor is will- ing to take [a fraud complaint] to court and you get a conviction, then you're talking about less than one per cent of the crimes that are occurring in this fi eld." LT Program raises Charter issues Continued from page 9 drive, some breach it or some just give it up for a while. But when they start driving again, they go right back to where they were because it hasn't been trained out of them. "Th is program will help them because they get their licence back, but it's a longer period of time with the interlock device installed, and that forces them into not having anything to drink when they drive." So while society benefi ts from an appar- ent reduction in recidivism, the driver gets the benefi t of being able to return to the road sooner. Th at can be a huge carrot for drivers in rural parts of the province, says Baker. "If you lose your licence for three months, you can still maintain a job, you can make other arrangements for that period of time," he adds, noting that public transportation is limited in rural communities while cabs are expensive. Yet Baker has misgivings about some aspects of the program, notably the requirement that a guilty plea and driving-prohibition order be issued within 90 days of the off ence date. He says it typically takes between 45 and 60 days for an accused to make a fi rst appearance, at which time initial disclosure is received. Baker says that's a tight timeline, especially consid- ering that the accused must then meet with a lawyer and possibly receive further disclosure. "All of a sudden, people are really being co- erced into pleading guilty to get into this pro- gram rather than [fi ghting the charges], per- haps, if they have a valid defence, if there's a breach of their Charter rights, if the instrument was being operated improperly or was running improperly," says Baker. "I'm not sure how they're going to deal with that, but there will be some defi nite Charter concerns there." Toronto criminal defence lawyer Ron Jou- rard, who also specializes in impaired-driving cases, also views the 90-day limit as problem- atic. Other provinces with similar programs don't use it as a "carrot to extort guilty pleas from people," he says. LT June web specials opportunity for them to be restored into the community on a con- structive basis, as op- posed to through the court system, which is for the most part punishment-based." Lawyer Lora Mac- kie, justice co-ordi- nator for the United Chiefs and Councils of Manitoulin, notes her community es- tablished its justice program following an agreement with the province in 1994. It began with pre- and post-charge diversion ser- vices but has since grown to a full complement of programs. Two of its many off erings now include a partner-assault response program and a youth aftercare program. Mackie's offi ce meets regular- ly with police and prosecutors, often before charges have been laid following an incident. By participating in the program, an accused may be able to avoid a criminal record or receive a pro- bationary sentence rather than being forced to serve jail time. Each year, about 200 peo- ple are involved in diversions through Mackie's offi ce. She says it's important for people to be mindful of the deep roots of aboriginal justice. "For us, this has been here for over 10,000 years. It was here a long time before the British, western, Canadian model started. Th at's only been the last couple of hundred years. So for us, it's be- ing able to recognize practices that have been in our tradition and our history for a long time." Th e Mi'kmaw Legal Support Network in Truro, N.S., is the only provincewide aboriginal community justice program in Canada, says program co- ordinator Paula Marshall. Th e program has operated for seven years and is now housed in three main offi ces throughout the province. Each offi ce provides a multitude of justice programs, which means its staff can off er clients one-stop shopping. "It gives us an opportunity to develop a more collaborative and comprehensive support for the person who is going through the Youth participate in justice programs offered by the United Chiefs and Councils of Manitoulin. justice system, or their families or even the victim," says Marshall. Th e network off ers tradi- tional services such as a custom- ary law program, which works with aboriginal off enders as an alternative to the court system through justice circles, healing circles, sentencing circles or reintegration circles. A court- worker program is also off ered, along with a victim-support services program and various crime-prevention eff orts. While the network off ers an extensive list of services, Marshall says one of the biggest challeng- es it and most other aboriginal community justice programs across Canada face is attracting adequate funding. "Aboriginal people are very resilient, and we're resourceful," she says. "Many of these pro- grams are underfunded, and the capacity to fulfi l them to the best of their abilities in our communi- ties is not there." While aboriginal justice pro- grams have served thousands of accused people, Mackie believes they can play an even larger role. But that will take better awareness and collaboration within the over- all justice system, she says. "Th ere needs to be more aware- ness of what these programs are doing," she says. "We found, for instance, that a lot of judges when we were starting out were very supportive and were interested in knowing about the program. But over the years, we've had many other diff erent members of the judiciary come, and they don't know as much about aboriginal community justice. Th ey're not as familiar with it." LT The Criminal Lawyers' Guide to Appellate Court Practice The Criminal Lawyers' Guide to Disclosure and Production The Criminal Lawyers' Guide to Extraordinary Remedies The Criminal Lawyers' Guide to the Law of Criminal Harassment and Stalking For a 30-day, no-risk evaluation call: 1.800.565.6967 CA082 CA082 (LT 1-4x5).indd 1 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. www.lawtimesnews.com 5/26/10 2:23:17 PM James L. Cornish, Kelly A. Murray and Peter I. Collins Brian J. Gover and Victor V Christopher Sherrin and Philip Downes . Ramraj Gil D. McKinnon, Q.C.

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