Commissions and Inquiries: Themes and Variations

• Author: Jonathan Rudin
• Pages: 9-55

9

Commissions

and Inquiries:

Themes and

Variations

2

I. Royal Commission on the Donald Marshall Jr Prosecution (1989) ........... 11

II. Osnaburgh Windigo Tribal Justice Review (1990) ......................... 12

III. Justice on Trial—Report of the Task Force on theCriminal Justice System

and Its Impact on the Indian and Métis People of Alberta (1991) ........... 14

IV. Law Reform Commission of Canada: Report onAboriginal Peoples and

Criminal Justice—Equality, Respect and the Search for Justice (1991) ......... 17

V. Aboriginal Justice Inquiry of Manitoba (1991) ............................ 19

VI. Reports of the Saskatchewan Indian and Métis Justice Review Committees

(1992) ............................................................ 23

VII. Cariboo-Chilcotin Justice Inquiry (1993) ................................. 25

VIII. Justice for and by the Aboriginals (1995) ................................ 27

IX. Royal Commission on Aboriginal Peoples—Bridging the Cultural Divide:

A Report on Aboriginal People and Criminal Justice in Canada (1996) ........ 29

X. Aboriginal Justice Implementation Commission (2001) .................... 31

XI. Saskatchewan Commission on First Nations and Métis People and Justice

Reform (2004) ..................................................... 33

XII. First Nations Representation on Ontario’s Juries: A Report of the Independent

Review Conducted by the Honourable Frank Iacobucci (2013) ............... 34

XIII. Honouring the Truth, Reconciling for the Future: Summary of the Final Report

of the Truth and Reconciliation Commission of Canada (2015) .............. 36

XIV. Reclaiming Power and Place: The Final Report of the National Inquiry into

Missing and Murdered Indigenous Women and Girls (2019) ............... 40

XV. Public Inquiry Commission on Relations Between Indigenous Peoples

and Certain Public Services in Quebec: Listening, Reconciliation and

Progress(2019) .................................................... 43

XVI. The Overarching Themes—Overrepresentation and Colonialism ............ 46

Copyright © 2022 Emond Montgomery Publications. All Rights Reserved.

10 Indigenous People and the Criminal Justice System

Recognition by provincial and federal governments that the justice system does not

serve the needs of Indigenous people predates the decision by the Supreme Court of

Canada in R v Gladue1 in 1999 and even the introduction of section 718.2(e) into the

Criminal Code2 in 1996. Indeed, both those developments may not have occurred at

all without commissions and inquiries having looked at this issue in detail.

From 1989 to the present, 15 commissions and inquiries examined the way the jus-

tice system works, or does not work, for Indigenous people.3 The inquiries cover most

of the country. Four were federal and 11 were provincial—one from Nova Scotia, two

from Quebec, two from Ontario, two from Manitoba, two from Saskatchewan, and

one each from Alberta and British Columbia.

These commissions and inquiries made 731 recommendations relevant to the

issues in this book.4 Determining which of these recommendations were actually

implemented is impossible because there has not been much in the way of publicly

reported follow-ups to the recommendations. The only exception is the Aboriginal

Justice Implementation Commission of Manitoba, which reported on the status of the

recommendations of the Aboriginal Justice Inquiry of Manitoba. The Commission

itself made 60 recommendations, and the status of those remains unclear.

This chapter will briefly review each of the 15 commissions and inquiries and will

highlight the significant recommendations from each as they relate to the operation of

the criminal justice system. It is important to look at these commissions and inquiries

and their recommendations for two reasons. First, the issues these reports highlight

are still significant and, sadly, largely unaddressed. For people working with Indigen-

ous people in the criminal justice system, the insights from those who have studied

these issues in depth is valuable, and learning what is or is not happening in one’s

own backyard is crucial. Second, themes that emerge from these commissions and

inquiries are important to understand. These themes, which will be discussed at the

1 [1999] 1 SCR 688, 1999 CanLII 679 [Gladue].

2 RSC 1985, cC-46 [Code].

3 The focus in this chapter is on commissions and inquiries that looked at the relationship

between Indigenous people and the criminal justice system. Those reports that looked primar-

ily at relations between Indigenous people and police—for example, Alone and Cold in British

Columbia (British Columbia, Alone and Cold: Davies Commission—Inquiry into the Death of

Frank Paul—Interim Report (Vancouver: The Davies Commission, 2009)); the Neil Stonechild

Commission report in Saskatchewan (Saskatchewan, Report of the Commission of Inquiry into

Matters Relating to the Death of Neil Stonechild (Regina: The Commission of Inquiry into Mat-

ters Relating to the Death of Neil Stonechild, 2004)); and the Ipperwash Inquiry report in

Ontario (Ontario, Report of the Ipperwash Inquiry (Toronto: The Ipperwash Inquiry, 2007))—

are not included here.

4 The commissions and inquiries examined here made many more than 731 recommendations,

but this number reflects those that primarily relate to Indigenous people and the operation of

the criminal justice system.

Copyright © 2022 Emond Montgomery Publications. All Rights Reserved.

Chapter 2 Commissions and Inquiries: Themes and Variations 11

end of the chapter, will animate much of the discussion through the rest of the book

and therefore deserve attention at the outset.

I. Royal Commission on the Donald Marshall Jr

Prosecution (1989)

Donald Marshall Jr, who was Mi’kmaq, and Sandy Seale, who was Black, both 17

years of age, were in Wentworth Park in Sydney, Nova Scotia, on May 28, 1971.

Around midnight, they approached Roy Ebsary and Jimmy MacNeil, and panhan-

dled. Moments later, Sandy Seale was stabbed in the stomach, and Donald Marshall

was cut on the arm. Seale died the next day.5

On June 4, 1971, Marshall was charged with murder in relation to Seale’s death.

After a three-day trial from November 2-5, 1971, he was convicted, and the conviction

was armed on appeal. Marshall always maintained his innocence, and after spend-

ing 11 years in jail, he was finally exonerated. Ebsary was convicted of manslaughter

for Seale’s death in 1983 and served a year in prison.

A royal commission was called by the government of Nova Scotia to look into the

wrongful prosecution of Marshall. The Commission was chaired by Alexander Hick-

man, Chief Justice of the Supreme Court of Newfoundland, and had as commissioners

Lawrence Poitras, Associate Chief Justice of the Quebec Superior Court, and Gregory

Evans, formerly Chief Justice of the Supreme Court of Ontario. Justice Poitras later

became Chief Justice of the Quebec Superior Court, and Evans continued to serve as

Integrity Commissioner for Ontario. The Commission reported in 1989.

The first finding of the Commission was as follows:

The criminal justice system failed Donald Marshall, Jr at virtually every turn from his

arrest and wrongful conviction for murder in 1971 up to, and even beyond, his acquittal

by the Court of Appeal in 1983. The tragedy of the failure is compounded by evidence

that this miscarriage of justice could—and should—have been prevented, or at least

corrected quickly, if those involved in the system had carried out their duties in a profes-

sional and/or competent manner. That they did not is due, in part at least, to the fact

that Donald Marshall, Jr is a Native.6

The Commission made many recommendations that touched on all aspects of the

operation of the justice system in Nova Scotia and in Canada. The recommendations

dealt with wrongful convictions, the administration of criminal justice in the prov-

ince, and policing. The Commission also made recommendations regarding ensuring

5 Nova Scotia, Royal Commission on the Donald Marshall, Jr, Prosecution: Digest of Findings and

Recommendations (Halifax: Royal Commission on the Donald Marshall, Jr, Prosecution, 1989)

at 2.

6 Ibid at 1.

Copyright © 2022 Emond Montgomery Publications. All Rights Reserved.