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Lecture 9

LAWS 3306 Lecture 9: LAWS 3306 Lecture 9

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LAWS 3306
Paolo Giancaterino

Saturday, March 25, 2017 LAWS 3306 Lecture 9: Aboriginals Introduction - Aboriginals are overrepresented as victims and in the prison and legal system Due Process and Aboriginal People • Donald Marshall Jr. (1971 case) - was a significant case in Canada dealing with wrongful conviction - one of the main goals was to not convict innocent persons in DP (where CC didn't care) - system isn't perfect there are improvement that could be made - 3 judge panel determined that he wouldn't of been convicted if everyone did their jobs basically ; essentially wasn't the system but the actors in the conviction - defence in this case didn't actually ask for full disclosure they didn't take these steps; they didn't interview significant witnesses - despite his insistence that he did not kill the victim, lawyers argued in the appeal that manslaughter should of been left up to the jury - doesn't make sense; its either 1st, 2nd or an acquittal - spoke in front of the jury but he wasn't able to communicate properly since he's Aboriginal - Tran case (1984) ; an accused should be allowed a translator in their case • Jury Selection - illegal for jurors to reveal their deliberation - in US the jurors are interviewed after and their deliberation is not confidential - there was in the Donal Marshall Case the Jurors were questionable; racial comments from them after words etc - underrepresentation of aboriginals on juries results from many factors: high rates of non return jury summons, hardship excuses, language difficulties, distances that have to be travelled for aboriginals that could be on jury 1 Saturday, March 25, 2017 - possible that participation could be increase if jury trials were held closer to where the alleged offence took place - been charter applications based on the right to a local jury and those have failed - FA case • the court denied to force a trial in Sandy Lake and that the court decided that having the trial in Kanora Ontario with a jury from there that any racial stereotypes could be neutralized - rights of victim vs rights of accused - some discussion with respect to aboriginal persons in juries; one of the things to look at is a review conducted by Justice Frank Yachaboochi; inquiry was held to see if jury system could be reformed in a different way (on culearn) • Investigative Detention and Over-Policing - JJ Harper Case • He was an aboriginal person and he was shot and killed during an investigative stop by Winnipeg police chase of a stolen vehicle; police were doing their job and the person driving the • stolen car there was already though a suspect in custody; Harper was then pulled over and was asked for ID but didn't give it and then was shot; even though the cops knew there was already a suspect for this stolen vehicle case • concluded that the officer “got caught up in the chase” and the officer had no reasonable and probable grounds that Harper was involved at all in this case • This was a violation of section 9 of the Charter • Constable did not follow legal standards in this case - Time and time again we see that Officers are not following the law and are abusing their power • Strengthened DP: Anunga Rules - Australia has a high Aboriginal population like Canada and also Strengthened their DP by this Anunga Rule - the inquiry looked at the Rules and recommended them for interrogations of Aboriginals in Canada 2 Saturday, March 25, 2017 - Anunga seem to be similar to Young Offenders Act - Aboriginals who were Prisoners were allowed friends and counsel to be present during their interrogations - rule stressed clear cautions insuring full understanding by suspects and required the use of interpreters - they required holding off periods more strenuous then what we see in section 10(b) - these rules were designed to mitigate some of the disadvantages that Aboriginal persons would have with dealing with police - there has been studies after these rules showing that there is little to no improvement since these rules were implied in Australia • Individual Abuse to Over-Representation - DP protections may prevent some individual cases of abuse but it does not rectify the over representation in prison - studies have show that between 16-20% of all omissions to prisons involve Aboriginal persons - overrepresentation can be explained by many factors :the youthfulness of aboriginal communities, high crime rates within aboriginal communities, the legacy of residential schools in Canada, and other forms of colonialism and social and economic discrimination - the public problem of overrepresentation is on discrimination in the criminal justice s
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