The Position of the Aboriginal People in the Criminal Justice System: The injustice in Donald Marshal Case

  1. Describe the points in Marshall’s case at which the criminal justice system failed him?

The criminal justice system failed Marshall in various ways. The police officers who responded to the report of stabbing did not secure the crime scene to preserve evidence, or searched the area for evidence, or even protect the scene after they moved the victim (Hickman, Poitras, & Evans, 1989). They did not carry out their duty as expected.

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The next activity of the police did not align to the criminal justice system either. The injustice emerges in the fastness with which the sergeant of Detectives John MacIntyre concluded that Marshal was guilty of crime despite the absence of evidence to elicit such a conclusion. He dismissed Marshall’s side of the story because of his view that Marshall was a troublemaker, while at the same time he was influenced by a racist’s paradigm that “Indians were not worth as much as whites” (Hickman et al., 1989, p. 3). Because of this mentality, the Sergeant was inclined to gather evidence to incriminate Marshal for the murder of Seale and, thus, he rejected any evidence that hinted otherwise.

The witnesses, who testified in the case, strengthen further the unfairness dimension the criminal justice system took. Maynard Chant, who testified against Marshall, had a criminal record of minor criminal offence while John Pratico was mentally unstable and had a record of fantasizing and making up stories to take the center stage. The testimonies they bored were aligned to what the sergeant had guided them to give. The sergeant had pressured Chant to produce a statement that synchronized that of Pratico (Hickman et al., 1989). The sergeant’s approach of questioning the two juveniles was inappropriate.

Marshall was charged with the murder of Seale because of the inadequacies of the Crown prosecutor – MacNeil, and the defense counsel of Marshall – Simon Khattar and Rosenblum, in failing to perform their professional commitment. The Crown prosecutor neither interviewed the witnesses despite their contradicting testimonies, nor presented the contents of the initial contradictory testimonies to the defense. Whereas, the defense counsel did not conduct any autonomous investigation, or interviewed any Crown witness, or demanded for a disclosure of the case of the Crown against their client using the available resources (Hickman et al., 1989).

  1. What evidence of racism does this case provide?

Various elements of racism emerged in this case. The police did not perform their responsibilities as their profession mandates. They did not ensure that they collect substantial evidence to reveal the culprit because perhaps they did not really cared because the crime involved two individuals from ‘inferior’ races and one from a ‘superior’ white race. It was as the whites could do anything they wished to the other minor race.

The sergeant of detectives chose to ignore Marshall’s version of the event and decided to focus instead on framing him for the crime he did not commit. Although Ebsary, who was the culprit, had a criminal record of tendency to use violent weapons; MacIntyre did not consider him for investigation pertaining to the crime. The sergeant of detectives was bound to make Marshall seem guilty of the crime by doctoring the statements of the witnesses.

Other players in the prosecution of Marshall did not carry out their professionals mandates as the system mandates. The Crown prosecutor did not go a step further to interview the witnesses because the defendant was not a white, and so they avoided any activity that will abscond the Indian from the crime and implicate Ebsary, who was a white.

The defense counsel also did not want to use the resources to benefit an Indian. Thus, they chose to ignore their mandate in defense of their client. They were informed about the existence of previous statement, but they did not obtain them.

Ebsary while attacking Sandy Seale he said: “This is for you Black man.” This utterance shows that racism was part of the white community in Sydney. In fact, the approach of the sergeant of the detective to the case was very much motivated by the prevailing opinion of the white community of Sydney which devalued Indians compared to whites.

  • What can be done to overcome systemic racism in the criminal justice system?

Dealing with systemic racism in criminal justice system requires a multidimensional approach that encompasses all the components of the criminal justice system. Thus, different recommendations pertain to specific components of the system. Notwithstanding, the top level of the criminal justice system must be actively involved.

The Attorney General (AG) can establish an autonomous review mechanism to address any allegations of unlawful conviction. The AG must publicize the existence of such a review mechanism to direct the complainants of injustices and the observers of unlawful conviction on the authorities from whom they need to seek help. Importantly, this body must possess investigative powers to investigate the allegations and be able to access all important information and interrogate all witnesses (Hickman, Poitras, & Evans, 1989).

The department of the Attorney General and Solicitor General (SG) implement and publish a statute on race relations based on a pledge to apply equity and the abolition of inequalities related to race. The statutes should have goals and timeframe for its implementation. The Federal government should establish a Cabinet Committee on Race Relations that encompasses the AG and SG and that holds a regular forum with legislature of a minority group to get their views on matters of criminal justice.

  1. The aboriginal women’s position
  2. Examine the traditional roles of men and women in Aboriginal communities, and discuss the position of Aboriginal women before European contact.

Traditionally, most Aboriginal communities were matrilineal. The society traced the ancestry of the child through the mother. Similarly, the property of the family was inherited through the lineage of the mother. Customary responsibility of the Aboriginal women included supporting themselves, their households, and the whole community. Generally, the society considered women as makers of life and as primary participants in all things that concerned creativity including planting and harvesting, child bearing and upbringing. Aboriginal men and women engaged in divergent roles, which were necessary for community sustenance. These roles conferred mutual esteem for men and women in the Aboriginal people (Kanawayhitowin, 2008).

The power and respect Aboriginal women had in their communities gave them a voice and safeguarded them from abuse, sexual battering and stalking. Women nurtured and sustained their communities by performing roles such as building and maintaining houses, and directing the affairs of the family. Crops and land belonged to women instead of men. Men hunted for the community, but women skinned, packed and prepared the kill. However, during spring they would join their male counterparts in fishing. The customary roles of men including hunting, trade, and defense, kept them away often, which weakened their social position relative to the women’s (Kanawayhitowin, 2008).

  1. Describe the impact of European settlement on Aboriginal women, and on their position within their communities.  

The European arrival in Canada transformed the livelihood of Aboriginal women and men dramatically. As the Europeans settlers established fishing industries and fur businesses, they concurrently imposed their power over the Aboriginal peoples and their territories. White men structured European laws and were adopted in established patriarchal society that subjugated women. These laws affected women adversely subjecting them to acts of racism and sexism. Thus, the foreign society considered and viewed the positions of Aboriginal women as subordinate, and no longer equals to those of men, respectively (Hamilton, 2005).

In 1894, the European settlers amalgamated an Indian Act which played a dramatic role in disintegration of the Aboriginal culture. This Act diminished the worth of women in the society. Especially, the Act generated many issues for Aboriginal women by endorsing that only their male counterparts had the full right for consideration as Indian. The aboriginal women who identified with patriarchal lineage, or married to an Indian man qualified to be an Indian. However, if the Aboriginal woman marries a non-Indian man, the Act enfranchised her into the typical Canadian society (McKeon, 2008).

The Indian women, therefore lost various rights including the right to be called an Indian, to reside in a reserve, and be buried with her family on the reserve. In addition, the act denied them the right to vie for the posts of band chief or hold other posts on council of the band, or vote in band elections (McKeon, 2008)

Concurrent with the European encroachment of the Aboriginal land was the arrival of the missionaries. They believed it was their mandate to enlighten Aboriginal people and remove them from “uncivilized state”. They imposed their values, philosophies, and practices upon the Indians. Noteworthy, they supported the government in abolishing the customary matrilineal decent prototype and alienated the Indians into adopting patrilineal system (Frances & Tator, 2006).

  • How has this history affected contacts between Aboriginal women and the criminal justice system?

Aboriginal women comprise surprisingly big percentage of outlaws in the correctional institutions throughout Canada that even exceed those of their male counterparts. In fact, 71 percent of female inmates in Manitoba penitentiary were Aboriginal in 1982 while the proportioned increased to 85 percent in 1988 (Chartrand & Whitecloud, 2001). The rate of incarceration of Indian women has increased significantly. For instance, Aboriginal women are approximately 131 times more liable for incarceration than non-Indian women (Hylton, 1981).

This over-representation is partially an attribute of the oppression that Indian women experience. A study of incarcerated women of Indian ethnicity revealed that 27 out of 39 women experienced violence in their childhood in form of battering in juvenile correctional institutions by staff or fellow juveniles, witnessing recurrent beating of their mothers, witnessing of murder, sexual assault, and rape. These women had such experiences at different stages of their lives (Chartrand & Whitecloud, 2001).

A participant in a study conducted by Sugar and Fox (n.d, p. 8 in Chartrand & Whitecloud, 2001) had this sentiment:

There is no accidental relationship between our convictions for violent offences, and our histories as victims. As victims we carry the burden of our memories: of pain inflicted on us, of violence done before our eyes to those we loved, of rape, of sexual assaults, of beatings, of death. For us, violence begets violence: our contained hatred and rage concentrated in an explosion that has left us with yet more memories to scar and mark us.

Furthermore, survey by Chartrand and Whitecloud (2001) at the correctional institution in Portage underpinned cultural deprivation and poverty as the contributing factor for the negative contact of the Aboriginal women with the criminal justice system. The Indian women prisoners claimed that they were discriminated against as women and as Indians. They were of the opinion that they were unable to benefit from programs, including fine options that are meant to prevent people from being jailed, which are accessible to men. Importantly, the government designs these programs with the male in mind. They perceive that justice system staffs including judges treat them with barely any respect and understanding.

  1. What can be done to address the situation?

Aboriginal women would like the federal government of Canada address various issues. They are yet to get an equal say in Band organization and First Nations Organization dominated by men. The Indian men have concentrated on treaty rights and have; thus, downplay important issues that relate to women including child welfare, healthcare and housing.

The vulnerability of the Aboriginal women to violence augments the urgency for reforms in the criminal justice system. The Indians women have experience many grave problems in pursuit of justice during domestic quarrels or life threatening incidences because of cultural and racial stigmas (McKeon, 2008).

Indian women are more inclined to imprisonment than women of other ethnicity in Canada, which is an additional consequence of historical victimization and societal factors such as poverty. Therefore, the federal government should develop and endorse alternatives to incarcerations consistent with Aboriginal cultures for Aboriginal women (Chartrand & Whitecloud, 2001).

  1. Effects of residential school system
  2. Evaluate the origin of the system and examine its effects on Aboriginal children, parents and communities.

The residential school system contradicted the education system of the natives by far. Even though they did not have schools like most societies, their education system aimed to enlighten “the individual members of the community who they are, who their people are, and how they relate to other peoples and to the physical world” (Pinder, 1997), without which the community will not survive. Therefore, the endorsement of residential system translates to the destruction of the Aboriginal society.

The Aboriginal people did not embrace the system readily as they resisted its endorsement in their societies. The natives were forced to give up their economic activities such as hunting, farming and fishing which was the center of the community survival. They had to sedate the members of the communities by stopping them from conducting their economic activities to convert the natives into adopting the system (Pinder, 1997).

To keep the students, the missionaries had to establish a boarding school. This meant that the children were severed from their mothers whose responsibility revolved around the welfare of their children. The European authorities used children as the tool for accomplishing their political objectives through the residential school system (Pinder, 1997). This maneuver of the colonials affected the development of these children as the exposure to a foreign culture and detachment from their parents had a psychological implication on them.

Aside of the confinement of the children in boarding, the Europeans also took the children to their homes perhaps to labor in their homesteads. In reaction to this situation a leader of a Tadoussac band had argued: “you are continually asking us for our children and you do not give yours; I do not know any family among us which keeps a Frenchman with it” (Pinder, 1997). This sentiment reflects the oppression the Indians were suffering under the residential school system. The government through the system deprived them the love of their children. The taking away of the children from the Indians costs them a great deal in terms of emotions.

This system of education anteceded the taking away of the land of the Aboriginals. After the colonialist succeeded in taking the Indian children, it was easy later to take away their lands, and their religious believes. The schooling system was meant to make the Indian understand the dialect of the missionaries and the government. It was easier to coax the aboriginals to give up their lands once communication between the two strangers improves. Therefore, the system was inclined to profit the European rather than improve the livelihoods of the Aboriginals. In fact, it led to loss of their culture and societies. The fabric of the society was broken.

  1. Is it fair to say that the residential school system has contributed to Aboriginal peoples’ over-representation in the criminal justice system? Explain

Yes. The conditions suffered under the residential school system have contributed to the overrepresentation of the Aboriginals in the correctional institutions indeed. The adverse conditions generated intergenerational trauma. In this light, a survivor of the residential school had testified that the residential school had taught them violence. The various methods used to instill discipline in the Aboriginal kids including restraint, bruising, beatings, strapping, physical and corporal punishment, translated to violence. The students denoted violence to control and authority (Stonefish, 2007, p. 16).

Residential school system contributes to overrepresentation of Aboriginal imprisonment because of the negative persistent effects on their learning, family and education. When the stakeholders of the system fail to resolve negative abuses suffered by a generation, it leads to intergenerational trauma. Children who perceived physical, psychological and sexual abuse as normal, and who have not resolved this issues are inclined to continue the abuse with their children (Gauthier, 2010), and outsiders. This situation leads the Aboriginals to rub shoulders with criminal justice system more frequently than non-Aboriginals.


Reference list

Chartrand, P. L., & Whitecloud, W. J. (2001). Aboriginal justice Implelmentation Commission . Winnipeg: Commissioners.

Frances, H., & Tator, C. (2006). The colour of democaracy: racism in Canadian society. Toronto: Thomson Canada Limited.

Gauthier, M. (2010). The impact of the resdiential school, child welfare system and intergenerational trauma upon the incerceration of Abroiginals. . Ontario: Michael Gaunthier.

Hickman, A. T., Poitras, L. A., & Evans, G. T. (1989). Royal commission on Donald Marshall, Jr., prosecution. Nova Scotia: Royal Commission on the Donald Marshall, Jr., Prosecution.

Hylton, J. H. (1981). Locking Up Indians in Saskatchewan: some recent findings. Canadian Ethnics Studies , 13 (3), 144-151.

Kanawayhitowin. (2008). Traditional women’s roles. Retrieved September 11, 2012, from Kanawayhitowin:

McKeon, Katie. (2008). The journey of the Aboriginal women making. Women making change conference notes. [Online]

Pinder, L. H. (1997, January 18). Catalogues of atrocities: The history of native residentials schools in Canada is a devastating and depressing tale. The Vancouver Sun .

Stonefish, B. (2007). Moving beyond: Understanding the impacts of the residential school. Ontario: Ningwakwe Learning Press.


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