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Factors which case law has directed judges to take into account when deciding whether to deny or grant bail, or when considering the question of sentencing, often work against Aboriginal people. Not only is the accused judged by standards inappropriate to his or her community, but judicial dispositions may make little sense to an Aboriginal accused, because what judges take into account in sentencing may not have the same importance to the accused or to the community from which he or she comes.
The methods used by the Canadian legal system to resolve conflictsparticularly the adversarial systemare incompatible with traditional Aboriginal culture and methods of conflict resolution.
This is so even where Aboriginal peoples reside in communities where courts are readily accessible.
There is significant over-representation of Aboriginal people as individuals charged with offences and incarcerated in our penal institutions.Peace and harmony, the primary goals to which traditional Aboriginal concepts of justice were geared, have not been accommodated easily by an adversarial and adjudicative system.Also, it is clear that while Aboriginal peoples have many of the same legal problems as non-Aboriginal people, and some unique ones as well, they do not turn to the legal system to resolve them.The reason would seem to be that Aboriginal distance from Manitobas justice system is not simply a geographical phenomenon, it is also a cultural one.This is partly because the language of our courts is not clear, even to people for whom English is a first language.