3. CSC’S Breach of Fiduciary Duty to Aboriginal Peoples

The fiduciary relationship… provides a unique opportunity to challenge the colonial underpinnings of the relationship between the criminal justice system and First Peoples.⁶⁹

In light of Aboriginal peoples’ historic relationship with the Crown and the rights enshrined in s. 35(1) of the Constitution Act,⁷⁰ CSC owes a special fiduciary duty to Aboriginal people and in particular to Aboriginal people serving federal sentences. By CSC’s own admission:

….CSC should actively try out alternative ways of tapping into, documenting – and correcting – the numerous aboriginal rights concerns that undoubtedly exist.⁷¹

This paper advances two key arguments regarding CSC’s breach of its fiduciary duty to Aboriginal FSW. Firstly, as articulated in the previous section, CSC owes a duty to all FSW, including Aboriginal women. Secondly CSC owes a duty to Aboriginal⁷² federally sentenced women and men because of the unique relationship between the Crown and Aboriginal people.

In the paragraphs that follow, the second issue is canvassed, namely that CSC is in breach of its fiduciary duty by, for example, imposing a foreign justice system on Aboriginal peoples that has been proven to discriminate against and further marginalize Aboriginal FSW, overclassifying Aboriginal FSW such that they serve their sentences in harsher conditions, and failing to negotiate agreements with Aboriginal communities that would facilitate the return of Aboriginal FSW to those communities.