In other words, simply adding Aboriginal-specific provisions to the CCRA,⁸⁰ - “efforts at reform” - will not ameliorate the effects of discrimination caused by the application of a foreign justice system to Aboriginal peoples. This conclusion has only been underscored by the fact that the CSC has failed to breathe life into the provisions of ss. 79-84 of the CCRA for the community supervision of federally sentenced women and men, a reality which is, in itself, a breach of the government’s fiduciary duty (in this case, an unfulfilled promise) to Aboriginal FSW.

As Hutchins et al underscore:

The Courts have been quite clear that the Crown’s obligations towards Aboriginal peoples result in positive duties... Thus the failure of governments to address Aboriginal concerns when drafting policy can by itself constitute a breach of their fiduciary duties.⁸¹

This assertion arguably applies to CSC and its continued failure to draft policy, and to apply existing legislation and policy in a non-discriminatory way, thereby constituting a breach of CSC’s fiduciary duty to Aboriginal peoples and in particular to Aboriginal FSW. At the very least, CSC’s failure to implement key provisions of the CCRA, as they relate to Aboriginal FSW, constitutes a breach of CSC’s duty to Aboriginal FSW, a breach that has been ongoing. CSC has also failed to implement its own policy as it applies to Aboriginal FSW, a further and ongoing breach of the duty CSC owes to Aboriginal FSW.

Judges Hamilton and Sinclair were correct in stating that Aboriginal peoples’ right to self-government is essential to the proper administration of justice:

To enable this to be done, Aboriginal communities must have the right, as a part of self-government, to establish their own rules of conduct, to develop means of dealing with disputes (such as courts or peacemakers), appropriate sanctions (such as holding facilities or jails), and the full range of probation, parole, counselling and restorative mechanisms once applied by First Nations. ⁸²