Introduction
Overrepresentation of Indigenous Peoples in the federal and provincial criminal justice systems is a multifaceted issue caused by colonialism, socioeconomic marginalization, and systemic discrimination in policing and the court system. There are glaring issues that continue to negatively impact Indigenous Peoples in their interactions with Canada’s non-Indigenous criminal justice system. This blog explores the significant changes in Canadian law that have set the stage for the establishment of Indigenous-based courts in Canada.
Decolonizing Justice
There is an accelerated Truth and Reconciliation movement in Canadian criminal law which recognizes that colonization forced Indigenous Peoples into a criminal justice system foreign to their lifeways and cultural understandings of justice. Despite the signing of various Treaties across Canada, recognition of traditional laws and customs was largely eroded, if not completely erased, with the arrival of colonizers.
Today, in interactions with Canada’s non-Indigenous criminal justice system, Indigenous Peoples continue to be negatively impacted by ongoing colonialism and systemic racism inherent in the criminal justice system, resulting in the overrepresentation of Indigenous youths and adults in Canada’s custodial institutions. Indigenous Peoples currently comprise only 4.9% of the Canadian population but constitute over 32% of the prison population. Self-governed Indigenous courts rooted in Indigenous laws, legal traditions, and cultural practices have long been championed as the Indigenous-based solution to decolonizing Canada’s non-Indigenous criminal justice system.
Setting the Stage for Indigenous-based Courts in Canada
Sentencing initiatives specifically focused on Indigenous Peoples have played an integral role for the impetus to establish Indigenous-based courts in Canada. In the 1960s and throughout the 1970s, academic research and government reports on sentencing reform in Canada grew, bringing academic, political, and institutional attention to the systemic discrimination inherent in the criminal justice system. Such research also shed light on the disproportionate rates at which Indigenous Peoples were entering into the criminal justice system, including the unique circumstances, perspectives and needs of Indigenous people. By the 1980s, numerous federal and provincial task forces and commissions of inquiry were initiated to further investigate the treatment of Indigenous Peoples in Canada’s criminal justice system, such as the Aboriginal Justice Inquiry of Manitoba (1988) and the Royal Commission on Aboriginal Peoples (1991).
By the 1990s, significant changes were taking place in Canadian criminal law. Sentencing circles, Criminal Code amendments and Supreme Court of Canada (SCC) decisions, including the community initiatives that arose from those decisions, were some of the more important and distinct initiatives during this period.
Sentencing Circles
The initial use of sentencing circles in Canadian criminal law began in the Yukon and were primarily held in more remote Indigenous communities where the court was not a constant presence. Participants in these circles included the judge, the person being sentenced, their support persons, the Crown prosecutor, the police and members of the community. Together they were tasked with crafting an innovative community-based sentence where the individual did not inevitably need to leave the community to serve a sentence.
In the decision of R v. Moses, Judge Stuart of the Yukon Territorial Court commented that “First Nations have the best knowledge and ability to prevent and resolve the long list of tragedies plaguing their communities.” In describing the work of peacemaking circles in the Tsuu T’ina Peacemaking Court, established in Alberta in 2000, Judge Mandamin, an Ojibway Alberta Provincial Court judge, commented that the circles themselves are a way to “resolve the conflict, heal the offender and the victim, and restore relationships.” Although sentencing circles have been criticized in the past for taking too long to administer and for absorbing a large number of unpaid community resources, including for example Indigenous community members participating in the circles as volunteers, they are nevertheless an important sentencing option for applying an Indigenous-based approach to Canada’s non-Indigenous criminal justice system.
Amendments to the Canadian Criminal Code
In 1996, the Parliament of Canada enacted significant amendments to the Criminal Code. Among those amendments was section 718.2(e), which specifically directed sentencing judges to consider all reasonable and available alternatives to prison with particular attention to the circumstances of Indigenous peoples. This provision formed part of an extensive series of amendments that directed courts to reduce their reliance on prison sentences and to explore all available alternatives. New sentencing options like conditional sentences (being prison sentences served in the community), as well as expanded options for alternative measures, were some of the important alternatives to traditional prison sentences being introduced at this time. This series of amendments would place restorative justice sentencing objectives alongside the traditional objectives in Canadian sentencing jurisprudence, namely the traditional objectives of denunciation and deterrence.
Landmark Decision: R v. Gladue
Following the Criminal Code amendments in 1996, the SCC would further clarify the significance of section 718.2(e) in the landmark case of R v. Gladue. In this ground-breaking decision, the SCC denounced the overrepresentation of Indigenous peoples in the criminal justice system. The Court noted that the causes of overrepresentation were not just linked to colonialism, but also the direct and systemic discrimination that Indigenous Peoples face every day in the operations of the criminal justice system. The Court also recognized the need for sentencing judges to have information on the personal and systemic factors leading to the involvement of Indigenous Peoples in the criminal justice system, including information on available sentencing options.
The development of Gladue reports in the early 2000s would inevitably become one of the more fulsome ways for providing Canadian sentencing judges with the information they needed when sentencing Indigenous people appearing before the courts on criminal matters. Gladue reports essentially tell the story of a person’s life, along with that of their family, and address systemic factors such as the imposition of residential schools, the forced relocation of Indigenous communities, substance use and intergenerational trauma. These reports also discuss a person’s strengths and challenges and typically conclude by recommending sentencing options to the court.
Gladue reports were developed to support the work of Canadian courts, including emerging Indigenous-based courts, and are incredibly important sentencing tools for informing and guiding the sentencing process for Indigenous Peoples. They are, however, not always readily available. According to a list of Gladue and Indigenous-based courts in Canada, made available to the public in 2022 by the Canadian Bar Association, the Northwest Territories does not currently use Gladue reports for sentencing. Furthermore, in Newfoundland and Labrador and Saskatchewan, neither province has implemented a Gladue writing program to date.
Conclusion
Sentencing circles, Criminal Code amendments, SCC decisions and Gladue reports are all important and distinct initiatives that have interacted with each other over several decades to set the stage for the establishment of self-determined Indigenous-based courts in Canada. The First Nations’ Court in New Westminster, British Columbia, for one, recognizes that these initiatives, along with the work and vision of Judge Marion Buller and others both in and outside of the criminal justice system, were instrumental in its creation and launch in 2006. The development of Indigenous-based courts continues to gain momentum across Canada, with the ultimate goal of self-governance.