The federal government needs to hear from First Nations about criminal justice reforms. Here’s some background.

Criminal Law

In a statement at year’s end in 2016, the Minister of Justice Jody Wilson-Raybould reviewed some of her priorities including the following work:

I have also embarked on the long-term, collaborative work of reforming our criminal justice system so that it better serves Canadians. We have held roundtable conversations across the country, where we heard diverse local, provincial, and territorial perspectives on current realities and on ways to improve the justice system. The transformation of the criminal justice system will be a key priority throughout my mandate.

On Friday, May 26, 2017 a roundtable was held with members of the judiciary, criminal justice bar, specialized legal clinics, Aboriginal Legal Services and the African Canadian Legal Clinic representatives, among other “experts” in Toronto.    The Department of Justice has launched the Federal Criminal Justice System Review (“the Review”), which will carry out a comprehensive review of the criminal justice system, including tough-on-crime laws enacted by the previous Conservative government.  The Ontario Regional Chief was invited and he suggested I also attend as one of his advisors.

The Trudeau Government premises these discussions with First Nation on the “Nation to Nation” relationship and wider government commitments to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and the Truth and Reconciliation Commission’s Calls to Action.   For ease of review, the TRC relevant “Calls to Action” are appended to this blog.  The important UNDRIP article is the following:

Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards.

Article 34 could be utilized to assert a right to alternative/Indigenous justice institutions, these institutions may better accommodate Indigenous laws, jurisdiction, and philosophies of criminality and restoring community balance through healing.  Moreover, the November 2015 mandate letter for the Justice Minister/Attorney General of Canada spoke about restorative justice in a way that could open the door to Nation to Nation discussions on Indigenous forms of criminal justice and potentially, alternative justice systems:

…conduct a review of the changes in our criminal justice system and sentencing reforms over the past decade…and ensuring that current provisions are aligned with the objectives of the criminal justice system. Outcomes of this process should include increased use of restorative justice processes and other initiatives to reduce the rate of incarceration amongst Indigenous Canadians…”

The overarching need for reform is the Conservatives’ “tough-on-crime” legislative agenda, and the ill-advised mandatory minimum sentencing terms for various crimes.  These measures have had a large impact on Indigenous accused of crimes and their Charter rights protections.   Additionally, Minister Wilson-Raybould appears to support critics who argue that the strict regimes have taken away important judicial discretion. It is important to note that increasing a decision-maker’s discretion may be a “mainstream” fix, but without representation (Indigenuos defence counsel, Crown lawyers, Indigenous judges and other Indigenous cultural competency measures) increased discretion could pose a “bias” problem.  The assessment of the Criminal Justice system will, among other things, examine the financial costs and whether the changes have made Canadians safer. The Review will also examine case law as it applies to criminal sentencing under the previous regime.

Minister Wilson-Raybould has indicated that the Review will ensure that governments respect the decisions of the Supreme Court of Canada and that that sentencing provisions are in compliance with the Charter of Rights and Freedoms. It is anticipated that R. v. Jordan, a 2016  Supreme Court Decision will play a key role in the assessment process under the Review.

In R. v. Jordan, the majority court recently made broad and sweeping changes to the framework that determines whether an accused has been tried within a reasonable time under s. 11(b) of the Charter. In Jordan, the court concluded that the delay of 49.5 months in concluding the trial of the accused was unreasonable. The majority of the Court held that the existing legal methods to ensure a timely trial were too unpredictable, confusing, and complex, and it contributed to the chronic delays that it was intended to prevent. The Court developed a more regimented framework with a prescribed time ceiling, intending to deter complacency.

This criminal justice reviews by the Department of Justice open the door to advance Indigenous justice reforms, but there is a threat the Jordan response will overtake any other progressive reforms out there.  It is therefore, important to have a strong voice and position shared by many First Nations, their organizations and representatives.

A shared priority, among all Roundtable participants including Bill Blair, MP and Parliamentary Secretary to the Minister of Justice — during the May 26th roundtable was the priority of reducing the overrepresentation of indigenous peoples in the criminal justice system. It was clear that the Department of Justice supported alternative measures, such as drug treatment courts and specialty courts that seek to limit what becomes, in many circumstances, a revolving door of people who present themselves into the criminal justice system, so as to develop off-ramps for people in the hope of ensuring that their first encounter with the criminal justice system is their last.  This goal is a shared vision for First Nation leadership, but more advocacy is needed.

Restorative justice was identified as a key priority for the Department of Justice. It will examine different approaches to the justice system and options for developing programs or support programs that are more successful, while continuing to support ongoing justice initiatives. Justice Canada intends to work in partnership with First Nations on solutions that work, including ensuring that Gladue principles are applied when an Indigenous person is sentenced. It commits to continuing to support initiatives that reflect the realities of an individual’s circumstances, and cultural appropriateness for Indigenous offenders.

The Chiefs of Ontario has a mandate for: A Strategy to Work Towards the Reconciliation of Overrepresentation of First Nations Peoples in the Justice and Correctional System:

  • Advocate for greater access to justice for First Nations people which includes, but is not limited to,…access to First Nations youth justice initiatives,…diversion and alternative sentencing, elder counseling, and language interpretation services.”; and “Reject use of mandatory minimums in sentencing in order to allow judges the discretion to deal with unique First Nations circumstances.”

As a lawyer and former Chief of Couchiching First Nation, I was honoured to be engaged in this process with the Chiefs of Ontario. 

The following items where brought up at the May 2017 roundtable:

  • Diversions needs to be more widely available for First Nation citizens encountering the criminal justice system: more courts, more trained personnel, a wider certainty of types of charges that may diverted and more resources overall;
  • Legal aid and defence lawyers need to be more culturally competent to ensure that First Nation citizens’ Charter rights are protected to the full extent of the law;
  • There needs to be a government to government discussion with First Nations on bail and release conditions for citizens reintegrated back to First Nations, this is especially true for citizens who pose a threat or harmed persons in the community;
  • Support for alternatives in sentencing, including wider use of conditional discharges but mindful of the resources available and not available in First Nation communities and the need to discuss properly resourcing First Nations to offer these alternatives and supervision;
  • The need for institutions of healing for First Nation offenders so that they do not re-offend and other measures within the community are available so that communities themselves can heal and be safe and responsive places for our children, youth, elders, women and men.

There is also the need for “Nation to Nation” discussions on matters beyond Criminal Justice that certainly impacts our citizens and communities and results in the over-incarceration of our First Nations citizens in federal and provincial institutions.  The Review might extend to other matters, but the importance of Indigenous over-representation requires remedies and a better relationship in the short, medium and long-term and is an important part of the Truth and Reconciliation Calls to Action.

Letters to the Minister may be sent to her public email at: Jody.Wilson-Raybould@parl.gc.ca

The Honourable Jody Wilson-Raybould
Minister of Justice and Attorney General
284 Wellington Street
Ottawa, Ontario
K1A 0H8

Appendix:  Truth and Reconciliation Calls to Action relevant to the Criminal Justice Review process.

  1. We call upon the federal government, in consultation with Aboriginal peoples, to establish measurable goals to identify and close the gaps in health outcomes Calls to Action 3 between Aboriginal and non-Aboriginal communities, and to publish annual progress reports and assess longterm trends. Such efforts would focus on indicators such as: infant mortality, maternal health, suicide, mental health, addictions, life expectancy, birth rates, infant and child health issues, chronic diseases, illness and injury incidence, and the availability of appropriate health services.
  1. We call upon federal, provincial, and territorial governments to commit to eliminating the overrepresentation of Aboriginal people in custody over the next decade, and to issue detailed annual reports that monitor and evaluate progress in doing so.
  1. We call upon the federal, provincial, and territorial governments to provide sufficient and stable funding to implement and evaluate community sanctions that will provide realistic alternatives to imprisonment for Aboriginal offenders and respond to the underlying causes of offending.
  1. We call upon the federal government to amend the Criminal Code to allow trial judges, upon giving reasons, to depart from mandatory minimum sentences and restrictions on the use of conditional sentences.
  1. We call upon the federal, provincial, and territorial governments to recognize as a high priority the need to address and prevent Fetal Alcohol Spectrum Disorder (FASD), and to develop, in collaboration with Aboriginal people, FASD preventive programs that can be delivered in a culturally appropriate manner.
  1. We call upon the governments of Canada, the provinces, and territories to undertake reforms to the criminal justice system to better address the needs of offenders with Fetal Alcohol Spectrum Disorder (FASD), including:
    1. Providing increased community resources and powers for courts to ensure that FASD is properly diagnosed, and that appropriate community supports are in place for those with FASD.
    2. Enacting statutory exemptions from mandatory minimum sentences of imprisonment for offenders affected by FASD.
    3. Providing community, correctional, and parole resources to maximize the ability of people with FASD to live in the community.
    4. Adopting appropriate evaluation mechanisms to measure the effectiveness of such programs and ensure community safety.
  1. We call upon the federal government to eliminate barriers to the creation of additional Aboriginal healing lodges within the federal correctional system.
  1. We call upon the federal, provincial, and territorial governments to work with Aboriginal communities to provide culturally relevant services to inmates on issues such as substance abuse, family and domestic violence, and overcoming the experience of having been sexually abused.
  1. We call upon the federal government to provide more supports for Aboriginal programming in halfway houses and parole services.
  1. We call upon the federal, provincial, territorial, and Aboriginal governments to commit to eliminating the overrepresentation of Aboriginal youth in custody over the next decade.
  1. We call upon the federal government to develop a national plan to collect and publish data on the criminal victimization of Aboriginal people, including data related to homicide and family violence victimization.
  1. We call on all levels of government, in collaboration with Aboriginal people, to create adequately funded and accessible Aboriginal-specific victim programs and services with appropriate evaluation mechanisms
  1. We call upon the federal, provincial, and territorial governments to commit to the recognition and implementation of Aboriginal justice systems in a manner consistent with the Treaty and Aboriginal rights of Aboriginal peoples, the Constitution Act, 1982, and the United Nations Declaration on the Rights of Indigenous Peoples, endorsed by Canada in November 2012.
  1. In keeping with the United Nations Declaration on the Rights of Indigenous Peoples, we call upon the federal government, in collaboration with Aboriginal organizations, to fund the establishment of Indigenous law institutes for the development, use, and understanding of Indigenous laws and access to justice in accordance with the unique cultures of Aboriginal peoples in Canada.
  1. We call upon all levels of government to provide annual reports or any current data requested by the National Council for Reconciliation so that it can report on the progress towards reconciliation. The reports or data would include, but not be limited to:
    1. Progress on eliminating the overrepresentation of Aboriginal children in youth custody over the next decade.
    2. Progress on reducing the rate of criminal victimization of Aboriginal people, including data related to homicide and family violence victimization and other crimes.
    3. Progress on reducing the overrepresentation of Aboriginal people in the justice and correctional systems.

By Sara Mainville