Tackling roots of Indigenous incarceration
Special court, one of 13 in Ontario, is designed to deliver justice while healing wounds sustained generations ago
BRANTFORD — She holds the eagle feather and speaks her truth.
It begins generations ago, with residential schools and separation from community, land and language. It wends past sexual abuse and addiction. It tracks through foster homes and jail time, the apprehension of her children.
Her truth brings a torrent of tears and shame.
But as she looks around The Circle and locks eyes with the judge, the Crown attorney and the Knowledge Keeper, she knows that, in this unlikely place, her truth is being heard.
It is a small courtroom in Brantford’s Ontario Court of Justice.
The only people here are those who have been accepted by The Circle. That is the way of the Indigenous People’s Court (IPC).
The woman, whose sentencing circle it is, pleaded guilty to assault after punching a stranger in an unprovoked attack while she was intoxicated.
Anyone facing Ontario Court charges — such as assault, robbery, impaired driving, theft — who identifies as Indigenous can participate in IPC if they are willing to plead guilty. The only exception is domestic violence cases because it would be unjust for a victim and abuser to sit together in a circle.
Some Indigenous people are not interested in moving their matter to this specialized court, where their life becomes exposed.
Justice Gethin Edward, the great-great-great-great-grandson of Mohawk chief Joseph Brant, has come down from his bench to take a chair in the circle, where desks and podiums have been pushed away.
The feather is passed counterclockwise. Whoever holds it speaks. The first pass around the circle is for introductions. Everyone does this, even the court clerk and the special constable. If you are in the room, you are a part of the healing.
The feather begins in the hands of Frank Miller — Tehahenteh is his Mohawk name — a teacher and knowledge holder from Six Nations. He speaks in his traditional language and says the “historical trauma” experienced by Canada’s Indigenous people has seeped like poison from generation to generation.
“There is a disconnection that our people have suffered,” he says later. “I am there as support so they know there are people from their community who care. To let them know they are not the only person this has ever happened to. To give them something to hold on to.”
“Residential school — it’s getting further and further in the rear-view,” Lisa VanEvery says as she holds the feather. She writes Gladue reports to assist with sentencing.
“But trauma, unfortunately, trickles down . ... The behaviours that the children learned in these situations became behaviours that we had to deal with when they became adults.”
Edward speaks next. This court represents “a different approach to how we deal with Indigenous offenders.” It opened in January 2014 out of “a concern over the over-incarceration of Indigenous people.”
Forty-three per cent of all adult women in Canadian jails are Indigenous, nearly 50 per cent of youth in Canadian jails are Indigenous, and Indigenous people make up 26.4 per cent of the federal prison population.
Yet Indigenous people make up only five per cent of Canada’s population.
The offender begins her story. It starts with happy memories of cleaning ducks and muskrats after hunting, but plunges into tragedy and pain. Her defence lawyer, seated next to her, says barely a word. In this court, the accused speak for themselves.
“My real interest is hearing from the offender,” Edward says later in his chambers. “I have had feedback from participants saying this is the first time anyone listened to them. That’s extraordinary and an important part of them believing they have value. Each life has value . ... Usually, in a plea court, I only hear one word from offenders: ‘Guilty.’ ”
The second time around the circle is about accountability.
Edward once brought a Six Nations police officer into The Circle to tell an impaired driver about what it is like to be at a fatal crash caused by a drunk driver.
The offender on this day must understand the harsh reality of her addiction to alcohol.
“I know when I drink, I’m not the nicest person,” she tells The Circle. “I have a tendency to turn to alcohol when I feel lost and down . ... When I get drunk, it’s true, my anger comes out . ... My life is so shitty sometimes.” Edward takes the feather. “You have two challenges: alcohol and anger management,” he says. “It is really important that you come to grips with the idea that alcohol and anger are keeping you from being the person you want to be.”
The third time the feather goes around the circle, the talk is of consequences.
Aboriginal Legal Services will put together a treatment plan for her substance abuse and she will appear before Edward again in September.
In other cases, he has ordered offenders to finish school. He has written letters to employers asking for a second chance.
Brantford is one of 13 IPCs in Ontario. Sometimes called Gladue Courts, they are a response to the Supreme Court of Canada’s 1999 decision in R. v. Gladue, which found that judges needed to take into account the systemic, historical and personal factors that may have contributed to the Indigenous person appearing before them. One of the goals is to lower the rate of incarceration for Indigenous people.
The Ministry of the Attorney
General says it does not track the number of cases heard in IPCs.
There is a strong interest within Hamilton’s legal community in opening an IPC here. And, Edward says, there is interest in opening one right on Six Nations.
The IPC is “a court that really looks to the future and is not afraid to embrace change,” he says.
Edward tells a story of the moment he realized the regular court stream was making it difficult for judges to apply the Gladue principle.
He had in front of him two unrelated cases of driving while disqualified. One involved an Indigenous driver with a drug addiction who was in a methadone treatment program. He needed his car to get to his program. The other was a non-Indigenous offender.
“Driving is a privilege, not a right,” says Edward, who normally hands down 30-day jail terms for such a conviction. But in the case of the Indigenous driver, he was struggling with that sentence, knowing the impact that jail time would have and feeling the sentence wasn’t a good fit with Gladue.
“What’s the public perception going to be if I treat two offenders differently in a matter of minutes? Will they see that as justice? I wrestled with that. I ultimately sent both to jail for 30 days.”
Problems that land Indigenous offenders in the justice system are often unique and deep-rooted. The IPC focuses on fixing the roots of the problems.
“I want to keep them out of jail if I can,” Edward says. “In six months, they’re going to come out just as angry with the same problems that sent them in there in the first place.”
The court sits four times a month, hearing 10 to 12 adult and youth matters each day.
Edward is known for being a straight shooter, sometimes aiming his candour at himself.
To a sobbing woman in front of him in IPC recently, Edward apologized for “acting like a bit of a prick” at her last appearance.
He explained he was feeling pressured to hasten her progress through the court, in keeping with proposed federal legislation designed to prevent delays following a 2016 Supreme Court decision in R. v. Jordan, which sets ceilings on the time between the laying of charges and trial. But he realized that was conflicting with honouring Gladue.
“I’m not warm and ‘shwarmy.’ I can be nasty at times,” Edward says. “People can read genuineness. You can’t go into a circle with bullshit . ... This is a human being who’s going through a really hard time. We’re trying to make this person whole again.”