Indigenous People in Ontario Get Their Own Court
The Ottawa Courthouse where the Indigenous Peoples’ Court will hear cases.
On September 11, 2017, the first Ottawa-based indigenous peoples’ court began hearing cases.
After five years of planning and a little bit of court nudging, the first indigenous peoples’ court is now a reality in the Canadian capital.
The drive for having such a court goes back to a Canadian Supreme Court decision in 1995 that courts must account for the Gladue principles when reaching decisions. These principles, which require the careful consideration of an indigenous person’s history when he or she is facing incarceration, can help the courts make better-informed decisions.
The Supreme Court also had the objective of finding a way to cut back on the rapidly rising number of indigenous people being incarcerated.
Until the first of these kinds of courts began to appear, the alternative for indigenous people was to request what was known as a “Gladue report.” This report included a look at the systemic issues that might have contributed to the commission of the crime. Forced re-settlement and trauma associated with residential schools are just two examples of what the Gladue report was asked to look at.
Since the 1995 Supreme Court decision, the requirement to look at such issues for crimes involving indigenous peoples has been formally written into the Criminal Code of Canada.
Gladue reports were hard to come by, however, requiring the use of a Legal Aid-appointed writer and applying only to people facing more than 90 days behind bars. Lawyers complained that sometimes it would take months for those entitled to and asking for a Gladue report to receive one.
Having a dedicated indigenous peoples’ court in Ottawa will eliminate the need for a Gladue report in the region.
Once this court is up and running, those who identify as First Nation, Métis or Inuit can request to have their cases transferred to it.
As for how important it is for those now eligible to use the court, Jason Leblanc, executive director of Tungasuvvingat Inuit in Ottawa, said that members of his community, a substantial number of whom may have moved from the eastern Arctic, feel very much out of place in a conventional urban setting. Those shifts in location and lifestyle can have a major impact on their lives. In a recent interview, he said: “It’s the cumulative element of de-powering and the trauma they face. A lot of time that manifests in not being able to pass on values and be self-determined Inuk.” He went on to explain that “a lot of time, acts or elements of criminality are a symptom of some underlying gap in healing or an inability to connect to one’s culture and values.”
Like with other courts, there will be a rotation of judges who will be dealing with many different kinds of criminal offences.
Unlike other courts, though, this one will not conduct any trials. It will also sit for only two half-days each week, initially.
The radically different nature of this court could end up making a major impact on the lives of many indigenous people. And this new court may also perhaps suggest another way for the rest of us to think about the nature of justice, how court decisions are rendered and whether there is a better way for conventional courts to operate in the future.