In­dige­nous Peo­ple in On­tario Get Their Own Court

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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.

Photo by Si­monp, CC

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