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5 Years After TRC: Is Canada Making the Grade?

Tansi, 

December 2020 marked 5 years since the TRC final report was released with 94 Calls to Action for truth and reconciliation with Indigenous people.  To commemorate this juncture, Team ReconciliAction set out to evaluate progress on each of the Calls to Action in the 5 years since their release. 

It has been quite a year for our team.  In addition to our ongoing report card, we attended the Indigenous Bar Association annual conference, the ILSA speaker series, the Kawaskimhon Moot, the Barton trial, Indigenous language engagement sessions, various faculty talks, we won a Clawbie and we attended protests, marches and vigils.  And we shared all of it with you, our dear audience.  We appreciate all of the engagement we've had this year on the blog and on our social media accounts, and we want to thank everyone who joined the conversation on reconciliation this year.  

Today, we release our final report card, and the culmination of our work over the 2020/21 academic year.  To those who have followed the progress, you have probably figured out that the report card on 5 year progress is bleak.  The few bright spots in reconciliation progress have come at the organizational level, where institutions could quickly work to address the Calls specific to them.  There has been little to no progress on more systemic change that requires governmental action, and in many cases we have actually seen a backslide.  For example, Prime Minister Justin Trudeau has ceased making his emphatic statements that Canada's relationship with Indigenous people is the most important relationship, and here in Alberta we are looking into curriculum changes that exclude education on the legacy of residential schools.  

The takeaway from our report card is that Canada has much work to do, and likely needs to make significant increases to funding and efforts to correct some of these systemic issues in housing, healthcare, the justice system, child welfare and anti-racism.  So what comes next?  Will Canada stop fighting against Indigenous children?  Will Justice Minister David Lametti acknowledge the importance of Indigenous language speakers in this country and allow the bilingual requirement for the SCC to include languages other than colonial ones?  Will communities get clean drinking water?  Will provincial governments denounce racism in education and healthcare?  I mean, we hope so and each of us plans to continue the discussion beyond this blog.

We aren't saying goodbye yet, though.  Stay tuned next week as we get some final thoughts off our chest, and the week after for our individual reflections on the year.  

And now, for those of you who have not already scrolled ahead - The final grade:

Until Next Time,

ReconciliAction YEG

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Re: MMIWG2S Movement is taking back Canada

Tansi Nîtôtemtik,

On March 13, 2021 people from across the country united in a nationwide“Take Back Canada”  rally to honour and commemorate the lives of those women who have been murdered or are missing. Families and friends of Missing and Murdered Indigenous Women, Girls and Two-Spirit Individuals  (MMIWG2S) and those wanting to bring awareness participated in various ways such as online forums, socially distanced marches and rallies, or from their homes by hanging a red dress from their windows or on their lawns in solidarity.

Photo Credit: Anita Cardinal-Stewart

The need to bring awareness for MMIWG and the “No More Stolen Sisters” campaign has gained momentum, especially in the last year with the noticeable increase in posts on social media circulating information about women going missing across the province. However, this increased awareness lacks media coverage or timely action from law enforcement in taking reports seriously or investigating those reports. 

Closer to home, the murder of Billy Johnson last December has brought friends, family and community together in the heartbreaking search mission for recovery of her body every weekend for the last month.^[1] Billy Johnson’s older sister Arianne Snakeskin said “we just want to bring her home and we want to bring awareness to the MMIW so that more families don't have to continue to go through this, it’s hard” in a Global News interview. In that same interview, she spoke about how the Edmonton Police Services’ (EPS) response was concerningly slow when her family reported Billy missing and for weeks would not release any information until the person responsible was charged. Further, when the family asked for help to search with a helicopter the EPS said it was too expensive.^[2]

If we want to improve the safety of indigenous women and girls, there must be a concentrated effort to address long-standing inequities on a systemic level in the institutions that hinder those women and their families from getting the kinds of supports they need.

Attendees and participants of the “Take Back Canada” rally call on the federal and provincial governments to take action on the 231 calls for justice made during the national MMIWG inquiry. Standing together in solidarity is a way to bring national attention to these calls for justice and these campaigns, even if it is hanging a red dress in your window or going to a rally, the cause needs all our support to do so.  

The pandemic creates additional challenges and increased situations of violence, which have had a profound effect on the health of women over this past year. It is estimated that one in five indigenous women reported being a victim of violence during the early pandemic months. According to a report ^[3] by the Native Women’s Association of Canada (NWAC), Indigenous women are 3.5 times more likely to experience violence compared to non-Indigenous women. The NWAC Report also found an increase in the number of violent incidents, usually by an intimate partner, and that one in five women reported being a victim of physical or psychological violence during the first three months of the pandemic.^[4]

One of our ReconciliAction team members attended the rally in Edmonton this past weekend to stand as a witness and was very honoured to be apart of the emotional and impactful event. The words of the survivors and loved ones who held signs of those they are remembering must be witnessed, and we at ReconciliAction stand in solidarity with the MMIWG2S and No More Stolen Sisters Movements.

Thank you for reading. 

Until next time,

Team ReconciliAction

 

[1] https://globalnews.ca/news/7638333/edmonton-missing-woman-billie-johnson-search/amp/

[2] Ibid

[3] https://www.nwac.ca/wp-content/uploads/2015/05/Fact_Sheet_Violence_Against_Aboriginal_Women.pdf

[4] Violence against Indigenous women up during early days of pandemic (aptnnews.ca)

Justice For Cindy Gladue: The Barton Trial Verdict

(Artwork by Jon Labillois)

 

Tansi Nîtôtemtik,

“Me & my sisters were close to my mom, we told her everything, she was like our best friend. She was such a helpful person, she would cook sometimes & she loved baking. She always cooked grandma breakfast. My mom was really good at drawing & she liked writing too. It’s hard for me & my sisters growing up with out our mom here, we all miss her so much.” – Brandy (Cindy Gladue’s Daughter)^[1]

(Cindy Gladue, pictured with her daughters. Image Credit: KATHRYN BLAZE CARLSON, “More than a tragic headline: Cindy Gladue dreamt of a happy life”, (15 May 2015), online: The Globe and Mail <https://www.theglobeandmail.com/news/national/the-death-and-life-of-cindy-gladue/article24455472/>.

We at Team ReconciliAction discussed sharing our perspective on the trial, defence strategies, and the traumatic evidence that told the story of the night Cindy Gladue was killed.  Instead, we have decided to embrace the morsel of justice for Cindy that came on February 18, when a jury found Bradley Barton guilty of manslaughter for causing the injuries that Cindy Gladue died from.

There were some differences this time around during the trial. First, we think it important to note that most involved in the trial were more conscious of Cindy Gladue as a human being first and foremost.[2] This is in stark contrast to the dehumanizing language and evidence presented in the first trial and highlights a long overdue recognition of bias in the legal system.  Importantly, Justice Hillier gave instruction about bias and stereotypes against Indigenous women and against sex workers at various points in the trial.  These statements were taken seriously enough by at least one juror, who reported statements made by another juror that could demonstrate a bias against sex work.[3]  Ultimately both of these jurors were dismissed from the jury to ensure that personal views about sex work would not taint the deliberations of the jury.[4]

Another major difference was that Barton’s internet search history, which contained searches for violent pornography similar to the type of activity that would cause injuries that killed Cindy Gladue, was allowed into evidence.[5]  In the first trial, this evidence was found to be too prejudicial in comparison to any probative value.

Despite the effort to remain sensitive to Cindy’s humanity, the trial could not escape the graphic and violent details of her tragic death.  Cindy’s loved ones, jurors, media, and other trial participants were subjected to horrific images and testimony and forced to relive the loss and trauma an entire decade later.  A guilty verdict is a step toward justice for Cindy, but the damage has been done.  Cindy was the victim of a violent act that killed her, and then was victimized again and again and again by a legal system that has never been designed to bring justice to Indigenous people, and to Indigenous victims of crime. 

To date, Cindy is one of thousands of Indigenous women who have gone missing or been murdered in Canada. 

Thousands.[6] 

The disappearances and killings of thousands of Indigenous women has been an epidemic in Canada since the earliest days of colonialism. 

Thousands. 

(Image Credit: Kairos Canada)

The grief of Cindy’s loved ones is intergenerational, and the sheer number of women lost is demonstrative of the value given to the lives of Indigenous women. These women are life givers, they are loved and they are needed. They are language speakers and knowledge keepers.  They are mothers, and kokums and cousins and sisters and they are the most beloved of Aunties.  And far too many of them are gone. 

When we think of Justice for Cindy Gladue, we do not feel a guilty verdict amounts to justice.  We do not yet know what consequence Bradley Barton will face for causing Cindy’s death, and we do not yet know if there will be an appeal.  But we do know that no amount of legal proceedings will give Cindy back to her family and friends.  And we know that as long as Indigenous women continue to be murdered and go missing at disproportionate rates, Indigenous women, including Cindy, do not have justice.

 

Until Next Time,

ReconciliAction YEG

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[1] Muriel Stanley Venne et al, OUR BREAKING POINT: Canada’s Violation of Rights in Life and Death (Edmonton, Alberta: Institute for The Advancement of Aboriginal Women, 2016) at 6.

[2] Kathleen Martens, “Lawyer for the family on hand to guard victim’s memory”, (2 February 2021), online: APTN News <https://www.aptnnews.ca/national-news/cindy-gladue/>.

[3] Jonny Wakefield, “Guilty verdict in Bradley Barton trial: Ontario trucker convicted of killing Cindy Gladue in Edmonton hotel room in 2011”, (20 February 2021), online: Edmonton Journal <https://edmontonjournal.com/news/local-news/jury-decides-fate-of-man-facing-manslaughter-for-2011-death-of-cindy-gladue-at-edmonton-hotel>.

[4] Ibid.

[5] Ibid.

[6] Muriel Stanley Venne et al, supra note 1 at 26;  This resource contains an 11 page non-comprehensive list of the names of missing and murdered Indigenous women .

Justice for Colten: Advocacy Against Systemic Racism in Canada's Legal System

(Artwork by Grace Berrios, Colton Boushie Quote Card for Rise Up Media) 

Tansi Nîtôtemtik,

February 9 was the anniversary of Gerald Stanley’s acquittal.  For those who aren’t aware, Gerald Stanley was accused of killing Colten Boushie after Colten and some friends drove onto his rural Saskatchewan property.  Gerald Stanley was not convicted of this killing, despite the fact that Colten was killed by a close range gunshot in front of his friends and the son of Gerald Stanley.  Colten’s friends said they drove onto the property for help with a flat tire, and Gerald Stanley claimed that he approached the vehicle with his gun when he suspected the group of trying to steal an ATV, and the gun ‘hang fired’ into the back of Colten’s head.[1]

When reflecting on the news and social media reports of Colten’s death in 2016, it is striking to recall the vitriol of people who justified shooting and killing trespassers and who leaned on racism to support that justification.  Comments like “the only mistake was leaving 3 witnesses” (made by a SK municipal councillor) were pervasive, and people seemed quick to point fingers at the four friends while supporting the actions of Gerald Stanley.[2]  The RCMP and trial followed this pattern.  The investigation focused heavily on the 4 young occupants of the vehicle, and Colten’s friends were even arrested along with Gerald Stanley.[3]  Colten’s family members have stated that throughout the proceedings, it often felt like Colten was on trial and that Gerald Stanley was being treated as the victim.[4]  In fact, media publications would refer to the trial as the “Colten Boushie trial”, when it was Gerald Stanley who was on trial.  

There were other issues with the investigation and trial process.  The investigator in such a major incident was an inexperienced junior officer.[5]  The crime scene was left uncovered in the rain for two days and was not attended by any forensic expert.[6]  Colten’s mother was informed of his death by the RCMP as they searched her home, weapons drawn.  She was told to “get it together” and asked if she was drunk.[7]  During jury selection peremptory challenges excluded any juror who appeared Indigenous, and the selected jurors were not asked about possible racial bias or pre-trial public influence impacting their ability to remain objective.[8]  During the trial, the prior criminal records of the witnesses were discussed to discredit the victim and his friends.[9]  The trial judge did not inform the jury about the requirements of self defence or defence of property, which Gerald Stanley was not formally pleading but was clearly relying on.[10]

In the end, Gerald Stanley was acquitted, and Colten’s loved ones are left seeking justice.  The Saskatchewan crown prosecutors declined to appeal the acquittal stating there was no error in law, ending the proceedings that might have brought closure to Colten’s loved ones.

The verdict was controversially denounced by Prime Minister Justin Trudeau and then Justice Minister Jody-Wilson Raybould and sparked an omnibus bill that abolished peremptory challenges.[11]  This legacy is just one of the many Colten has inspired.  Colten’s family used their grief to fuel incredible advocacy for the way Indigenous people are treated by the legal system.  This advocacy has taken them all the way to the United Nations to seek justice for Colten.[12]  Team ReconciliAction encourages our readers who have not yet seen the award-winning film nîpawistamâsowin: We Will Stand Up by Tasha Hubbard to watch this powerful telling of Colten’s story and the advocacy and work his family has done.[13]  

(Image: Tasha Hubbard, nîpawistamâsowin: We Will Stand Up (2019).)

In the meantime, we ask our readers to consider the first time they heard about Colten and recall the context in which the story was presented.  Was there any bias?  Do you think the story might have been told differently if the farmer was Indigenous and the car full of youth were white? Do you think bias seeps into our legal system in a way that makes it a system of justice for only some of the people who come into contact with it?  We talk a lot about the overrepresentation of Indigenous people in the legal system, and the lack of representation in the legal profession, but what happens when an Indigenous person is the victim of a crime? How is our system set up to properly care for victims and their families?

For today, we will leave you with those questions to ponder.

#JusticeForColten

Until Next Time,

ReconciliAction YEG

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[1] David Giles & Nathaniel Dove, “Calls grow for public inquiry into death of Colten Boushie, acquittal of Gerald Stanley”, (19 February 2020), online: Global News <https://globalnews.ca/news/6566640/public-inquiry-colten-boushie-gerald-stanley/>.

[2] Ian Austen, “A Murder Trial Stirs Emotions About Canada’s Relations With Indigenous Population”, The New York Times (9 February 2018), online: <https://www.nytimes.com/2018/02/09/world/canada/canada-saskatchewan-murder-indigenous.html>.

[3] Ibid.

[4] Rachel Giese, “Why Has Colten Boushie’s Mother Had To Work So Hard Just To Prove Her Son’s Humanity?”, (20 February 2018), online: Chatelaine <https://www.chatelaine.com/opinion/colten-boushie-mother/>.

[5] Jason Warick, “The long list of problems Colten Boushie’s family says marred the case”, (13 February 2018), online: CBC News <https://www.cbc.ca/news/canada/saskatoon/colten-boushie-family-list-problems-gerald-stanley-case-1.4532214>.

[6] Ibid.

[7] Rachel Giese, supra note 4.

[8] Jason Warick, supra note 5.

[9] Ian Austen, supra note 2.

[10] David Giles & Nathaniel Dove, supra note 1.

[11] Kent Roach, “Gerald Stanley and Colten Boushie Case”, (10 February 2020), online: The Canadian Encyclopedia <https://www.thecanadianencyclopedia.ca/en/article/gerald-stanley-and-colten-boushie-case>.

[12] Tasha Hubbard, nîpawistamâsowin: We Will Stand Up (2019).

[13] Ibid.

Celebrating Senator Murray Sinclair

Tansi Nîtôtemtik,

On January 31st, 2021, Senator Murray Sinclair served his last day as a member of the Senate. Today ReconciliAction YEG would like to celebrate his accomplishments and look forward to the impact he will continue to have as he enters the next phase of his career. 

(Image credit: Dalhousie University, https://www.dal.ca/news/2018/08/08/belong-forum-preview--5-things-you-should-know-about-senator-mur.html)

The Honorable Murray Sinclair, or Mizanay (Mizhana) Gheezhik (“The One Who Speaks of Pictures in the Sky”) was born and raised on the former St. Peter's Indian Reserve, north of Winnipeg, Manitoba. He is Ojibwe and is a member of the Peguis First Nation. ^[1] Sinclair was raised by his grandparents and graduated as valedictorian of his high school class. 

Upon graduation, Sinclair returned home to take care of his grandmother for two years before attending university. He enrolled in the Faculty of Law at Robson Hall in 1976, where he continued to receive accolades for high achievement. In 1980, Sinclair was called to the Manitoba Bar. His practice focused on civil and criminal litigation, Indigenous law and human rights. 

While he eventually became renowned for his expertise, Sinclair faced racism inside and outside the courtroom for his Indigenous heritage. Sinclair used these experiences to challenge racist stereotypes and advocate for Indigenous peoples by partnering with organizations like the Assembly of Manitoba Chiefs and Manitoba Métis Federation. 

After being asked repeatedly, Sinclair first became the first Indigenous judge in Manitoba at age 37. ^[2] He then became the Associate Chief Justice of the Manitoba Provincial Court, where he commissioned multiple important reports shed light on issues that impacted the lives of marginalized people. In 1999, Justice Sinclair (as he then was) co-commissioned the Aboriginal Justice Inquiry which inquired into the deaths of Helen Betty Osborne and John Joseph Harper and detailed systemic racism faced by Indigenous peoples. Justice Sinclair also headed the inquiry of the deaths of twelve children in the Pediatric Cardiac Surgery Inquest, which produced its report in 2000. In 2001, Justice Sinclair was then  appointed to the Manitoba Court of Queens Bench.

As many readers may know, Justice Sinclair was appointed as Co-Chair of the Truth and Reconciliation Commission (TRC). The Truth and Reconciliation Commission (TRC) was formed by the Canadian government as part of the Residential Schools Settlement Agreement, but the first commission board stepped down in 2008. ^[3] Sinclair had actually removed his name from the list of potential chairs in 2007, as his grandparents were residential school survivors and he was concerned about the emotional toll of heading the commission.^[4] Never one to shy away from a difficult decision, Senator Sinclair agreed to chair the Commission in 2009. As we know, Senator Sinclair took his position as co-chair of the TRC with utmost care and grace, and continues to be vocal about reconciliation and the Calls to Action five years later.

In 2016, the Honorable Murray Sinclair was appointed to the Senate. He is the 16th Indigenous member of the Canadian Senate, and during his tenure remained a fierce advocate for Indigenous peoples. For example, he chaired an investigation into the Thunder Bay Police Services Board in response to systemic racism within the police force in 2017.^[5]  

So, what’s next for the Honorable Murray Sinclair? He has taken a position as general counsel for the largest Indigenous law firm in Manitoba, Cochrane Saxberg LLP. He hopes to mentor the next generation of lawyers and is also writing his memoir, which will chronicle his truly amazing life story and will no doubt inspire Canadians for generations to come. ^[6]

Thank you for reading! 

Until next time,

Team ReconciliAction YEG

¹Michael John Simpson, “Murray Sinclair” (2 Feb 2021) online: The Canadian Encyclopedia <www.thecanadianencyclopedia.ca/en/article/murray-sinclair>.

²Ibid. 

³CBC News, “Chairman quits troubled residential-school commission” CBC News (20 Oct 2008) online: <www.cbc.ca/news/canada/chairman-quits-troubled-residential-school-commission-1.704043>.

⁴Canadian Encyclopedia, supra note 1.

⁵Senator Murray Sinclair, “Thunder Bay Police Services Board Investigation - FINAL REPORT” (1 Nov 2018), online (pdf): <tribunalsontario.ca/documents/ocpc/TBPSB_Investigation_Final_Report_-_EN-FINAL-1.pdf>.

⁶Ross Andersen, “Mentoring Indigenous lawyers among Sen. Sinclair’s retirement plans” CTV News (1 Feb 2021), online: <www.ctvnews.ca/politics/mentoring-indigenous-lawyers-among-sen-sinclair-s-retirement-plans-1.5288828>.

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Honouring Cindy Gladue: A Second Chance at Justice

(Image: Dave Bajer/CBC in Janice Johnston, “'Considerable’ force needed to fatally injure Cindy Gladue, jury told”, (13 January 2021), online: CBC News <https://www.cbc.ca/news/canada/edmonton/edmonton-cindy-gladue-manslaughter-trial-1.5872340>.

Tansi Nîtôtemtik,

Yesterday morning some of our team attended the virtual event to honour Cindy Gladue, hosted by Stolen Sisters & Brothers Action Movement on Facebook live.  The honour ceremony follows the start of the second trial of Bradley Barton, who is accused of causing the death of Ms. Gladue in 2011.  The journey to find justice and truth for Ms. Gladue has been long and difficult. Nearly 10 years after her death, people gathered in person and online to remember Cindy, and to honour another Indigenous woman lost. 

For a bit of background, please see our posts from 2017 and 2019 where we wrote about Cindy Gladue’s death and the subsequent legal proceedings.  The original trial was problematic for a number of reasons, and Cindy was dehumanized by the language used to describe her and by the display of portions of her body in the courtroom. This caused tremendous additional pain for Cindy’s loved ones and for the entire Indigenous community. 

Cindy was the victim here. Cindy was a whole woman who had a life and a family.  Cindy was a sex worker.  Cindy was Metis.  Cindy was loved. But less value was assigned to Cindy’s life during the trial because of systemic racism against Indigenous women and prejudiced views on sex work and the sexual assault of sex workers.   At the SCC, Justices Abella and Karakatsanis stated in their partial dissent that:

“Trial judges have an important role to play in instructing juries so that they can recognize and set aside racial and other biases, including those against Indigenous peoples and sex-trade workers. Not only did that not happen here, the opposite occurred: inflammatory terminology was frequent, and was gratuitously used without any corrective intervention by the trial judge”[1]

The new trial is expected to last 34 days, and we intend to provide regular updates on the proceedings.  It is our expectation that those involved in the trial are aware of and will heed the SCC’s warning to avoid the systemic and prejudicial issues that plagued this trial the first time around.  Our coverage of this trial is not intended to be journalism, but to provide information about this case in a way that is sensitive to the pain and trauma that Cindy’s friends and family, and the Indigenous community have already endured.    

Please stay tuned for more updates on this trial as it progresses.  We will resume looking at the TRC Calls to Action in tomorrow's post.

Until next time, 

Team ReconciliAction

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[1] R v Barton, 2019 SCC 33 [Barton SCC] at para 234.

Feature on Action & Justice Everyday: The Individual duty of Reconciliation

Tansi Nîtôtemtik,

Yes, we've said our goodbyes for the year and wrapped things up for the term.  As it turns out, it is hard to stay away when there is so much happening every day and we have been given this opportunity to use our voice.  

Today we want to highlight another blog that we feel brings an important personal context to the social and legal issues faced by Indigenous people in Canada. 

On his blog, Action & Justice Everyday, Community Organizer & Public Speaker, Michael Redhead Champagne recently asked the following question: Which Calls to Action/Calls for Justice do you work on every day?

Most of the focus on the ReconciliAction YEG blog has been geared toward the systems where the injustices against Indigenous people originated and continue to be perpetuated.  Reconciliation, to our team, is the duty that these systems have to right these historic wrongs and take active steps that will improve nation-to-nation relations and eliminate the ongoing systemic discrimination.  Champagne's post brings attention to the fact that reconciliation isn't just about systemic level oppression and action, but about efforts made at the individual level as well.  

The post first draws attention to the TRC Calls to Action released 5 years ago, the Report of the Inquiry on MMIWG Calls to Justice released in 2018, and the UN Declaration on the Rights of Indigenous people, before highlighting just a small sampling of recent events that illustrate how much work is still to be done. 

Champagne encourages non-Indigenous Canadians who want to further reconciliation to take some of the duty of reconciliation upon themselves.  He provides the following simple framework to do this: 

1. Read the MMIWG and TRC reports.

   • Bonus if you include additional reports like UNDRIP, or regional documents too

2. Select at least one Call to Action (TRC) and one Call for Justice (MMIWG)

3. Write them down and put them somewhere that you will see them everyday

   • we have to face this every day, join us in our pain so we can celebrate our victories and our healing together

4. Take action at every available opportunity yourself

5. Encourage your family, friends, co-workers, workplaces and communities to do the same

Team ReconciliAction couldn't agree more that these reports (even just the summaries) are so important for Canadians to read. Plus, with 94 Calls to Action and 231 Calls for Justice, there is surely a Call that can speak to everyone on an individual level. 

You can read the full Action & Justice Everyday post here: 

https://www.michaelredheadchampagne.com/blog/action-justice-everyday

The MMIWG Report and Calls for Justice can be found here: 

https://www.mmiwg-ffada.ca/final-report/

The TRC Summary and Calls to Action can be found here:

http://nctr.ca/reports.php

Let us know which Call to Action or Call for Justice you plan to work on every day in the comments below!

Until next time, 

Team ReconciliAction

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5 Years After TRC: Midpoint Recap

Tansi Nîtôtemtik,

As Team ReconciliAction gets ready to sign off for the semester, we wanted to take today to provide a report card for the TRC Calls to Action we have covered so far this year.  Check back tomorrow for our reflections on this term.  

So how is Canada doing on Calls to Action numbers 1 through 49?  Check out our infographic below, and let us know if you agree with our evaluation so far of Canada's response to the TRC to far. 

 

That's it for substantive material for this semester. We hope you've enjoyed reading, and be sure to check back tomorrow so we can say goodbye until 2021!

Until next time, 

Team ReconciliAction YEG

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TRC Call to Action #41: Inquiry into Missing and Murdered Indigenous Women and Girls

 

41. We call upon the federal government, in consultation with Aboriginal organizations, to appoint a public inquiry into the causes of, and remedies for, the disproportionate victimization of Aboriginal women and girls. The inquiry’s mandate would include:

i. Investigation into missing and murdered Aboriginal women and girls

ii. Links to the intergenerational legacy of residential schools.

Tansi Nîtôtemtik,

There were various recommendations and a number of ways on how this Call to Action could be implemented, such as setting up campaigns online and within schools and universities, media coverage, but perhaps the most effective starting off point was a formal inquiry that included ample community involvement with the end goal of publishing findings to be implemented. 

In September 2016, the Government of Canada launched a national inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG). The establishment of a public inquiry "into the causes of, and remedies for, the disproportionate victimization of Aboriginal women and girls" from Call to Action 41  catalyzed the creation of the report.[1] The process of compiling the MMIWG report started off slow, but much was going on behind the scenes to make sure the right people were involved such as the Elder Advisors, or “Grandmothers,” who gathered in ceremony at a sweatlodge in Quebec, to ask themselves: what should the MMIWG  Inquiry look like, and what is the best way to do this work? The sweatlodge was part of the Missinak Community Home, a safe house in Quebec City co-founded by Elder Pénélope Guay, Commissioner Audette’s spiritual grandmother. As one witness,Pénélope, shares,

“We all got together there. And we came up with a plan, in our own way. We came up with a plan to see how the National Inquiry would proceed. For the Grandmothers [and Elders], for the Commissioners. What will our work be? That’s how it went. We decided on everything you see. Our role, our involvement. That was when we decided on how it would all be done.”[2]

To honour their work, the National Inquiry asked the National Inquiry Elders and Grandmothers to sit down with the Research team and to include their reflections of the journey in the Final Report as a way to honor their many contributions. . The Final MMIWG Report was released June 3, 2019, you can find a copy of the entire report, titled: “Reclaiming Power and Place” here: https://www.mmiwg-ffada.ca/final-report/ 

(Photo Credit: MMIWG website) 

After the release of the Final Report, chief commissioner Hon. Marion Buller implored all Canadians to read the report-- not just skim but actively read it all the way through, because of its importance. The 1,200-page report outlined what the commission described as” “an intergenerational Canadian genocide, revealing “persistent and deliberate human and Indigenous rights violations and abuses” as the cause of “staggering rates of violence” against Indigenous peoples, specifically women.[3]

Not surprisingly, the phrase garnering the most attention from the Report was “Canadian Genocide”,and rightfully so. It is an ugly, terrible phrase that best describes the ugliness of how the victimization of Indigenous women, girls and 2SLGBTQQIA (two-spirit, lesbian, gay, bisexual, transgender, queer, questioning, intersex and asexual) people who have been largely ignored with barely a side glance or acknowledgement from those who could do something to help. 

Although Justin Trudeau initially stopped short of saying the phrase after the Report, he did later use the word in Vancouver at a gender equality conference [4] which marked a change in existing attitudes towards MMIWG. While this acknowledgement is a start. Now law enforcement organizations across the country need to do their part in acknowledging and addressing the need to change a fundamentally systemic discrimination problem from within. In particular, the RCMP of which the Inquiry's report calls out 'long-standing indifference from the police'. [5]

 What has been done? 

The Report included over 200 Calls for Justice, and lately talks around implementing those Calls have been stalled since the release of the Final Report.This lack of implementation is concerning to say the least. The report was a very important first step, yet many more must be taken in order to truly address the horrors that Indigenous women and girls face on a daily basis. Let us hope this is not a stall, but rather a moment to breathe and assess how to best move forward as a society before implementing the recommended Calls for Justice outlined in the report. 

Until Next Time,

Team ReconciliACtion YEG

[1]Nicole Ireland, “Former TRC chair hopes missing, murdered Indigenous women inquiry hears testimony soon”, (Mar 21, 2017) online: CBC News /<www.cbc.ca/news/indigenous/truth-and-reconciliation-progress-mmiw-1.4033192>. 

[2] Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, Volume 1a, (June 2019) online (pdf): https://www.mmiwg-ffada.ca/wp-content/uploads/2019/06/Final_Report_Vol_1a-1.pdf

[3] Jonathan Forani, “Key takeaways from the final MMIWG report” (June 3, 2019) online: CTV News <www.ctvnews.ca/politics/key-takeaways-from-the-final-mmiwg-report-1.4450095>. 

[4] Ibid

[5] Catharine Tunney, “RCMP will 'give careful consideration' to MMIWG recommendations, says commissioner” (June 3, 2019) online (pdf): <www.cbc.ca/news/politics/rcmp-mmiwg-reforms-1.5160206>.  

5 Years After TRC: Youth Injustice

(Christie Belcourt, The Crow Taught Her. She Listened. via “Feature artist for April 2020: Christi Belcourt”, (19 April 2020), online: Alberta Native News <https://www.albertanativenews.com/feature-artist-for-april-2020-christi-belcourt/>.)

 

Tansi Nîtôtemtik,

Last week we discussed Canada’s response to TRC Call to Action #30, which addresses the over-incarceration of Indigenous people in Canada. Today we will evaluate Call to Action #38, which calls upon the “federal, provincial, territorial, and Indigenous governments to commit to eliminating the overrepresentation of Indigenous youth in custody over the next decade.”^[2]

 

Since the Youth Criminal Justice Act (YCJA) came into force in 2003, overall youth incarceration has been significantly reduced.^[3]  However, the population of incarcerated Indigenous youth has not been decreasing at the same rate, and the proportion of the incarcerated youth population that is Indigenous has been steadily increasing.^[4]  

 

As of 2018, the proportion of incarcerated Indigenous youth had risen to 43%, up from 26% in 2008.^[5] Both of these numbers are disgraceful given that Indigenous youth account for about 8% of the Canadian youth population.^[6]  But what else do these numbers tell us?

 

1. If the overall incarcerated youth population is decreasing, it's because fewer non-Indigenous youth are being imprisoned.  
2. Indigenous youth offenders are still consistently incarcerated for unlawful conduct.
3. Indigenous youth offenders are far more likely to be imprisoned than non-Indigenous youth offenders.

 

This over-incarceration of Indigenous youth has been linked to the similar overrepresentation in the child welfare system, and those affected have been dubbed “Crossover Kids”. A report analyzing this link was released this past April by the Manitoba Centre for Health Policy (MCHP).^[7]  In Manitoba, around 25% of children identify as Indigenous, yet Indigenous children and youth make up an unconscionable 90% of children in care and  80% of corrections admissions.^[8]  The report found a very high likelihood of overlap for Indigenous youth who were 24 times more likely to have experienced both systems, than non-Indigenous youth in the province.^[9]  In determining the reasons for this overlap, the report was careful to note that Indigeneity is NOT an indicator for criminality, but instead placed the blame squarely on Canada, citing: 

 

• Colonial assimilation policies and practices, such as residential schools and the Sixties Scoop; 
• Systemic racism in both Child and Family Services and the youth criminal justice system,  and 
• Structural violence and "chronic underfunding" of services to Indigenous communities which amount to a denial of basic human rights, or necessary resources.^[10]

 

So what is Canada doing to reduce incarceration of Indigenous youth since the TRC report called them to action in 2015?

 

An amendment to the YCJA came into force in December of 2019, which will work to reduce youth over-incarceration by: 

• encouraging the use of extrajudicial measures and judicial reviews as alternatives to laying charges for administration of justice offences; 
• limit the use of custodial sentences for administration of justice offences;
• require that circumstances of Indigenous accused and of accused from vulnerable populations are considered at bail, and
• ensure that the conditions imposed on youth at the bail stage or at sentencing are only those necessary to address the offending behaviour.^[11] 

 

On November 18th, the Government of Canada announced $5 million in funding that will be spread across eight organizations who do preventative and restorative justice work with Indigenous youth.^[12]

 

Whether these initiatives will have any impact on over-incarceration of Indigenous youth remains to be seen. Unfortunately, they do not address the systemic racism, systemic violence, over-representation in child welfare, and the chronic underfunding of Indigenous communities that are known factors in Indigenous youth offending. These new measures are the equivalent of putting a bandaid onto a severed artery. Without a sweeping reform in Canada’s approach to reconciliation, we are not likely to produce improved outcomes for Indigenous youth. Team ReconciliAction assigns Canada a Grade of ‘F’ on the response to Call to Action #38.   

Did we miss anything Canada is doing to fix the over-incarceration of Indigenous youth? Tell us in the comments!

 

Until Next Time, 

Team ReconciliAction

 

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¹  Patricia Monture-Angus, Thunder in my soul: a Mohawk woman speaks (Halifax, N.S: Fernwood Pub, 1995) at 59.

² Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada. (Ottawa: Truth and Reconciliation Commission of Canada, 2015) at 178.

³ Youth Criminal Justice Act, SC 2002, c 1 [YCJA]; Nicholas Bala, Peter J Carrington & Julian V Roberts, “Evaluating the Youth Criminal Justice Act after Five Years: A Qualified Success” (2009) 51:2 Can J Criminol & Crim Justice 131 at 139.

⁴ Nate Jackson, “Aboriginal Youth Overrepresentation in Canadian Correctional Services: Judicial and Non-Judicial Actors and Influence” (2015) Alta L Rev 927 at 928, 935.

⁵ Statistics Canada, Adult and youth correctional statistics in Canada, 2017/2018, by Jamil Malakieh, Catalogue no. 85-002-X (Ottawa: Statistics Canada, 2019) at 7.

⁶ Ibid. 

⁷ Marni Brownell et al, The Overlap Between the Child Welfare and Youth Criminal Justice Systems: Documenting “Cross-Over Kids” in Manitoba (Winnipeg, MB: Manitoba Centre for Health Policy, 2020).

⁸ Nicholas Frew, “Overlap between involvement in CFS care, Manitoba youth justice system ‘hard to deny’: co-author of new study”, (3 June 2020), online: CBC News <https://www.cbc.ca/news/canada/manitoba/study-children-youth-cfs-youth-criminal-justice-manitoba-1.5596165>.

⁹ Brownell et al, supra note 7 at 76.

¹⁰ Ibid at xviii.

¹¹ Canada, Department of Justice, Legislative background: an Act to Amend the Criminal Code, the Youth Criminal Justice Act and Other Acts and to Make Consequential Amendments to Other Acts (Bill C-75). (Ottawa: DOJ, 2018).

¹² Department of Justice Canada, “Government of Canada supports restorative justice initiatives across the country, including those supporting Indigenous communities and youth”, (18 November 2020), online: gcnws <https://www.canada.ca/en/department-justice/news/2020/11/government-of-canada-supports-restorative-justice-initiatives-across-the-country-including-those-supporting-indigenous-communities-and-youth.html>.

TRC Call to Action #33 & 34 - FASD, Justice and Reconciliation

Tansi Nîtôtemtik,

The TRC’S Call to Action 33 & 34 call on national, provincial and territorial governments to address and prevent Fetal Alcohol Spectrum Disorder (FASD) and make changes to the criminal justice system to improve outcomes for offenders with FASD.

    33.     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.

    34.     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]
i. 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. ii. Enacting statutory exemptions from mandatory minimum sentences of imprisonment for offenders affected by FASD. iii. Providing community, correctional, and parole resources to maximize the ability of people with FASD to live in the community. iv. Adopting appropriate evaluation mechanisms to measure the effectiveness of such programs and ensure community safety.

First Nations peoples are often stereotyped, misjudged and experience extreme prejudice as a result of governmental policies such as the Indian Residential School System (IRS) which caused severe trauma both directly and indirectly. Intergenerational trauma has impacted Aboriginal people in ways that continue to be revealed. For example, alcohol, and other substance abuse and dependency have  often been used as a coping mechanisms to deal with intergenerational trauma. 

Fetal Alcohol Spectrum Disorder (FASD) is a diagnostic term encompassing several conditions that can occur in a person whose mother drank during pregnancy. Resulting  complications can arise in cognitive functioning, social and emotional development, and behaviour. FASD is a lifelong condition, with no cure.[2] Those with FASD have a harder time understanding right from wrong and often find themselves streamlined into the criminal justice system, as seen in our Monday’s post. This reality is especially true for Indigenous peoples. 

FASD prevention requires informed research that translates knowledge into meaningful, practical forms that can be shared with, and implemented by, local communities [3]. In order to accomplish this goal, all levels of government must work together to provide the necessary programs to combat FASD and also address the need to help heal people and communities who deserve an equal chance to live a life with readily available supports in place. 

 The 2017 Federal Budget allocated an “additional” $10.5M over 5 years to the Fetal Alcohol Spectrum Disorder Program with $3.7M ongoing funding, beyond the $14.2M allocated annually prior to 2017-2018. By 2022 the annual funding will have increased from $16.3M to $17.9M as part of an existing suite of services aimed to improve health outcomes for First Nations and Inuit children, families and communities. However there is no mention in this extra funding of Métis families and communities.[4]

In August 2019, Quebec launched the Agir Tôt (Act Early) program, which included funding for FASD screening in the Nunavik region in northern Quebec. Multiple initiatives in the provinces and territories have also commenced. In Ontario, the Indigenous Fetal Alcohol Spectrum Disorder (FASD)/Child Nutrition Program (FASD/CNP) is designed and delivered by 21 Indigenous service providers across 180 communities, where individuals living with FASD and their families are offered intervention support services. The program provides healthy lifestyle education, personal support, and traditional cultural activities which promote FASD prevention and healthy nutrition.[5] Other provinces such as Alberta and B.C are also focusing on Indigenous approaches to FASD which look at intervention and support across the lifespan. Recognizing that women’s drinking patterns are shaped long before pregnancy, FASD prevention activities are becoming increasingly interwoven into promoting the health of girls and young women and reconciliation and healing. [6]

As these are positive and encouraging responses from the provinces and government when it comes to programs to prevent and address FASD for the Indigenous Communities across Canada. The same however cannot be said for Call to Action #34.  There has been no progress on this Call to  Action, despite quite detailed and specific recommendations from the Canada FASD Network (FASD and the Criminal Justice System). Further, the Federal, Provincial and Territory governments have not made any moves to enact legislative and/or regulatory actions to date on this important initiative [7]. The Research and Statistics Division of the Department of Justice Canada engaged with experts in FASD in the winter of 2019 to develop a “think piece” report regarding what  program evaluations could be developed in response to Call to Action 34 in the context of FASD programming. However,  it remains to be seen if anything will come of these very preliminary actions or if it is just “fluff” reconciliation.[8]

Until next time,

Team ReconcilAction

[1] Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Ottawa, Truth and Reconciliation Commission of Canada, 2015) at 167.

[2] Center for Disease Control, “Basics about FASDs” (May 7, 2020) online:  <www.cdc.gov/ncbddd/fasd/facts.html>. 

[3] Amy Salmon & Sterling K. Clarren (2011) Developing effective, culturally appropriate avenues to FASD diagnosis and prevention in northern Canada, International Journal of Circumpolar Health, 70:4, 428-433, DOI: 10.3402/ijch.v70i4.17844 

[4] Indigenous Watchdog, “Calls to Action--Not Started” online: <://indigenouswatchdog.org/status-updates/call-to-action-not-started/ >.

[5] Ontario Ministry of Children, “Indigenous Fetal Alcohol Spectrum Disorder/Child Nutrition Program” (Sep 6, 2019) online:  </www.children.gov.on.ca/htdocs/English/indigenous/fasd.aspx >. 

[6] BC Center of Excellence for Women’s Health, Indigenous Approaches to FASD Prevention, (Jan 2018), online:  <bccewh.bc.ca/wp-content/uploads/2018/01/Indig-FASD-COMMUNITY-ACTION_Jan2018.pdf>. 

[7] Supra, note 4. 

[8] Mia Bell, Krystal Glowatski, Robyn Pitawanakwat & Michelle Stewart, FASD and TRC Call to Action 34.4: A Consideration of Evaluation Methods, (Department of Justice Canada, May 30, 2019) online:<www.justice.gc.ca/eng/rp-pr/jr/fasd-etcaf/fasd-etcaf.pdf>. 

Mandatory Minimum Sentences and Justice

(Photo credit: "The Deciders," by Nathalie Sheppard, https://journals.library.brocku.ca/index.php/SSJ/article/view/1246)

Tansi Nîtôtemtik,

Our topic today, Call to Action #32, involves important areas for criminal justice reform. Call to Action #32 states:

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]

Restrictions on Conditional Sentences

Conditional sentences are non-custodial sentences served in the community. Under s.742.1 of the Criminal Code, conditional sentences cannot be given in certain circumstances, like where the maximum term of imprisonment is 10 years or more.^[2] Further amendments to the Criminal Code under the Safe Streets and Communities Act^[3] made conditional sentences unavailable for even more offences, including property offences like motor vehicle theft.^[4]  

These restrictions reflect the problematic nature of the Canadian criminal justice system. Rather than attending to the factors that lead to criminal behavior, more and more restrictions are placed on sentencing options. These restrictions lead to increased incarceration that simply perpetuates the current overincarceration of Indigenous peoples. 

Mandatory Minimum Sentences (MMS)

Mandatory minimum sentences are minimum sentences that must be imposed by sentencing judges upon the conviction of certain offences. These minimum sentences apply regardless of the specific details of the offence or the circumstances of the offender. Historically, mandatory minimum sentences have been reserved for the most serious offences, such as murder.^[5] In the past two decades, however, mandatory minimum sentences have been legislated for a broader range of offences under the Criminal Code of Canada and other legislation like the Controlled Drug and Substances Act (CDSA).^[6]  

Supporters of mandatory minimum sentences argue that they are necessary to reduce sentencing disparity, create predictability, protect the public and maintain public confidence in criminal sentencing.^[7] Yet studies have shown that mandatory minimum sentences do not deter from crime. ^[8] These studies lend support to the critical view of mandatory minimum sentences, which focuses on their negative consequences. Some arguments against mandatory minimum sentences include heightened risk of disproportionate sentences, increased incarceration of minorities, and removal of judicial discretion.^[9]  

Under the current regime, a sentencing judge can only depart from a mandatory minimum sentence if they declare the required mandatory minimum sentence to be unconstitutional. Mandatory minimum sentences have, on multiple occasions, been found unconstitutional by Canadian courts under Section 12 of the Charter, which protects against cruel and unusual punishment. 

For example, in 2015 the Supreme Court found that the mandatory minimum sentence for possession of a prohibited or restricted firearm with ammunition was unconstitutional in R v Nur^[9] . More recently, Canadian courts have brought attention to the manner in which mandatory minimum sentences result in sentences that disregard the principles set forth in R v Gladue^[10] and R v Ipeelee. As we've discussed at length this week, Gladue and Ipeelee ^[11] require sentencing judges to consider the systemic and background factors that impact an Indigenous offender’s culpability. (see our related posts here & here)

In R v Ookowt, a twenty year old Inuk man from Nunavut argued that the mandatory minimum sentence for reckless discharge of a firearm was unconstitutional because it breached Section 12 of the Charter. The sentencing judge agreed, based on the offender’s personal characteristics, especially upon consideration of Gladue factors.^[12] The sentencing judge’s decision was overturned on appeal, but notice to appeal the Nunavut Court of Appeal decision to the SCC has been filed.^[13]

TRC Call to Action #32 recognizes the disproportionate impact that mandatory sentencing has on Indigenous people in the criminal justice system. A sufficient response to this Call would address competing values where governments want to appear “tough on crime” despite the unacceptable over incarceration of Indigenous people and research that showed punitive sentencing does not deter crime. To date, however, no legislation has been passed to allow any departure from mandatory minimum sentencing of Indigenous offenders. 

Final Thoughts

The Government’s lack of response to Call to Action #32 represents another empty promise to reduce the overincarceration of Indigenous peoples in Canada. Comprehensive criminal justice reform is required to make real progress towards these goals, and as Team ReconciliAction has discovered as we attend to the Justice Calls to Action, very little change has been accomplished so far. For these reasons, we are assigning a failing grade. 

Thank you for reading. Until next time,

 

Team ReconciliAction YEG

¹Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Ottawa, Truth and Reconciliation Commission of Canada, 2015) at 167. 

²Criminal Code,  R.S.C., 1985, c. C-46, s.742.1. [Criminal Code] 

³S.C. 2012, c. 1.

⁴Public Prosecution Service of Canada, “6.3 Statutory Restrictions on the Use of Conditional Sentences” (March 2014), online: <www.ppsc-sppc.gc.ca/eng/pub/fpsd-sfpg/fps-sfp/tpd/p6/ch03.html>. 

⁵Criminal Code, supra note 2, s.235(2). 

⁶Controlled Drugs and Substances Act, S.C. 1996, c. 19. [CDSA]

⁷Kari Glynes Elliott & Kyle Coady, “Mandatory Minimum Penalties in Canada: Analysis and Annotated Bibliography” (March 2016) online (PDF): Department of Justice Canada <https://www.justice.gc.ca/eng/rp-pr/jr/mmp-pmo/mmp-pmo.pdf>. 

⁸Mary Allen, “Mandatory minimum penalties: An analysis of criminal justice system outcomes for selected offences” (August 2017) online(pdf):<https://www150.statcan.gc.ca/n1/en/pub/85-002-x/2017001/article/54844-eng.pdf?st=WNKZ1Ez_>.  

⁹R v Nur, 2015 SCC 15.

¹⁰[1999] 1 S.C.R. 688. [Gladue]

¹¹2012 SCC 13. [Ipeelee]

¹²R v Ookowt, 2017 NUCJ 22. 

¹³2020 NUCA 5, leave to appeal to SCC filed, 2020 CarswellNun 40. 

5 Years After TRC: Funding Reasonable Alternatives to Incarceration

(Image: Gladue Principles: Indigenous Peoples and the Canadian Criminal Justice System”, online: Wilfrid Laurier University <https://www.wlu.ca/professional-development/centre-for-public-safety-and-well-being/gladue-principles/index.html>)

 

Tansi Nîtôtemtik

 

Punitive sanctions for crime, in particular incarceration, actually increase the likelihood of recidivism over community-based restorative pathways.^[1] The Criminal Code of Canada requires courts to consider the restorative justice concepts of reparation and rehabilitation in sentencing.^[2] Moreover, the Supreme Court of Canada has confirmed that reconciliation efforts with Indigenous offenders necessitates a need for restorative justice in sentencing.^[3] 

 

Sentencing factors for Indigenous offenders

R v. Gladue was a pivotal decision for Indigenous people.^[4]  In this case, the Supreme Court of Canada responded to the Criminal Code reforms to sentencing enacted in 1996, and to the findings of the Royal Commission on Aboriginal People with respect to the over-incarceration of Indigenous people in Canada.^[5]  This decision introduced what was intended to become a new set of normative legal practices, commonly referred to as Gladue factors.  The Gladue factors are meant to address the disproportionate likelihood of incarceration for Indigenous offenders, and require contextual assessment of the ways that Indigenous identity and collective and individual experiences may have contributed to a given offence.^[6]  Gladue clarified the statutory obligation imposed by section 718.2(e) of the Criminal Code, which requires courts to consider the circumstances of Aboriginal offenders,  and set out the following factors for courts to consider when sentencing an Indigenous offender: 

1. The systemic and background factors of the offender that may have had a role in bringing the offender before the courts, and
2. Sentencing procedures or other sanctions that may be appropriate for the offender based on the offenders’ heritage or cultural connection.^[7]

More than a decade after Gladue, the Supreme Court of Canada reaffirmed and clarified these factors in  R v. Ipeelee.^[8]  The Court in Ipeelee analyzed sentencing of Indigenous offenders post-Gladue, and found several errors in the application of the law.^[9]  These errors included; the need for an offender to establish a causal link between background factors and the commission of the offence, and the failure to apply Gladue factors to sentencing for serious offences.^[10]

 

The obligation to seek alternatives to incarceration

Since Ipeelee, there is still evidence that the courts have difficulty applying Gladue factors,^[11] and the proportional incarceration rate of Indigenous people has continued to rise despite a decline in custodial sentences overall.^[12]  It is apparent from cases such as R v. Sangris, R v. C(R) and R v. Paul, where Gladue factors were “considered” but ultimately dismissed despite circumstances involving residential school and intergenerational trauma, that our current system is perpetuating harm against Indigenous people.^[13]  The Supreme Court of Canada’s outright rejection of judicial attempts to minimize the principles set forth in Gladue and statutorily by s.718.2(e), has reinforced that the responsibility of addressing over-representation is an obligation to be borne by all actors in the Canadian justice system.^[14]  The justice system requires the support of government in order to comply with this statutory obligation. 

 

Evaluation of Call to Action #31

Call to Action #31 calls for sufficient and stable funding to implement and evaluate community sanctions that will provide realistic alternatives to imprisonment for Indigenous offenders and respond to the underlying causes of unlawful conduct.^[15]  Alberta allocated $700,000 in funding in 2019, to be distributed as grants for community justice initiatives.^[16] These funds were awarded to 14 organizations within the province, three of which are located near Indigenous communities.^[17]  In 2017, Canada allocated $10 million in funding over five years to an Indigenous Community Corrections Initiative through which 16 projects across Canada were awarded funds.^[18] This is a starting point, however the initiative awarded funds to only 16 out of 126 applicants. 

The combined provincial and federal cost to operate correctional facilities year after year is $5 Billion.^[19]  Considering that Indigenous people make up 33% of the prison population nationally and 45% percent of the prison population in Alberta, $10.7 Million in funding for community justice initiatives hardly seems sufficient.^[20] It is especially disheartening that at least 110 projects were denied funding when the provincial and federal governments allocate 500 times more money to prisons and jails.  

 

If funding continues to be allocated to prisons and jails rather than community based programming, the efficacy of these programs cannot be properly evaluated. These programs require additional resources to be a reasonable alternative to incarceration and to accommodate 30-45% of people eligible for an incarceral sentence. The judicial body may have a statutory obligation to consider alternatives to imprisonment, but the legislators who created that statutory obligation are not providing the necessary support to ensure that realistic options are available. 

 

Team ReconciliAction assigns a grade of ‘C’ for the response to Call to Action #31.  The funding allocated is neither stable nor sufficient to provide realistic alternatives and respond to underlying causes of unlawful conduct. 

Stay tuned tomorrow for our look at mandatory minimum sentencing. 

 

Until Next Time, 

Team ReconciliAction

 

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Several of the concepts discussed in today’s post were borrowed from the prosecution policy proposal prepared and submitted by Sarah Kriekle and Kristen Hamilton for the 2019 Kawashimon Negotiation Moot. This research is shared here with permission and great thanks to Sarah & Kristen.

¹ William Bales and Alex Piquero, “Assessing the Impact of Imprisonment on Recidivism.” (2012) 8:1 Journal of Experimental Criminology at 86.

² Criminal Code, RSC 1985, c C-46, s 718 [Criminal Code]

³ R v Gladue, [1999] 1 SCR 688, 1999 CanLII 679 (SCC) [Gladue]; R v Ipeelee, 2012 SCC 13 [Ipeelee]; see also R. v. Proulx, 2000 SCC 5 at 22 [Proulx].

⁴ Gladue, ibid.

⁵ Criminal Code, supra note 2 at s 718.2(e) [Criminal Code]; Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada, (Ottawa: Canada Communication Group, 1996) [RCAP].

⁶ Paula Maurutto and Kelly Hannah-Moffat, “Aboriginal Knowledges in Specialized Courts: Emerging Practices in Gladue Courts” (2016) 31:3 Canadian Journal of Law and Society, 451-471.

⁷ Gladue, supra note 3 at 66, 93.

⁸ Ipeelee, supra note 3.

⁹ ibid at 80.

¹⁰ ibid at 81, 84.

¹¹ See R v Sangris, 2014 NWTSC 23 (accused had been to residential school yet the judge found no link between systemic factors and the particular crime committed) [Sangris]; R v C(R), 2013 ONCJ 736 (judge concluded offender had a normal childhood despite being sexually abused by male cousins for two years) [C(R)]; R v Paul, 2014 BCCA 81 (accused had not experienced a difficult past - but his dad was a drug dealer and was murdered)[Paul].

¹² Office of the Correctional Investigator, Press Release “Indigenous People in Federal Custody Surpasses 30%” 21 Jan 2020 online:<https://www.oci-bec.gc.ca/cnt/comm/press/press20200121-eng.aspx>.

¹³ C(R) supra note 11; Paul, supra note 11; Marie-Eve Sylvestre and Marie-Andrée Denis-Boileau, “Ipeelee and the Duty to Resist” (2018) 51:2 UBC Law Review at 569-570.

¹⁴ Jonathan Rudin, "Looking Backward, Looking Forward: The Supreme Court of Canada’s Decision in R. v. Ipeelee." (2012) 57:17 The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference at 381.

¹⁵ Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada. (Ottawa: Truth and Reconciliation Commission of Canada, 2015) at 173.

¹⁶ Jonny Wakefield, “Restorative justice in Alberta ‘far tougher than spending time in jail’”, Edmonton Journal (7 January 2019), online: <https://edmontonjournal.com/news/local-news/restorative-justice-in-alberta-far-tougher-than-spending-time-in-jail>.

¹⁷ “Alberta Community Restorative Justice (ARCJ) grant table”, online: Alberta Government <https://open.alberta.ca/publications/alberta-community-restorative-justice-arcj-grant-table>.

¹⁸ “Indigenous Community Corrections Initiative - Projects funded since 2017”, (24 February 2020), online: Public Safety Canada <https://www.publicsafety.gc.ca/cnt/cntrng-crm/crrctns/cmmnt-ccrctns-nttv-prjcts-en.aspx>.

¹⁹ “Financial facts on Canadian prisons”, (23 August 2018), online: The John Howard Society of Canada <https://jhscan.wpengine.com/blog/financial-facts-canadian-prisons/>.

²⁰ Office of the Correctional Investigator, supra note 12; Dylan Short, “Indigenous inmates make up 45 per cent of all people in Alberta’s federal prisons”, Edmonton Journal (22 January 2020), online: <https://edmontonjournal.com/news/crime/indigenous-inmates-make-up-45-per-cent-of-all-people-in-albertas-federal-prisons>.

IBA Reflections: BC First Nations Justice Strategy

Tansi Nîtôtemtik, 

 

The Indigenous Bar Association conference, themed “Disrupted Systems”, wrapped up its second day on Friday with a stacked set of speakers, performers, and panels. This year’s conference featured important discussions about the state of the Canadian legal system and profession; systemic racism and inequity; practicing law and ceremony during a pandemic; new child welfare laws; incredible drum, flute and song performances; and more turtlenecks than we have ever seen at a single event.  This week, we will share some highlights of the conference before we jump back into evaluating the TRC Calls to Action in healthcare. 

(Illustration: “Meta” by Jason Sweeney)

 

Today, we will discuss the BC First Nations Justice Strategy as presented by Chief Doug White, Chair of the BC First Nations Justice Council.^[1] Signed in March of 2020, the Strategy was jointly developed with the BC government to reform the current legal system, address its harms against Indigenous people, and restore Indigenous legal structures.^[2]  

 

The numbers presented by Chief White were staggering, but not surprising for anyone who has been paying attention. Across Canada, First Nations, Metis and Inuk people make up around 5% of the total population, but a disproportionate 30% of Canada’s incarcerated population.^[3]   For women and girls, the figures are even more alarming. Forty-two percent of all incarcerated women are Indigenous, and 60% of all girls in custody are Indigenous.^[4] Indigenous people are also overrepresented as victims of crime, and underrepresented in roles of authority and responsibility.^[5]  

(Image: Office of the Correctional Investigator. (2020, January 21). Indigenous People in Federal Custody Surpasses 30%. Correctional Investigator Issues Statement and Challenge. https://www.oci-bec.gc.ca/cnt/comm/press/press20200121-eng.aspx)

 

Chief White attributes the worsening impact of the legal system on Indigenous people in BC to a variety of factors, including: 

• improper implementation of the Gladue principles in sentencing, 
• poor access to legal representation, 
• defunding of Legal Aid and Native Community Law Offices,

 as well as over-policing and under protection by police, as has been shown in reports like the AJI, RCAP, TRC and MMWIG.^[6]  

 

After the agreement to develop the Joint Strategy in 2017, a two year consultation and engagement process followed.^[7] During that time, BC did not wait to begin making changes. Funding was immediately increased to improve access to Gladue reports at sentencing and bail hearings, and to begin establishing a network of 15 Indigenous justice centers to provide legal services for criminal, family and child protection matters.^[8]  

 

The 25 strategies outlined in the Joint Strategy are based on 4 pillars: Core Values; Structures and Processes;  Roles, Responsibilities and Capacities; and Laws and Policies ^[9]  Within each of the strategies are clear lines of action for implementation. However, many of those lines of action simply state that an action plan must be developed.^[10]  

 

The emphasis that the BC strategy places on Indigenous-led justice and community-based programming is promising, as is the focus on reforming the current justice model to incorporate more Indigenous perspectives. Team ReconciliAction will be watching the progress in BC as the province embarks on this joint process led by the BC First Nations Justice Council, and is looking forward to the impact of the new strategies on the Indigenous people who shared those lands with settlers. If the BC strategy is successful, we hope to see the other provinces in Canada adopting principles that restore First Nations legal orders and structures within their borders.

Until Next Time,

Team ReconciliAction YEG

 

¹ Chief Doug White, BC First Nations Justice Strategy (Indigenous Bar Association Conference: Disrupted Systems, 2020).

² BC First Nations Justice Council, BC First Nations Justice Strategy (British Columbia, 2020) online: https://www.bcafn.ca/sites/default/files/docs/news/First_Nations_Justice_Strategy_Feb_2020.pdf at 3.

³ Chief Doug White, supra note 1; See also Office of the Correctional Investigator Government of Canada, “Indigenous People in Federal Custody Surpasses 30% - Correctional Investigator Issues Statement and Challenge - Office of the Correctional Investigator”, (16 April 2020), online: <https://www.oci-bec.gc.ca/cnt/comm/press/press20200121-eng.aspx>.

⁴ Chief Doug White, supra note 1; See also The Native Women’s Association of Canada (NAWC), “Number of Incarcerated Indigenous Women at New High”, First Nations Drum Newspaper (22 January 2020), online: <http://www.firstnationsdrum.com/2020/01/number-of-incarcerated-indigenous-women-at-new-high/>.

⁵ BC First Nations Justice Council, supra note 2 at 20–22.

⁶ Chief Doug White, supra note 1.

⁷ BC First Nations Justice Council, supra note 2 at 8.

⁸ Chief Doug White, supra note 1.

⁹ BC First Nations Justice Council, supra note 2 at 5.

¹⁰ BC First Nations Justice Council, supra note 2 at 27, 28, 29, 31, 32, 38, 40, 48, 49, 51.

IBA 2020 Reflections: The Honorable David Lametti on Achieving Justice

Tansi Nîtôtemtik, 

 

Thank you for tuning in for our reflections this week.  The IBA conference is a yearly highlight for so many, and we are grateful to the Faculty administration for sponsoring our attendance so that we may share the highlights with our readers. 

 

(Artwork: Bradly Wohlgemuth in Katerina Tefft, “Canadian justice system failing Aboriginal people”, (13 August 2013), online: The Manitoban <http://www.themanitoban.com/2013/08/canadian-justice-system-failing-aboriginal-people/15822/>)

 

Today’s post will reflect on the Achieving Justice for Indigenous Peoples in Canada presentation given by Canada’s Attorney General and Minister of Justice, The Honorable David Lametti.  It was nice to see Minister Lametti speak on the topic of Justice and Indigenous people, and engage directly with the Indigenous legal community on how to improve the current system.  

 

The Canadian Justice system has historically been oppressive to Indigenous people, from the creation of the Mounted Police for the purpose of driving Indigenous people onto reserves, to the problems created by over policing, lack of non-police services, and the continued over-representation of Indigenous people in the justice system.^[1]  In some provinces, an Indigenous male is more likely to be incarcerated then he is to finish high school.^[2]  The government has long been aware of the issues faced by Indigenous people in the justice system, even if we only look to such touchstone reports as Manitoba’s Aboriginal Justice Inquiry (AJI), the report of the Royal Commision on Aboriginal People (RCAP) and the final report of the TRC.^[3]  Through these reports,formal solutions and recommendations for improving the justice system for Indigenous people have been under discussion for over 30 years, which makes it all that much more disheartening to hear the Minister state that the problem of over-representation is getting worse, and not better.  This is a system that has been likened to a continuation of the horrific residential school system, and we cannot continue to discuss it without change for another 30 years.^[4]  

 

The Minister acknowledged systemic racism, and mentioned the need for reconciliation. Much of Minister Lametti’s presentation discussed diversifying the judicial bench at federal levels of court. He echoed his earlier calls from the September 2020 Diversity on the Bench forum, and encouraged IBA attendees to apply for judicial appointment.^[5] But perhaps the problem behind a lack of Indigenous applicants lies more with the broken system than Minister Lametti was willing to acknowledge.  The application process is an onerous one, and the historic profile of the judiciary is well - monochrome. Martha Jackman, a law professor at the University of Ottawa, and co-chair of the National Association of Women and the Law (NAWL) believes that many people self select out of the application process with the “probably accurate” belief that they won’t be appointed.^[6]  In addition, the requirement of both French and English fluency at the Supreme Court of Canada level is a barrier for Indigenous applicants who may well be “functionally bilingual”, but in their own language instead of French.^[7]  

 

A key moment during the talk came when former IBA president Koren Lightning-Earle posed a question to Minister Lametti about this bilingual criteria as a barrier to the appointment of Indigenous jurists. In a disappointing response, the Minister spoke to “tight word limits” and the need for lawyers to “plead in those two languages without the need of a translator” before stating that those with a goal of reaching the SCC should “begin learning [to speak] in either French or English”.^[8]  This statement ignores the deep and lasting effects of colonialism on Indigenous people, and is not reconciliatory in tone.  As one attendee pointed out, spoken French recalls traumatic memories of residential schooling for members of their family.  Team ReconciliAction is alive to the significance of both English and French languages in Canadian culture.  But Indigenous languages are the first languages spoken on this land. If Canada truly wants to reconcile and improve Cananda-Indigenous relations, Indigenous languages should be welcomed into colonial systems as an accepted form of bilingualism.

 

In the end, our takeaways from this session were as follows:

• Canada is keenly aware of the issues faced by Indigenous people in the justice system; and 
• Canada knows that the judiciary lacks Indigenous representation; and
• Canada can say many of the right words, like systemic racism, achieving justice, addressing reconciliation, diversity on the bench etc; but
• Canada isn’t willing to disrupt the colonial system to create meaningful change for Indigenous people at this time. 

 

We are grateful that we were able to be present for this discussion and we give our thanks to the engaged conference attendees who asked thoughtful and deliberate questions of the Minister and expected meaningful responses. We left Day 1 of the 2020 IBA conference hungry for Day 2 on October 23.  Stay tuned for tomorrow’s reflection on Advocacy in the Pandemic. 

 

Until next time, 

Team ReconciliAction

 

 

¹ Public Inquiry into the Administration of Justice and Aboriginal People, Report of the Aboriginal Justice Inquiry of Manitoba. Volume 1: The Justice System and Aboriginal People (Winnipeg: Province of Manitoba, 1991) [AJI]; See also Canada, Bridging the cultural divide: a report on Aboriginal people and criminal justice in Canada, Royal Commission on Aboriginal Peoples (Ottawa: The Commission, 1996) [RCAP];Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Ottawa: Truth and Reconciliation Commission of Canada, 2015) [TRC Summary]; Office of the Correctional Investigator Government of Canada, "Indigenous People in Federal Custody Surpasses 30% - Correctional Investigator Issues Statement and Challenge - Office of the Correctional Investigator", (16 April 2020), online: <https://www.oci-bec.gc.ca/cnt/comm/press/press20200121-eng.aspx>.

² Saskatchewan Human Rights Commission, Courageous Conversations: Engaging Citizens in Conversations that Matter, Chief Commissioner D. Arnot (Saskatchewan: Concentus Citizenship Education Foundation Inc., 2016).

³ AJI, supra note 1; TRC Summary, supra note 1; RCAP, supra note 1.

⁴ Nancy Macdonald, “Canada’s prisons are the ‘new residential schools’”, Maclean’s Canada (18 February 2016), online: <https://www.macleans.ca/news/canada/canadas-prisons-are-the-new-residential-schools/>.

⁵ John Schofield, “Federal justice minister invites diverse communities to make judicial applications”, The Lawyers Daily (18 September 2020), online: <https://www.cbabc.org/News-Media/News/2020/Federal-justice-minister-invites-diverse-communiti>.

⁶ Dale Smith, “Overcoming the diversity deficit on federal courts”, CBA National Magazine (14 October 2020), online: <http://www.nationalmagazine.ca/en-ca/articles/law/judiciary/2020/overcoming-the-diversity-deficit-on-federal-courts>.

⁷ Peter Zimonjic, “Functionally bilingual requirement for Supreme Court justices here to stay, says Wilson-Raybould”, (24 October 2016), online: CBC News <https://www.cbc.ca/news/politics/rowe-campbell-wilson-raybould-supreme-court-1.3819210>.

⁸ The Honorable David Lametti, Achieving Justice for Indigenous Peoples in Canada (Indigenous Bar Association Conference, Canada, 2020).

“The Spanking Law” remains on the Books

Tansi Nîtôtemtik,

While many of the TRC Calls to Action require the Government of Canada to make sweeping institutional and structural changes, #6 is simply stated. TRC Call to Action #6 calls for Section 43 of the Criminal Code^[1] , also known as the “spanking law”, to be repealed. 

S.43 excludes “reasonable physical correction of children by their parents and teachers”^[2] from the definition of assault in the Criminal Code, as follows:

Correction of child by force

43 Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.^[3]

If you are surprised that corporal punishment against children is explicitly protected in the Criminal Code, you may be even more surprised to find that this law was unsuccessfully challenged in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General) at the Supreme Court in 2004.^[4] In that decision, the Court clarified that “corrective force” will only be reasonable in certain situations, to create a “zone in which discipline risks criminal sanction”.^[5] For example, the Court reasoned that s.43 would not apply to children under two, children incapable of understanding the need for “correction”, or conduct that does not cause harm.^[6]  

Why repeal s.43? 

As a signatory to the United Nations Convention on the Rights of the Child, Canada has a responsibility to ensure that children are protected from all forms of abuse under Article 19(1).^[7] The United Nations Committee on the Rights of the Child has since recommended that Canada repeal s.43. The recommendation for repeal is supported by a substantial body of research showing that corporal punishment negatively effects children.^[8]

TRC Call to Action #6 recognizes that corporal punishment is “a relic of a discredited past and has no place in Canadian schools or homes.”^[9] The TRC’s interest in corporal punishment stems from the frequent and excessive use of such punishment in Residential Schools to control and discipline Indigenous children. Often this punishment became abusive, and has created generations of resulting trauma.^[10]   Many Indigenous groups carry strongly held beliefs that children are gifts “on loan” from the Creator, and should not be physically punished.^[11] The condonation of corporal punishment in s. 43 goes against these beliefs.

What progress has been made?

Upon completion of the TRC, a bill to repeal s. 43 was introduced to the Senate, but it did not progress. As of today, s.43 remains the law in Canada. 

Team ReconciliAction takes the position that this should have been one of the first TRC Calls to Action for the Government to complete. Let’s leave this antiquated law behind, and move towards a future of reconciliation that honors our children.  

Until next time,

Team ReconciliAction YEG

 

¹Criminal Code, RSC 1985, c C-46, s.43. [Code]

²Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4 at para 1. [CFCYL]

³Code, supra note 1. 

⁴CFCYL supra note 2. 

⁵Ibid at para 40. 

⁶Ibid at paras 24-30.

⁷Laura Barnett, “The "Spanking" Law: Section 43 of the Criminal Code”, online: Library of Parliament^<lop.parl.ca/sites/PublicWebsite/default/en_CA/ResearchPublications/201635E#a3>, citing Convention on the Rights of the Child, 20 November 1989, Article 19(1). (Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.)

^8Ibid.

⁹Truth and Reconciliation Commission, “Canada’s Residential Schools: The Legacy,” The Final Report of the Truth and Reconciliation Commission of Canada (December 2015) at 66. 

^{10Facing History and Ourselves, “Stolen Lives: The Indigenous People of Canada and the Indian Residential Schools, Chapter 7: Punishment and Abuse”, online: <facinghistory.org/stolen-lives-indigenous-peoples-canada-and-indian-residential-schools/chapter-4/punishment-and-abuse>. (“The line between punishment and abuse was frequently crossed. Many in the schools’ administrations believed that the students’ independent spirit had to be broken in order for them to accept a new way of life. Students who did not adhere to school schedules and regulations received strappings (whippings) and were often humiliated in front of peers.” )}

¹¹Kathleen Harris, “TRC promise puts Liberals on track to repeal spanking laws” (Dec 22, 2015) online: CBC News <cbc.ca/news/politics/spanking-truth-reconciliation-laws-1.3376725>.

^{12Bill S-206, An Act to amend the Criminal Code (protection of children against standard child-rearing violence), 1st Sess, 42nd Parl, 2015 (First Reading December 8, 2015).}

If Louis Riel Was Tried Today...

Tansi Nîtôtemtik,

        Today is Louis Riel Day in Manitoba.[1] Celebrated since 2008, this day commemorates the Métis leader, visionary, and advocate for social justice. At a national level, Riel is also remembered on November 16 – the day of his execution and the result of one of this country’s most infamous trials. As we pay homage to Riel’s life and reflect on its early end, this post considers how his trial might go differently if heard today…

        Riel was born in 1844 in the Red River Settlement (now Manitoba). Riel’s early days were spent in training for priesthood and later, a career as a lawyer. By the time he was 25, more pressing matters were at stake, and Riel changed course to take on a role in politics. It was the era of confederation, and by March 1869, the Hudson’s Bay Company had “agreed to sell Rupert’s Land and the North-Western Territory to the Dominion of Canada.”[2]  Riel and his community were concerned about what this would mean and in response the Métis National Committee was organized “in order to protect the social, cultural and political status of the Métis in Red River and the Northwest more generally.”[3]

        Shortly thereafter, Riel was elected president and the Committee was consolidated into the provisional government of the Red River Settlement. After overcoming an armed attempt to overthrow their legitimate leadership, the provisional government tried and executed a member of the anti-French and anti-Catholic opposition, Thomas Scott. This decision would have dire consequences for Riel in the coming years and eventually led to his exile from Canada in 1875. First, however, the provisional government negotiated the Manitoba Act, joining the province to Canada, reserving 1.4 million acres (566,560 hectares) for the children of the Métis residents of Manitoba, and providing some protection for French language rights.[4]

        Jumping ahead to 1884, Riel was living and working in Montana. Led by Gabriel Dumont, a group of Métis people asked Riel to aid them in protecting their rights in the North-West Territories (modern day Saskatchewan).[5] Riel accepted the invitation and worked with the Batoche Métis to inform the federal government of the ways that it was failing to make good on promises made. After ongoing lack of action or response from Ottawa, a provisional government was formed with Riel as the president. The fight that followed, known as the North-West Resistance, began in March of 1885 and ended approximately two months later.[6] The Métis were unsuccessful and a formal charge of treason was laid against Riel on July 6, 1885. Between his surrender and the date of trial, Riel was incarcerated in the police barracks in Regina where he was not allowed visitors and was forced to wear “a ball and chain whenever he entered the barrack yard.”[7]

Image depicts Louis Riel addressing the jury during his trial. Image retrieved from http://www.thecanadianencyclopedia.ca/en/media/8127/.

        Riel’s trial lasted just four days.[8] Most will agree that “the particulars of Riel’s trial show a process highly suspect in being able to provide a free and fair judicial process.”[9] The lawyers appointed to represent Riel “were highly incompetent,”[10] and submitted a plea of insanity against their client’s wishes (Riel wished to plead self-defence and argue that both his and the Métis’s actions were justified[11]). It was only in closing arguments that Riel was able to have his voice heard, but the court wasn’t interested in what he had to say: “Riel, working hard to find the right English words for his story, spoke for over an hour until Judge Richardson interrupted to ask, ‘Are you done?’”[12] Even though “Canadian law did not allow a capital case to be decided by a mere six jurors,”[13] Riel’s trial included a jury of six white Protestant men who had arguably decided he was guilty long before they ever walked into the courtroom in Regina. They “deliberated Riel's fate for an hour,”[14] found him guilty, but recommended a sentence less than death in an example of racist reasoning that alluded to the federal government having had a hand in causing the rebellions to occur in the first place.[15] Regardless, Riel was sentenced to death. Ironically, “the question of whether or not Riel had broken either British of Canadian law”[16] was never determined.

        If Riel was tried today, the Charter[17] would have a major effect on the outcome of this case. Although treason is still an offence under the Criminal Code,[18] there is no guarantee that the Crown could make out the necessary elements of the offence. Even if successful, the maximum sentence would be life imprisonment (capital punishment was formally abolished in Canada in 1976). Further, Riel would have a strong argument that he was denied his Charter rights – he does not appear to have been presumed innocent until proven guilty;[19] his hearing was in front of a clearly biased, partial tribunal;[20] and the conditions of his pre-trial incarceration arguably amount to cruel and unusual treatment.[21] His lawyers did not represent his interests, and the various elements of his identity clearly led to unequal and discriminatory treatment by Canada’s judicial system.[22] Finally, if Riel was not criminally responsible for his alleged offences by reason of mental disorder, proper evidence could be advanced to demonstrate that. No matter how it all played out, one thing is certain – Riel would not be hanged at the age of 41.

Until next time,

Team ReconciliAction YEG

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[1] See Louis Riel Day: Remembering Manitoba’s Founding Father, “Home” online: http://louisrielday.com.

[2] Canadian Encyclopedia, “Louis Riel” online: http://www.thecanadianencyclopedia.ca/en/article/louis-riel/.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Professor Douglas O. Linder, “The Trial of Louis Riel: An Account” in Famous Trials (University of Missouri – Kansas City, 1995-2008), online: http://www.famous-trials.com/louisriel/855-home.

[8] “Canada, A People’s History: The Fate of Louis Riel” CBC Learning (2001), online: http://www.cbc.ca/history/EPISCONTENTSE1EP10CH4PA4LE.html.

[9] Kurt Boyer, “1885 – Aftermath” Our Legacy (A cooperative online resource developed by University of Saskatchewan Archives, University of Saskatchewan Library, and Pahkisimon Nuye?ah Library System), online: http://digital.scaa.sk.ca/ourlegacy/exhibit_aftermath.

[10] Ibid.

[11] Canadian Encyclopedia, supra note 2.

[12] Linder, supra note 7.

[13] Ibid.

[14] Ibid.

[15] Ibid.

[16] Canadian Encyclopedia, supra note 2.

[17] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[18] Criminal Code, RSC 1985, c C-46, ss 46-47.

[19] Charter, supra note 2, at s 11(d).

[20] Ibid.

[21] Charter, supra note 2, at s 12.

[22] Ibid, at s 15.

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Justice for Colten

Tansi Nîtôtemtik,

Colten Boushie. Image retrieved from The Globe and Mail, online: <https://www.theglobeandmail.com/news/national/weapon-that-killed-colten-boushie-does-not-appear-to-have-malfunctioned-court-hears/article37833139/>.

 

        We would like to begin this week by reflecting on the loss of a young Indigenous man, Colten Boushie, whose killer was found not guilty by a jury this past Friday. The accused, Gerald Stanley, claimed that his gun went off by accident and shot Colten in the head. He claimed he was using the gun to “fire warning shots” when Colten and his friends approached his farm and after he fired those shots, he thought the gun was empty.[1] The jurors had three choices: guilty of second degree murder, guilty of manslaughter, and not guilty. The outcome of this trial was beyond disappointing—it is frustrating, it is heartbreaking, it is an injustice. I feel naïve for feeling hopeful that a guilty verdict would be the outcome. But, alas, it turns out that in Canada it is okay for a white man to use a gun to threaten Indigenous people and he won’t be held for responsible for killing one of them. 

        The discourse around this case has turned into a dividing conversation throughout the country. Many non-Indigenous people have commented that this isn’t about racism, but that the man had the right to protect his property. First off, the legal issue was not regarding defence of property-- that was not advanced by the defence. Second, trespassing and mischief are summary offences. It is not okay to take the law into your own hands and take someone's life. We as a society should be beyond this thinking. For Indigenous people, however, this is about Indigenous lives and overt racism in our legal system. This case was tried in Battleford, Saskatchewan where a pool of 750 people was summoned to attend jury selection.[2] The area surrounding Battleford has a large Indigenous population, however, none of the 12 jurors selected were Indigenous. The reality is that jury selection is not a favourable process for Indigenous people.[3] First, there is often a travel issue for many who have been selected from remote Indigenous communities. Transportation from a remote area to the city where selection takes place can be an issue for many reasons. Second, our criminal judicial system allows for “peremptory challenges”.

        When a person is called up to determine if they will sit on the jury, Crown and defence look at that person and either party can “challenge” this person. This means that this person will not sit on the jury. Our own law professor, Steven Penney, argues that this process “invites bias on the basis of race, but also gender and other factors”.[4] University of Toronto law professor, Kent Roach, says that it is “a stone-cold invitation for jury selection to be infected by conscious or unconscious racist stereotypes”.[5] I don’t think that either of these legal professors are wrong. Colten’s cousin, Jade Tootoosis, commented that “"It was really difficult to sit there today and watch every single Indigenous person be challenged by the defence."[6] This is a reality across Canada, particularly in the prairies where the Indigenous population is higher, yet few Indigenous people sit on juries. In 2015, the Supreme Court of Canada held that there does not need to be Indigenous representation on a jury, reasoning that the jury selection accounts for a fair selection process.[7] The actual jury selected tells a different story. Since this trial, many legal professionals, including Senator Murray Sinclair, have called for the peremptory challenge process to be abolished.

        I personally am feeling frustrated and disgusted by this horrific outcome. I am frustrated that this case tells us that it is okay to hold a gun and “accidentally” end an Indigenous person’s life. I understand those who feel as though reconciliation is meaningless when our system is rampant with racism and the odds are stacked against Indigenous people. We hope that isn’t the case. We hope these outcomes inspire you to be an advocate in law for those who need it and to call for necessary change within our justice system. We hope that reconciliation is given more substance because of this case and spurs our lawmakers to make changes. Colten Boushie is in our thoughts and prayers today.

Until next time,

Team ReconciliAction YEG

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[1] Jason Warick, “I just wasn’t thinking straight: Gerald Stanley cross-examined at his 2nd degree murder trial” (5 February 2018) CBC News, online: <www. http://www.cbc.ca/news/canada/saskatoon/gerald-stanley-trial-lawyer-defence-case-1.4519655>

[2] Guy Quenneville, “Huge pool of 750 people summoned as potential jurors for Colten Boushie case” (28 January 2018) CBC News, online: < http://www.cbc.ca/news/canada/saskatoon/huge-pool-750-people-summoned-potential-jurors-colten-boushie-1.4504633>.

[3] Kent Roach, “Colten Boushie’s family should be upset: Our jury selection procedure is not fair” (20 January 2018) The Globe and Mail, online: < https://www.theglobeandmail.com/opinion/colten-boushies-family-should-be-upset-our-jury-selection-procedure-is-not-fair/article37787115/> [Roach].

[4] Jason Warick, “Stanley trial exposes problem with jury selection, says legal experts” (4 February 2018) CBC News, online: < http://www.cbc.ca/news/canada/saskatoon/jurors-indigenous-representation-1.4517610>.

[5] Roach, supra.

[6] Ibid.

[7] R v Kokopenance, 2015 SCC 28.

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Nanâtawihowin (healing)

 

¹

Tansi Nîtôtemtik,

        Canada’s ongoing colonial policies have resulted in an overrepresentation of Indigenous people within the criminal justice system. Patti LaBoucane-Benson comments on this issue in her graphic novel,  “The Outside Circle”:

“For many Aboriginal people and families, the legacy of historical trauma has been the intergenerational transmission of hopelessness, helplessness, and powerlessness.”²

        In an effort to address the historical traumas experienced by overrepresented Indigenous offenders in the system, Native Counselling Services of Alberta (NCSA) has developed two initiatives in particular: Stan Daniels and Buffalo Sage. Today’s blog post will look at both programs as a means to help overcome the “hopelessness, helplessness, and powerlessness” felt by Indigenous people within the system. 

Stan Daniels Healing Centre

        Stan Daniels is a 72-bed facility with both a Community Residential Facility and a Section 81 designation. Residents are either conditionally released offenders (day parole, full parole, or statutory release with residency), or residents with inmate status.³

        The philosophy of the centre is based on the belief that Indigenous offenders require specific programming to address their needs socially, educationally, emotionally, physically, and spiritually.⁴

         There are a variety of programs offered through Stan Daniels including: Relationships, Grief and Loss, Family Life Improvement, and ‘In Search of Your Warrior’. The ‘In Search of Your Warrior Violent Offender Healing Program’ was the focus of LaBoucane-Benson’s graphic novel, and is recognized by Correctional Service of Canada (CSC) as an “effective, Aboriginal specific program that addresses the needs of Aboriginal violent offenders.”⁵ NCSA describes the program as:

“grounded in a holistic Aboriginal philosophy: the belief that all things are connected and that for sustainable change to occur, an individual must engage the physical, mental, emotional and spiritual aspects of self in the changing/learning/healing process. The In Search of Your Warrior Program helps residents understand the effects of personal and historical trauma in [their] behavior and provides them opportunities to connect with their healing path.”⁶

         Institutions in Saskatchewan, British Columbia and Quebec have applied the ‘In Search of Your Warrior Program’, made possible through a partnership between CSC and NCSA.

Buffalo Sage Wellness House

        Buffalo Sage is a 16-bed women’s facility, that houses federally sentenced minimum security Section 81 inmates, as well as conditionally released offenders on day parole, statutory release with residency or full parole with residency.⁷

        The philosophy behind Buffalo Sage mirrors that of Stan Daniels, focusing on the knowledge that Indigenous offenders and non-Indigenous offenders following Indigenous culture require specific programs to address their social, educational, emotional, physical and spiritual needs in a culturally sensitive approach.⁸

        Programs offered at Buffalo Sage include Independent Living Skills, as well as cultural and spiritual programs such as: Relationship training, Grief and Loss, and the Spirit of A Warrior Program. In order to be successful in operating these programs, the NCSA has an extensive network of Elders, ceremonialists and healers. Full-time Elders are present to provide emotional and spiritual support, as well as act as role models for the women. In addition to programming offered at Buffalo Sage, the women are required to regularly attend Sharing Circles, Sweat Ceremonies, Powwows, Round Dances, Night Lodge Ceremonies, and year-round Sun Dance Ceremonies.⁹

        The Stan Daniels Healing Centre and Buffalo Sage Wellness House are just two examples of Indigenous-led initiatives that help to reconcile the overrepresentation of Indigenous offenders. Tomorrow we look to other initiatives on-Reserve to help overcome obstacles for Indigenous people and the criminal justice system.

 

Until next time,

Team ReconciliAction YEG

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[1] Art by Kelly Mellings, in Patti LaBoucane-Benson, The Outside Circle: A Graphic Novel (Toronto, House of Anansi Press: 2015).

[2] Patti LaBoucane-Benson, The Outside Circle: A Graphic Novel (Toronto, House of Anansi Press: 2015).

[3] Native Counselling Services of Alberta, Stan Daniels Healing Centre (Edmonton: Native Counselling Services of Alberta, 2017), online: <http://www.ncsa.ca/programs/corrections/stan-daniels-healing-centre/>.

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Native Counselling Services of Alberta, Buffalo Sage Wellness House(Edmonton: Native Counselling Services of Alberta, 2017), online: <http://www.ncsa.ca/programs/corrections/buffalo-sage-wellness-house/>.

[8] Ibid.

[9] Ibid.

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Restorative Justice: Clarifications & Shortfalls

Tansi Nîtôtemtik,

        Numerous attempts to reform Canada’s criminal justice system have been made over the last 25 years in response to issues such as systemic racism and overrepresentation. Of these reforms, one of the most prevalent is the incorporation of restorative justice (RJ) practices into existing enforcement, judicial, and correctional systems. RJ has gained widespread popularity and yielded positive results in certain settings. However, when RJ is embraced without caution and a critical eye, there are troubling implications.

        Correctional Service Canada defines RJ as “a non-adversarial, non-retributive approach to justice that emphasizes healing in victims, meaningful accountability of offenders, and the involvement of citizens in creating healthier, safer communities.”[1] These principles are in contrast to those of punishment and deterrence (upon which decisions and sentences are traditionally built in the realm of Canadian criminal law).

        Perhaps because of its semi-relational elements, RJ is often considered as equivalent to, or at least deriving from, Indigenous legal traditions. Importantly, Indigenous laws and RJ must not be conflated.[2] The tendency of RJ advocates to do so is evidenced by language like ‘traditional’ and ‘holistic,’ but these terms are over-simplistic and pan-Indigenous. They erase the dynamism and nation-specific nature of Indigenous laws. It is possible for models of Indigenous justice to include restorative elements, but RJ is merely a drop in the bucket when it comes to the options for response housed in a given Indigenous legal system.

        Although not as varied as Indigenous laws, RJ practices also come in more than one form. RJ exists in restitution programs, mediation, conferencing, elder or community reparation boards, and sentencing circles. With a focus on creating “a process that allows for open dialogue between the victim, offender, and the community,”[3] key elements of RJ mechanisms include:

• providing victims with an opportunity to tell their story in a potentially less antagonistic space;
• providing offenders with an opportunity to take responsibility for their actions; and
• empowering communities to better understand the root causes of crime and in so doing arrive at possible preventative measures.[4]

        In the realms of minor property damage, or criminal acts related to possession, trafficking, or use of prohibited substances, RJ practices are a seemingly low-risk/high-reward alternative to incarceration. When it comes to crimes of physical and sexual assault, however, RJ is a far riskier undertaking. And yet, RJ is frequently used to deal with cases of violence in Canada – including cases of intimate violence, or the “physical, sexual, emotional, financial, psychological or spiritual abuse by adult males of adult female partners in intimate relationships.”[5]

        Arguments against the use of RJ in these cases focus on the shortfalls of non-punitive legal action. RJ can lend to the normalization of violence if offenders are left within the community. Restorative models of justice often “fail to physically protect victims from abusers”[6] and can make victims “feel primarily responsible for the violence they experience.”[7] In smaller and more isolated communities, victims may also be more susceptible to coercion and more likely to be forced into forgiving or forgetting before they are ready. All of this is to say that RJ is neither a safe nor effective means of addressing violence – especially violence that is gendered. A better alternative is to consider Indigenous laws, an option that we consider in full in an upcoming section.

        For the rest of this week, we continue to explore other areas of struggle and of hope in the context of criminal justice. Don’t miss out!

Until next time,

Team ReconciliAction YEG

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[1] Correctional Service Canada, “About Restorative Justice” (2014), online: http://www.csc-scc.gc.ca/restorative-justice/003005-0007-eng.shtml [CSC].

[2] Emily Snyder, Val Napoleon and John Borrows, “Gender and Violence: Drawing on Indigenous Legal Resources” (2015) 48:2 UBC L Rev 593 at 599 [Snyder et al].

[3] CSC, supra note 1.

[4] Ibid.

[5] Angela Cameron, “Stopping the Violence: Canadian Feminist Debates on Restorative Justice and Intimate Violence” (2006) Theoretical Criminology 10:1 49 at 60 [Cameron].

[6] Ibid, at 54.

[7] Snyder et al, supra note 2 at 616.

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