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Re: Remembering and Honouring Justice Beverley Browne

Tansi Nîtôtemtik,

Today we celebrate the extraordinary life of Beverley Browne, first Chief Justice of  Nunavut, Canada's largest and youngest territory. Justice Browne served in this role for 10 years, with an overall contribution to Nunavut’s justice system that spanned over 2 decades. Sadly, she passed away at the age of 68, last Wednesday, March 24 peacefully, surrounded by her family.

Browne became a judge in the Northwest Territories in 1990 and was appointed Chief Justice of Nunavut in 1999--the same year that Nunavut was founded. She was responsible for building Nunavut's justice system and played a key role in establishing Canada's only single-level trial court. This was an incredible and important feat because Nunavut’s unique system enables justice to be provided to the area’s remote communities. Justice Browne’s continued advocacy also led to her co-founding the Akitsiraq Law School to train Inuit lawyers in Nunavut.

In 2009, Justice Browne made the decision to leave Nunavut for Alberta, where she served on the Court of Queen's Bench and helped create Alberta's Gladue and Restorative Justice committees. ^[1] She continued to serve not only as a deputy judge in Nunavut but also led meetings aimed at revitalizing the elder’s program in the Nunavut Court of Justice up until her retirement earlier this year. ^[2]

In 2017, Browne was one of the people who helped come up with the idea of Indigenous Career Day at the Edmonton Law Courts, while working on a committee striving to improve the quality of Gladue Reports. Gladue Reports provide essential information for judges to consider in their sentencing deliberations for Aboriginal offenders.^[3] 

“Aboriginal issues are near and dear to my heart. I have always believed that if you are not part of the solution, then you are part of the problem,” said Justice Browne, who described the creation of Indigenous Career Day as a concrete response to the Truth and Reconciliation Commission of Canada’s Calls to Action.^[4]

Last November, Justice Browne was honoured at a ceremony in Alberta held by Cree elders, who gave her the spirit name “Woman Standing with the Law.” This was a  great honour and testament to her commitment and dedication to justice and access to justice.^[5]

In addition to Justice Browne’s many impactful achievements, her personal accomplishments included raising her children and creating music. She played the saxophone and flute. In 1996, Justice Browne founded the Iqaluit Music Society, which was recently awarded the $1-million Arctic Inspiration Prize. 

The legacy of Justice Browne is one of enormous respect in the legal community-- a friend, mentor and colleague, she will live on in the hearts of the people she touched--which are many in the communities she fought for. Justice Browne’s impressive career and courage will stand as a reminder that when we fight for what we believe in, anything is possible.

Thank you for reading, Until next time,

Team ReconciliAction YEG

 

[1] 'Inspirational:' First chief justice of Nunavut, Beverley Browne, dies at age 68 - PrinceGeorgeMatters.com

[2] Justice Beverley Browne remembered as ‘gold standard’ for judges | Nunatsiaq News

[3] News & Announcements (albertacourts.ca)

[4] Ibid

[5] Supra Note 2 Ibid

Birth Alerts

Tansi Nîtôtemtik,

Lately there has been a lot of media coverage of a deeply problematic practice that serves to increase the number of Indigenous children involved in the child welfare system and actively discriminates against Indigenous families: birth alerts. However, birth alerts aren’t new--they’ve existed for years. Today we will discuss what they are, and why they’re so problematic.

(Photo credit: Indiginews, https://indiginews.com/vancouver-island/birth-alerts Reporter Anna McKenzie and her daughter, photograph by Captured Memories Photography)

Birth alerts are used when a newborn is born to a parent that has been assessed as ‘high risk’, to notify hospitals and other child and family services (CFS) agencies that further assessment is required before the newborn can go home with their family. ^[1] Birth alerts often contain personal information of expectant parents without consent, obtained and sent by social workers to hospitals. Hospital staff then inform CFS when the baby is born. ^[2]

It is not surprising in the context of widespread discrimination against Indigenous peoples in the healthcare system, that birth alerts are used disproportionately for Indigenous mothers. According to government records, 28% of birth alerts resulted in infants being apprehended from their families and 58% of families subjected to birth alerts in B.C in 2018 were Indigenous.^[3] In addition, Cindy Blackstock notes that there is no evidence supporting the effectiveness of birth alerts. ^[4]

Increased attention to birth alerts was triggered in part by the National Inquiry on Missing and Murdered Indigenous Women and Girls (MMIWG) Final Report, released in 2019. As one Director of the Ontario Children’s Aid Society notes:

Before the National Inquiry into Missing and Murdered Indigenous Women and Girls, we didn’t really look at the practice critically. We never reflected on its long-term impact on the infant or their mother, or that the other components of the baby’s safety, for example their emotional, spiritual, and intellectual safety, were compromised in those situations. We also didn’t consider how the practice was inequitable, and led to overrepresentation of Indigenous, Black, and other marginalized communities in the child welfare system.^[5]

Many provinces have responded to demands to end the practice of birth alerts by stopping their use and implementing voluntary prenatal intervention and planning instead. However, this is not the case across Canada.^[6]  

The following chart shows where birth alerts are still used: ^[7]

It is extremely disappointing to see that the practice of birth alerts continues in so many Canadian provinces; especially when there is so much information about how profound the negative impact of the child welfare system is on Indigenous families. Team ReconciliAction is hopeful that this harmful and discriminatory practice will be removed from all provinces, and replaced with programs that don’t victimized Indigenous families but instead empower them. That is the only way we can move forward with true reconciliation.

 

Thanks for reading! 

 

Until next time,

 

Team ReconciliAction YEG

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¹Government of Manitoba, “End of Birth Alert Practice” (2020) online:<www.gov.mb.ca/fs/childfam/end-birth-alerts.html>.

²Anna McKenzie, “Birth alerts banned in B.C., but trust still a barrier for Indigenous parents” (11 Feb 2021) online: The Discourse <thediscourse.ca/vancouver-island/birth-alerts-banned-in-b-c-but-trust-still-a-barrier-for-indigenous-parents>.

³Ibid. 

⁴Tessa Vikander & Bayleigh Marelj, “Several Canadian provinces still issue birth alerts, deemed ‘unconstitutional and illegal’  in B.C.” (Jan 15, 2021) online: APTN News <www.aptnnews.ca/national-news/provinces-continue-birth-alerts/>. [Birth Alerts, APTN]

⁵Ontario Association of Children’s Aid Societies, “The practice of birth alerts in Ontario is ceasing October 15th. What’s next for child welfare agencies and their approach to working with expectant mothers?” (13 October 2020) online: <www.oacas.org/2020/10/the-practice-of-birth-alerts-in-ontario-is-ceasing-october-15th-whats-next-for-child-welfare-agencies-and-their-approach-to-working-with-expectant-mothers/>

⁶Birth Alerts, APTN, supra note 4.

⁷ Data compiled by Team ReconciliAction from Birth Alerts, APTN, supra note 4.

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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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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Museums and Reconciliation

Tansi,

“If museums are to achieve their goal of “interpreting the past, explaining the present, and thereby Illuminating choices for the future”, they must express accurately and in context the cultural heritage and spirit of the civilizations that they portray.” ^[1]

In 1988, the world watched as Calgary, Alberta hosted the winter Olympic games. As part of the Arts Festival accompanying the games, an exhibition titled “The Spirit Sings” was hosted at the Glenbow Museum. The exhibition featured over 650 pieces from Indigenous cultures across Canada. ^[2] Ironically, the corporate sponsor of the exhibition was Shell Oil, a company that the Lubicon Lake Cree band argued was responsible for the destruction of their lifestyle. As a result, the Lubicon band and others in their support boycotted the exhibit and joined in protest.^[3]  

(Protesters at the exhibit in 1988, Photo credit: Bill Lindsay, J. David Galway / The Chronicle Journal, January 13, 1988, taken from: https://www.rebeccabelmore.com/artifact-671b/)

Some artefacts featured in the exhibit were sacred items of great significance which some Indigenous peoples argued should not have been displayed to the public. For example, a false face mask belonging to the spiritual leaders of the Mohawk people was included in the exhibition. ^[4] In response, the Kahnawake Mohawk Band successfully filed an injunction to have the sacred mask (and other artefacts) removed. ^[5] However, an application to extend the injunction was unsuccessful, and the mask was later placed back on display. ^[6]

“The Spirit Sings” illuminated the inherent problems with putting Indigenous culture on display in museums without having any meaningful dialogue with the Indigenous groups to whom the artefacts belong. In response to the boycott and protests, a task force was assembled between the Canadian Museums Association (CMA) and the Assembly of First Nations (AFN), to begin a dialogue and publish a report of their findings. The Report, published in 1994, came to several conclusions regarding museum collections and the need to involve the First Peoples in their development.^[7]  

Twenty-one years later, the Truth and Reconciliation Commission (TRC) reiterated the need for the CMA to undertake a review of museum policies with the collaboration of Indigenous peoples in Call to Action #67. This time, the TRC referenced the need for the recommendations of The United Nations Declaration on the Rights of Indigenous Peoples to be incorporated in the review, as follows:

We call upon the federal government to provide funding to the Canadian Museums Association to undertake, in collaboration with Aboriginal peoples, a national review of museum policies and best practices to determine the level of compliance with the United Nations Declaration on the Rights of Indigenous Peoples and to make recommendations.^[8]

In response, the CMA established a Reconciliation Council in 2018. The CMA refers to this council as “a cohesive and influential body of experts in Indigenous culture and museum practices, who are providing guidance and advice to address Call to Action #67.” ^[9] The CMA expects to publish a report on the Council’s findings in fall of 2021. As we have yet to see the report findings, but actions have been taken towards Call to Action #67, we are assigning a grade of C+ to this Call.

The second Call to Action that calls upon the CMA, along with the Canadian government, is Call to Action #68 as follows:

We call upon the federal government, in collaboration with Aboriginal peoples, and the Canadian Museums Association to mark the 150th anniversary of Canadian Confederation in 2017 by establishing a dedicated national funding program for commemoration projects on the theme of reconciliation.^[10]

Unlike many other Calls to Action, #68 has a date for completion: Canada’s 150th ‘birthday,’ based on Confederation. According to the Government of Canada, $3.6 million was invested into five “signature projects  that include a strong focus on Indigenous communities, including two  that are specifically designed to promote reconciliation amongst Indigenous and non-Indigenous people in Canada”.^[11] However, CBC News points out that this fund (the Canada 150 Community Infrastructure Fund) was created by the preceding federal government in May 2015 without collaboration with Indigenous peoples and without an exclusive goal of reconciliation.^[12]

It is disappointing when even the most explicitly stated Calls to Action are given a half-hearted effort by the Government. For this reason, we are assigning a D- grade to the Government of Canada on Call to Action #68. 

Thanks for reading. Let us know what you thought of this evaluation in the comments section below!

Until next time,

Team ReconciliAction YEG

¹CMA/AFN Task Force Report on Museums and First Peoples (1994, 3rd edition) Ottawa, CMA Archives.

²Julia D Harrison & Bruce Trigger, “'The Spirit Sings' and the Future of Anthropology” (1988) 4:6 Anthropology Today, 6 at 6-7.

³Dan Dibbelt, ”Nations gather to protest Glenbow's Spirit Sings display” (1988) 5:23, Windspeaker Publication. 

⁴ Ibid.

⁵Ibid. 

⁶Kahnawake Mohawk Band v. Glenbow-Alberta Institute, 1988 CanLII 3797 (AB QB). 

⁷Task Force Report, supra note 1. 

⁸Canada, Truth and Reconciliation Commission, Honouring the Truth and Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada. Winnipeg: The Commission, 2015, at 8. [TRC Calls to Action]

⁹Canadian Museums Association, “Reconciliation Program” (2021), online: <museums.ca/site/aboutthecma/reconciliationprogram>. 

¹⁰TRC Calls to Action, supra note 8 at 8. 

¹¹Government of Canada, “Museums and archives” (Sept 5, 2019), online: Delivering on the Truth and Reconciliation Calls to Action: <rcaanc-cirnac.gc.ca/eng/1524504831027/1557513782811>.

¹²CBC News, Beyond 94: Call to Action #68, (Dec 2020) CBC News, online: <https://newsinteractives.cbc.ca/longform-single/beyond-94?&cta=68>. 

TRC Call to Action #60: Aboriginal Beliefs and Spirituality and the Whiteman’s Gospel

We call upon leaders of the church parties to the Settlement Agreement and all other faiths, in collaboration with Indigenous spiritual leaders, Survivors, schools of theology, seminaries, and other religious training centres, to develop and teach curriculum for all student clergy, and all clergy and staff who work in Aboriginal communities, on the need to respect Indigenous spirituality in its own right, the history and legacy of residential schools and the roles of the church parties in that system, the history and legacy of religious conflict in Aboriginal families and communities, and the responsibility that churches have to mitigate such conflicts and prevent spiritual violence.

In plain simple terms Call to Action #60 is a call to train individuals in religious cultural safety, so that people of different faiths may understand each other better.^[1] This Call to Action aims to ensure churches and those Christian groups that were involved in the residential school system make a conscious and organized effort to educate their organizations on the harms of what those schools did and take an active role in respecting Aboriginal communities and their members' individual rights to practice spirituality according to the teachings of their ancestors.

Canada is a religiously pluralistic country because of its diverse population. This requires Canadians to act with tolerance and respect, including learning about each other’s faiths and beliefs, and accepting that differences can coexist. These actions can minimize or eliminate the divisiveness, hostility and prejudice seen throughout Canadian history towards Indigenous beliefs and practices associated with their spirituality.^[2]

There is a great responsibility of the church parties to mitigate the harms they caused to Indigenous peoples, and addressing these harms requires more than apologies. Our December 2, 2020 post on the Calls to Action #48 and 49 outlining the church parties apologies can be found here: https://ualbertalaw.typepad.com/faculty/2020/12/re-trc-call-to-action-48-49-settlement-agreement-parties-and-undrip.html

It is worth noting that although Pope Benedict expressed his sorrow for those who suffered at the Residential Schools, the Catholic Church has yet to issue a formal apology. This is shameful when considering that the Catholic Church ran 70% of the forced Indian Residential Schooling in Canada.^[3]   

Acknowledgements and apologies are an important first step, yet without action, they are empty words and empty promises of reconciliation. The spiritual harm and abuse that First Nations, Metis, and Inuit experienced during the era of colonial expansion require extensive education to understand the spiritual relationship with the Creator and with the Land that Indigenous peoples have. This education should include actively unlearning harmful views that place Indigenous ceremonies and practices as sinful in the eyes of God as referred to in the Anglican Church’s “Apology for Spiritual Harm”.  This apology was an excellent example of a church taking ownership.^[4] 

The arrogance of many churches resulted in grievous harm and the great loss of ceremonies and spiritual teachings that have sustained the First Peoples for generations upon generations. The intergenerational spiritual trauma created by the arrogance of many churches may begin to heal by furthering cultural education to church clergy, members, and leaders that identifies the importance of Aboriginal practices and ceremony.

Call to Action #60 is a very difficult recommendation to universally implement in Canada. It took Canada’s Supreme Court until 2017 with the Ktunaxa Nation v. British Columbia ^[5] case to issue a ruling on Indigenous religious freedom which in the end only ended up showing that the Supreme Court is unable to recognize its own colonial and culturally located position under the Charter.^[6]

There is no clear way to make it mandatory for a church organization to develop a curriculum of cultural education that would not violate their s. 2(a) Charter rights. This provision of the Charter works against Aboriginal Peoples in two ways, as previously mentioned and because protection under it requires claimants “to frame their religion in terms that are recognizable to the legal culture of Canada without reference to the colonial foundations of that very legal system or the broader colonial context of Canada”.^[7] Essentially indicating that Indigenous religious freedom, under s. 2(a), is currently an impossibility and poses a significant barrier.  

From a policy perspective, this is a very difficult recommendation for the government to implement that would be effective, it would need to work with Indigenous communities and organizations cohesively to do so and make significant changes in government policy. Moving forward, it remains up to each religious group to play its own part in working towards reconciliation through cultural education and it will be interesting to see who takes this seriously. ^[8]

Until Next Time,

Team ReconcilAction YEG

[1] Acadia University, “TRCtalk” online: <http://courseware.acadiau.ca/trctalk/category/calls/>. 

[2] Benna Crawford, “The Advantages of Religious Diversity” (29 Sept 2017), online: Classroom <classroom.synonym.com/the-advantages-of-religious-diversity-12087077.html>.

[3] CAID.ca, “Church Apologies for Indian Residential Schools”, online: <caid.ca/Dchurch_apology.html>. 

[4] Archbishop Fred Hiltz, “An Apology for Spiritual Harm” (July 12, 2019) online: <anglican.ca/news/an-apology-for-spiritual-harm/30024511/>.

[5] https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16816/index.do 

[6] Nicolas Shrubsole, Policy Options, “The Impossibility of Religious Freedom”, 2017 online: The impossibility of Indigenous religious freedom (irpp.org) 

[7] Ibid

[8] TRCtalk, supra note 1, Call to Action #60. 

\

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.

TRC Call to Action #51: Transparency regarding legal opinions

Tansi Nîtôtemtik,

Today we dive back into our evaluation of the TRC Calls to Action with Call to Action #51, which states:

We call upon the Government of Canada, as an obligation of its fiduciary responsibility, to develop a policy of transparency by publishing legal opinions it develops and upon which it acts or intends to act, in regard to the scope and extent of Aboriginal and Treaty rights.^[1]

In order to better evaluate this Call to Action, let’s first look at what is meant by the fiduciary responsibility of the Government of Canada towards Aboriginal and Treaty rights.

Historically, the Government of Canada (the Crown) has taken responsibility for the protection of Indigenous peoples and their rights, which stems from the fact that Indigenous peoples are the original inhabitants of Canada.^[2] This special relationship has been recognized since the Royal Proclamation of 1763, and places obligations on the Crown to act in the best interests of Indigenous peoples and exercise their power with “loyalty and care.”^[3] The fiduciary responsibility remains a central element of the relationship between the Crown and Indigenous peoples.

Therefore, when it comes to the scope and extent of Aboriginal and Treaty rights, the Crown has an obligation to act in the best interests of Indigenous peoples. Call to Action #51 recognizes that to fulfill their fiduciary duty, transparency is required when the Crown makes decisions about Aboriginal and Treaty rights. Typically, these legal opinions would be considered confidential, but as central stakeholders, the Indigenous peoples being impacted by these decisions have a right to know the legal opinions that the Crown intends to act upon before reaching the court.^[4]

(Photo credit: Queen’s University Journal, https://www.queensjournal.ca/story/2018-10-15/editorials/supreme-court-denies-indigenous-peoples-treaty-rights/)

Unfortunately, little progress has been made regarding Call to Action #51. The confidentiality associated with legal opinions can be voluntarily waived by the Crown, but it is not mandatory. The Department of Justice released Guidelines for Civil Litigation involving Indigenous Peoples, which prioritizes reconciliation and respect for the Aboriginal and Treaty rights, (which are also protected under section 35 of the Constitution Act) but there is no specific requirement for transparency in these guidelines.^[5]

The need for a policy of transparency when it comes to constitutionally protected rights, especially where the Crown has a fiduciary duty to do so, is extremely important.  The larger goal of Call to Action #51 is equity for Aboriginal people in the legal system, which will require transparency in legal proceedings. But this policy of transparency has not been adopted by our government. For this reason, we are assigning a failing grade. 

Until next time,

Team ReconciliAction YEG

 

¹Canada, Truth and Reconciliation Commission, Honouring the Truth and Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada. Winnipeg: The Commission, 2015.

²Kent McNeil, “Fiduciary Obligations and Aboriginal Peoples." in The Law of Trusts: A Contextual Approach, 2nd ed. (Toronto: Emond Montgomery, 2008) at 908-909.

³Ibid at p.907-908; Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development), [1995] 4 SCR 344 at para 38.

⁴CBC News, "Beyond 94: Truth and Reconciliation in Canada” (Dec 14, 2020) online: <newsinteractives.cbc.ca/longform-single/beyond-94?&cta=51>.

⁵Department of Justice Canada, “The Attorney General of Canada’s Directive on Civil Litigation Involving Indigenous Peoples” (2018) online (pdf):<www.justice.gc.ca/eng/csj-sjc/ijr-dja/dclip-dlcpa/litigation-litiges.pdf>.

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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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>.

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>.

Statutes of Limitation and Indigenous Civil Claims

 

Tansi Nîtôtemtik,

Today ReconciliAction YEG continues our assessment of the Justice Calls to Action, specifically Call to Action #26:

We call upon the federal, provincial and territorial governments to review and amend their respective statutes of limitations to ensure that they can conform to the principle that governments and other entities cannot rely on limitation defences to defend legal actions of historical abuse brought by Aboriginal people.^[1]

To better understand the importance of this Call to Action, let’s first review the function of statutes of limitations.

Statutes of Limitations

Statutes of Limitations are pieces of legislation that place time limits on when a civil claim can be brought forward. If the limitation period for a claim has expired when it is brought to court, the other party can plead the applicable statute of limitations as a defence. 

With the exception of Quebec, each province has Statute of Limitations legislation. In Alberta the statute is the Limitations Act.^[2] The reasoning behind this legislation is:

1) security, so that parties know when they can be sued; 

2) fairness, by ensuring that evidence is preserved and;

3) ensuring that parties bring their actions forward in a timely manner.^[3]  

Legal Actions of Historical Abuse

The historical abuse suffered by Indigenous peoples through institutional actions is no mystery. From Residential Schools where children were taken from their families and subjected to  physical, psychological, and sexual abuse to the attempted elimination of Indigenous cultures and languages through government policy, many of these historical abuses could found legitimate civil actions. Further, the Government has a special legal relationship with Indigenous people, known as a fiduciary duty. This duty refers to the special responsibility of the Government to act in the best interests of the Indigenous people of Canada.

Legal actions have been brought forward by Residential School survivors, most commonly for sexual and physical abuse suffered at the hands of staff.^[4] The reason these historical claims could be brought forward was because most Canadian provinces exclude sexual abuse from having a limitation period.^[5]  

Litigation guidelines for civil litigation involving Indigenous peoples were published by the Department of Justice in 2018, which state: 

Litigation Guideline #14: Limitations and equitable defences should be pleaded only where there is a principled basis and evidence to support the defence…

When determining whether such circumstances exist, counsel must consider whether the defence would be consistent with the honour of the Crown. Reconciliation is generally inhibited by pleading these defences^[6].

While the Government has pledged to adjudicate Indigeneous claims fairly with a focus on reconciliation, their actions speak differently. For example, when the Canadian Human Rights Tribunal ordered the Government to pay compensation to First Nations youth in care in First Nations Child and Family Caring Society of Canada^[7]; their response was to file an appeal on jurisdictional grounds. ^[8] While a limitations defence was not plead, the Government’s choice to appeal does not demonstrate a desire to preserve the “honour of the Crown”. (See our post about the Decision here.)

As of now, no amendments have been made to the Statutes of Limitations of any Canadian provinces or territories to reflect Call to Action #26 and allow “expired” civil claims stemming from the historical abuse suffered by Indigenous peoples. As a result, Team ReconciliAction is giving a failing grade on Call to Action #26. 

Final Thoughts

It is not hard to comprehend why the TRC made Call to Action #26. For true reconciliation, Canada needs to remove procedural barriers like Statutes of Limitations for the adjudication of Indigenous claims. Accountability is central to reconciliation, and by failing to implement unequivocal legislation that ensures historical claims can be brought forward, accountability is lost.  

Thanks for reading. Please let us know your thoughts on this post!

Until next time,

Team ReconciliAction YEG

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.

²Limitations Act, RSA 2000, c L-12. [Limitations Act]

³M.(K.) v. M.(H.), 1992 CanLII 31 (SCC), [1992] 3 SCR 6 at 29-30.

⁴See R v O’Connor, 1995 CanLII 51 (SCC), [1995] 4 SCR 411; H.L. v. Canada (Attorney General), 2005 SCC 25; Cloud v. Canada (Attorney General), 2004 CanLII 4544 (ONCA); Blackwater v. Plint, 2005 SCC 58; E.B. v. Order of the [Roman Catholic] Oblates of Mary Immaculate in the Province of British Columbia, 2005 SCC 60; Canada (Attorney General) v. Fontaine, 2017 SCC 47. 

⁵ With the exclusion of Prince Edward Island. 

⁶ Department of Justice Canada, “The Attorney General of Canada’s Directive on Civil Litigation Involving Indigenous Peoples” (2018) online (pdf):<www.justice.gc.ca/eng/csj-sjc/ijr-dja/dclip-dlcpa/litigation-litiges.pdf> at 18.

⁷First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 2. [First Nations Child and Family Caring Society of Canada]

⁸First Nations Child and Family Caring Society of Canada, “A historic legal victory for First Nations children and Canada’s failure to comply” (29 Jun 2017) Committee on the Elimination of Racial Discrimination, 21st – 23rd Reports of Canada, Alternative Report, online (pdf): <tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/CAN/INT_CERD_NGO_CAN_27941_E.pdf>. 

Diversity on the Bench

 

A picture of the current Justices of the Supreme Court in Canada. Credit: Supreme Court of Canada Collection

Tansi Nîtôtemtik,

Today we continue our reflections on last week’s Indigenous Bar Association Conference.  

In today’s post, Team ReconciliAction YEG will be discussing the Breakout Session titled: “Indigenous & Black Representation on the Bench, Inclusion and Diversity.” The session was an honest and open discussion about the current representation of Indigenous and Black lawyers in our Canadian judiciary, and suggestions on how to make improvements. The session featured three speakers:

• Justice Harry LaForme, who currently practices law at Olthius Kleer Townshend LLP and previously served as a Justice of the Ontario Court of Appeal and as a Justice on the Ontario Superior Court (ONSC); 
• Justice Nyron Dwyer, a current Justice of the Ontario Court of Justice; and
• Joshua Sealy-Harrington, a current lawyer at Power Law LLP, (now doing doctoral research at Columbia Law School theorizing law, identity, and sexuality) who also completed three clerkships (two at the Supreme Court of Canada (SCC) and one at the Federal Court). 

Photo credit: Joshua Sealy-Harrington, Twitter, October 23, 2020

Each of the three panelists shares a unique perspective on diversity in the judiciary. Justice Laforme was notably the first Indigenous judge on an appellate court when he was appointed in 2004. While at the ONSC, Justice LaForme was one of three Indigenous justices at that time to have been appointed to that level of trial court. Justice LaForme became a lawyer at a time when Indigenous lawyers were few and far between, and has been a champion for Indigenous issues throughout his legal career. 

Justice Dwyer immigrated to Winnipeg from Jamaica when he was seven years old. He pursued a legal career at a time where only two or three Black students had ever graduated from his law school (University of Manitoba). Justice Dwyer built a career in criminal law where he practiced  for over twenty years, and noted the staggering overrepresentation of Indigenous people involved in the criminal justice system. 

Joshua Sealy-Harrington is Trinadadian-Canadian. Joshua shared that during his Juris Doctor degree, he had no Black teachers, was the only Black lawyer at the firm he worked at, and was the only Black law clerk during his three clerkship terms. Joshua shared how these experiences made him feel alone, and noted that in his experience, feeling unique in an institution as powerful as the Supreme Court of Canada was deeply unsettling. 

Barriers in the judicial appointment process

One of the questions posed to the speakers was about barriers in the judicial appointment process for Indigeneous and Black lawyers. The barriers associated with the French language requirement was discussed, which we wrote about in this post.

Some other barriers included:

• Undervaluing the need for diverse perspectives and Indigenous/Black representation on the bench at all levels, especially in the apex court (SCC). 
• Outdated ideas about representation of minorities rooted in colonial values, such as citing a lack of applications for judicial appointments as the reason for underrepresentation rather than looking at the reasons behind the low number of applications. 
• A lack of confidence amongst Indigenous and Black lawyers to apply for judicial appointments, related to a feeling that one has to “do more” or “be perfect” to be worthy of an appointment. 
• A lack of transparency about the application and selection process itself through unequal access to knowledge both implicitly (e.g. specialized tips for interviewing, compiling applications) and explicitly (e.g. a lack of resources to compile applications); and
• Systemic discrimination through the selection process and criteria for application themselves, as they indirectly select for certain schools or backgrounds.

With respect to these last two barriers, Sealy-Harrington pointed to similarities with the clerkship application/recruitment process, and noted that these flaws likely applied to judicial appointments as well. 

Recommendations for change

Sealy-Harrington made a striking comparison between government funding for social programs and representative judicial appointments. He commented that the question is more one of priority, not scarcity. The speakers shared their passion for improving diversity in the judiciary, and made some of the following suggestions:

• Members of the judiciary should encourage strong lawyers with diverse backgrounds to apply for judicial appointments. Justice Dwyer shared that as a young lawyer, Justice LaForme encouraged him to apply to the bench, which was instrumental in his decision to apply. 
• The legal community should lobby the Government to prioritize the appointment of underrepresented Black and Indigenous lawyers.
• Diversity of experience should not be overshadowed by technical specifications like the French language requirement. 

Overall, this Breakout Session really drove home the importance of representation of all backgrounds on the Bench at all levels of court, but especially the SCC. Team ReconciliAction YEG is hopeful Canada’s judiciary will soon start to resemble the people coming before them in our courts. 

We would like to leave you with a powerful quote shared by one of the moderators, Ajay Winterburn during the panel:

"The function, the very serious function of racism is distraction. It keeps you from doing your work. It keeps you explaining, over and over again, your reason for being. Somebody says you have no language and you spend twenty years proving that you do. Somebody says your head isn’t shaped properly so you have scientists working on the fact that it is. Somebody says you have no art, so you dredge that up. Somebody says you have no kingdoms, so you dredge that up. None of this is necessary. There will always be one more thing." -Toni Morrison 

Until next time,

ReconciliAction YEG

Section 25 of the Charter: Indigenous Laws in Canadian Courts

Correction notice: ReconciliAction YEG would like to clarify that s.35 of the Charter recognizes and affirms existing treaty rights. Also, the second takeaway should be clarified to say that Ryan suggested the Vuntut Gwitchin case shows that the s.25 analysis itself (rather than the need for the analysis itself) is very contextual. Please visit the Center for Constitutional Studies website to watch this great webinar at: https://ualawccsprod.srv.ualberta.ca/past-events/speakers-and-panels/. 

Tansi Nîtôtemtik,

Yesterday, Team ReconciliAction YEG attended the Center for Constitutional Studies’ (CCS) Online Charter Series webinar titled “Section 25 of the Charter: Indigenous Laws in Canadian Courts”, hosted by Ryan Beaton from the University of Victoria. Ryan Beaton is a PhD candidate in the Faculty of Law at the University of Victoria and a 2017 scholar of the Pierre Elliott Trudeau Foundation. In the webinar, Ryan reviewed the recent Vuntut Gwitchin decision from the Yukon Supreme Court,^[1] specifically regarding the unique challenges of considering Indigenous law in Canadian courts. 

The Decision

Ms. Cindy Dickson, a member of the Vuntut Gwitchin First Nation (VGFN), wanted to run as a candidate for VGFN Councillor. However, under the VGFN Constitution, an elected Councillor or Chief is required to relocate to the VGFN seat of government in Old Crow, approximately 800 km north from Whitehorse, where Ms. Dickson lived. Ms. Dickson was unable to relocate to Old Crow for many reasons, including her need to be close to medical care for her teenage son. As a result, Ms. Dickson challenged the residency requirement for election under s. 15(1) of the Charter of Rights and Freedoms.^[2]

Old Crow is the most northerly community in the Yukon Territory. (Photo credit: Yukon News, July 3rd 2020, https://www.yukon-news.com/news/vuntut-gwitchin-councillor-submits-resignation/)

The Court first determined that Ms. Dickson’s application was not a fundamentally political question, and thus could be heard by the Court, rather than being negotiated between the VGFN, Yukon and Canada. Secondly, the Court found that the Charter applied to the VGFN government and its residency requirement for election. Thirdly, the Court found that the residency requirement did not infringe Ms. Dickson’s equality rights. Finally, the Court found that even if Ms. Dickson’s s. 15(1) rights were breached by the residency requirement, s.25 of the Charter would shield the residency requirement provision from constitutional scrutiny. 

Section 25 of the Charter

Although the Charter was enacted 38 years ago, s.25 has had very limited interpretation by Canadian courts. Some might say that it has been overshadowed by s.35, which recognizes and affirms existing Aboriginal and treaty rights.

S.25 provides that:

25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including

        (a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and

        (b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired. (94)^[3]

Only one case at the Supreme Court of Canada, R v Kapp, has spoken to what s.25 entails.^[4] Even then, the discussion was in Justice Bastarche’s dissenting opinion, where he suggested a potential framework for its application. The lack of case law dealing with s.25 has been recognized as problematic because it is a Charter provision that could serve a valuable function in protecting a broader range of Indigenous rights.^[5]  

Takeaways 

Ryan Beaton noted that at the heart of this decision is the question of how Indigenous sovereignty will take shape in the Canadian constitutional landscape. Ryan did an excellent job of explaining this decision. We have briefly summarized some of the implications Ryan noted below:

• This decision suggests that a Charter analysis should take place before deciding whether the provision in issue is shielded by s.25, contrary to Justice Bastarche’s approach in Kapp.
• The s.25 analysis is very contextual.
• This decision shows a shift in the attitude towards Indigenous sovereignty. There is no argument of whether VGFN has sovereignty, instead the question is the relationship between Indigenous and Canadian sovereignty.

Stay tuned, because the decision has been appealed by both Ms. Dickson and the VGFN.^[6] We certainly look forward to seeing how the Court of Appeal of Yukon deals with this interesting and important case! 

Until next time,

Team ReconciliAction YEG

¹Dickson v Vuntut Gwitchin First Nation, 2020 YKSC 22. [Vuntut Gwitchin]

²Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. [Charter]

^{3Charter, supra note 2, s.35.}

⁴R v Kapp, 2008 SCC 41. [Kapp]

⁵Jennifer Koshan & Jonnette Watson Hamilton, “Kahkewistahaw First Nation v Taypotat – Whither Section 25 of the Charter?” (2016) 52:2 Constitutional Forum 39. 

⁶Jackie Hong, “ Vuntut Gwitchin formally appeals decision in residency requirement case” Yukon News, (August 15, 2020) online: <www.yukon-news.com/news/vuntut-gwitchin-formally-appeals-decision-in-residency-requirement-case>. 

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).

5 Years After TRC: Reducing Children in Care

Tansi Nîtôtemtik, 

 

Today we are looking at TRC Calls to Action #1 and #2.  Both of these Calls to Action call on governments to address the staggering number of Indigenous children in the child welfare system. The 2016 census showed that a shocking 52.2% of children in care were Indigenous.^[1] Why is this figure so shocking? Well, only 7.7% of children in Canada are Indigenous.^[2]  

(Image credit: Government of Canada; Indigenous Services Canada, “Reducing the number of Indigenous children in care”, (2 November 2018), online: <https://www.sac-isc.gc.ca/eng/1541187352297/1541187392851>) 

 

Call to Action #1 calls for a commitment from governments to reduce Indigenous children in care through resourcing, monitoring and educating child welfare organizations, and requiring child-welfare investigators and decision makers to consider culturally appropriate environments and the effects of residential schools on children and caregivers. Call to Action #2 calls for annual published data on child welfare services and Indigenous children.^[3]

 

To evaluate Call to Action #1, Team ReconciliAction first needed to know if there has been a reduction of Indigenous children in care since 2015. However, the most recent federal data on the number of Indigenous children in care comes from the 2016 census. Due to the absence of annual published data, we have assigned a failing grade for Call to Action #2.  Finding out the number of Indigenous children in care would have been a simple task if Call to Action #2 had been adequately responded to.  Luckily for our readers, we law students are no strangers to research. 

 

News reports from June 2020 state that the proportion of Indigenous children in care in Saskatchewan hit an 11-year high for the number of children in care, with 86% of these children being Indigenous.^[4]  Following a similar upward trend, Alberta Human Services reported a 4% increase in Indigenous children in care in 2018, raising Alberta's figure to 70%.^[5]  Finally, between 2016 and 2018, BC saw an increase in the number of Indigenous children in care from 61% to 63%.^[6] 

 

The number of Indigenous children in care may be further impacted by recent published judicial interpretations of the Act respecting First Nations, Inuit and Métis children, youth and families since it's coming into force in January 2020. Several courts across the country have interpreted the new priority placement provision in the Act in a way that places or keeps the Indigenous child in foster care, by skipping over or deeming 'not applicable' placements that are legislated as ahead of foster homes in priority.^[7] We will discuss this Act in greater detail next week when we look at Call to Action #4.

 

Overall, Call to Action #1 cannot be assigned a passing grade for reducing the number of Indigenous children in care because the proportion of Indigenous children in care has not been reduced since the final report from the TRC was released in 2015. Perhaps tomorrow this grade can improve when we evaluate whether there has been progress on the individual means of reducing the number of Indigenous children in care as set out in TRC Call to Action #1. Stay tuned!

What do you think about progress on Calls to Action #1 & #2? Comment below. 

 

Until next time, Team ReconciliAction YEG

 

¹ Government of Canada; Indigenous Services Canada, “Reducing the number of Indigenous children in care”, (2 November 2018), online: <https://www.sac-isc.gc.ca/eng/1541187352297/1541187392851>.

² Ibid

³Truth and Reconcilliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconcilliation Commission of Canada. (Ottawa: Truth and Reconciliation Commission of Canada, 2015) at 319.

⁴ Anna McMillan, “Number of children in Saskatchewan’s care hits 11-year high, with 86% identified as Indigenous”, online: Global News <https://globalnews.ca/news/7020525/indigenous-children-saskatchewans-care-11-year-high/>.

⁵ Human Services Alberta, Child Intervention Information and Statistics Summary (Alberta: Human Services Alberta, Child Intervention Division, 2018).

⁶ Government of British Columbia, “Children and Youth in Care”, (31 March 2018), online: <https://mcfd.gov.bc.ca/reporting/services/child-protection/permanency-for-children-and-youth/performance-indicators/children-in-care>.

⁷An Act respecting First Nations, Inuit and Métis children, youth and families, SC 2019 c 24 [The Act], s 16, When placing an Indigenous child, priority must be considered in order of, (a) with one of the child’s parents, (b) with another adult member of the child’s family,(c) with an adult who belongs to the same Indigenous group, community or people as the child, (d) with an adult who belongs to an Indigenous group, community or people other than the one to which the child belongs, or (e) with any other adult. Alberta (Child, Youth and Family Enhancement Act, Director) v KC, 2020 ABPC 62 [AB Director v KC] at paras 30–31, Interpreted as inapplicable when family and Indigenous governing body have not put forth kinship or other placement options; British Columbia (Child, Family and Community Service) v SH, 2020 BCPC 82 [BCCFS v SH] Placement priority provision interpreted as not applicable when no other placement alternatives or evaluations have been provided to the court.

ILSA Speaker Series: Panel Discussion and the Aboriginal Justice Award

Tansi Nîtôtemtik,

Left to right: Lola Antonius, Lisa Weber, Judge Arcand-Kootenay, Breanna Arcand-Kootenay, Mark Tripe de Roche and Tyler Tremel

 

As we complete our coverage of last week’s Speaker Series hosted by the Indigenous Law Students’ Association (“ILSA”), today’s post will broadly cover Friday’s panelists, and their discussions on the child welfare system. [1] The panelists included the Honourable Judge Cheryl Arcand-Kootenay, Denise Lightning, Lisa Weber, and Lola Antonius.

Judge Arcand-Kootenay was appointed to the Provincial Court of Alberta on November 6, 2018, becoming the first Treaty 6 woman to become a Provincial Court Judge. She is a Cree woman from the Alexander First Nation, and an alumnus of the University of Alberta, having received her Bachelor of Laws Degree in 1992. She was called to the Alberta Bar in 1993, where she practiced primarily in child welfare prior to her judicial appointment. She was counsel for a Delegated First Nation Agency (DFNA) in Maskwacis; was on the Legal Representation for Children and Youth (LRCY) roster as counsel for children and youth involved in child welfare proceedings; and was on the Alberta Justice Social Enhancement Legal Team (SELT) roster as counsel for the Director (Child and Family Services) in the Edmonton area.

Denise Lightning received her Bachelor of Laws Degree from the University of Toronto in 1994. After moving back to Maskwacis, Alberta, Denise was admitted to the Alberta Bar in 1999, and has since established a practice on the Four Nations Cree Territory, which serves Edmonton, Ponoka, Wetaskiwin and surrounding areas. Denise has been awarded the Esquao award for Aboriginal Women in the Justice category. She is an active member of the Indigenous Bar Association, the Canadian Corporate Counsel Association, the Canadian Bar Association, and President of the Child Welfare Trial Lawyers Association.

Lisa Weber, a member of the Paddle Prairie Métis Settlement, received her LL.B. from the University of Alberta in 1999 and was admitted to the Law Society of Alberta in 2000. Lisa worked for 9 years throughout Canada as an adjudicator and Deputy Chief Adjudicator presiding over claims of former students of Indian Residential Schools for the abuse they endured at those institutions.  She was also senior counsel for the Institute for the Advancement of Aboriginal Women in the National MMIWG Inquiry and acted for the Institute in its involvement with the R. v. Barton case at the Alberta Court of Appeal and Supreme Court of Canada.  She currently acts as counsel for four First Nations, doing child welfare litigation for two of those Nations.

Lola Antonius graduated from the University of British Columbia’s Faculty of Law in 2003. She participated in the National Aboriginal Council on Species At Risk (NACOSAR) policy and planning committee as technical support to the council who provided advice on the administration of the Species at Risk Act (SARA) to the Environment Minister. Lola has been a member of the Law Society of Alberta since August 2017. She is currently a sole practitioner in Grande Prairie and deals with family law matters such as divorce, custody, child support, spousal support, and matrimonial property.

The above panel of strong Indigenous lawyers offered significant insights into the child welfare system in Alberta. Judge Arcand-Kootenay opened up the panel by first acknowledging the women in the audience, in light of International Women’s Day, which was fitting as the panel were all women in law. Her Honour recommended to those interested in the practice of child welfare to always carry the Child, Youth, and Family Enhancement Act (CYFEA), something she stated was “always in her bag.” She also reflected on her time practicing in this field of work, sharing with the audience that the “number of Indigenous children in care is extraordinarily high.” Her Honour commented on the recent changes to the provincial legislation, Bill 22, in terms of private guardianship and First Nations Bands now required to be given notice when an application is made. The result of which she hopes will result in “no loss going forward, and children staying close to their communities and culture.” The importance of connection was emphasized by her Honour, “being Indigenous, a part of knowing your identity is knowing where you come from – culture is a part of this.” Judge Arcand-Kootenay also looked to the other end of the spectrum and the effects of the new legislation in its most minimal application, where Band consultation may simply be a caseworker sending an email stating, “we need to touch base with you.” This is where she feels the judiciary is responsible for ensuring consultation is meaningful.

Mrs. Weber further commented on the recent changes to Alberta’s legislation, as well as the new federal changes through Bill C-92, which is intended to enable Indigenous communities to develop their own laws. She cautioned that the language is extremely important when looking at these changes, and to always use a critical eye. Although both Bills are “progress,” Mrs. Weber also emphasized the importance of First Nations developing their own laws; however, communities face serious challenges in implementing these changes as their budgets are already stretched very thin. Mrs. Weber also encouraged those wanting to practice child welfare to look to the Enhancement Policy Manual. One issue she noted was the principle that “children should be, to the extent possible, placed with family,” and how the process is to be applied based on the Manual. In order to achieve placement, there is a home approval process, which Mrs. Weber commented offers its own set of challenges when hoping for placement within the community,

“Caregivers are apprehensive at times to have strangers come in and do assessments in order to have their home approved for placement. Issues [arise] for homes being approved in Indigenous communities, and children being taken away. There are everyday challenges to meeting those requirements and having children placed in home communities.”

Ms. Antonius offered insights from a different perspective, her practice primarily being counsel for the parents “fighting to get their children back.” Practicing in Grand Prairie, Ms. Antonius also noted that the majority of her clients are Indigenous. She commented on the barriers for parents seeking legal representation, which is generally done through Legal Aid. Issues often involve a lack of communication, parents not knowing what is going on with their file, or not understanding the court process. Ms. Antonius, who practices on her own, stated, “now that I’m accepting these files,  I’m overwhelmed with people needing a lawyer.” Ms. Antonius encouraged those interested in child welfare to take a step back and look at the bigger picture – what happened? What led to the apprehension? Ms. Antonius commented on the issues arising, such as,

“poverty, parents that don’t have the means to provide a safe home, addiction…the system doesn’t accommodate residential school systems and trauma from the oppression. [There are] parents coming to court that don’t even understand the cycle they’ve been caught in.”

Ms. Antonius reflected on how to address issues stemming from intergenerational trauma, stating, “look at the whole picture, how can we help these parents become better parents, and break the cycle.”

Ms. Lightning closed the panel discussions, offering her own personal experiences with the child welfare system. She shared that her mother was a residential school survivor, a trauma which led to herself living on the streets for a period of time, and struggling with alcoholism. Ms. Lightning opened up about her experience losing her first son to the child welfare system, whom she didn’t see until he was 18 years old. Her personal experiences have certainly driven her commitment and devotion to the practice of child welfare, now 35 years sober, and a strong Indigenous lawyer. Ms. Lightning commented on the cyclical nature of the system, “I’ve been around the system long enough to represent children, who then grew out of the system and got into the criminal system, and [I’m now] representing them in their own child welfare proceedings with their own children.” She commented that the practice of child welfare is not easy, it often goes unseen, but as a practitioner you have a lot to offer. She encouraged those interested in the field to question the system, to fight, “to have empathy, to understand [your] clients in order to represent them, and be fearless advocates for them.”

Concluding the Speaker Series, Dean Paul Paton and ILSA awarded the Aboriginal Justice Award. The Aboriginal Justice Award recognizes the hard work of a professional in the legal field, who has dedicated much of their life’s work to providing services to Aboriginal communities and contributing to the development of Aboriginal justice initiatives. Members of ILSA vote each year on a speaker they believe exemplifies the above values, this year’s recipient being Judge Arcand-Kootenay. Team ReconciliAction YEG  extends our hearty congratulations to her Honour for her achievements and thank her for her dedication to aiding Indigenous peoples and communities throughout her legal career.

 

Until next time,

Team ReconciliAction YEG

 

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[1] Cheryl Arcand-Kootenay et al., “Panel on Indigenous Child Welfare” (Lecture delivered at the University of Alberta’s Indigenous Law Students’ Association’s Speaker Series, Edmonton, 8 March 2019) [unpublished].

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Judge Arcand-Kootenay encourages others to “dream big”

Tansi Nîtôtemtik, 

Judge Arcand-Kootenay speaking at the Knowing Our Spirits Conference on November 21, 2018.

 

The Honourable Judge Cheryl Arcand-Kootenay became the first Treaty 6 woman to be appointed to the Provincial Court of Alberta on November 6, 2018. This Wednesday, Judge Arcand-Kootenay was honoured for her achievements at the “Knowing Our Spirits Conference” hosted by Iyiniw Education & Training Institute Inc., where she received a Recognition Award. This year marked the 25th anniversary of the conference, which included topics centred on knowledge and how it shapes our understandings of “First Nations, Metis and Inuit Education, Culture, Elders, Youth, Community Wellness, Aboriginal Language, Alternative Medicine, Humor, Residential School Issues and Healing.”[1]

 

Judge Arcand-Kootenay accepting her Recognition Award, pictured alongside Chief Eddy Makokis and Grand Chief Wilton Littlechild.

 

Cheryl Arcand-Kootenay is a neihyaw iskwew (Cree woman) from the Alexander First Nation. She lived on-reserve for the first six years of her life until her parents, Beatrice, a homemaker, and Edward, a mechanic, decided to move their five children to Edmonton. After graduating high school, Arcand-Kootenay moved back to the Alexander First Nation, where she raised her son, Brett, and attended the University of Alberta for her Bachelor of Arts and Bachelor of Laws degrees. The commute was a long one – two hours return – however, she remained committed to completing her post-secondary education, a value her parents instilled in her from a young age.

Judge Arcand-Kootenay recalls one of these trips to the University, when she had a paper due. Although a snowstorm had hit the capital region, she and her mother made the trek on Highway 44. Unfortunately, they hit a patch of ice and slid into a field along the way. A couple of semi drivers stopped to pull out the two, and one of them offered to drive them into the City limits. Her Honour commented, “I made it to the University and delivered my paper – in a time where there was no computers and fax machines, and the assignments were written on typewriters, my education depended on me handing in my assignments in person.”

Ms. Arcand-Kootenay emphasizes the importance of education, and has passed on these values to her children as well. All three of her children have graduated from high school and attended post secondary. Currently, her youngest daughter, Bethany, is pursuing a degree in Native Studies, and her eldest, Breanna, is pursuing her Juris Doctor (and is also a writer for the blog). Her advice to those still unsure of where their path may lead, whether in post-secondary or elsewhere, is to dream big, “if you can dream it, you can achieve it. So, never stop believing in yourself, and never stop dreaming because who knows where your dreams might take you.”

Judge Arcand-Kootenay certainly achieved her dreams, not only in her appointment to the Bench, but throughout her 25 year career as a lawyer. During her articles, she was approached by an Advocate from the Office of the Child and Youth Advocate (OCYA), who felt strongly that an Indigenous sibling group should be represented by an Indigenous lawyer. This was Ms. Arcand-Kootenay’s first contact with the child welfare system, an area of law she had not been aware of prior to OCYA approaching her. Although she had a general practice for the first eight years of her career, her Honour eventually made the decision to specialize in child welfare. Throughout the following 17 years of her career, Judge Arcand-Kootenay represented children, youth, and young parents as a roster lawyer for Legal Representation for Children and Youth (LRCY), OCYA. She also represented the Director as an agent for Alberta Justice, SELT, and AKO Child and Family Services, a Delegated First Nations Agency in Maskwacis. Her Honour also did pro bono work throughout her career.

When news broke that she was appointed to the Bench, and no longer a practicing lawyer, Judge Arcand-Kootenay received a flood of emails, texts and phone calls from friends, family and colleagues across Alberta. Her Honour commented that although many of her colleagues were happy to see her enter a new stage of her career, they were also sad to lose her as a colleague and mentor, as she was well-known and well-respected in the practice of child welfare.

Judge Arcand-Kootenay hopes to be a role model with her new appointment to the Bench, and expresses her gratitude for the opportunity to serve the people of Alberta. One email she received in particular rings true to these sentiments, reading “you certainly are a role model to all First Nations women everywhere, and you bring “hope” to all of us”. In accepting her Recognition Award on Wednesday, Ms. Arcand-Kootenay quoted Chief Dan George,

 

In the midst of a land without silence, you have to make a place for yourself. Those who have worn out their shoes many times know where to step. It is not their shoes you can wear, only their footsteps you may follow – if you let it happen.

 

The ReconciliAction YEG Team congratulates her Honourable Judge Cheryl Arcand-Kootenay for all her achievements. We wish her Honour mîyopayowin (good luck) as the newest member to the Bench.

 

Until next time, 

Team ReconciliAction YEG

 

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[1] Iyiniw Education & Training Institute Inc., “2018 Conference”, (2018), online: <http://iyiniweducation.ca/conference/>.

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