Ontario’s legal system has taken a noticeable turn as it tries, increasingly, to deal with the high proportion of Indigenous people who find themselves in criminal courts.
Ontario’s legal system has taken a noticeable turn as it tries, increasingly, to deal with the high proportion of Indigenous people who find themselves in criminal courts.
While Gladue Courts have been operating as an alternative to traditional courts for Toronto’s Indigenous community for nearly two decades, more recently, there has been an increase in Ontario in the number of similar courts, called Indigenous People’s Courts.
“For a long time, there was not a lot of movement. The first Gladue Court opened in 2001 and, probably in about the first 10 years, there were the courts in Toronto, there was a court in London and there was a court in Sarnia in Ontario. In British Columbia, there was a court in New Westminster,” says Jonathan Rudin, program manager of the Toronto-based Aboriginal Legal Services.
Rudin says there are now 13 Indigenous criminal courts in Ontario that address criminal matters, including five that have begun since 2014, in Brantford, Cayuga, St. Catherines, Ottawa and Thunder Bay.
“So much of the increase in the number of courts really started in many ways since the decision by the Supreme Court of Canada in Ipeelee in 2012. That’s when I think we saw a big upsurge in interest in developing these courts,” he says.
R. v. Ipeelee was considered a pivotal case in which the central issue was the determination of a just sentence for Indigenous offenders in breach of long-term supervision orders.
While there might not have been a direct correlation between the decision and the movement toward developing more criminal courts to accommodate Indigenous culture and experiences, Ipeelee and R. v. Gladue in 1999 have played significant roles in informing the need for alternative approaches. Gladue established the need for courts to take into account all reasonable alternatives to incarcerations during sentencing, with particular attention to Aboriginal offenders, and Ipeelee extended that to breaches of long-term supervision orders.
“There has to be an interest in the community and that interest usually starts at the judicial level,” says Rudin. “I think after Ipeelee, it appears that judges — it wasn’t the only factor — but judges became more interested in looking at different ways of dealing with the sentencing and bail issues regarding Indigenous people.”
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The Ministry of the Attorney General has acknowledged the importance of applying Gladue principals in which courts need to consider additional factors, taking into account the systemic, historical and personal factors when sentencing an Aboriginal offender and it has been expanding its Gladue program since May 2016.
The need for Indigenous Peoples’ Courts is established locally and developed by the judiciary in consultation with the provincial and federal Crown and other justice partners, including local Indigenous communities and organizations, MAG spokesman Brian Gray said in an email. The judiciary has exclusive control over the assignment and scheduling of judicial resources throughout Ontario, he added.
Each court may differ in its approach, says Rudin. Some rely more heavily on the participation of elders and sentencing circles than others.
They are designed to reflect the issues and capacities in the communities.
And Rudin says they’re not static, as they evolve and are open to innovations and cross-pollination to a degree.
But most, like Ottawa’s Indigenous Peoples Court, which opened last fall, focus on pleas, bail hearings, adjournments and sentencing, but not trials.
Ottawa criminal lawyer Paolo Giancaterino has seen the influences of Ipeelee and Gladue during his appearances in the new court with clients as well as the sentencing principals that acknowledge the historical treatment of Indigenous people in Canada.
“It’s no secret that there’s an unfortunate history of our treatment of Aboriginal persons in Canada and how that treatment has certainly contributed to the overrepresentation of Aboriginal persons in our criminal justice system,” says Giancaterino, a partner with Langevin Morris Smith LLP in Ottawa.
“The traditions they’ve incorporated into the court are fantastic to watch, how they’re happening. For instance, the opening of court with a smudging ceremony, the use of feathers as something for an Indigenous person to swear upon when they give evidence. These are cultural differences that I find are really interesting and I think lead Indigenous persons who find themselves before the court to be more comfortable with the process itself because we are trying to pay as much respect as possible to the Indigenous culture.”
And while time is of the essence in the traditional court system, the pace in the new court is not rushed, allowing for more conversation and input from the accused, offering the Indigenous community and users of the court a sense of ownership in the hope that they begin to put some trust in the system.
The court, he adds, is part of a bigger picture. It works alongside a support system established for Ottawa’s large Indigenous population.
That includes the development of Gladue reports and letters.
Stephanie Bean, the senior manager for the Gladue caseworker program in Ottawa for Aboriginal Legal Services, says a focus of the court is on healing and that is reliant on services and supports available in the community to address underlying issues that may have led to the individual’s appearance before the courts.
“There’s a large Indigenous population here and I think to have a court that really understands and values the unique cultural differences within the court, I think that’s important,” she says. “I do see that there’s a recognition that there’s a need.”
Bean, a lawyer, sees value in having a specialized court connected with community service workers that link up to supports right away.
But Rudin points out that the structure of the court changes depending upon the location and the services available there.
But in all cases, the courts need to reach out for suggestions on how it should operate.
And, at first blush, they can appear the same as any other court, using the same space and having a judge, Crown prosecutor and defence lawyers in place.
But the differences eventually become obvious to an observer. An expert might be asked to speak to the court without having to take the witness stand. Or the accused might be asked for their opinion.
“So, resolutions are more easily developed in that court. Because people understand the realities of both the individuals that are coming into that court and the capacity of the community to address that,” he says. “The courts are able to resolve things that might otherwise be more contested.
“The fact that you can have a court where Indigenous people feel that they are getting something that is more akin to justice is a real accomplishment.”