Indigenous Justice Resources (Legal Information for Indigenous People: National Edition)

Restorative Justice

Restorative Justice refers to justice systems that focus on accountability, healing and the restoration of balance. The justice systems of Indigenous people have traditionally drawn their justice practices from cultural values such as these. As colonization replaced Indigenous systems with a criminal justice system prioritizing punishment and incarceration, restorative justice outcomes for Indigenous peoples plummeted. There have been attempts to reform the justice system with diversion programs that take criminal matters from the courts and divert them to alternative processes. This is often seen with Youth offenders.

More recently, we increasingly see Indigenous community-based justice programs offering culturally-based responses to harms (crimes) that occur in their communities.

This can still involve the diversion of situations from the criminal justice system but, in addition, it can also involve placing these matters back within the traditional legal practices of the community.

• Restorative Justice practices can be different in every community.
• Restorative Justice programs allow for justice processes such as restitution, healing circles, circle sentencing, peace keeping circles, participation in community or cultural events, isolation, banishment, etc.

For a listing of Restorative Justice Programs: https://www.justice.gc.ca/eng/cj-jp/rj-jr/sch-rch.aspx

In more and more jurisdictions there are Indigenous Courts, Gladue Courts, Justice Workers within Nations, Indigenous Court Workers, First Nations Justice Strategies, Metis Justice Strategies, Treaty and Tribal Council Justice Workers, etc.

Indigenous Court Workers

Colonial criminal justice systems can be difficult to understand and frightening for the Indigenous people caught up in them. Ongoing colonization, cultural differences in dispute resolution, and historical abuses in law have resulted in an understandable lack of trust in the system and the people who run it and a serious under education regarding basic rights and responsibilities under the law.

The purpose of the Indigenous Courtworker programs is to facilitate and enhance access to justice by assisting Indigenous people involved in the criminal justice system to obtain fair, just and equitable outcomes.

Indigenous Courtworkers help reduce barriers to justice by:

• providing culturally- and trauma-informed support
• educating about legal rights and responsibilities
• helping people navigate the complexity of the justice system and court proceedings

Indigenous Courtworkers assist people at every stage of the Court process and provide accurate information as soon as possible about:

• the nature of your charges
• your rights and responsibilities
• your options
• the court processes

ICWs can help you get legal information, legal advice and potentially legal representation from Legal Aid Organizations. Legal Aid is different in every Province but usually will cover family and child protection matters, criminal and harvesting offences, Youth charges and Prisoner's rights.

ICWs can also support the use of Indigenous Social History factors by lawyers and other Court personnel. ICWs can educate the person charged (and their lawyer!) about these rights.

For contact information for Courtworkers in different provinces see: https://www.justice.gc.ca/eng/fund-fina/gov-gouv/acp-apc/index.html

Indigenous Social History

...'Gladue' Reports document an offender's unique struggles as a survivor of colonialism. The purpose of these reports is to assist the court in finding alternatives to prison, and in turn, decrease the overrepresentation of Indigenous people in Canadian jails.

"The Over-Representation Of Indigenous People In Prison", First Peoples Law, November 24, 2021
The Honourable Harry S. LaForme

Indigenous people have specific rights, Indigenous Social History (ISH) rights (formerly known as "Gladue Rights"), when they become involved with the criminal court or are serving time in prison. It is important to know about these rights and make use of them if you are facing jail time, either at bail hearings or sentencing after a conviction. Ask your lawyer about these rights. You want to have a lawyer who knows about these rights.

ISH rights come from the Supreme Court of Canada decision R. v. Gladue (1999). This case involved the sentencing of an Indigenous woman convicted of manslaughter. In that decision, the Court said "In sentencing an aboriginal offender, the judge must consider: (A) The unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and (B) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection."

If you identify as Indigenous and are charged with a crime, the judge must apply these ISH principles when you're in a criminal court. This means the judge must consider your personal and unique circumstances as an Indigenous person when they make a number of decisions about you, such as your bail or sentence. ISH reports could include background factors that may have contributed to bringing an Indigenous offender before the courts, for example Residential school, 60's scoop, intergenerational trauma, etc.

https://www.onwa.ca/gladue-program

If you do not want an ISH Report, you are still covered by section 718.2(e) of the Criminal Code: Courts are to consider Indigenous backgrounds and consider all available sanctions besides imprisonment. Sanctions must be reasonable and consistent with harm done to the victim or community.

Indigenous People in Prison

Corrections Services Canada must consider ISH principles in regard to decisions about things like pen placement, security level, parole, discipline, administrative segregation etc.

How to Obtain a Report

https://www.bcfnjc.com/information-for-the-public

• Anyone who self-identifies as First Nations, Métis or Inuit has ISH rights and can request a ISH report.
• Indigenous rights apply whether you live on or off reserve.
• ISH reports can be prepared for bail, sentencing, appeals, long-term offender hearings, dangerous offender hearings and parole hearings.
• Ask your lawyer to request an ISH report.

Please note they can take up to 8 weeks to complete. It is your right to request a report, but they are not required.

Caution: Gladue reports can be traumatic for some individuals and their families. Family and community members may be interviewed to help with the report.

How to Become a ISH Report Writer

Below are some links to Indigenous Social History training:

• https://www.vcc.ca/applying/apply-now/info-sessionstours/gladue-report-writing
• https://ipsociety.ca/training/justice-equity/gladue-writing-training
• https://www.onwa.ca/gladue-program

For more information talk to your Nation's Justice Workers.

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