Indigenous courts aim to address over-representation of Indigenous people in criminal justice system
Legal Aid Alberta lawyers are playing an important role representing clients in the newly established Edmonton Indigenous Court.
Indigenous courts are specialized courts that focus on healing individuals impacted by the trauma of colonization practices like residential schools, the 60s Scoop and the Millennial Scoop, and to address the over-representation of Indigenous people in the criminal justice system.
Changes made to the Criminal Code of Canada in 1996 to reduce the number of Indigenous people sentenced to prison “haven’t had the desired effect,” said LAA senior lawyer and Legal Services Manager Tania Sarkar.
“The number of Indigenous people who are incarcerated increases year after year, and we are interested in being part of the solution. We need to try new things. I’ve been waiting to do this for 20 years.”
People identifying as Indigenous, Inuit or Metis who are facing non-serious criminal charges can choose to participate in Indigenous court. The courts deal only with guilty pleas and bail hearings. They focus on healing and meeting the unique needs of the accused, connecting them with resources to address issues that led them to be in conflict with the law, such as intergenerational trauma, mental health, housing or addictions issues. It connects accused people with elders and other cultural supports and works to find alternatives to incarceration to help restore the person to society.
This is particularly important at bail hearings. Overall, people who are denied bail are more likely to be handed a prison sentence. LAA Justice of the Peace Bail lawyer Melina Yannacoulias, a member of the Carry the Kettle First Nation in southeastern Saskatchewan, says when people are denied bail, they tend to simply plead guilty, even if they did not commit the crime, in order to get out of jail faster.
“At Indigenous Court, we try to be more creative with bail releases by helping a person with some very basic needs like having transportation to and from court, or to find housing and get access to counselling,” she said.
LAA lawyer Shalayn Martel provides duty counsel services at the Edmonton Indigenous Court, and says the court looks at bail through an Indigenous lens, recognizing that Indigenous people face systemic challenges, including poverty. The inability to produce a large sum of money shouldn’t prevent anyone from being released from custody, and courts are beginning to recognize that and look more closely at release plans that could include a spectrum of supports such as treatment for addictions, housing, and assistance finding employment.
In handling sentencing, Indigenous courts focus on a wellness plan for the accused. And connecting or reconnecting a person to their culture is a key part of it. Elders play a more important role in the court than they would normally.
Importantly, the accused person has an active role in the process.
“Indigenous Court takes a lot more participation from the accused,” said Martel, who is a member of the Waterhen Lake First Nation in east-central Saskatchewan.
Working with elders and Indigenous organizations such as the Yellowhead Tribal Council and Native Counselling Services of Alberta, an accused person helps plan their own future.
Unlike typical adversarial criminal courts, the Edmonton Indigenous Court has co-operation and collaboration built into its process.
Every week, a day before the court is called to order, defence lawyers like Martel join prosecutors, Native Counselling Services and other support organizations. Working together, they review and discuss progress on cases and desired outcomes. By coming up with solutions ahead of time, they ultimately operate in a more collaborative courtroom.
Another key difference is that Indigenous culture is woven into the court. Even the physical set-up of the courtroom is altered: rather than being seated on a raised bench, the judge and clerks are seated at a table with the accused, prosecutors, elders, defence lawyers like Martel, and support organizations.
Ceremonies such as smudging are conducted in the court before proceedings begin, and an elder is given the opportunity to say a prayer. The accused person is able to hold an eagle feather while speaking.
“On the day of court, the accused will sit at the table with the judge and the Crown and defence lawyers and elders and Native Counselling Services of Alberta is at the table and the accused is able to bring up any discussions,” she said. “They actually participate in the process.”
The Edmonton Indigenous Court is the fourth to be established in Alberta. Others operate in Calgary and on the Siksika Nation and the Tsuut’ina Nation. There are about 30 such courts operating across Canada.
The collaborative approach is making a difference.
“In Canada, we’re really very late to the conversation about the harm we have done to Indigenous people through colonization. For many years we have known the history Indigenous people have had in our criminal justice system,” said Sarkar.
“People come before the criminal justice system because they are broken,” she added. “They are lacking supports to address addictions and mental health issues. And getting some of those things addressed before sentencing is helpful. If we can put those things before the court we can see if it makes a difference in sentencing.”