Based on a recognition of both the entitlement and benefit of an independent justice system for Indigenous peoples, some courts have begun, albeit in a limited way, to take into account Indigenous values and traditions.
Specialized courts, also known as Indigenous persons courts or Gladue courts, have been established in some provinces. These courts were created after a 1995 Supreme Court case in which an accused with Indigenous roots successfully argued during sentencing that the court should consider systemic issues such as trauma from residential schools or forced re-settlement. This consideration is now enshrined in the Criminal Code of Canada (R vs. Gladue decision). The lived experiences of Indigenous offenders is entered in court, along with their personal history, by what’s known as a Gladue writer, who prepares the document. At the provincial court level, there are 13 Indigenous persons courts (or Gladue courts) in Ontario, five in British Columbia, one in Saskatchewan and two in Alberta.1
In 2016, the Akwesasne Band Council (a Mohawk reserve that straddles the Québec, Ontario and New York State borders) introduced a legal system operating outside of the federal framework – the first in the country. It combines components of Mohawk and Canadian laws. The federal government and the provinces of Québec and Ontario are discussing a draft framework to recognize this legal system. An Indigenous People’s Court was established in Thunder Bay in 2016. This court will be based on Indigenous values and traditions, and use approaches to promote healing and reconciliation.
Responses to the issues facing Indigenous peoples in the justice system vary widely across Canada since these initiatives are developed and run by the provinces/territories.
1Rudin J. (2018). The (in) justice system and Indigenous people. Policy Options. http://policyoptions.irpp.org/magazines/april-2018/the-injustice-system-and-indigenous-people/ – accessed November 23, 2018.