Recognition, Reconciliation and Indigenous People’s Disproportionate Interactions with the Criminal Justice System

Notes for an address by
The Honourable Jody Wilson-Raybould, PC, QC, MP
Minister of Justice and Attorney General of Canada

To the
Inaugural Houston Lecture
Johnson Shoyama Graduate School
University of Saskatchewan
Saskatoon, Saskatchewan
September 13, 2018

Check against delivery

Gilakas’la.  Good evening.

Before I begin, I would like to respectfully acknowledge that we are gathering on Treaty 6 Territory and the Homeland of the Métis.  

Thank you to the Johnson Shoyama Graduate School and the University of Saskatchewan for hosting tonight.  And I would also like to thank everyone in attendance for being here and providing me with the opportunity to discuss some issues that I feel play an important role in the work of reconciliation with Indigenous peoples. 

I come from the Musgamagw Tsawataineuk and Laich-Kwil-Tach people of northern Vancouver Island. We are part of the Kwakwaka’wakw, also known as the Kwak’wala-speaking peoples.  I am from the eagle clan.

I worked as a prosecutor in Vancouver’s Downtown Eastside, before turning my focus specifically to Indigenous rights by serving as the Regional Chief of the Assembly of First Nations for British Columbia, where for nearly six years, I represented all First Nations in the province. 

My upbringing, my education, and my professional and personal experiences, have all shaped my worldview and strengthened my determination to see a genuine transformation in Canada’s relationship with Indigenous peoples and to be a part of meaningful and lasting improvements to the criminal justice system.

In doing this work, I was and am building upon the advocacy and leadership of generations of Indigenous elders, leaders, and people who have come before me, including my father. They devoted their lives to ensuring their way of life, their culture, their systems of governments and laws, their connection with lands and resources, and their economic opportunities, could be maintained and improved upon. 

As a proud Indigenous woman, with the great responsibility of being Canada’s first ever Indigenous Minister of Justice and Attorney General, I feel a moral imperative to carry on this work and to help advance the necessary shifts that need to take place. I see my appointment to this role not so much as a personal accomplishment, but rather, as a symbol of how far Canada has come – but also how much further we have to go.

So tonight, I would like to use this opportunity to speak with you about two very important and interrelated topics:

  • the rebuilding of Indigenous nations and governments in Canada, and;
  • how modernizing the Canadian Criminal Justice System will help address the disproportionate number of interactions that Indigenous people experience with it.

In Canada, as many of you will be aware, the federal government has sole jurisdiction over criminal law, although the administration of justice is a shared responsibility among federal, provincial and territorial governments. Throughout our history, there have been serious and lasting implications for Indigenous peoples as a result of how this arrangement, and the administration of justice, has evolved and been operationalized.

Indeed, as all of us gathered here know, the impacts of our justice system on Indigenous people have been front and centre in our public discourses over the past number of years – including certainly very directly in this province.  Painful and tragic realities and experiences have been starkly revealed, long-standing concerns with the administration of justice have had a light shone on them, and Canadians from coast-to-coast-to-coast have begun to understand in new and renewed ways the histories and legacies that have led to these enduring challenges, and the directions of change we must pursue. 

So it is with many events over the past years in my mind and heart that I reflect on issues of reconciliation and criminal justice tonight – and I look forward to engaging in some discussion afterwards.

There remains significant unfinished work to accomplish before Indigenous peoples have access to appropriate systems of justice, including Indigenous courts, so that they can enforce tribal and other laws as part of our multi-level system of evolving co-operative federalism.

The work involved in rebuilding Indigenous systems of justice is part of the broader work of Indigenous Nation rebuilding and finding ways to overcome the long and tragic history of the colonization of Indigenous peoples in Canada, based on Indigenous self-determination.

Reconciliation with Indigenous peoples, which must be rooted in real and fulsome recognition, affirmation, and implementation of the inherent rights of Indigenous peoples – in ways that reflect how Indigenous peoples have understood those words and terms over generations – remains one of the most urgent and compelling issues facing Canadians today, and reforms to the criminal justice system represent an important, even vital step, in the path towards reconciliation.

Reconciliation and Indigenous Rights

Before turning to the criminal justice system specifically, first let me say a few comments about the era of reconciliation that we are in. And let me tell you of my understanding of what is involved in successfully navigating the path towards reconciliation.

At the heart of achieving reconciliation, is the belief that the nation-to-nation, government-to-government, Inuit-Crown relationship must be based on the recognition of rights, respect, co-operation and partnership.

So let me pause for second on this term “recognition of rights”. 

Words have meaning.  We live in a time where language is often appropriated and misused, co-opted and twisted – made to stand for something it is not. 

“Recognition” for Indigenous peoples across this country, and as a basis for true reconciliation, has meaning.  It means that Indigenous peoples governed and owned the lands that now make up Canada prior to the arrival of Europeans.  It means that Indigenous laws and legal orders that stewarded the lands for millenia, remain and must continue to operate in the contemporary world.  It means that the title and rights of Indigenous peoples are inherent, and not dependent or contingent on court orders, agreements, or government action for their existence, substance, and effect.  It means that treaties entered into historically, must be fully implemented based on their spirit and intent, oral histories as well as texts, and consistent with the true meaning of a proper nation-to-nation and government-to-government relationship.  It means that the distinct and diverse governments, laws, cultures, societies, and ways of life of First Nations, Métis, and Inuit are fully respected and reflected.

For Canada, recognition means resetting our foundation to properly reconcile – to finish the unfinished business of confederation. What is more, for many Indigenous peoples, recognition is the lifeline that will ensure the survival and rebuilding of their cultures, languages and governing systems within an even stronger Canada.

But words are also easy/cheap.  And too often we see the tendency – especially in politics – to use important words that have real meaning and importance, carelessly.  We see them being applied to ideas and actions that in truth do not reflect their actual meaning – even, sometimes, their opposite.  We see “recognition” applied to ideas that actually maintain “denial”.  We see “self-government” used to refer to ideas or processes that actually maintain control over others.  We see “self-determination” applied to actions that actually interfere with the work of Nations rebuilding their governments and communities.  We see “inherent” in the same breath as the contradictory idea that rights are contingent on the courts or agreements.

When we see this being done it does not advance reconciliation. It actually undermines it.  It causes confusion, chaos, and division.  It treats a challenge – a challenge that is vital for the survival and well-being of children, women, families, and communities across this country – as a ‘game of rhetoric’.  It trivializes – often out of ignorance or political expediency – a moral, social, and economic imperative for our country.

Words, in the work of reconciliation, are also cheap without real action – action that goes to the core of undoing the colonial laws, policies, and practices, and that is based on the real meaning of reconciliation.  We all need to understand this.

The path of justice and equality is not advanced or achieved through half-measures, good intentions, or lofty rhetoric.  And it is certainly not achieved through obfuscation or confusion about what we mean when we speak. Hard choices, innovative actions, transformations in laws and policies, new understandings and attitudes, new patterns of behavior – this is what is needed.

Reflecting this, I outlined in many speeches in recent years – what I see as minimum elements of new relations based on the recognition of rights – elements that are what Indigenous peoples have advocated for over generations.
These include: 

  • Harmony between the laws of Canada and UNDRIP;
  • The replacement of the Comprehensive Claims Policy and Inherent Right of Self-Government Policy, and Consultation and Accommodation approaches with policies based on true recognition;
  • Legislated, binding, standards on all public officials to ensure they act in all matters with Indigenous peoples based on recognition of title and rights;
  • Legislative, binding, obligations on the Crown to take action in partnership with Indigenous nations to implement models of self-government that are self-determined by Indigenous peoples;
  • Accountable, independent, oversight of the conduct of government respecting Indigenous rights – as well as new methods of dispute resolution that include applications of Indigenous laws and processes;
  • New institutions – that are independent of government, and designed in partnership with communities – that support the work of rebuilding their nations and governments; and,
  • Development of proper processes and structures between Canada and Indigenous governments for decision-making, including in order to obtain free, prior, and informed consent.

As Minister of Justice and one whose life-long commitment has been to the recognition of rights, my message has always been consistent and considered – both internally and externally – that transformative change requires a coherent and comprehensive approach to the true recognition of the inherent rights of Indigenous peoples. This work is incredibly hard but must continue. I will carry on with my advocacy for the necessary transformative actions that will create the space – the foundation – for self-determination and the rebuilding of Indigenous nations within Canada. We all need to be advocates in this work. [The fact that you are all here today encourages me to believe you are all invested in this work as well.] I trust you will please hold us and all governments accountable to creating the space to enable the deconstruction of our country’s colonial legacy.

So, while I have been thrilled in recent years to see how Canadians – and governments – have begun to talk the talk of reconciliation. I remain constantly, incessantly, vigilant in demanding that we honour the meaning of these important words, and that words translate into real, transformative action. We all need to remain vigilant in that regard if we actually want to see the justice and equality in Canada that we have been striving towards.

For my part and to be very candid, I have been challenged, but I also challenge constantly.  And I will continue to do that every day I have the privilege to be the Minister of Justice and Attorney-General of Canada.

With that in mind, my focus on reconciliation, and in supporting the work involved in rebuilding Indigenous nations, as I said from the outset, is both personal and professional.

Indigenous Overrepresentation in Criminal Justice System

In the spirit of Nations rebuilding, I now want to turn to Indigenous people in the criminal justice system and who are the focus of my remarks tonight.

How does making these foundational changes based on the recognition of rights – the true meaning of the term as I described earlier – relate to Indigenous people in the criminal justice system, and the modernization of Canada’s criminal justice system?

Today, again, as everyone in this room knows, Indigenous people are overrepresented in our criminal justice system, as both victims and offenders.

We are far more likely, than any other Canadian, to be victims of crime and homicide, and are far more likely to be arrested, prosecuted and incarcerated.  For example, Indigenous people suffer a homicide rate that is nearly seven times higher than that of non-Indigenous Canadians.

According to the most recent statistics, the rate of violent victimization among Indigenous people in Canada is more than double that of non-Indigenous people.

Worse yet, Indigenous identity appears to be a risk factor for the violent victimization of Indigenous women.  The overall rate of violent victimization among Indigenous women was double that of Indigenous men and close to triple that of non-Indigenous women.

According to Statistics Canada, Indigenous adults comprised 4.1 percent of Canada’s population, but represented 27 percent of admissions to federal custody and 30 percent in provincial and territorial custody. In Saskatchewan, that number is a staggering 76 percent.  

In 2015-16, despite representing approximately 5 percent of Canada’s total female population, Indigenous women made up 38 percent of the federally incarcerated female population in Canada.

In 2016-17, in one rather staggering statistic, Indigenous women made up 85 percent of women in custody in Saskatchewan.

In 2016-17, Indigenous youth accounted for 46 percent of admissions to correctional services, while representing just 8 percent of the Canadian youth population.

All these figures, and the tragic reality they help illustrate, are, of course, completely unacceptable and must change.

As a former prosecutor, this story is all too familiar to me.  A young person, often an Indigenous man, commits a non-violent crime, comes into contact with the criminal justice system, and never is really able to pull himself free.

He gets caught in a vicious cycle of court appearances, court orders, breaches of court orders, and returns to custody. Soon, he is spending more time behind bars than he is out of them. This man’s interactions with the criminal justice system have further marginalized him, making him even more vulnerable.

We need to find better ways of preventing Indigenous people from experiencing that first contact with the criminal justice system. And for those already in the system, we need to better support them when they leave it. This could mean more treatment for addictions or mental health issues, or more services aimed at helping to find housing, employment, and educational opportunities. 

To be successful, we first must acknowledge and act on the understanding that the current circumstances faced by Indigenous people in the criminal justice system, are inseparable from the historic and contemporary impacts of colonialism and the denial of Indigenous rights. 

It is in such a context that disempowerment, hopelessness, cycles of violence, and desperation grow. It is also in that context that a criminal justice system has emerged with structures, patterns, and norms that are often alienating, unresponsive, and not culturally relevant.

Indigenous Peoples Administration of Justice

That is why the work of supporting the recognition and implementation of Indigenous rights, including Indigenous self-determination and the inherent right of self-government, is so critical to establishing a foundation where current and future generations of Indigenous youth, are born and raised in conditions that see their well-being and ability to thrive will continually increase. Where they have hope, and where their interactions with the criminal justice system continually decrease. 

The work to accomplish this will include supporting Indigenous self-governments in developing their own systems for the administration of justice, while also reforming the current systems of justice that fall under the jurisdictions of federal and provincial governments.

The overall success or failure of rebuilding Indigenous nations in Canada, and the successful implementation of self-government, will in large part be determined by how well Indigenous nations can enforce and adjudicate their own laws, as well as other governments’ laws, and how well such systems will fit within the broader legal system in Canada. This includes determining when and to whom decisions can be appealed.

To facilitate this work, I believe we must bring together Indigenous Nations, leaders, experts and stakeholders in rebuilding Indigenous systems of justice as part of the broader and ongoing nation rebuilding work. 

This is something that I am committed to doing in the next year, including for those Indigenous governments that are already self-governing, but may not have yet been able to establish an effective judicial system. This is a Justice endeavour that I am passionate about and one that possibly some of you, or this institution, may also be interested in or could assist with. 

It will necessarily include provincial and federal officials who, in many cases, are responsible for enforcing and adjudicating tribal laws in the absence of a tribal court.

As we strive to reform the systems of justice and support Indigenous Nation rebuilding, we must also increase or introduce measures and initiatives within the current justice system aimed at reducing the likelihood of an Indigenous person being at disproportionate risk of getting caught in a continuous cycle of interactions with the criminal justice system.

Fortunately, our government has already begun to deliver on five on-going initiatives that I am very hopeful about.

Restorative Justice

The first initiative is expanding the use of restorative justice, which emphasizes repairing the relationship between the victim and the offender.

Restorative justice is focused more on collaboration and inclusivity, and is often more culturally relevant and responsive to specific communities.  Victims have a powerful voice, and this process allows them to be heard and to heal, while at the same time, holding the offender accountable for their actions.

In this sense, I sometimes view restorative justice as acting as a kind of “circuit-breaker” from the cycle that so many find themselves caught in.

While restorative justice has been part of Canada’s criminal justice system for over 40 years, and has proven effective over that period, it is still not widely available across the country.

A 2011 Department of Justice Canada report found that Indigenous people who completed a community-based alternative to mainstream justice, such as restorative justice, were significantly less likely to re-offend than those who did not.  I am committed to expanding this resource so it can be more widely used and accepted across the country.

Indigenous Specific Sentencing Courts

A second initiative is through Indigenous specific sentencing courts in the existing provincial justice system, which focus on community reintegration and healing.

We are also beginning to see courts established by Indigenous governments emerging in the context of self-government, although at this point, they are not dealing with criminal matters.

Measures such as specialized courts and restorative justice are aimed at solving the problem that caused the behaviour in the first place, as opposed to strictly placing the primary focus on punishment. This provides offenders, where appropriate, with a way out of the system. 

While I strongly believe that offenders must be held to account for their actions, I also believe that the system must be fair for all those who come before it. The right reforms will bring us closer to both goals simultaneously, this is not an either-or proposition.

Bail Breaches (Bill C-75)

Another initiative is one aimed at addressing the over-incarceration of Indigenous people for administration of justice offences, such as bail breaches, which can further compound the tragic cycle of incarceration.

Earlier this year, I introduced Bill C-75, major legislation to address delays in the criminal justice system, which includes changes to how bail is granted and to how breaches of bail conditions will be administered.

Accused who do not have access to needed supports and services, such as housing, health care, and social services, are at a higher risk of breaching bail conditions – this can result in further needless incarceration while awaiting trial, which further contributes to the overrepresentation of Indigenous people and vulnerable persons in the criminal justice system.  

Jury Selection (Bill C-75)

There are also proposed changes to how juries are selected.

While Indigenous people are overrepresented as victims and offenders, they are underrepresented on juries.  We continue to work toward a jury selection system that better represents our nation’s diversity and that enjoys the confidence of all Canadians.

Judicial Diversity

In addition to these initiatives, our government has also introduced a more transparent and open process for choosing federally appointed judges, with a focus on promoting a modern bench that better reflects Canada’s diversity.  I have made it a priority of mine to ensure that Indigenous people, women and marginalized communities, are better represented on the bench.

Judicial diversity refers to both gender diversity, which ensures that more women are appointed to the bench, and individual diversity, which aims to capture the diversity of our multicultural population.

We believe that a diverse judicial bench allows those who come before the criminal justice system, either as victims or accused, to see themselves better represented in the system, which helps build confidence in our institutions. 

Judicial appointees’ diversity, in both professional and life experience, along with their ties to the community in which they sit, are critical to ensuring judicial benches reflect, and receive the respect of the communities they serve.  

We have also reformed how justices of the Supreme Court of Canada are selected. A potential consideration for candidates now includes their knowledge of Indigenous legal traditions. While there is currently no Indigenous person on the Supreme Court, I can certainly foresee that historic day coming.

Conclusion

In conclusion, I absolutely do not want to imply that our criminal justice system has been fixed, far from it. However, we find ourselves in a period of significant change. While considerable progress has been made, our justice system remains a living testament to many of the discriminatory policies and practices of our past. A past which continues to negatively impact Indigenous people and communities, as well as vulnerable populations, across Canada.

Addressing the over policing and over incarceration of Indigenous peoples in this country will not happen over night.

By being vigilant, honouring the sacrifices of generations of Indigenous peoples who have been fighting for justice in the face of colonialism, and re-shaping laws and policies based on the real meaning of recognition of rights, we will effect a fundamental and positive change in the relationship between Indigenous peoples and the criminal justice system.  We all have a role to play.

As the Minister of Justice and Attorney General of Canada, I am committed to ensuring that our country’s law and policies actually do change. As a foundation, that change must be consistent with the true meaning of recognition of rights and it must support the rebuilding of Indigenous nations.

Gilakas’la.  Thank you very much.

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