2.0 Panel Discussion Overview

The following were the speakers and presenters on the panel:

This report provides an overview of the panellist presentations and discussion. The panel agenda and panelist biographies are included in Annex A. Panel presentations and handouts are available upon request by contacting rsd-drs@justice.gc.ca.

2.1 Larry Chartrand

Restorative Justice and its Relationship to Indigenous Justice

Larry Chartrand began his presentation by explaining the differences and relationships between traditional justice, the Western justice system imposed by English and French settlers, RJ, and Indigenous Justice.

Prior to European contact, traditional justice was Indigenous justice. It was the laws, systems, punishments, and expectations of families and communities. Traditional justice employed punitive sanctions when appropriate, including banishment and various corporal sanctions. Traditional justice practices also had a strong emphasis on repairing relationships and restoring balance.

Today, Indigenous justice is characterized as “the system of justice for anyone caught within an Indigenous government’s jurisdiction whether the person is Indigenous or not” (Chartrand 2022). The United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration), which Canada has adopted, recognizes the right to Indigenous justice through a number of provisions. For example, Article 18 provides that Indigenous peoples have the right to “maintain and develop their own decision making institutions” while Article 34 recognizes the right to “maintain a justice system in accordance with their legal traditions.”1 Indigenous nations have the right to choose and to adopt the system it thinks is appropriate for its community today. The Truth and Reconciliation Commission report’s Call to Action 50,2 resulted in the funding of projects that describe Indigenous laws and access to justice in accordance with the unique cultures of Indigenous peoples in Canada.3

The Western justice system is the current legal system and laws in effect throughout Canada, based on European legal traditions and perspectives. From an Indigenous perspective, the Western system “is far too quick to rely on ‘just’ punishment as the solution,” (Chartrand 2022) whereas traditional Indigenous legal systems were a source of proactive and reactive mechanisms that attempted to maintain a stable and predictable social world for Indigenous communities.

Most Indigenous legal traditions include principles and mechanisms that are also found in RJ processes, including promoting healing, reconciliation, reintegration of the offender, and providing opportunities for victims and communities to participate. However, this does not mean Indigenous legal orders and RJ are the same. Indigenous legal traditions often use proactive, preventative strategies mediated through kinship networks and place a high importance on spirituality.

RJ approaches could be used by Indigenous governments to acquire greater control over the justice process and it can be used as a framework for redesigning the Western Canadian justice system to make it more effective at reducing crime. However, even if the existing criminal justice system (CJS) fully embraces restorative approaches and practices for Indigenous peoples, it would still be a “colonially imposed justice system” (Chartrand 2022) that violates international Indigenous peoples’ minimum human right to self-determination. The solution to the overrepresentation of Indigenous people in the Western Canadian justice system “can’t just be a Band-Aid solution of culturally sensitive restorative justice” (Chartrand 2022). It has to be the full implementation of the rights under the UN Declaration and the full implementation of the Calls to Action that the Truth and Reconciliation Commission outlines. More attention needs to be directed to the establishment of Indigenous justice processes whether or not they are compatible with RJ principles.

2.2 Bruce Manuel

Enowkinwixw Model of Justice

Many Indigenous issues today need to be seen through a “justice” lens, not just the narrow focus on the CJS, so that we can move forward together. The Truth and Reconciliation Commission outlines various Calls to Action to reform the CJS, to support Indigenous access to justice and Indigenous law initiatives. The Truth and Reconciliation Commission report also points to the need for justice for missing and murdered Indigenous women and girls, and reparations and compensation for the 60’s scoop. Additional injustices include racial profiling, broken Treaty promises, and the need to recognize intergenerational trauma caused by the Indian Residential school system. Of immediate importance is the support required for families of children who died at residential schools (including the identification and recovery of unmarked graves), and moving from a denial of Indigenous rights to recognition of rights. Other specific examples include the Wet’suwet’en protests, the Land Back movement, and the Mi’kmaw fishers assertion of rights.

When all of these things are considered, justice is not really happening for Indigenous peoples. All these issues must be addressed with justice in mind, so we can move forward together. As the Hon. Stephen Point, former Lieutenant Governor of BC, and court judge at the province level, stated,

“Take off your suit coat, put down your pens and don’t write another report or create another commission or do any more research…it’s time to roll up your sleeves and get to work.”

There are no “cookie cutter” approaches to Indigenous restorative practices. There are as many ways to approach justice related issues as there are populations looking to do the work. However, there are similarities that cross racial divides that speak to inclusivity.

The Syilx (Okanagan) nation uses a process called Enowkinwixw, a consensus-building model that is based on agreeing to support the decision best suited to the needs of the collective rather than the wants and needs of the individual. “What’s good for one is good for all” (Manuel 2022). The origin of this process is in Ceptikwl—traditional stories that involves four steps:

This model of justice helps in the discovery of criminogenic factors, that can help understand past and present behaviours and allows for planning and programming that lead to changes for the individual, including preventing future involvement with crime.

Indigenous legal traditions have been practised and have been in force for thousands of years. The legality of the settler/colonial courts has been questioned and challenged for decades. Indigenous practices are being inserted into colonial courts through the education of judges and lawyers. The work being done by different agencies and educational institutions to provide Indigenous Studies courses are a good first step in advancing Indigenous knowing and ways of dealing with wrongdoing, but are limited in what they can do.

Indigenous RJ approaches can be expanded within Canada’s justice system if more funding is provided by the government to Indigenous communities. The South Okanagan Restorative Justice Program is one of 23 community programs that are part of the Indigenous Justice Association of British Columbia, but there are 168 First Nations in the province. This leaves 145 communities without access to these programs and services. The way forward is to find a way back to accountability and responsibility and work together.

2.3 Nikkutai Folger

Ikajuriallatiit Restorative Justice Program

The Tungasuvvingat Inuit (TI) an Inuit-specific, multi-sector hub for urban Inuit of all ages, is located in Ottawa, Ontario.

Pisilskik meaning – Inuit word for a bow and arrow:

“An arrow can only be shot by pulling backward. When life is dragging you back with difficulties, it means it’s going to launch you into something great. So just focus, and keep aiming.”

- unknown

TI offers social supports, cultural activities, counselling and crisis intervention to meet the needs of Inuit in Ontario. TI programs are built upon an Inuit worldview that recognizes that each person has many aspects to their lives and that they are interconnected to others.

The TI Pisiksik Justice Department runs a Men’s Healing Group, a Gladue Program, and the Ikajuriallatiit Restorative Justice Program (RJP), which was developed in collaboration with the Ikajuriallaktiit Restorative Justice Committee (“the Committee”).

The Committee, composed of six members (including two Elders) who are trained facilitators, provide guidance and input on the program, and facilitate sessions using the Victim Offender Conferencing (VOC) model to divert adults away from the traditional court system. The RJP is the first Inuit-specific program outside of Nunavut that seeks to amend the harm to the victim through a set of culturally relevant and safe services. It is geared towards rehabilitation and reducing recidivism.

The VOC model allows all parties to participate in healing as they decide on the actions and steps that the offender needs to take to mend relationships with the victim and/or community. The process holds the diversion client accountable for their actions while reconciling with the victim(s) and community, which are also crucial for their rehabilitation. The RJP provides services in Inuktitut and English to accommodate the client's needs. It is also unique in that it reflects Inuit and northern cultural practices and belief systems including the integration of the eight guiding principles of the Inuit Qaujimajatuqangit; the IQ principles, also known as Inuit societal values, which are included below.

Cultural practices and belief systems ensure a healthy society, while rich customs create an environment of hope, loyalties, connectivity, and social bonding. These are reflected in the eight IQ principles that inform the RJP.

2.4 Paula Marshall

Mi’kmaw Legal Support Network Project

The history of Mi’kmaw people is very long and our homeland, called Mi’kma’ki, is very large. Mi’kma’ki, is made up of all of Nova Scotia, Prince Edward Island and large areas of New Brunswick, Maine, Quebec (the Gaspé Peninsula) and Newfoundland.

Mi’kmaw people learned about their culture and history through stories and legends. These oral (spoken) histories are very important to understanding Mi’kmaw culture, traditions, and customary laws. Customary laws govern relationships and how people interact with each other to keep harmony and peace.

Nova Scotia has a unique relationship with the Canadian justice system due to the case of Donald Marshall Jr., of Membertou First Nation, who was wrongfully convicted of a murder in 1971. A subsequent Inquiry set out recommendations to improve justice for Indigenous peoples.4 The Mi’kmaq Legal Support Network built on the recommendations from the Marshall Inquiry to provide justice support services for Mi’kmaw individuals involved in the Criminal Justice system. Supports include the use of Customary Law as a restorative approach, translators in the courtroom, court workers, victim support, sentencing circle protocols, reintegrating offenders into communities, and Gladue reports.

Justice is understood differently by Indigenous peoples, who recognize the importance of an individual’s role within community in maintaining peace and avoiding conflict. Justice is not a list of rules; rather Indigenous concepts of justice are about restoring peace and equilibrium, and to “reconcile the accused with his or her own conscience and with the individual or family who has been wronged.” Social controls (such as ridicule, avoidance, shame, and banishment) rest in kinship, and reconciliation is sought through reparation by the offender to the victim and community.

Customary laws are a legal custom that reflect an established pattern of behavior that can be objectively verified within a particular social setting. Social control rests in kinship relationships and the established pattern of behavior that can be objectively verified within a particular social setting. Customary law is about what has always been done and accepted by the community as obligatory. Customary laws give the community members responsibility for how to interact with each other.

As in many Indigenous cultures, the needs and goals of the group or community as a whole override the needs and desires of the individual. Relationships with other members of the community and the interconnectedness of those relationships are important to each person's identity.

The Mi’kmaw Customary Law Program reminds people of their history, ways of being and the responsibility each person has to the whole community. When an offence happens, where harm has been done to another community member, we call upon the community to advise us as what the harm was, and what we can do about it. Sentencing circles are not just about the offence, they are about responsibility to the community, the responsibility to repair the harm and the responsibility of the one that caused the harm as a member of the community. The process is focused on the present (what can you do now to repair the harm?) and future (how can you be a better community member?).

The Mi’kmaq Customary Law program is based on Mi’kmaq concepts of justice, which is not the same as RJ. One of these concepts is Apiksiktatultimk, mutual forgiveness and the act of restoring community through cooperation. It was also the main part of an annual ceremony on New Years Day, the Wi’kupaltimk, when each member of the community asks for forgiveness for past wrongs from every other member. Another concept is Nijkitekek, that which heals, as wrongs between people are not given the opportunity to fester. The dominant court process only serves to satisfy the law, not the community or individuals. Nijkitekek promotes healing by creating an awareness of the seriousness of the offence and an understanding between people in a setting deemed appropriate. The program does not focus on the punishment for the incident but rather the responsibility to repair harm, and rehabilitation. The community will forgive if they see the person has true intentions and is willing to work for the greater good.

Another important Mi’kmaw concept is a teaching from Elder Albert Marshall on Etuaptmumk - Two-Eyed Seeing by saying it refers to “learning to see from one eye with the strengths of Indigenous knowledges and ways of knowing, and from the other eye with the strengths of Western knowledges and ways of knowing ... and learning to use both these eyes together, for the benefit of all.” That two-eyed seeing is possible in justice through the teachings of the Mi’kmaq Customary Law program. This teaching demonstrates that Indigenous legal traditions can be part of the Canadian legal system.

It is important to support and implement customary law because the Western CJS is inadequate for Indigenous peoples.

Footnotes

1 The United Nations Declaration on the Rights of Indigenous Peoples. 2007. https://www.justice.gc.ca/eng/declaration/decl_doc.html

4 The Marshall Inquiry was a Royal Commission called by the Government of Nova Scotia. It investigated the 1971 wrongful murder conviction of Mi’kmaq man Donald Marshall Jr. of Nova Scotia. This was the first inquiry of its kind in Canada. The commission released its report on 26 January 1990.