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L-R Delia Opekokew, Justice Michelle O’Bonsawin, Beverly Jacobs, and Dianne Corbiere

Access to Justice Week panel stresses importance of education for legal community on Indigenous justice

Wednesday, October 30, 2019 @ 2:01 PM | By Amanda Jerome

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Education for everyone who works in the Canadian legal system, from corrections to judges, is “the key” to creating change for Indigenous justice, a panel at Access to Justice (A2J) Week said.

The Indigenous Justice panel kicked off The Action Group on Access to Justice’s (TAG) A2J Week on Oct. 28 at the Law Society of Ontario (LSO). Moderated by Dianne Corbiere, a bencher at the LSO and a managing partner at Nahwegahbow Corbiere Genoodmagejig Barristers and Solicitors, the panel included Justice Michelle O’Bonsawin, of the Ontario Superior Court of Justice; Delia Opekokew, a Cree lawyer from the Canoe Lake First Nation in Saskatchewan; and Beverly Jacobs, an assistant professor at University of Windsor’s Faculty of Law.

Justice O’Bonsawin said incarceration rates for Indigenous people are getting worse and a part of the problem is courts are not automatically following Gladue principles.

“I’m a strong advocate [of Gladue principles] and I think education is the key. Education is the key to make sure you relay the information to the legal community and also the community of the individuals involved and everyone else that touches these matters,” she said.

The judge encouraged the panel’s attendees to “pass the word” and share the information they learn about Indigenous justice with others. She stressed that the starting point in the legal community is the recommendation from the Truth and Reconciliation Commission of Canada (TRC) regarding education at the university level.

(L-R) Delia Opekokew, Justice Michelle O’Bonsawin, Beverly Jacobs, and Dianne Corbiere

“I totally agree,” said Jacobs, a representative of the Six Nations of the Grand River Territory Bear Clan and an advocate for murdered and missing Indigenous women and girls. “I believe it is about education. Public education, whether it’s for lawyers, judges, everyone who works within the system.”

Jacobs explained that the Canadian legal system is “very racist” and based on “colonial principles,” which is why people deal with systemic racism through policing, the courts or in corrections.

“All of those systems need a lot of work. I believe that everyone who works within those systems needs to be educated about who we are as a people. They need to be educated about Indigenous laws, about the real history, of the truth. Everybody needs to read the Truth and Reconciliation Commission report,” she stressed.

“I think what needs to be changed is the training of judges because the Supreme Court [of Canada] makes decisions and not everyone follows it,” added Opekokew, who was the first female Indigenous person to be admitted to the bar association in Ontario and in Saskatchewan.

“It is a well-known fact that Indigenous people are the most over-represented community in Canada’s criminal justice system. We can say the same about the child welfare system. If you have any illusions, consider these stats: Indigenous offenders made up 30 per cent of all people in federal custody in 2017-2018,” said Corbiere, adding that “Indigenous women now make up 40 per cent of the female population in prison.”

She noted that since the mid-1990s, the federal government has been reviewing sentencing procedures for Indigenous people. She asked the panel how far these measures have come.

Justice O’Bonsawin said that “unfortunately” the legal system still has “significant issues.” She explained that “everyone has a role to play” in learning the background of the person standing before the court.

“When I look at the community, I expect that everyone has a role to play: the lawyers who are identifying their Indigenous clients, the social work that’s involved, [and] Corrections Canada,” she said, noting that learning about background is “not just up to one individual.”

“How does that information come to us? It comes to us in a couple of different ways, either in a pre-sentence report that we received and that’s been drafted by a parole officer, or either by a Gladue writer. The issue with Gladue writers is they’re not all properly trained, so sometimes, as sentencing judges, we’ll get a letter, sometimes it’s a full report, sometimes it’s cookie-cutter and talks about the general basics that don’t go to the background of that individual, and at times there are excellent reports,” she said, noting that she’s a fan of getting all background information, including family matters.

“Because how we are going to work to improve the lives of our people is by getting the appropriate information in order to be able to work with the community at large,” she said, adding this assists with reintegration.

Opekokew, who lived in a residential school for 11 years, noted a lot can be learned from the residential school hearings in Canada. She said the process showed “how vulnerable the claimants were with respect to participating in hearings and also with respect to their relationship with their lawyers.”

“This was one of the unusual situations where lawyers’ fees were going to be covered by the government and that’s why these cases were so popular for lawyers and so many things happened that were not correct as far as I’m concerned. I find that the contingency fees are the problem,” she said, noting people should read the LSO’s Guidelines for Aboriginal Residential School Claims.

Jacobs also witnessed the vulnerability of Indigenous people facing the legal system when she was advocating for murdered and missing Indigenous women and girls.

“Trying to work within a system that has no experience in identifying the real, on the ground, emotional, spiritual [impacts],” she said, stressing that families experience systemic issues “right from the get-go. Whether it was from policing and the fact that they [the police] were not listening to them, or the media with the fact that they were reporting stereotypes and racist responses, or not reporting at all.”

“I attended the [Robert] Pickton trial in Vancouver and that was probably the most horrific, disgusting responses to the families when they were dealing with, on a mass scale, the violence against Indigenous women,” she explained, adding the families had to go through a legal system that had “no understanding of their needs.”

Jacobs made a recommendation that the National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG) framework should be “culturally based and culturally safe, so that when our people are going through the system there are mechanisms in place in order for our people to feel safe.”

However, she doesn’t believe that the MMIWG inquiry was culturally safe or trauma informed and noted that members of the Six Nations did not participate in the inquiry “because they didn’t feel that anything was built for them to be able to participate” in a safe way.

“There’s a purpose in being critical. The purpose in being critical is to bring attention to the issues that need to be addressed and to ensure that the safety of the survivors are a priority,” she stressed, noting that Indigenous women and girls are still murdered or go missing on a daily basis.

Corbiere asked the panel whether there was any research or innovations that are addressing the over-incarceration of Indigenous people and each mentioned at least one area in which they see progress.

Opekokew noted that the Restoule v. Canada (Attorney General) 2018 ONSC 7701 decision is “very important.”

“My understanding is it’s the first time that the Federal Court of Canada rules on interpretation [were used] and how to deal properly with First Nations,” she said, adding she was “so impressed” with the case and how the “judge understood Anishinaabe law” and participated in the smudging ceremony.

“We have now two Gladue courts in Ontario,” noted Justice O’Bonsawin, adding that she was sworn in on an eagle feather in Ottawa.

The judge believes being able to make an oath on an eagle feather is “very soothing for the people who appear before us and is a step in the right direction.”

She also directed attendees to read R. v. Armitage 2015 ONCJ 64, where Justice Shaun Nakatsuru compares the offender to a tree. She called the decision “poetic” and “a perfect application of Gladue principles by a judge in a matter.”

Jacobs noted that one area she sees successful change is in Indigenous legal orders being taught in law school.

“I’m now a professor of the law, being able to teach Indigenous legal orders as a mandatory course at the University of Windsor. So, all of the first years learn about Haudenosaunee law, Anishinaabe law and they’re learning Cree law from Haudenosaunee, Anishinaabe and Cree instructors. So that’s a success,” she said.

Photos by Amanda Jerome