Tansi Nîtôtemtik,
In today’s post, we will be looking at the Indigenous courts in Alberta. This article will highlight the importance of Indigenous courts, provide my observations from attending a sitting, and conclude with a comment on how these courts fit into the overall goals of Indigenous legal autonomy.
Indigenous courts have been established in Edmonton, Calgary, and some Indigenous communities to provide a holistic approach to criminal justice for Indigenous offenders. The Truth and Reconciliation Commission highlighted distrust of the Canadian legal system in the Final Report, with many Indigenous people seeing the legal system as “an arm of a Canadian governing structure that has been diametrically opposed to their interests.”[1]
As we have been discussing this month, Indigenous law does not necessarily correlate with Canadian law. The current criminal justice system in Canada may be seen as focusing more on punishment and deterrence rather than rehabilitation and restoration. Indigenous courts such as the ones in Edmonton, Calgary, and select communities, seek to introduce elements of rehabilitation with cultural traditions and awareness, which is less prevalent in conventional courts.
In the article “Envisioning Indigenous Community Courts to Realize Justice in Canada for First Nations”, Angelique EagleWoman highlights how specialized Indigenous courts can help change the “lifepath” for participants.[2] Indigenous courts blend requirements from the Canadian Criminal Code with cultural practices to provide more culturally centered experiences for Indigenous people involved in the criminal justice system.[3]
The introduction of Edmonton’s Indigenous court was part of the provincial court’s Indigenous Justice Strategy, “to address issues including mistrust in the justice system by Indigenous people, and the disproportionate number of Indigenous children in care and overrepresentation of Indigenous people in custody.”[4]
These specialized courts focus on restorative justice and a peacemaking approach, as opposed to punishment and deterrence in other courts. The Indigenous courts are open to any Indigenous offender who chooses to have their matters heard in the court.
I attended the Edmonton Indigenous court for a morning session, and saw firsthand how different the approach and experience was for participants.
The Edmonton Indigenous Court sits every Thursday in Provincial Courtroom 358. When walking into courtroom 358, the difference between this courtroom and a standard courtroom is immediately apparent. The smell of burning sage fills the room, as an Elder invites all people present to smudge to begin the morning session.
Instead of the standard courtroom setup, with the judge on an elevated platform at the front of the room facing the court, the Indigenous courtroom has a large oval table at which all participants sit. Seated around the table are counsel, representatives from Native Counseling Services, the Yellowhead Tribal Council, and a dedicated Legal Aid duty counsel. The presiding judge also sits at the table.
As offenders were called to speak to their matters, they were invited to smudge by the Elder, and were given the opportunity to swear on an Eagle feather. When the sitting judge, Judge Cochard, entered, several people in the gallery stood up, as is customary in standard courtrooms. Judge Cochard said, “we don’t stand up in this court, but you can if you want to”.
One of the offenders commented that “the judge is sitting there, like one of us”, which speaks to the collaborative approach of the Indigenous court.
I was impressed by the level of cultural consideration that Judge Cochard, the Crown, and defense counsel exhibited when speaking with offenders. One offender expressed that they were unhappy with their stay in jail because there was not an Elder available to speak to. The participant shared that being able to meet with an Elder and smudge was important to them, and the court understood.
When a participant was being brought from the Edmonton Remand Centre, and the court was informed that they were agitated, the Elder in the courtroom suggested that he meet with the participant first to talk to him. When this participant entered court, they seemed to be in a better position to engage with the procedure.
The final matter of the morning was one I may never forget. A participant was discussing their sentence with Judge Cochard. I note that the use of the word ‘discussing’ should be highlighted, because unlike in standard sentencing, Judge Cochard spoke directly with the participant. The sentence proposed was one that would allow the participant to get the help and support needed to become rehabilitated. The Judge deferred to Native Counseling Services to provide a plan for rehabilitation. Throughout the discussion, the participant held an eagle feather.
At the end of the sentence, the participant stated that “this courtroom has saved my life”. They explained how previous experiences with the criminal justice system did nothing to make them a better person. They stated that “I am getting out with something, as opposed to getting nothing,” in reference to the proposed Healing Plan.
From one morning in Indigenous court, I saw the justice system attempt to address what Angelique EagleWoman highlights as the goal of Indigenous courts, where “multigenerational abuse, discrimination, and poverty from colonialism can be addressed for individuals and those impacted by their actions in a judicial forum.”[5]
Forums such as the Edmonton Indigenous court are a step in the right direction for Indigenous involvement in the criminal justice system. Ultimately, courts that are culturally competent and provide opportunities to focus on rehabilitation and restoration should be standard for all offenders, but especially for Indigenous offenders.
As a country, Canada can no longer pull the wool over the legal system’s eyes, and pretend that the impacts of colonialism and intergenerational trauma have not contributed to the over-incarceration and repeat incarceration of Indigenous people. The Canadian criminal justice system isn’t working. And a specialized court is a step in the right direction.
However, legal pluralism and true recognition of Indigenous legal autonomy should be the ultimate goal. Like the by-laws discussed yesterday, Indigenous courts should not be where we stop.
In the meantime, I hope that Indigenous courts flourish and continue to bring together members of the judiciary, legal professionals, and community support to provide restorative justice to offenders and their communities.
Until Next Time,
Team ReconciliACTION YEG
[1] Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Ottawa, Truth and Reconciliation Commission of Canada, 2015) at 255.
[2] Angelique EagleWoman, "Envisioning Indigenous Community Courts to Realize Justice in
Canada for First Nations" (2019) 56:3 Alta L Rev at 679.
[3] Ibid.
[4] Brittany Ekelund, "'It really is a huge step forward': Indigenous court officially opens in Edmonton" (30 Sept 2022), CTV News Edmonton, online: <edmonton.ctvnews.ca/it-really-is-a-huge-step-forward-indigenous-court-officially-opens-in-edmonton-1.6091213>. [5] Supra note 2.