The Moot Times UCalgary Law
Community Spotlight: Calgary’s Indigenous Court Aims for Redemption over Punishment
By Heidi J. T. Exner
Photo Credit: Jared Sych, Avenue Magazine (https://www.avenuecalgary.com/city-life/inside-the-aboriginal-courtroom-in-the-calgary-courts-centre)
Alberta’s Legal Landscape
Alberta tethers much of its cultural identity on agriculture and energy, as their primary commercial endeavours. Both the University of Calgary and the University of Alberta have specialised programs which are intended to train future lawyers to practice in the commercial energy sector. As a result, much of our legal knowledge about Indigenous people is framed in the context of a duty to consult with Bands who have property rights to land, of which we seek to use for commercial endeavours. Indeed, most of our conversations about such endeavours are framed in a common law context as we learn the law that relates to these matters.
One might be surprised to learn that Alberta is also home to the first Indigenous Court in Canada, the Tsuu T’ina First Nation Court. This court was established in October 2000, long before the Truth and Reconciliation Commission, and it has jurisdiction over criminal, youth, and bylaw offences on Tsuu T’ina land. Within it, an aboriginal judge, a Crown prosecutor, and court clerks work to create a union between two separate legal systems: the Alberta Provincial Court and the Peacemaker process. The associated Office of the Peacemaker operates a peacemaking program that employs culturally appropriate mediation and alternative dispute resolution techniques that are designed to engage offenders, victims, families, and Indigenous communities. The Peacemaker approach addresses underlying causes of offending behaviour, placing emphasis on conflict resolution for all parties impacted by an offence rather than punitive measures on the offender.
Alberta’s existing Indigenous Peacemaker programs, such as the Tsuu T’ina First Nation Court and others that followed (the Métis Settlements Community Justice Program, the First Nations Custom, the Saddle Lake Restorative Justice Program, the Aiskapimohkiiks Program, and the Kainai Peacemaking Program), provide an important foundation of successful examples to guide the creation of more to follow. The Calgary Indigenous Court, which opened its doors in September of this year, is arguably one of the most ambitious Peacemaker programs to date.
It took approximately 18 months to make the Calgary Indigenous Court possible. Alberta’s Assistant Chief Judge Durant, Deputy Chief Judge McClellan, Judge Crowshoe, and Judge Creighton of Calgary Provincial Court (Criminal Division), visited Indigenous Courts across Canada and consulted with traditional knowledge keeper Mr. Leonard Bastien of the Piikani Nation to discuss a response to the Truth and Reconciliation Commission’s calls to action around Justice for Indigenous Peoples. In June 2018, the judges gathered community stakeholders to present the idea for a court designed for Indigenous peoples facing criminal charges in Calgary and area. Akin to the Tsuu T’ina First Nation Court, this new court would incorporate Indigenous cultural practices and place emphasis on restorative justice and healing for offenders and victims alike.
While there was no additional government funding for the new Calgary Indigenous Court, the Calgary Courthouse committed to reallocate existing resources to enable the Indigenous Court to sit for one day per week on Wednesdays. In addition to a modified structure of resources, this program relies quite heavily on support from community stakeholders. This court has not yet implemented its Peacemaker program, but Native Counselling Services of Alberta aims to provide this aspect beginning in 2020. In the meantime, the John Howard Society is providing informal peacemaking services for the court through their restorative youth justice program.
Peacemaking is unique in that it requires the participation of the victim of an offense. This does not necessarily mean that the victim forgives an offender, but guidance from affected parties of an offence is an important part of the ownership of action that an offender takes as part of the peacemaking process. Peacemaking, extrajudicial sanctions, and alternative dispute resolution each involve the moving away from a punishment model to one in which parties affected can address the issues underlying the conflict. The Peacemaker approach calls for an offender to work to reconcile or repair the harm than the offence has caused within his or her community. The emphasis on connecting an Indigenous person with culture is seen as essential to the person’s healing and the prevention of reoffending.
The Calgary Indigenous Court is not only a Peacemaker court. Service providers meet on Tuesdays before court to review the docket, meet with counsel, and form plans for the accused in advance of their appearances. Most often they are either bail plans generally facilitated by Native Counselling, or they are healing plans facilitated by the Elizabeth Fry Society. The service providers organise housing, treatment, access to cultural guidance, social benefits, and other resources, with the goal of assisting the accused to exit the justice system uppermost in mind.
The most important goal of the Calgary Indigenous Court is reconciliation. If Indigenous peoples have control over culturally appropriate justice systems, this can help to shift our legal culture to serve all parties that it affects in a more just manner. Access to justice issues come in all shapes and sizes, and providing Indigenous people access to their own justice system is critical to the process of addressing the gap that they face in the common law legal system. But reconciliation is more easily conceptualised than executed. For example, urban settings for Indigenous Courts pose an interesting question: which community should “own” a program in a city that serves all Indigenous peoples Canada-wide? This is just one example of the uncertainties created by the pan-Indigenous approach to Indigenous issues that have historically been employed by the common law legal system.
One well-known product of the common law system is the wildly disproportionate representation of Indigenous peoples in the justice system. Indigenous Courts are also intended implement s.718.2(e) of the Criminal Code, which is known as the Gladue Principle. This sub-section of the Code is a guiding principle which requires Canadian judges to consider how Indigenous peoples are disadvantaged due to long-lasting effects of colonization, including damage or loss of cultural identity, displacement, and abuses from the residential school system. While this principle cannot override minimum sentencing provisions, it can also be applied to the question of the constitutionality of minimum sentences which are set by the Crown.
A New Frontier
The Calgary Indigenous Court enables people who are facing criminal charges to deal with them in a way that acknowledges and honours their individual circumstances. This can encompass consideration of trauma inflicted on families or communities that may have contributed to the specific circumstances of the accused. It can also incorporate Indigenous practices and ceremonies to help reconcile offenders with their victims, and help them receive support for their needs from community elders and organisations that specialize in providing help in a culturally appropriate way.
Because of its unique focus on integrating offenders back into the community by making peace, the Calgary Indigenous Court can help reduce recidivism and increase the confidence of Indigenous peoples and communities that are otherwise negatively affected by the criminal justice system. This new court can educate lawyers, judges, probation officers, students, social workers, and other authorities about Indigenous culture and ways of knowing, but perhaps most importantly it can provide excellent opportunities to engage with Indigenous communities and organizations. For example, restorative justice, which has been proven highly effective in Canada’s youth criminal justice system, actually draws on principles that have been used by Indigenous people before Canada’s formation. While traditions vary from one Indigenous community to another, there exists a notable common thread of recognition that crime affects the community as a whole. By treating an offender as more than just the criminal act he or she committed, reintegration into the community instead of separation reduces the likelihood of a future offence. As new issues arise and are addressed over time in the Calgary Indigenous Court, perhaps we can seize these opportunities and learn from one another as we explore our new union through law and social practices.
Special thanks to Sarah Sinclair and Gabriel Chen of Calgary Legal Guidance, for their wealth of information and assistance in writing this article. As a community stakeholder, Calgary Legal Guidance played an integral role in the creation of the Calgary Indigenous Court.