Disrupting the Inertia

And implementing reconciliation within the criminal justice system

Disrupting the Inertia

“Nothing about us without us” unwinding the underlying tenets of Canada’s criminal justice system.

How can the criminal justice system be transformed in ways that will impact the lived realities of Indigenous peoples involved directly or indirectly in the criminal justice system?

We are in a time where reconciliation is at the forefront of the national discourse. However, if Canadians are serious about reconciliation, collaborative work is needed to unwind the underlying tenets of Canada’s existing criminal justice system. Despite current political mandates encouraging change and decades of reports documenting the failings of the criminal justice system, attempts to seriously interrupt the inertia of the system have had underwhelming results. Instead, Indigenous communities are in the middle of a very serious crisis as reflected in the overrepresentation of our peoples in jails and of our children in government care.

This year, the separate trials and subsequent not-guilty verdicts in the deaths of Tina Fontaine and Colten Boushie drew much-needed attention to what many have described as the systemic failings of the criminal justice system for Indigenous peoples. The pursuit of transformative change begins with understanding all of the ways in which Indigenous peoples have been, and
continue to be, denied justice through the criminal justice system. One such example is the ability to exclude Indigenous peoples from juries through peremptory challenges, as was the case in the second-degree murder trial of Gerald Stanley in the death of Colten Boushie. Building off this understanding, it is imperative that efforts to reform the criminal justice system are driven by Indigenous peoples at every level.

Today, there are various pockets of action related to Indigenous justice across BC and Canada that require appropriate resourcing, coordination and support. In 2017, the BC Aboriginal Justice Council (“BCAJC”) signed a memorandum of understanding with BC’s Attorney General and Solicitor General to undertake to develop BC’s first jointly developed Indigenous Justice Strategy (“the Strategy”). The Strategy is one opportunity to focus on implementing transformative reconciliation within the justice system in BC, and is being built upon the commitment from the province and the BCAJC to work together in an innovative way to effect real change. This approach endeavours to involve Indigenous peoples as true partners and includes the creation and co-hiring of an Executive Director, who will report to both the province and the BCAJC, to oversee the development and ultimately the implementation of the Strategy.

The BCAJC has been working with the Ministry of Attorney General and the Ministry of Public Safety and Solicitor General to identify key pathways for change. The creation of province-wide Indigenous Justice Centres is being explored as a key initiative under the Strategy. The Centres are envisioned as hubs for Indigenous peoples to access integral justice services in a timely way. Another key area for action being explored relates to the principles set out in the Supreme Court of Canada decision in Gladue. For BCAJC, implementation of Gladue principles includes not only an increase in resourcing and awareness of Gladue reports, but also wholescale systemic change where Gladue principles are integrated throughout the justice system.

It is critical that we disrupt the inertia of the existing system that is failing Indigenous peoples, and remove systemic barriers that contribute to the overrepresentation of Indigenous peoples in this system. We need to embrace the challenge of reconciliation and look for opportunity to initiate a fundamentally different relationship between the province in BC and Indigenous peoples, to address the overrepresentation of Indigenous peoples in the justice system, and to work together to identify pathways to change.