How do the courts address indigenous persons?

I would first like to acknowledge and appreciate the fact that the City of Calgary and the Calgary Courts Centre are located on the traditional unceded Treaty 7 territory of the Blackfoot Nations, including Siksika, Piikani, Kainai, Tsuut’ina First Nation, and Stoney Nakoda First Nations. This territory is also homeland to the historic Northwest Metis and to the Metis Nation of Alberta, Region 3.

Given the well documented and known overrepresentation of Indigenous peoples within the criminal justice and child welfare systems, courts and the law have begun moving towards addressing the systemic issues that plague these systems.

If you are Indigenous and have been recently charged with a criminal offence, you may be wondering what changes have occurred and/or how your unique experiences, both historically and presently, may impact your journey through the criminal justice system. Below are some specific points of interest.

CALGARY INDIGENOUS COURT

The Calgary Indigenous Court was established in 2019 in order to provide culturally relevant, restorative, and holistic forms of justice for Indigenous accused persons. The Court sits every Wednesday in its own specialized courtroom that was designed in a circular fashion where participants will all be on the same level. Smudging is also welcomed in the Court.

Specialized judges who are Indigenous or who have experience in restorative justice practices sit in the Court, as well as a designated Crown Prosecutor, Restorative Justice Peacemakers, Traditional Knowledge Keepers, Indigenous Court Workers, and social service agencies.

The Court deals with bail and sentencing and is available to any accused who identifies as Indigenous and voluntarily chooses to engage in this specialized Court process. Special reports may be created for bail and sentencing as well as Healing Plans which help connect accused persons with community resources and their Indigenous heritage. Special ceremonies are held for those who successfully complete their Healing Plan.

This is a great opportunity for those who want to take advantage of supports and connections to their Indigenous heritage.

BAIL

At the bail stage, or release pending the outcome of your case, it is now mandatory in the Criminal Code that a judge consider the circumstances of Indigenous accused persons and how they may be disadvantaged in obtaining release. This may include a consideration of a lack of stable housing, resources, support systems, employment history, and substance abuse, which may play a factor in your release or detention. Fundamentally, this forces judges to consider that detention should not be a substitute for social measures and recognizes that someone should not be detained merely due to historical, cultural, and situational circumstances that are beyond their control. 

This is an important development in the law that is aimed at helping to alleviate the problem of overrepresentation of Indigenous accused in the justice system.

SENTENCING

Similarly, at the sentencing stage, a judge sitting in Indigenous Court must consider an Indigenous accused person’s unique systemic and background circumstances that have brought them before the Court. The judge must also consider all reasonable alternatives to incarceration, including any restorative sentences/options available. A report may be prepared outlining all the applicable and relevant factors unique to the accused’s situation and background that will help the judge to come to an appropriate sentence.

This requirement is crucial to ensuring the appropriate understanding and weight is placed on how an Indigenous person may have been brought before the Court due to larger systemic and trauma related reasons beyond their control. It is also an opportunity to carefully tailor a sentence to suit an accused’s situation and provide more culturally relevant and meaningful sanctions.

SWEARING UNDER OATH

As of 2019, Indigenous witnesses are permitted to swear on an eagle feather before testifying under oath. Normally, witnesses would give an affirmation or swear on the Bible. However, this now gives a third option to Indigenous persons who wish to instead to use an eagle feather. This creates a more respectful and meaningful option for Indigenous people that recognizes their approach to justice may be different. No longer are Indigenous people forced to choose between two options that may not reflect their understanding or appreciation of justice and truth. This is another step towards reconciliation and acceptance of restorative forms of justice.

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