Canada's justice system is failing Aboriginal youth and their communities, Feathers of Hope report concludes

OTTAWA and TORONTO, March 7, 2016 /CNW/ - Intimidating, foreign, unjust and discriminating are just some of the words used by youth to describe the relationship between Aboriginal people and the justice system,  according to a new report by the Office of the Provincial Advocate for Children and Youth. Feathers of Hope, Justice and Juries: a First Nations Youth Action Plan for Justice captures the voices of young people from across Aboriginal communities in Ontario, and was released in simultaneous events held on Parliament Hill and at the Ontario Legislative Assembly.

"What began as a conversation about the lack of jury representation quickly moved to a broader discussion about the justice system's broken relationship with Aboriginal people. It was clear that Aboriginal young people feel disconnected and intimated by the justice system and they are calling for transformative change," said Jeremiah Otis from Fort Albany First Nation and a member of the youth advisory committee with the Office of the Provincial Advocate for Children and Youth.

In November 2014, more than 150 First Nations youth between the ages of 15 and 29 participated in the "Feathers of Hope: Justice and Juries" youth forum in Thunder Bay to address the under-representation of First Nations people on juries. The youth forum was held at the request of former Supreme Court of Canada Justice Frank Iacobucci who authored a report on the under-representation of First Nations people on jury panels. The under-representation of Aboriginal people on juries has contributed to lengthy delays in criminal trials and inquests proceedings. In Thunder Bay, a coroner's inquest into the deaths of seven Aboriginal teens is underway, but only after a lengthy three-year delay due to a lack of Aboriginal jurors.

"Many of the young people who contributed to this report have personal experience with the justice system. They describe the failure of the system at nearly every level. Their recommendations for improving the justice system begin with an understanding of Aboriginal culture and legacy issues which continue to have an impact on their daily lives," said Laura Arndt, Director of Advocacy Services with the Office of the Provincial Advocate for Children and Youth.

The stories and ideas of the young people who attended the forum are summarized in the following:

The gap between the justice system and Aboriginal culture, tradition and history

  • Youth feel disconnected from the justice system, which they view as a foreign institution rooted in punishment and blame. This approach does not reflect Aboriginal values and beliefs that are based on restoration and healing.  Most youth said they were more open to serving on inquest juries (rather than on criminal trials) since they're not focused on assigning blame.
  • Many youth said they had limited knowledge about how the justice system worked and their individual rights, yet too often they felt the direct impact of the justice system on their lives. Without this understanding, many youth said they were unwilling to serve on juries (despite it being mandatory) or seek a career in law or policing.
  • Youth spoke repeatedly about the need for their communities to have educational programs about the justice system and to have this information readily available in schools or through band office training.
  • Forum participants believe that discrimination, racism and stereotypes about Aboriginal people are reflected in the jury process because they are buried in the beliefs and unconscious thinking of mainstream society. Trust, respect and inclusivity must be central to the foundation of the justice system.
  • Youth believe that many professionals (e.g. judges, police, and lawyers) who work in the justice system lack an understanding of Aboriginal legacy issues and its ongoing impact on the daily lives of many Aboriginal people, including poverty and addiction. This lack of understanding creates negative stereotypes and systemic discrimination across the justice system. Out of the 150 youth who participated in the forum, almost all had experienced first-hand or witnessed acts of racism directed at them or a family member.
  • Youth spoke about feeling left "outside" of the court system. Life-changing decisions were sometimes made without first explaining the young person's rights to them or clarifying complex legal terms and processes.

 

Policing

  • Police are often a young person's first point of contact with the justice system. Forum participants viewed policing as the most immediate, visible sign of failure of Ontario's justice system in serving First Nations communities. Too often, youth felt targeted by police with the approach to law enforcement seen as intimidating and creating fear within Aboriginal communities. Youth believe that police have a responsibility to build trusting relationships with Aboriginal communities and to listen to their needs. Youth shared examples where the police built positive relationships with Aboriginal youth and their communities through a range of community outreach programs and activities.
  • Youth believe that police services are not provided at the same level in Aboriginal communities compared to the rest of the country. Their perception is that there is an inadequate number of Aboriginal police officers assigned to multiple Aboriginal communities, which can lead to delayed response times, thereby contributing to a greater sense of fear and insecurity.
  • There was general agreement among youth that stereotyping plays a big role in interactions between Aboriginal people and police. For example, youth felt that police automatically assumed the worst whenever they encountered an Aboriginal person who was stumbling. Rather than consider the possibility that the person was ill, police were quick to assume that he/she was drunk or taking illegal drugs. This stereotype may influence how the police respond to the individual.
  • Forum participants believe that aggressive interactions with police may be prevented if they understood their individual rights. For example, youth were unaware that unless they are charged with a crime, an officer must seek their permission to conduct a search.

 

Jury Process

  • Youth believed that participating on jury panels created additional financial and emotional hardship on the individual, particularly if they are required to travel far from your communities and attend court proceedings for lengthy periods of time. The low level of compensation paid to jurors created additional financial hardship, particularly for individuals supporting children or families.
  • Language and the lack of understanding about the justice system and the role of jurors are critical barriers to serving on juries, especially for elders and community members from fly-in and remote communities/reserves and where English or French is not their first language.
  • Many of the forum participants were unaware that jury duty was mandatory. Serving on juries goes against their cultural tradition of not judging others.

 

Gladue

  • Recognized by the Supreme Court of Canada, the Gladue principle requires the courts to consider Canada's harmful, historical treatment against Aboriginal peoples and for judges to decide a sentence or bail that may be better at helping the individual avoid further contact with the law.
  • A critical step in improving relations between Aboriginals and non-Aboriginals within the justice system is to fully apply the Gladue principles across all of Canada.

 

In their report, youth are proposing 39 recommendations to renew the justice system in order to build a stronger relationship with Aboriginal people.

"We must break the cycle of discrimination and mistrust between the justice system and Aboriginal people. We encourage the federal and provincial governments, police and the legal community to listen to what young people have to say about their experiences with the justice system and partner with them to create meaningful change," said Karla Kakegamic from Keewaywin First Nation and a youth amplifier with the Provincial Advocate's Office.

A copy of Feathers of Hope, Justice and Juries: a First Nations Youth Action Plan for Justice is available at: http://provincialadvocate.on.ca/

About the Office of the Provincial Advocate for Children and Youth

The Office of the Provincial Advocate reports directly to the Legislature and provides an independent voice for children and youth, including children with special needs and First Nations children. The advocates receive and respond to concerns from children, youth and families who are seeking or receiving services under the Child and Family Services Act and the Education Act (Provincial and Demonstration Schools). The Provincial Advocate may identify systemic problems involving children, conduct reviews and provide education and advice on the issue of advocacy and the rights of children. The Office is guided by the principles of the UN Convention on the Rights of the Child and has a strong commitment to youth involvement.

Quotes

"As a champion, I've seen young people transform into leaders who are speaking openly and courageously on the changes needed for the justice system and how to build stronger ties with Aboriginal people. I commend them on their hard work and for staying true to reflecting the voices of youth who attended the Feathers of Hope forum." - Celina Reitberger, Executive Director of Nishnawbe-Aski Legal Services Corporation and Feathers of Hope champion

"The Aboriginal youth who participated in the forum and development of the report personified the seven Grandfather Teachings of wisdom, love, respect, bravery, honesty, humility and truth.  It was upon this foundation that they collectively developed an action plan that fosters reconciliation and serves to advance access to justice for Aboriginal peoples."
-Mandy Wesley, an Aboriginal lawyer and Feathers of Hope champion

 

Backgrounder - Recommendations

Summary of Feathers of 38 Hope Recommendations for Improving the Aboriginal Experience in the Justice System

POLICING

  1. Aboriginal Police Services must be improved and strengthened by having their investigative powers and resources, training, and systems of accountability brought in line with those of non-Aboriginal police services.
  2. All Aboriginal and Non-Aboriginal police working on- or off-reserve and in northern and remote fly-in communities must receive mandatory police college-level training specific to the history of Aboriginal people and the legacy issues that increase their risk of coming into contact with the law.
  3. Police officers, as part of their duties, must focus on building positive working relationships with all community members. The ability of officers to establish these relationships should be regularly assessed as part of their employment evaluation/performance reviews. A key sign of having this skill is the officer's participation in community functions or in community life, where possible, out of uniform. Community members should be involved in this evaluation process and know their feedback about the degree to which they feel an officer is interested and engaged in the life of the community is part of an officer's evaluation. This role could possibly be taken on by a community policing council.
  4. Government must work with Aboriginal leadership, band councils and educators to develop legal rights education courses for Aboriginal youth at the primary, intermediate and senior high school levels. This need is critical given the over-representation of Aboriginal youth in the justice system.
  5. Legal rights education related to policing, and related print materials, must be made available to young people through band councils, community forums, police services, schools, or organizations such as Legal Aid Ontario, Ontario Justice Education Network, legal aid clinics/organizations like Nishnawbe Aski Legal Services, and the Aboriginal Legal Services of Toronto.
  6. The powers of the Office of the Independent Police Services Review Board (OIPSRB) must be expanded to include Aboriginal police services and the policing of Aboriginal people so individuals on-reserve will have access to an independent complaint and appeals mechanism.
  7. Policing is a difficult and demanding job. Government must provide Aboriginal and non- Aboriginal police officers with the resources they need to do their jobs, including self- care training and support services. Providing supports and care to police officers will help them better care for the communities they serve.

 

COURTS

  1. Ontario's justice system must change so that it better meets the needs of Aboriginal peoples. This change must begin with an acceptance on the part of governmentthat Canada's justice system, in its present form, continues to harm Aboriginalpeoples. As Ontario moves forward with the work of implementing Justice Iacobucci'sreport, there is a need for real conversations about the courts and broader justicesystem that include the full participation of Aboriginal communities and those fromwithin the community who have been involved with the justice system. If jury representation is important, then steps must also be taken to address the crisis tied to the over-incarceration of Aboriginal people. Juries cannot solve the issue of incarceration alone; they need to know the courts are doing more to ensure culturally biased justice practices rooted in racism, discrimination and stereotypes that negatively affect Aboriginal peoples and leave them at increased risk to receive unnecessarilyharsh legal sentences. This will ensure Aboriginal people see that real change is happening in the justice system.
  2. In line with the Truth and Reconciliation Commission's Call to Action number twenty-seven (27), we call upon the Federation of Law Societies of Canada to ensurethat lawyers receive cultural competency training, which must include the history and legacy of the Indian Residential Schools, the United Nations Declaration on theRights of Indigenous Peoples, Treaties and Aboriginal Rights, Indigenous law andAboriginal-Crown relations. This will require skills based training in interculturalcompetence, conflict resolution, human rights and anti-racism.
  3. A renewed justice system must begin with increased accessibility. Courts must sit regularly in northern communities and be staffed with lawyers, court reporters, judges, support workers and other system personnel who have specialized training andknowledge about remote and fly-in communities.
  4. When an Aboriginal accused person is flown out of a community for trial or holding, processes must be put in place to ensure she or he does not become lost or disconnected from their communities and the traditions and cultural practices that givethem support, hope and connections to home. This can be addressed by providing supports to fly families in, using technology to support web and video conference visits and requiring that Elder and community access be available at all times and provided to all Aboriginal people in all detention centres, jails and prisons in Ontario.
  5. The Ministry of the Attorney General (MAG) must work with Aboriginal legal service organizations, chiefs, band councils and communities to create ways for community members to provide feedback to the justice system. These sessions, when developed, must be culturally anchored, include the participation of young people and adult community members and be offered with translators in place and educational materials written in the language of the community. This work should be done by an agency or body that is not part of MAG so that Aboriginal people can be sure the evaluation reflects their views before it is delivered to the government.
  6. The Ministry of the Attorney General must provide funding to ensure there are specially trained court support workers to meet the needs of Aboriginal individuals before the courts.
  7. The Ministry of the Attorney General must conduct research into the problem of "net-widening" and determine how often, and in what manner, additional charges against Aboriginal persons are a result of conditions tied to bail or community sentencing.
  8. The Ministry of the Attorney General must work in partnership with the Ministry of Community Safety and Correctional Services to ensure safe and fully functional detention facilities are provided in northern communities in cities like Thunder Bay, Fort Francis, Sioux Lookout or Timmins and that these facilities meet the same operating standards as facilities in the south.
  9. The Ministry of the Attorney General must work with Aboriginal legal service organizations, chiefs, band councils and communities to help develop an education process where Aboriginal youth can learn about the local justice traditions of their communities that existed prior to contact with European settlers. By helping young people obtain this knowledge they can become informed partners and work with their leadership and community knowledge keepers to help create new approaches to jus- tice that meet the needs of their communities.
  10. The government must revisit what is happening with bail hearings. Bail hearings have become more like punishment for many Aboriginal people. Bail conditions for Aboriginal people can include things like attending addiction treatment programs or counseling. The problem is bail is supposed to be about ensuring attendance at court not about forcing a person to meet conditions usually tied to a sentence after a trial has taken place and a finding of guilt has been established. These unfair bail conditions can set Aboriginal people up for failure and possibly new charges before they've even been tried.

 

JURY PROCESS

  1. The jury process is not separate from the broader justice system. Trying to solve the problem of jury under-representation without addressing the way justice is delivered to Aboriginal people in Ontario will not accomplish much. Change will only be meaningful if Aboriginal people see their involvement on juries as contributing to a form of justice that works for them and their communities. Aboriginal people must be able to connect their participation on juries to improving the justice system and making it more inclusive. This change must include removing the sense of intimidation and exclusion many Aboriginal people feel in the delivery of justice on- or off-reserve.
  2. A support system must be put in place for Aboriginal people coming from remote and fly in communities who agree to be part of a jury process. As participation in the jury process can be very overwhelming, mechanisms must be created that allow a family member to travel with an Aboriginal juror or ensure that technological resources are in place to permit the juror who is away from their family and com- munity to have regular contact with home while they sit on the jury. These supports should also be extended to those who testify at trials or inquests regardless if their testimony is provided in-person or through video conferencing.
  3. Mental health supports, i.e., Elders and counselors, must be made available to Ab- original people who are part of trial and inquest juries. These supports must also be provided to Aboriginal witnesses who sit in the courtroom and those who video-conference in. These supports should ideally be coordinated in advance and be provided by a victim witness program and have training in line with that provided to Indian Residential School mental health providers who were part of the work of the Truth and Reconciliation Commission of Canada.
  4. Aboriginal people may come to a jury with a different way of thinking about the process than non-Aboriginal people. They may not speak up or ask questions of their fellow jurors, a judge or the coroner leading an inquest. They may worry their questions may not be understood or people may judge them for the type of question they ask. They may require a different kind of support to participate meaningfully. Lawyers and judges in trials and inquests must also have a better understanding of how the culture and background of Aboriginal people impact their participation on a jury. This may require training for those on a jury and for lawyers, judges and coroners.
  5. Government must work with chiefs and band councils to create the changes necessary to ensure juries include more Aboriginal jurors. This is not work that can sit with one side or the other. The more community members see their leadership encouraging jury participation and pushing for better supports for members of the community who are willing to be part of a jury, the more likely it is members will be willing to be part of a jury process.
  6. Government must change the jury selection process to ensure jury duty is voluntary and not forced on Aboriginal peoples. Chiefs of Ontario and Independent First Nations must work within their ranks to establish a process to guide communities in ensuring Jury Lists are seen as important and are shared with the Ministry of the Attorney General. The Ministry of the Attorney General must commit to working with Aboriginal leadership to find better ways to create lists of people in each community who would be willing to be a juror at a criminal trial or inquest. 
  7. Aboriginal jurors must be compensated/paid by government for the true cost of their participation on a jury including travel, accommodation, meals, child or Elder care or lost workplace compensation. Many of these costs are covered for lawyers, court staff and judges who fly into their communities for court. That this is available to employees of the justice system but not those who are being asked to participate in the delivery of justice is unfair.
  8. Government must provide translation services to Aboriginal jurors or witnesses at trials or inquests whose first language is not French or English.

 

BROADER LEGAL EDUCATION ISSUES TO SUPPORT AND ENCOURAGE

  1. Government must work with the education system to develop education tools and classroom lesson plans that are age-appropriate and make learning about the jus- tice system fun for Aboriginal youth. Education about the law should begin in grade six. Learning about the role and function of juries should form part of the curriculum and include mock trials and role playing. Legal education addressing a range of justice system issues should be supplemented with participation in conferences and forums such as Feathers of Hope where young people can gather, share experiences and learn from one another and Aboriginal professionals working in the system.
  2. The Ministry of the Attorney General (MAG) must work with Aboriginal legal service organizations, the Ontario Justice Education Network, the Equity Advisory Group at the Law Society of Upper Canada, and chiefs and band councils to ensure that education about all aspects of the justice system is available in all Aboriginal communities. It is especially important that this information be provided to community members who come into contact with the justice system, so that they know their rights, responsibilities and options. These materials must be culturally-anchored, include the input of young people, be translated into the languages of Ontario's Aboriginal people and be available online.
  3. Legal education curriculum must include knowledge about the roles of people involved in the justice system so young people and community members will be able todetermine if people are doing their job the right way and what to do if they don't feelthey are. It should also focus on rights, what you can ask of a lawyer, what to expectwhen being asked to go to court and information about the supports that are available in the justice system and how to access them.
  4. Government must take steps to increase the number of Aboriginal people working inthe justice system, including judges, lawyers, police officers, probation officers, and courtworkers or corrections staff. Government must also encourage and fund opportunities for Aboriginal young people to pursue careers in a renewed justice system.
  5. Comprehensive training about the history of Canada's relationship with Aboriginalpeople must be mandatory for all staff working in the justice system. This trainingmust include knowledge about community/nation based approaches to justice anddetailed information about the legacy issues impacting Aboriginal people that stemfrom the Indian Residential Schools, the 60s scoop, resettlement on reserves, colonization and oppression. Young people must be involved in the development of this training curriculum for justice system staff as it relates to the realities of Aboriginalyoung people in the justice system. As part of developing this training wherever possible the Truth and Reconciliation Commission's Calls to Action (see pages 26–27)must be addressed with specific focus on those tied to Justice (numbered 25 41)i and those tied to the legal system (numbered 50-52)ii.
  6. The Ministry of the Education must amend the curriculum in grades K-12 to include age-appropriate materials to support the study of R v Gladue and the historic and ongoing impact of racism and discrimination on Aboriginal people. This recommendation is in line with the Truth and Reconciliation Commission's Calls to Action (numbered 62 and 63) tied to Education and Reconciliation (see page 27).

 

GLADUE

  1. The Ministry of the Attorney General must ensure that Gladue courts are available in courthouses across Ontario, that all Gladue courts are called Gladue courts, and that individuals who identify as Aboriginal who are charged with an offence have access to a Gladue court if they wish. It is important that all persons charged with an offence be told about Gladue court as many Aboriginal people do not self-identify and even fewer know what Gladue courts do.
  2. The Ministry of the Attorney General must ensure that Aboriginal Diversion Pro- grams are available in all communities as a way of ensuring there are real alternative options to incarceration in place for Aboriginal people. The absence of Aboriginal Diversion Programs result in accused Aboriginal persons going to jail for offences that had they been committed in a city like Toronto, where diversion programs are in place, could have been diverted and dealt with by a community council.
  3. The Ministry of the Attorney General must ensure that all fly-in courts in remote communities are the first to benefit from the addition of new resources tied to ad- dressing the lack of training specific to judges, lawyers, crowns, court personnel and diversion programs.
  4. The Ministry of the Attorney General must ensure that the Gladue decision, case law and principles, along with the process and content for establishing and operating Gladue courts, must be required training for all sitting judges and court personnel. The Ministry must require more rigorous training and requirements for criminal lawyers to represent Aboriginal people and hold law societies and Legal Aid responsible for ensuring mandatory training for all lawyers who have Aboriginal clients.
  5. R v Gladue and the related principles and case law must be mandatory training for all judges and court personnel including even those not working within the Gladue courts, as Aboriginal people will appear in non-Gladue courts. Many crowns sitting in Gladue courts are not aware of the principles. This training should at a minimum be either over two half-days or one full day session.
  6. The Ministry of the Attorney General must conduct a full evaluation of existing Gladue Courts to ensure the principles and all promising practices are consistently applied and that steps are taken to ensure these courts continue to grow and benefit from ongoing evaluation. This review must move beyond the number of Aboriginal people convicted of crimes/prosecution records and must address the factors bringing Aboriginal people before the courts and the vision, goals and outcomes of the Gladue courts. A first step should include seeking insight and guidance from those who were part of creating the first Gladue court.
  7. The government of Ontario must begin applying the Gladue court model of practice to child welfare matters and create individualized reports, like the Gladue reports, considering the historic trauma and history of Aboriginal peoples before making decisions tied to bringing children into a care system that will take them away from their families and communities.
  8. The government of Ontario must expand the number of Aboriginal Legal Service organizations and support the creation of legal clinics across the province for Ab- original people involved in the criminal justice system or matters pertaining to child welfare, family law, poverty or human rights. Many people who are working part time, minimum wage jobs make too much to qualify for legal aid, but not enough to afford to hire a lawyer. In many cases these are the people who plead guilty instead of going to trial. This adds to the increasing rates of incarceration of Aboriginal people.

 

SOURCE Office of the Provincial Advocate for Children and Youth

Video with caption: "Feathers of Hope, Justice and Juries news conference, March 7 2016 at Queen's Park in Toronto". Video available at: http://stream1.newswire.ca/cgi-bin/playback.cgi?file=20160307_C1128_VIDEO_EN_636762.mp4&posterurl=http%3a%2f%2fphotos.newswire.ca%2fimages%2f20160307_C1128_PHOTO_EN_636762.jpg&order=1&jdd=20160307&cnum=C1128



For further information: Media Contact: Akihiko Tse, Media and Communications Coordinator, Office of the Provincial Advocate for Children and Youth, Cell: 647-458-1204, Tel: 416-325-5994

RELATED LINKS
http://provincialadvocate.on.ca

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