First Nations court considered for Port Alberni; 20 years after landmark case, over-representation still trends upward

Victoria, BC

While courts have recognized a need to address over-representation of Indigenous people in the Canadian justice system, recent statistics show the glaring imbalance continues to grow.

A decade ago, Indigenous adults accounted for 21 percent of admissions to provincial/territory custody and 20 percent of admissions to federal custody. By 2017/2018, those figures had risen to 30 percent and 29 percent respectively, an alarming trend, especially considering Indigenous people represent less than five percent of the Canadian population.

Although it’s a basic tenet of international rule of law, access to justice remains limited in Nuu-chah-nulth communities, a legacy of colonial rule exacerbated by geography and population. Could the imbalance be better addressed through an Indigenous court located in Port Alberni?

B.C. Attorney General David Eby raised the potential for an expanded First Nations Court system when the province opened a seventh Indigenous court in Williams Lake in mid-December.

“The province is working with Indigenous communities to establish Indigenous courts throughout British Columbia,” Eby stated. “These courts offer alternative sentencing options that honour traditional cultural practices, support rehabilitation and acknowledge the impact the person’s actions have had on others.”

Since B.C.’s first Indigenous, or First Nation, court opened in New Westminster in 2006, six others have opened in other communities including Kamloops, North Vancouver, Merritt and Prince George. As specialized courts, they recognize the social circumstances of many First Nation offenders and attempt to balance the legal standards of the conventional court system with an Indigenous and community-based approach to justice and healing.

It was 26 years ago when the Criminal Code was recalibrated with the specific goal of adopting restorative justice to address higher rates of incarceration for Indigenous offenders. A few years later in 1999, the Supreme Court of Canada case Regina vs. Gladue resulted in a landmark judgment that recalibrated sentencing decisions.

The so-named Gladue Principle, reinforced by a 2012 Supreme Court ruling, holds that aboriginal circumstances — residential school, child welfare and adoption, dislocation and dispossession to name a few — must be considered in sentencing if requested by the individual before the court. Legal advocates point out that this approach does not exempt convicted criminals from the usual sentencing range yet enables the court to consider a broad Indigenous perspective, including community supports. 

NTC President Judith Sayers said she expects to see more local discussion in 2020 about the possibility of having such a court serve Nuu-chah-nulth people on the central Island and west coast. A First Nations Court located in Duncan, currently the only Indigenous court on the Island, is more of a sentencing court, she noted.

“There’s definitely a real interest at the local level here in Port Alberni in setting up an Indigenous court,” Sayers said.

A spokesman for the Attorney General’s office said the government is not planning to implement a pre-determined plan for expanding the Indigenous court system.

“As every community has different priorities, the province invites communities to apply for one of these specialized courts if they feel it would benefit local residents,” the ministry responded, noting that the province’s chief judge considers such applications.

Sayers indicated that process is well underway at a local level. Previously the Nuu-chah-nulth Tribal Council was working toward the goal of a family court on the Central Island, rather than a sentencing court like the ones in Duncan and Abbotsford, she said. The current NTC administration has had several meetings on the matter, including discussions with the Attorney General’s office, Ministry of Justice and the RCMP, she added.

Sayers suggested it can only help to have Judge Alexander Wolf of the Provincial Court on side.

Wolf, appointed to the court five years ago, became the resident judge in Port Alberni in July. He is a member of the Kwikwasut’ inuxw Haxwa’mis nation from Gilford Island and holds a wealth of relevant experience, having worked as director of an Indigenous community legal clinic and as an advocate helping marginalized groups in Canada gain access to justice.

“He understands how difficult it is for our people to come into court,” Sayers said.

Eby held out hope last month that the development of the Indigenous court system will support better outcomes for people in conflict with the law.

“It also brings us one step closer to reaching one of our most important goals as government — building a justice system that better respects and addresses the needs of Indigenous peoples,” he said.

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