Speaking notes: Engaging the Courts in Community Justice Programs

Grant Christoff, February 23, 2006

Good afternoon everyone. It is a pleasure to be here with you and deliver remarks on behalf of the Department of Justice and the Assistant Deputy Attorney General. I am certain that the topics explored thus far and the speakers in delivering their messages have been exceptional. I can only hope that I am able to entertain and inform as well as the previous speakers.

I think there may be a lot of questions right now, about the priorities of the new government, about our new Minister (the Honourable Vic Toews), what changes may occur and how those changes may impact upon current Aboriginal programs, policy directions, and so on – The only thing that I can say on this point is that I was personally encouraged when I heard the announcement of the Honourable Mr. Toews as Minister of Justice and Attorney General of Canada and subsequently advised that – Minister Toews was the Provincial Justice Minister in Manitoba when some of our first program agreements were signed in that province – so he comes to his position already familiar with part of the work that we do in the Aboriginal Affairs Portfolio, and was in fact one of our partners when the Aboriginal Justice Strategy was starting to develop and resource community-based justice programs on the ground.

My address covers 3 areas:

• The courts’ treatment of Aboriginal issues;
• The Roundtable process; and
• The all too gloomy socioeconomic statistics facing Aboriginal people and one of the institutional responses: the Aboriginal Justice Strategy

Accelerated Engagement on the Aboriginal Front

The stage has been set for an exciting period and heightened interest by all parties in quickening the pace of our ongoing reconciliation efforts. In addressing cases involving section 35 of the Constitution Act, 1982, the Supreme Court of Canada has stated that the basic purpose of that section is the reconciliation of the pre-existence of Aboriginal societies with the sovereignty of the Crown. Over the years, reconciliation has become the key organizing principle on which the Courts rely in addressing issues related to Aboriginal and treaty rights.

These Court decisions have significantly changed and expanded our understandings of the nature and scope of Aboriginal and treaty rights, and of government powers and obligations with respect to those rights. An increasing emphasis on the need for reconciliation between the historic rights of Aboriginal people and the Crown’s sovereignty has taken hold. This, together with a growing body of constitutional law, has now provided significant guidance as to how reconciliation should be achieved between the Crown and Aboriginal people.

The Courts’ statements on reconciliation occur most frequently in decisions balancing the rights and interests of Aboriginal people and other Canadians, which reinforce that we live in a shared society and economy with a common Constitution. It finds expression in the policies and programs that we develop specifically to address the socio-economic issues facing Aboriginal people. In fact, if I can leave you with only one thought today, it’s that a revised agenda has taken shape and will continue to inform the way “we” —collectively— address Aboriginal issues.

Milestones and Critical Path

The conceptual thinking around this revised agenda and directions that should be taken crystallized in April 2004 at the Canada-Aboriginal Peoples Roundtable. The past 22 months since that historic meeting are testament to the direction that it launched. It has progressively gained momentum – with Aboriginal people, within the federal government and with the provinces and territories. In the future, historians may compare its effect on relationships between Aboriginal people, governments and the Courts to the effect that the Charter of Rights and Freedoms had for all Canadians in terms of being a milestone to inform where we stand and our obligations.

The course is set and the momentum is carrying us forward into hopefully a “new direction”. One which reflects the federal government’s efforts to re-shape its relationship with Aboriginal people. One that aims to assist Aboriginal people in building on the strengths within their communities and traditional territories and focusing on partnerships based on mutual respect, recognition and responsibility.

This new relationship is based on the reconciliation between the Crown and Aboriginal people. Reconciliation as the cornerstone for the government’s new approach to Aboriginal relations. Reconciliation as the fulcrum around which policy is developed and renewed and as the context within which programs are developed and implemented.

Reconciliation is about equality and fairness. It’s about situating rights in the context of on-going relationships. It requires us to develop with Aboriginal people new approaches for addressing rights and a broader range of options for their management AS WELL AS assessing the effectiveness of our current tools and institutional responses. In this context, successes will only be measured in the quantity and quality of the relationships developed as the Crown continues to engage with Aboriginal people.

A shared understanding of the foundations of and expectations for this new relationship is critical to its renewal and strengthening. It requires balancing the rights and interests of Aboriginal people and those of non-Aboriginal Canadians. By setting out clear foundations on how to better work together, we can strengthen a working relationship to move forward on closing the socio-economic gap between Aboriginal people and other Canadians.

The Impetus for the Change

The emphasis on reconciliation provides us with a unique opportunity to think about how we do things and how we can be more effective. It means that our own performance will need to be measured in terms of the contribution we can make on the reconciliation agenda and our efforts to address Aboriginal issues.

If we consider the events of the past 22 months, the investment and engagement of the National Aboriginal Organizations, the provincial and territorial governments and the federal government is impressive.

It began with a concerted effort by the National Aboriginal Organizations and the federal government to determine fundamental areas for focused work. Not surprisingly, the six areas that emerged were related principally to socio-economic factors – housing, health, education, economic opportunities, negotiations and accountability.

Each area was explored through expert roundtables held for each of these themes. The tables were comprised of carefully chosen Aboriginal and non-Aboriginal specialists and government officials. They provided advice and recommendations on the priority directions to take for each area.

Recognizing the complexity of the issues and their cross-cutting nature, in terms of content as well as jurisdiction, the working relationship established between the federal government and the National Aboriginal Organizations was broadened to include the provincial and territorial governments in a more substantial way. Moreover, their participation was secured at the historic November 2005 First Ministers’ Meeting (FMM) with Aboriginal leaders in Kelowna, B.C. which focused on these issues.

This new relationship will take time to take root and to be fully understood and lived. The changes triggered by the new relationship are meant to provide the ongoing operating framework for the political environment, the government, non-governmental bodies, provinces, territories and Aboriginal organizations and communities. The hard work is just beginning.

Troubling Statistics, Challenged Communities, a Collaborative Response

Closer to home, the problems we encounter in Aboriginal justice reflect the deeper socio-economic issues that erode Aboriginal family life, education and community. The Kelowna meeting signalled a federal-provincial-territorial investment in tackling some fundamental issues, such as education, health, housing, and economic opportunities, related to Aboriginal people. In the meantime, where there are failures and gaps in the policies related to these issues, the justice system comes into play -- in the form of high Aboriginal contact rates with child welfare agencies, police and courts and the over-representation of Aboriginal people as victims of crime and as inmates in correctional institutions.

What will a new relationship mean for justice in Aboriginal communities? And how will it relate to reconciliation?

If we look generally at how Aboriginal people in Canada are faring -- I am sure that we are all familiar with the trends -- many face challenges of cultural dislocation, a home life that could sometimes be described as dysfunctional, poverty, substance abuse and health issues. Further, studies continue to show that Aboriginal people are over-represented at all stages of the criminal justice process.

In addition, Canada’s Aboriginal population is experiencing a baby boom. There is a higher rate of population growth and the average age of the Aboriginal population is much younger than the non-Aboriginal population. And these youth often face similar obstacles in their lives which can only be exacerbated by limited access to educational or recreational facilities, and few employment opportunities.

Are the above trends some of the factors driving the need for change in the way we address Aboriginal issues? is it

• The ensuing hopelessness, despair one may feel when faced with statistics about your probability of “success” or ability to reach some of your dreams and an increased potential for disengagement? OR
• Population increases and the relative youthfulness of the Aboriginal population together with a growing concentration of the young Aboriginal population in the core of the larger cities?

I am not sure....but for me it is not so surprising when we add all these things into the mix that the risk of contact for Aboriginal people with the justice system remains high.

So, we are left with many questions like .... How can primary and secondary education flourish where youth gangs offer a sense of self-worth and financial support that education and skills development would otherwise provide? How can balanced economic development opportunities be seized upon and sustained in unsafe and unstable communities? How can there be reconciliation when Aboriginal peoples’ experience with the justice system is, more often than not, negative?

Our challenge as we move further towards reconciliation and strengthening relationships is to seek opportunities within the limited confines of the justice system – opportunities that will facilitate this new relationship and that recognize the needs and issues particular to Aboriginal people.

Over the past few years, the government has taken some steps to address the issue of over-representation of Aboriginal people in the criminal justice system. I am sure that Judge Stuart, retired, will touch on his experiences when he speaks next and I will outline one institutional response: the Aboriginal Justice Strategy.

The Aboriginal Justice Strategy provides support for a dynamic approach that focuses on working with Aboriginal people to find the solutions to some of the issues faced on a daily basis. Its over-riding purpose is two-fold:

• To familiarize Aboriginal people, on- and off-reserve, with justice processes; and
• To enable them to develop or formally recognize community-based, culturally appropriate alternatives to mainstream justice processing.

As a first step, the focus was on improving the relationship between Aboriginal people and people who work within the court system, such as police, probation officers, lawyers and judges. This included familiarizing members of the communities with the courts and members of the justice system with Aboriginal cultures to eventually lead to a better understanding between and among these players.

In tandem with this work, community-based justice programs were developed with Aboriginal communities across Canada so that they would be involved in the court system. The programs initially focused on assisting the courts in dealing with Aboriginal offenders, particularly in providing advice regarding sentencing. This was achieved through Elders panels, sentencing circles, and recommendations to sentencing judges, etc.

Engaging the courts and officials within the judicial system in community justice programs is very important. But communities are also facing the need to build capacity so that they can deal with conflict earlier, before escalation, and offer alternative ways of dealing with offenders, instead of calling the police or going to court and facing a mainstream system that often times has little linkage to their traditions and culture.

In addition and beyond criminal matters, the opportunity to address conflicts before requiring external intervention, either by way of the courts or the police, has taken hold through local community justice programs. There, issues can be addressed by means of Aboriginal cultures and traditions. This has resulted in better resolutions to conflicts or, at the very least, better management of the conflict to attempt to comprehensively address the situation and hopefully prevent further escalation.

With government support, communities are now encouraged and able to be engaged/involved in preventative measures, where possible, as well as in issues relating to school disputes, bullying, conflicts between families, clans and Houses and fisheries and wildlife matters.

Interestingly, the support for community-based justice programs and their development has contributed to reviving many communities’ interest in their indigenous legal traditions. Increasingly, they are looking into their own legal traditions with their Elders and local leaders to learn from these practices and find ways for implementation within their present-day communities.

More importantly, the communities tell us that the community-based justice programs are working and that others would benefit from this initiative as well. The emphasis on the restorative approach has meaning for the Aboriginal community, while court sentences, devoid of cultural nuances, can sometimes not enjoy the same level of resonance or long-term impact for all parties. A justice approach involving accountability to the community as well as support from that same community reaches many Aboriginal offenders in ways unavailable to the mainstream court and incarceration system. In the long run, the community programs benefit not only the victim and the community but also the offender as the community takes a significant role in the reconciliation process.

The community justice programs are strongly embraced by Aboriginal communities and by provincial and territorial governments. Since 1991, the provinces and territories have put jurisdictional issues aside to co-fund the programs both on- and off-reserve. They have noted that working with the Aboriginal Justice Strategy has led them to increase cross-cutting co-ordination.

Strong, effective relationships between the federal, provincial, and territorial governments and Aboriginal groups are fundamental to achieving progress on the socio-economic circumstances facing Aboriginal people. Likewise, advances in Aboriginal justice will help to assist, in tandem with broader efforts, to close those socio-economic gaps. As safe and stable communities offer economic opportunities, so will they provide a more solid foothold for education and skills development. And, as physical and emotional health and social support networks are strengthened other issues will necessarily become less prominent. For example, rates regarding issues like family violence, substance abuse, youth delinquency and adult incarceration will hopefully reverse their current trajectory. We are on the cusp of some major changes. I think, on the edge of a more positive chapter in the story regarding Aboriginal people. A story of reconciliation and of recognition of the contributions of Canada’s Aboriginal peoples to the country’s social and economic fabric.

Conclusion

In closing, I would like to recognize the efforts made by all those involved in these justice programs ... those who are facilitating, coordinating or volunteering — in these programs. Their commitment and professionalism are sterling examples of the importance of the direction in which we have embarked and recognition of the increasingly abundant capacity and talent within Aboriginal communities.

And, as we listen to Judge Stuart’s experiences in this area, I would also invite you to ponder the agenda that is taking shape on Aboriginal issues, on Aboriginal justice and your role, at the fore, in supporting this new direction. Thank you for listening and the opportunity to speak with you.