Law Times

Page 10 April 30, 2018 • lAw Times www.lawtimesnews.com 'For a long time, there was not a lot of movement' More Indigenous courts open across province BY MARG. BRUINEMAN For Law Times O ntario's legal system has taken a notice- able turn as it tries, increasingly, to deal with the high proportion of In- digenous people who find them- selves in criminal courts. While Gladue Courts have been operating as an alterna- tive to traditional courts for To- ronto's Indigenous community for nearly two decades, more recently, there has been an in- crease in Ontario in the number of similar courts, called Indig- enous People's Courts. "For a long time, there was not a lot of movement. The first Gladue Court opened in 2001 and, probably in about the first 10 years, there were the courts in Toronto, there was a court in London and there was a court in Sarnia in Ontario. In British Co- lumbia, there was a court in New Westminster," says Jonathan Rudin, program manager of the Toronto-based Aboriginal Legal Services. Rudin says there are now 13 Indigenous criminal courts in Ontario that address criminal matters, including five that have begun since 2014, in Brantford, Cayuga, St. Catherines, Ottawa and Thunder Bay. "So much of the increase in the number of courts really started in many ways since the decision by the Supreme Court of Canada in Ipeelee in 2012. That's when I think we saw a big upsurge in interest in developing these courts," he says. R. v. Ipeelee was considered a pivotal case in which the cen- tral issue was the determination of a just sentence for Indigenous offenders in breach of long-term supervision orders. While there might not have been a direct correlation be- tween the decision and the movement toward developing more criminal courts to accom- modate Indigenous culture and experiences, Ipeelee and R. v. Gladue in 1999 have played sig- nificant roles in informing the need for alternative approaches. Gladue established the need for courts to take into account all reasonable alternatives to in- carcerations during sentencing, with particular attention to Ab- original offenders, and Ipeelee extended that to breaches of long-term supervision orders. "There has to be an interest in the community and that inter- est usually starts at the judicial level," says Rudin. "I think after Ipeelee, it appears that judges — it wasn't the only factor — but judges became more interested in looking at different ways of dealing with the sentencing and bail issues regarding Indigenous people." The Ministry of the Attorney General has acknowledged the importance of applying Gladue principals in which courts need to consider additional factors, taking into account the sys- temic, historical and personal factors when sentencing an Ab- original offender and it has been expanding its Gladue program since May 2016. The need for Indigenous Peo- ples' Courts is established locally and developed by the judiciary in consultation with the pro- vincial and federal Crown and other justice partners, includ- ing local Indigenous commu- nities and organizations, MAG spokesman Brian Gray said in an email. The judiciary has ex- clusive control over the assign- ment and scheduling of judicial resources throughout Ontario, he added. Each court may differ in its approach, says Rudin. Some rely more heavily on the participa- tion of elders and sentencing circles than others. They are designed to ref lect the issues and capacities in the communities. And Rudin says they're not static, as they evolve and are open to innovations and cross- pollination to a degree. But most, like Ottawa's In- digenous Peoples Court, which opened last fall, focus on pleas, bail hearings, adjournments and sentencing, but not trials. Ottawa criminal lawyer Paolo Giancaterino has seen the inf luences of Ipeelee and Gladue during his appearances in the new court with clients as well as the sentencing principals that acknowledge the historical treatment of Indigenous people in Canada. "It's no secret that there's an unfortunate history of our treat- ment of Aboriginal persons in Canada and how that treatment has certainly contributed to the overrepresentation of Aborigi- nal persons in our criminal jus- tice system," says Giancaterino, a partner with Langevin Morris Smith LLP in Ottawa. "The traditions they've in- FOCUS Stephanie Bean says there is a value in having a specialized court connected with community service workers that link up to supports right away. See Focus, page 12 So much of the increase in the number of courts really started in many ways since the decision by the Supreme Court of Canada in Ipeelee in 2012. 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