In Depth

Justice system not living up to 1999 promise to Indigenous offenders, say N.W.T. advocates

Advocates say more prevention, restorative options and social services are needed to prevent overrepresentation in incarceration.

'Problems are getting worse but it's what we do next that everyone is still struggling with,' says lawyer

Dene National Chief Bill Erasmus in Yellowknife in April, 2016. Erasmus said a solution to better implement the 1999 Gladue decision in the N.W.T., goes hand in hand with self-government and right to self-determination. (Pat Kane/CBC)

Almost two decades after a landmark Supreme Court of Canada decision stressed the importance of restorative justice, advocates say the Northwest Territories' justice system still isn't doing enough for Indigenous offenders.

The court ruled in the 1999 case R v. Gladue that judges should consider alternatives to incarceration when sentencing Indigenous offenders and take into account their unique life circumstances.

That's now known as Gladue factors, which can include family history of substance abuse and intergenerational trauma from the residential school system. 

The 1999 Gladue decision was intended to address the overrepresentation of Indigenous people in the criminal justice system.

Many Indigenous justice advocates across the country, however, say the justice system has failed to live up to that promise, including in the North where there are higher rates of Indigenous incarceration

Among those with concerns is N.W.T. defence lawyer Caroline Wawzonek, who said there are few meaningful alternatives to probation or jail time in the territory and that there's not a full understanding of traditional Indigenous laws and approaches to justice among judges and lawyers.

"We could do a better job," she said, explaining that both federal and territorial governments are responsible for Indigenous people's Gladue rights.

"It is an excuse to wait for someone else to fix the problem, both levels of government need to show some action," she said.

One issue Wawzonek highlighted is how Gladue factors — information about an Indigenous offender's background — are gathered and presented to the court. While some jurisdictions in Canada like Yukon have separate Gladue reports, in the N.W.T. this information is incorporated into regular pre-sentence reports, which are written by probation officers.

Wawzonek said there is a question of whether this should be done by an Indigenous person from the community.

She said she wants to see more restorative justice options, better integration between health and social services and the justice system, and for communities to be able to contribute more to the court process.

"People will start to be more respectful of the justice system generally when they feel like it's actually something that is theirs," she said.

Dene chief concerned, wants prevention

Bill Erasmus also said the Gladue decision is not being implemented to the effect that it should. Erasmus is the chief of the Dene Nation and regional chief to the Assembly of First Nations for the Northwest Territories.

One of his concerns, he said, is that it's difficult to get people out of the criminal justice system, which they are often coming into contact with at a young age. He said he would like to see greater prevention efforts and more flexibility in the system because each community is different.

Clearly what we've been doing for 20 years ... hasn't worked.- Caroline Wawzonek

"You want people to do well, you want them to contribute and you want their children to also be able to be good citizens," he said.

Erasmus also said for him the solution goes hand in hand with self-government, the right to self-determination and the ability for First Nations to have their own justice systems in place.

"That's going to be the answer because it provides an opportunity for people to develop something from the ground up, rather than adopting a system that was designed, really, not with their needs in mind," he said.

The N.W.T.'s Justice Department said it includes Gladue principles in many services like specific training for probation officers. It also said the territory has one of the longest-running community-based restorative justice programs in Canada that can offer diversion and land programs.

The government also highlighted the wellness court and domestic violence treatment option court as alternatives which focus on an offenders' underlying reasons for offending rather than the offence.

In the 2017-18 year, the department said it provided $1.4 million for community justice programs and projects, along with $315,000 from the federal government for Indigenous justice programs. It said 30 communities accessed the funding.

N.W.T. defence lawyer Caroline Wawzonek said there are few meaningful alternatives to probation or jail time in the territory and that there's not a full understanding of traditional Indigenous laws and approaches to justice among judges and lawyers. (Randall McKenzie/CBC)

Wawzonek said community justice committees have been doing great work, and that since the Truth and Reconciliation Commission released its calls to action, there has been greater recognition in the justice system and more meaningful conversations on the issue.

But she noted there are still challenges, including that many community justice coordinators are only funded for part-time work, lawyers often have high volume case loads and there may be a level of distrust from some community members who have been failed by the justice system.

"Clearly what we've been doing for 20 years ... hasn't worked, hasn't fixed the problem. Problems are getting worse but it's what we do next that everyone is still struggling with," she said.