Law professor says Alberta court’s new Indigenous Justice Strategy provides good first step

A new Indigenous Justice Strategy unveiled by the Provincial Court of Alberta is aimed at ensuring the “people’s court” is for all people.

“The justice system in Alberta must be responsive to the needs of Indigenous communities and of Indigenous people,” said Provincial Court of Alberta Chief Judge Derek Redman. “As the people’s court, we are committed to be the court of first instance for all Albertans, including Indigenous Albertans.”

The Indigenous Justice Strategy is the court’s commitment to ensure that happens, says Redman, who made the announcement last week standing outside thelaw courts in Edmonton.

“It is essential to address the general lack of access Indigenous people have to the court system, the pervasive lack of confidence the Indigenous people have with the justice system, the over representation of Indigenous people in pre- and post-trial custody and the over representation of Indigenous children in care,” said Redman.

The Alberta court’s first-ever Indigenous Justice Strategy lays out 20 “responses,” as they are called. It brings together actions the court has already undertaken, expands on some of those actions, and adds a handful of new endeavours.

The goal, as stated in the three-year strategy, is for the court to “provide a culturally relevant, restorative and holistic system of justice for Indigenous individuals including accused persons, offenders, victims, families, youth, and children as well as those Indigenous communities impacted by the actions of those who find themselves before the court.”

“I think (the strategy) is a good step. I think it is sincere and good-hearted,” said Dr. Hadley Friedland, associate law professor and academic director with Wahkohtowin Law and Governance Lodge at the University of Alberta.

Friedland is particularly pleased to see that it has been framed as being specifically responsive to the 2015 final report from the Truth and Reconciliation Commission (TRC) into the legacy of Indian residential schools, as well as the 2019 final report from the National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG).

The strategy also draws on the Alberta-specific response to the MMIWG inquiry, which saw the Alberta Joint Working Group issue 113 “pathways to justice” recommendations in early 2022.

“It’s important because they were (TRC) Calls to Action, (MMIWG) Calls for Justice, particularly the national inquiry, responding to deep-seated and ongoing conditions of vulnerability and danger. I think having a court respond to those demonstrates commitment to justice,” said Friedland.

Both the TRC and the MMIWG final reports referenced the over incarceration of Indigenous peoples.

According to the justice strategy, Indigenous people in Alberta represent 6.5 per cent of the population yet Indigenous inmates accounted for 45 per cent of all people in Alberta’s federal prisons (2016 census). Alberta provincial statistics (for 2017-2018) indicated that 40.3 per cent of inmates in provincial institutions were Indigenous.  

Friedland also appreciates the “surprisingly robust framework (of the strategy) because it’s taking a broad approach.”

Responses range from continuing to educate and train judges, justices of the peace and staff in cultural competency to incorporating Indigenous cultural components in the court system to supporting the establishment of Indigenous courts and restorative justice programs.

The strategy calls for more open communication between the court and Indigenous leaders, something Friedland believes is important.

The strategy also supports the already established Tri-Court Gladue Committee and providing Indigenous-language interpreters.

In 1999, the Supreme Court of Canada advised the lower courts to consider Gladue Reports when sentencing Indigenous offenders. These reports outline systemic factors that may have impacted offenders.

As for language interpreters, failure to provide such could interfere with rights guaranteed by the Canadian Charter of Rights and Freedoms.

“One of the of the frustrating things about the criminal justice system is we’ve had these obligations in place for a long time, but they don’t seem to be implemented generally across Canada,” said Friedland.

She’s hopeful that this inclusion will happen at the “scale that it should.”

Redman says that the court is only one piece of the systemic puzzle that impacts Indigenous lives and therefore can’t address every issue.

“I agree with him there,” said Friedland. “It’s hard again because the courts are one piece of so many systemic issues…I’ve sat in on courts where judge, defence and prosecution are saying, ‘This person needs treatment and we would all agree if there was a treatment program for them. We would all agree to that but there is no treatment program open.’ A piece of a much bigger puzzle.”

The strategy does fall short, however, says Friedland, in providing space to build Indigenous law into the court system.

“This strategy is very much focused on improving the current system as it is and not necessarily that transformational work of connecting with Indigenous law,” she said.

Redman says the strategy is a preliminary step.

“This Indigenous Justice Strategy is not an end point. It isn’t even the beginning. But it is an important step in an evolving process,” he said.

How the court moves forward on implementing the strategy will be the test, says Friedland.

“Often we have seen, across the country again, you get this first step…and it never seems to progress past that first step. That’s what I’m hoping for here. They will continue to move,” she said.

Redman says the strategy will not sit on a shelf. Progress on implementation will be included in the report the court releases every two years. He admits, though, that he has yet to determine how progress will be measured on the impact the strategy is having on Indigenous lives.

But for personal progress, Redman told Windspeaker.com in an exclusive interview, that he will mark that through the creation of Indigenous justice centres.

“In my own way I’m working behind the scenes, trying to get (the government) to accept, in principle, that that’s a good thing and…I’m hoping within my (seven-year) term they will be starting,” said Redman.

“The really important thing with Indigenous justice centres is that it’s Indigenous led,” said Friedland, who does support the creation. “So I love that the chief justice is receptive to that, but those really need to come from Indigenous leadership.”

Four Indigenous justice centres, including one that operates virtually, were opened in British Columbia earlier this year. The centres are a partnership between the BC First Nations Justice Council and local First Nations leadership. They focus primarily on criminal law and child protection issues (the priorities set by First Nations leaders in BC). The centres also offer additional services based on community and cultural needs. 

While Alberta First Nations do not have a central justice council, Friedland says that treaty areas 6, 7, and 8 could collaborate with the Métis Nation of Alberta to make this happen and “it would be really powerful.”

On Oct. 3, the provincial government passed an order-in-council changing the name of the Provincial Court of Alberta to the Alberta Court of Justice, effective April 1, 2023.

The name change was requested by the provincial court in its strategic plan—the same plan that sets out Indigenous initiatives, which includes the creation of the Indigenous Justice Strategy—for a name that better “describes the relationship between our citizens and the justice they seek from our court.”

In a statement, Justice Minister Tyler Shandro said the renaming of the court “helps ensure the court’s fundamental responsibility to Albertans, to provide a fair and accessible justice system to all, is reflected in its name.”

Local Journalism Initiative Reporters are supported by a financial contribution made by the Government of Canada.