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Sixteen specialized courts in Ontario emphasize healing over punishment, but the in-person hearings that make that possible have been left in limbo due to COVID-19

A medicine wheel is shown on the floor of the Indigenous People's Court, a separate room of the Superior Court of Justice building in Thunder Bay.Photography by David Jackson/The Globe and Mail

The faint aroma of smoke from a smudging ceremony lingers at the start of the Indigenous People’s Court in Thunder Bay.

The judge, prosecutor and court staff all take part in the ritual and then sit in a circle of desks. Their focal point on this June day in 2019 is a 37-year-old First Nations man with tousled hair and a thin goatee, who also sits in the circle. He already pleaded guilty to thefts involving a car and a bottle of raspberry-flavoured vodka, but he’s not here for sentencing. The group is collaborating on his healing plan instead.

“The point is to get you as much help as possible to keep you on the straight and narrow,” an Indigenous elder tells him. He mentions that an Alcoholics Anonymous-style program created by “American Indians” has just come to Thunder Bay. “Give it a try,” he advises. “It’s something different from AA.”

The judge, wearing a blazer instead of black robes, looks at the defendant from across the circle. “We really have to focus on your sobriety, your well-being, your recovery at this point,” she says. She prods him to finish the two Grade 12 credits he needs for his high-school diploma.

Before he hurries out the door, the man says he will try to do these things. He has just a few months to show the court that he is committed to the healing plan. If he makes good, everyone in this round room will embrace him in a blanket ceremony and set him free. And if he doesn’t, he’s probably headed back to jail. It’s a cycle that he has known for years.

A sticky note marks the section on 'aboriginal offenders' in a copy of the 2019 Martin's Criminal Code book.

Canada’s criminal justice system has spent years struggling with how to create better outcomes for Indigenous people found to have broken the law. There is no consensus in the legal community about how to best achieve the desired alternatives. Yet there is no longer any question that justice officials must work harder at finding alternatives to warehousing Indigenous offenders in jails and prisons.

Specialized sentencing courts for Indigenous offenders have been sporadically created across Canada over the past 20 years, including in Alberta, B.C., Saskatchewan, Nova Scotia and New Brunswick, but Ontario has been setting aside spaces for this new approach more than any other province. At first, the province did this by repurposing old courtrooms that outwardly still appear no different than any other. But in more recent years, Ontario has also been building some specialized sentencing courtrooms from the ground up, resulting in 16 specialized courts in communities across the province, with another two under development.

These courts amount to a continuing experiment in the Canadian criminal justice system, given how they allow judges to slow down proceedings and open themselves up to direct input from Indigenous groups. This crucial venture is currently on pause as the coronavirus crisis closed many courts, redirecting proceedings to time-crunched virtual sessions.

But a trail is being blazed. In terms of architectural ambition, there is no better example than Thunder Bay’s Indigenous People’s Court (IPC), which became a full-fledged alternative sentencing court in 2017. In the hope it would become a model for other courts to follow, the courtroom’s architects spent years studying how to build a sense of Indigenous tradition into the ground-floor wing of the city’s new court complex, including consulting with the city’s Indigenous Friendship Centre and other experts.

Their work resulted in a courtroom arranged in a circle as a conscious break from the fusty rigid lines common within conventional criminal justice forums.

A bear's head is carved into the top of an eagle staff in the courtroom, lit by a skylight above.

The IPC is decorated with Indigenous symbolism and equipped with features that facilitate conversation. The courtroom is sheathed in corrugated wood acoustically designed to help people hear each other speak. A custom venting system clears the smoke from smudging ceremonies that kick off most proceedings. A skylight lets in the morning sun to help quell the anxiety that inevitably surrounds the criminal justice system.

But the biggest innovation in the room is its lack of hierarchy. “The most important element, architecturally, is there’s essentially a round table – there’s no raised dais for the judge to sit at. The judge is on the same level as everybody else,” says provincial government architect Erik Andersen.

Ontario’s first specialized court was created in a standard-looking courtroom in Toronto in 2001 just two years after a watershed Supreme Court decision directed lower courts to consider the decades of dispossession suffered by Indigenous people.

The 1999 Gladue ruling advised judges to hear out the story of any Indigenous person accused of a crime – and also their family’s story – before making judgments. Judges were also asked to give heightened consideration to conditional releases that can involve counselling, education or cultural-awareness programs.

The IPC’s tailor-made approach to restorative justice can take time. Prior to the COVID-19 pandemic, the court in Thunder Bay handled non-violent criminal charges and only sat about 20 days a year, dealing with about 10 accused each month.

The focus is on steering people on a path to rehabilitation instead of jail. Candidates who want to appear have to identify as Indigenous, plead guilty to a crime and agree to start working on their rehabilitation right away. If these preconditions are met, a judge will put a formal sentencing hearing on pause as court officials work with local Indigenous groups to devise a healing plan.

Roseanna Hudson is legal program co-ordinator at the city's Indigenous Friendship Centre.

Elders, caseworkers, Gladue report writers and counsellors who work outside courtroom walls are the unsung heroes of the IPC system, says Roseanna Hudson, legal program co-ordinator at Thunder Bay’s Indigenous Friendship Centre. The organization plays a crucial background role in everything that happens inside the court. All too often, Ms. Hudson says, judges and prosecutors in the conventional system extract promises that the accused cannot keep – and the subsequent breaches mean they inevitably end up in jail again and again.

“Sometimes they’re too busy trying to figure out where the heck they are going to live, or where they are going to eat or sleep that night, than to worry about a phone call to a probation officer or to Thunder Bay police,” Ms. Hudson says.

The IPC gives people the chance to correct course. When all the goals of a healing plan are met, a sentencing judge may waive or reduce a potential jail term. Those who are successful are given a graduation ceremony in the court that sees the defendant wrapped in a fleece blanket, embraced by everyone present.

“In the regular courtroom, you rarely get to the root causes,” Justice Joyce Elder says. “We don’t get hugs in the regular courtroom – we do here.” Justice Elder, the regional senior judge for Thunder Bay, said she sees the specialized court as a welcome change. She leads a dozen Ontario Court of Justice judges in hearing cases across a Northwestern Ontario region that’s almost the size of France. Often they mete out justice in makeshift courtrooms in remote communities. There, the expressed hopes of the Supreme Court have often never materialized into anything tangible.

The Gladue ruling acknowledged the importance of recognizing the unique circumstances of Indigenous offenders, “but it also talked about alternative sentencing options – and the resources have not gone into that, I think it’s fair to say,” Justice Elder says. “By the time it gets to us, the system hasn’t worked well – and we’re the last resort.”

At top, a banner affixed to the eagle staff reads "Gagiigimigoisiwining," which means positive, constructive direction is provided to guide people through their journey of life. At the base of the staff, bottom, a medicine bag sits atop a turtle shell.

The pandemic has brought Ontario’s Indigenous People’s Courts to a near standstill, with in-person hearings hard to come by in all manner of court proceedings, now replaced by videoconferences.

Although no date has been set yet for the return of in-person hearings, Ontario is committed to making sure that the specialized courts “become safely operational again as soon as possible,” said Ontario Court of Justice spokesperson James Schneider.

Lawyer Jonathan Rudin, program director of Toronto-based Aboriginal Legal Services, has been a key player in 30 years of efforts to set up specialized Indigenous sentencing proceedings across Canada.

Mr. Rudin feels the pandemic has set the IPC system back. “It’s very hard to establish relationships with people over Zoom,” he says. “The whole point of the Gladue courts was to slow the process down and take a little bit more time. A lot of innovative things we are doing have come to a stop.”

Carleton University professor Jane Dickson also suspects that the pandemic will turn judges’ minds away from restorative justice and toward clearing caseloads for the foreseeable future. “This is going to make the culturally friendly approaches in the court probably pretty unfeasible for a while,” says Prof. Dickson, who studies alternative justice.

But she notes the pause may also amount to an opportunity for Canadians to better confront a stark reality. “The imprisonment of Indigenous people continues to be a growth industry in this country,” Prof. Dickson says.

A prayer tie sits atop 'courtroom 101' binders for reporters in the court.

Indigenous people make up about 5 per cent of Canada’s population. But the proportion of Indigenous prisoners as inmates of federal prisons has now surpassed 30 per cent. The numbers are even more stark for Indigenous women, who account for 42 per cent of the female prison population.

Governments have been considering this issue for decades – at least as far back as 1996, when parliamentarians attempted to address the problem by changing the Criminal Code with a law directing sentencing judges to use alternatives to incarceration whenever possible, while paying “particular attention to the circumstances of Aboriginal offenders.”

Three years later, in the 1999 Gladue ruling, the Supreme Court fleshed out what exactly this meant in considering the case of Jamie Gladue, a First Nations woman who had fatally stabbed her boyfriend on her 19th birthday.

Ms. Gladue wasn’t living on a reserve, so the lower courts had been confused about whether her manslaughter conviction triggered the sentencing consideration. The Supreme Court settled matters by saying courts need to focus on offenders’ personal history, not their geography – noting that where a person lives lends far less context than a critical look at the decades of injustices and trauma suffered by Indigenous communities.

The ruling changed Canada’s legal landscape, leading to the adoption of directives known as the Gladue principles. But the processes for those principles and outcomes vary from province to province, from hearing to hearing, and from judge to judge – and there remains a lack of data and national standards on how they are being implemented.

“There are a lot of people in the system who are very well-meaning and who genuinely want to try to get some change, but nobody has taken any leadership on this,” Prof. Dickson says.

A motif on the outside of the court building, top, depicts the 'Seven Grandfather' teachings as a continuous line forming a turtle, beaver, wolf, buffalo, eagle, bear and sable. Inside the building, bottom, traditional smudging kits and handmade shovels that resemble canoe paddles are on display.

When the restorative justice process works, it’s a bit like seeing a revolving door suddenly come to a stop, says Ms. Hudson from the Indigenous Friendship Centre.

But breaking the cycle of incarceration can take time – and several tries. In his appearances before the Thunder Bay IPC in 2019, the 37-year-old man who admitted to stealing a car and a bottle of vodka didn’t have a lot to say about his progress.

He kept coming to court with excuses, saying he was in between lawyers, between jobs, and hadn’t made many appointments that were supposed to be part of his rehabilitation. At times, he even pushed back against his own healing plan. “I don’t have a problem with drugs or alcohol,” he said at one point.

During the accused’s initial appearance, defence lawyer Gilbert Labine had said his client’s problems traced back to a troubled history. His mother was from a remote First Nation in Northwestern Ontario, and had raised him in Thunder Bay and Sioux Lookout, Ont., a city of 5,000. She struggled with alcohol and suffered abuse at the hands of her partners. The court heard that he was seized by child-protection workers several times.

As an adult, he became estranged from his own children while racking up mischief and breach of bail charges. The spiral stopped only when he was arrested for driving the stolen car. “He’s been opiate-free for six months now – this is probably the longest stretch of sobriety he’s had in the last 10 or 15 years,” Mr. Labine told the court.

The healing plan had suggested the accused could try to avoid jail by taking addictions counselling and completing his high-school diploma. Many people were prepared to help him, but he was told that he alone had to do the work. “Go out there and get it – do it for yourself,” an elder told him at one point, speaking in the IPC about how she had overcome her own demons in life.

But when the accused’s periodic check-ins became only a running record of missed appointments, the Indigenous People’s Court finally lost patience. “My impression is that you’ve kind of been blowing this off all along – and that keeping you in this court is taking resources away from people who really want to be in this court,” Justice Elaine Burton said as she challenged the accused in late 2019.

His reply was one of resignation: “You can just take me out of this court, then,” he said.

In March, 2020, about a week before COVID-19 shuttered courts across Ontario, the accused pleaded his guilt again – this time, however, his case had reverted to a standard sentencing court.

During a half-hour hearing, the court heard about his “volatile upbringing” and about how he became estranged from his children. “Around 10 years ago, they left him on his birthday,” defence lawyer Patricia Vo said, adding that situation “kickstarted his fall.”

Mostly, though, the discussion focused on the agreed statement of facts and how much time he should spend behind bars. Everyone agreed that 90 days in the Thunder Bay jail seemed about right for the two crimes he had committed in the summer of 2018. Thirty days for stealing a bottle of raspberry-flavoured vodka worth $28.20 from a liquor store. Sixty days for the stolen Hyundai Tucson he had driven around town for a day after finding it unattended.

“I am considering the Gladue factors that you’ve talked about,” Justice Danalyn MacKinnon said.

But she pointed out that judges also have a duty to denounce car thefts. “We want to show there’s a serious punishment if you do that sort of thing,” she said.

“You are going to go to jail today.”

The seal of Ontario stands above the judge's seat in the courtroom.

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