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For the Defence_34-3_Layout 1 13-08-16 10:40 AM Page 2 Norm Boxall The treatment of citizens of First Nations by the criminal justice system in this country has been and continues to be both tragic and embarrassing. Many of you may have observed this firsthand, but the problem is far from allegorical and there are numerous reports and studies that continue to demonstrate this fact, not to mention the Supreme Court decisions of Gladue and Ipeelee. While there appears to be an increased awareness and recognition of the issues, there does not seem to be a correlated increase in progress to solve the problem. Reports and even judgments pointing out the issues and the flaws in the system are an important step; however the reality of the current situation does not yet represent this theoretical framework. Ipeelee made it clear that a failure to consider Gladue principles is an error of law, and that these principles exist in order to attempt to achieve equality for people who have been mistreated in this country for more than a century. This, of course, reflects the principles outlined in s. 718.2(e) of the Criminal Code, which was an amendment enacted in 1996, in yet another attempt to alter and improve how Aboriginal people are sentenced in this country. This is good theory, yet the failure of it to be carried out in reality continues to exasperate the problem. When we see “Gladue reports” that are nothing more than a glorified PSR with a few sentences thrown in at the end mentioning the accused’s Aboriginal status, how is this providing a real solution to the issue or even properly reflecting Gladue principles? A decision from the Supreme Court does not automatically transform the practice in a provincial or superior court, and the task continues to lie on defence counsel to argue for and ensure that our clients receive all of the rights they are entitled to. When there are issues with access to justice they arise in the investigation and initial charging procedures. The limitation of coverage provided by Legal Aid Ontario certificates affects First Nation citizens disproportionately and creates an observable access to justice issue. Access to justice, however, is more than just providing procedural access to lawyers and the courts and without a better understanding of the cultural, historical, social, and economic issues specific to Aboriginal people, improved procedural access to justice will not provide a meaningful solution. The task of ensuring that Aboriginal people do not continue to be failed by the justice system and actually receive the fair treatment that both the government and the Supreme Court have stated they need and are entitled to does not rest solely on the shoulders of defence counsel, but with all actors including the Court and the Crowns. While the justice system may not be able to solve the underlying problems that lead to grossly disproportionately higher rates of arrest, conviction, and sentence length for Aboriginal persons it can and must respond so to not further exacerbate the tragic situation. Although financial restraints are sometimes cited as limiting factor in addressing the issues, sadly this type of financial restraint has seen to be lacking in other areas as shown by the increase in policing and correctional costs. More police and more prisons and the resources spent on them will not address the failures of the justice system and draws resources away from other initiatives that could address underlying issues. While I do not pretend to have a full understanding of the tragic situation let alone have a solution, I believe it is imperative that as defence counsel we ensure that we do what we can to prevent Aboriginal people from continuing to fall through the cracks of the criminal justice system. We must be wary of being superficially aware of the issues without actually taking the time to consider and truly understand them. It is not enough to say that a client is Aboriginal and that we need a Gladue report, but rather, we as the defence bar, must attempt to understand the Aboriginal client and situation issues as a larger concept. This includes a true awareness of not just how difficult the criminal justice system is to navigate, but also the conditions that exist in Aboriginal communities that lead to the disproportionate number of charges, guilty findings, and incarceration. Hopefully the articles in this issue will assist you in reflecting on the issue on a large scale. 2 FOR THE DEFENCE • VOL. 34 • NO. 3
For the Defence_34-3_Layout 1 13-08-16 10:40 AM Page 3 Over the past 12 months, a number of positive steps have been taken to identify the extent to which First Nations people have been failed by the justice system in Canada. In September 2012, the Court of Appeal for Ontario made it clear that the Minister of Justice is required to consider an accused person’s Aboriginal status and the Gladue principles when deciding whether or not to surrender them to another country, particularly one like the United States where such factors are not considered in sentencing (see Erin Dann’s article on page 24). 1 In February 2013, the Honourable Frank Iacobucci released his report on First Nations Representa - tion on Ontario Juries. Chronicling substantive and systemic changes that need to be made to the justice system to ensure that First Nations people can and will meaningfully participate, Justice Iacobucci pronounced the justice system as it relates to First Nations people as “currently in a crisis.” 2 Finally, in June 2013, the Court of Appeal issued a scathing ruling on the lack of representation of First Nations people on juries in Ontario (see Jessica Orkin’s article on page 7). 3 While these are all important milestones, they represent only the very beginning of the reconciliation process. Justice Iacobucci points out in his report that “First Nations observe the Canadian justice system as devoid of any reflection of their core principles or values, and view it as a foreign system that has been imposed upon them without their consent.” More must be done to resolve the conflict between First Nations’ values and the values that underpin the Canadian justice system. The Criminal Lawyers’ Association and individual defence counsel must be part of the solution. Justice Iacobucci described the systemic discrimination experienced by First Nations people, particularly in the North. Justice Iacobucci noted as follows: I heard numerous tragic stories of First Nations individuals’ experiences with the justice system at various levels, and what they clearly revealed were pervasive systemic problems with the way in which justice is delivered, and is seen to be delivered, to First Nations individuals. Many persons accused of crimes plead guilty to their offences, rather than electing trial, in order to have their charge resolved quickly but without appreciating the consequences of their decision. In fact, many First Nations individuals explained that they have never known a friend or family member who, when charged, proceeded to trial. 4 Courts only sit once every 60 to 90 days in many remote locations. Judges, court staff and counsel fly in. As a result, there is enormous incentive to plead guilty to avoid the inevitable delays. Justice Iacobucci also pointed out that First Nations people described a “systemic lack of access to adequate legal services to defend charges.” In an effort to correct these historic problems, Justice Iacobucci recommended that the Attorney General carry out “a study on legal representation that would involve Legal Aid Ontario, particularly in the north, that would cover a variety of topics, including the adequacy of existing legal representation, the location and schedule of court sittings, and related matters.” 5 As defence counsel, we must reflect on our role in the troubling patterns identified by Justice Iacobucci. Why have we stood by (or even helped) as so many of our First Nations clients plead guilty? How have we failed to fight for a system that provides for trials within a reasonable time? How have we failed to fight for a more representative system? The Criminal Lawyers’ Association should seek to be involved in the study suggested by Justice Iacobucci. We must reflect honestly and critically on our contribution to the problem. We must then commit, individually and collectively, to be part of the solution. I hope the articles in this issue, which was skillfully co-edited by Meaghan Daniel, will inspire you to contribute in any way you can to the process of change. NOTES: 1 U.S. v. Leonard; U.S. v. Gionet, 2012 CarswellOnt 11578, 97 C.R. (6th) 111, 2012 ONCA 622 (Ont. C.A.). 2 Report of the Independent Review conducted by the Honourable Frank Iacobucci, First Nations Representation on Ontario Juries (February 2013). 3 R. v. Kokopenace, 2013 CarswellOnt 7938, 2013 ONCA 389 (Ont. C.A.). 4 Supra note 2 at p. 55. 5 Ibid, p. 88. Breese Davies FOR THE DEFENCE • VOL. 34 • NO. 3 3
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