Thunder Bay Indigenous Peoples’ Court

Where healing takes place

By: Tamara Spence, Sports and Recreation Editor, and Hillary Jones

After centuries of colonial abuse, oppression, and ongoing systemic racism, the inauguration of the Indigenous Peoples’ Court in Thunder Bay is a long-awaited historical step in the right direction. The Thunder Bay Indian Friendship Centre, in partnership with Nishnawbe Aski Legal services, spearheaded this initiative on behalf of the community to address the Calls to Action of the Truth and Reconciliation Commission “to eliminate the overrepresentation of Indigenous peoples in custody using alternative justice mechanisms.” (Appendix II- TRC related to Justice). Their hard work and efforts led to the first Indigenous Peoples’ Court in Northwestern Ontario.

The Indigenous Peoples’ Court is designed around the approach of restorative justice and incorporates traditional culture, which has inarguably been historically denied and systematically extracted from Indigenous people. “This is what we need as Indigenous people: a court that embraces our cultural heritage and the Seven Grandfather Teachings,” said Charlene Baglien, Executive Director of the Thunder Bay Indian Friendship Centre. Through its holistic approach, the Court will focus on healing, acknowledging the distinct circumstances that Indigenous peoples face with existing laws, and reducing recidivism. Additionally, the Indigenous Peoples’ Court will provide support and guidance throughout the steps involved in healing and reintegration. Within this framework, the improved process towards healing enables the individual to acknowledge and take responsibility for her or his actions and the harm inflicted on victims and the community.

The term “restorative justice” is often misunderstood and used out of context. Restorative justice is based on working collaboratively towards resolving wrong-doings and coming to a resolution without punishing an individual with incarceration. The process puts healing in the forefront, considering both the perpetrator’s and victim’s well-being. This is done through facilitated discussion, during which the perpetrator is expected to take full responsibility for his or her actions. Through this framework, crime is understood to be the result of many interacting factors in an individual’s history. This includes aspects of intergenerational trauma resulting from colonization, decades of attempted assimilation, and genocide. All of these layers lead to an imbalance within the individual. The process of restorative justice works towards reestablishing balance for the individual and the community.

Rightfully so, there are many questions around how the proceedings will take place and who is eligible to access this route of restorative justice. Eligibility is open to those who self-identify as First Nation, Indigenous, Inuit, or Metis. Those who choose to take this route must first be willing to plead guilty to their offence(s) and accept responsibility for their actions. They must similarly agree to the facts and circumstance outlined in the agreed statement that is used to form the evidentiary basis to proceed in the court. A willingness to participate in the development and completion of their healing plan is also a requirement.

The Indigenous Peoples’ Court will first start by addressing and taking on the less serious criminal charges but will not limit its expansion to deal with more serious crimes in the future, once the court becomes more established. During the developmental stages, it should be noted that the Indigenous Peoples’ Court will generally be addressing charges involving non-violent offences.

One notable difference with the Indigenous Peoples’ Court is that it provides a culturally appropriate physical space in which legal proceedings can take place. There is a ventilation system specifically designed to allow for smudging and other traditional ceremonies to be incorporated in the legal proceedings; the room is circular, representing the medicine wheel and removing the imposed hierarchy created in Western culture. In each proceeding, two Elders are present, one male and one female, to lead traditional ceremonies and provide recommendations and or suggestions to the judge for the individual’s healing plan, leaving the ultimate decision to the judge.

Much of the population of Thunder Bay may not fully understand the divisions within the judicial system and why Indigenous people are entitled to a culturally appropriate approach within the Canadian legal system. Often discussions of Indigenous rights are met with ill-informed rhetoric around the perceived unfair advantages being given to Indigenous people. However, none of the requested changes to the court system are in fact new. The Criminal Code of Canada has long stated that judges are to “…undertake the sentencing of aboriginal offenders individually, but also differently, because the circumstances of aboriginal people are unique.” (Criminal Code Section 718.2(e), 1996). The fact that so many people remain ignorant of the policies on which our country has been built, continuing instead to imply that Indigenous people advocating for their rights are somehow greedy, is itself evidence that our educational institutions and government are failing residents of Canada and Indigenous people.

Despite the centuries of unimaginable hardship and abuse faced by generations of Indigenous peoples, the opening of the Indigenous Peoples’ Court in Thunder Bay is a landmark in Canadian history and a clear step towards reconciliation that deserves celebration.