What might that take? Some of the recommendations require new funding to establish or expand already existing measures such as access to Indigenous sentencing reports, legal support and victim services. Others, such as instituting harsher sentences for violence against Indigenous women, girls and 2SLGBTQQIA people (two-spirit, lesbian, gay, bisexual, transsexual, queer, questioning, intersex and asexual), require changes to the Criminal Code.
Criminal justice reforms alone, especially those addressing the trauma and aftermath of violence including punitive sentencing measures, do not address the root causes of the violence and racism experienced by Indigenous women and girls across the country for generations, said Kim Stanton, a lawyer who practises Aboriginal law at Goldblatt Partners in Toronto. The report also calls for public transit to remote communities, a guaranteed annual livable income for all Canadians, child welfare reform and safe housing and clean water for all Indigenous communities. The recommendations must be viewed as a whole if they are to make a meaningful impact, she said.
“Even at the most basic level we need to be paying attention to the lack of services that make it possible for Indigenous women not to be victimized in the first place,” she said.
One key recommendation, Stanton said, is the report’s call for a national ombudsperson and tribunal that would evaluate government services to ensure compliance with human and Indigenous rights laws. Stanton said this office could shine a light on the progress or lack thereof governments and institutions are making.
“Without accountability measures, these things tend to fade,” she said. “Ensuring accountability will be critical to achieving any change.”
Here are some of the changes to the criminal justice system the report calls for, and how likely they are to be implemented:
You can read the full report on the inquiry’s website. Its 231 calls for justice are at the end of this article.
Funding free legal support for Indigenous women and girls
A pilot program in Ontario has offered a limited amount of free legal advice via Legal Aid for victims of sexual violence at any point in the criminal justice process since 2017. It has been an effective way of helping women, including Indigenous women, feel more comfortable accessing the justice system and making statements to police, said Deepa Mattoo, the executive director of the Barbra Schlifer legal clinic, which has been involved in the pilot program.
Expanding the program in a way that ensures the cultural and geographic needs of Indigenous women and girls are met should be done with the leadership of Indigenous communities, Mattoo said.
“We have a baseline to work from and it is a legal framework in which access to justice can be provided,” she said. “I don’t think we need to reinvent the wheel.”
However, the recommendation comes about two months after the Ontario government went in the opposite direction and slash funding at Legal Aid Ontario by 30 per cent.
“With a 30 per cent cut I am not hopeful that this particular recommendation will be implemented here,” said Kim Stanton.
“There has been such a long-standing crisis in legal aid funding and this recent set of cuts has just exacerbated it,” she said. “I would hope that there would be a reconsideration of those cuts in light of this recommendation.”
Increasing Indigenous representation at all levels of the judiciary, including the Supreme Court
This change would bring important perspectives to court cases, legal experts say.
“I don’t know the numbers (of Indigenous judges) but I would say that it’s very low and I’d say it’s been recognized for a long time that systems, such as health care, education, and justice, be responsive and reflective of the communities they serve, that that’s a positive and it helps people feel that they are represented,” said Emily Hill, interim legal advocacy director at Aboriginal Legal Services in Toronto.
There’s a growing recognition that Indigenous lawyers and scholars would bring strong insights to the role of judge, “particularly when we know that a disproportionate number of Indigenous people come before judges for bail hearings, trials, sentencings and as victims.
“Their perspectives could add to the wisdom of the court.”
Neither the Ontario Court of Justice nor the Superior Court of Justice were able to tell the Star how many Indigenous judges preside over cases as they don’t keep those kinds of statistics.
According to the most recent annual report available online from the provincial judicial appointments advisory committee, which is from 2014, only 2 per cent of the court’s then-complement of judges were categorized as “First Nations,” a total of eight.
The Office of the Federal Commissioner of Judicial Affairs said it is “not in a position to advise” the Star on how many 1,207 federally-appointed judges (including part-time judges) across the country are Indigenous.
Following changes to the federal judicial appointment process in 2016 by the Liberal government in a bid to increase diversity on the bench, applicants were given the option to self-identify. Between October 2017 and October 2018, there were 10 applications from Indigenous candidates for a judicial position and 23 applications from Indigenous candidates (including from previous years) were assessed by independent judicial advisory committees for the federal justice minister’s approval. Three Indigenous candidates ended up being appointed.
Making murder cases with a pattern of intimate-partner violence and abuse count as first-degree murder
There are several circumstances where a murder is considered to automatically be first-degree murder without requiring planning and deliberation, including when the victim is a police officer, if the murder took place during a hijacking, sexual assault, kidnapping or terrorist activity or if the murder took place for the benefit of a criminal organization. The sentence for first-degree murder is automatically life in prison with no chance of parole for 25 years.
Mattoo said the change could help address the historic leniency in sentencing in intimate-partner homicides. However, any changes that could result in harsher sentencing will need to be carefully reviewed in the context of over-incarceration and over-policing of Indigenous and racialized people in general, said Stanton. Indigenous women are disproportionately targeted by non-Indigenous men, but they also experience abuse in their own communities, she said.
“Punitive measures should be less of a focus than addressing the root causes of the violence,” Stanton said. Deterrence through punitive measures is not proven to be effective and much of the violence and abuse experienced by Indigenous women and girls stems from systemic factors, she said.
Expanded use of Gladue reports and sentencing principles
Gladue reports detail an Indigenous offender’s background and are submitted to courts during the sentencing hearings. The reports can be used by judges when considering alternatives to jail or a reduction in the length of sentence.
Jonathan Rudin, program director at Aboriginal Legal Services, supports the call because Gladue reports, seen as a provincial responsibility, are not universally used across Canada. Basically, there are no Gladue reports available in Newfoundland, Labrador, New Brunswick, Manitoba, Saskatchewan, Northwest Territories and Nunavut.
There is more access to Gladue reports in Ontario than pretty much anywhere else in Canada due to the fact the Ministry of the Attorney General and Legal Aid Ontario provide funding, he said.
“What Ontario does provide for other provinces and territories is a great model for how this can be done,” Rudin said. The Toronto-based Aboriginal Legal Services was the first agency that started doing Gladue reports and has 30 staff working on Gladue issues, preparing about 500 reports and letters a year.
Rudin said they make a difference. “The sentencing process has been described as a sausage factory, you’re just moving people through in this line. Unless people have information that speaks to the life experience of the person before them … those things don’t get considered.”
Amending Criminal Code to make violence against Indigenous women, girls and 2SLGBTQQIA people a factor at sentencing
The change would allow a judge to consider a harsher sentence for crimes involving Indigenous victims — like they already can in crimes with established aggravating factors like hate motivation, abuse of trust or terrorism. However, on a case-by-case basis it will be difficult to prove in court that a victim’s identity was a factor in the crime, Rudin said.
“You would have to prove an individual knew that the victim was Indigenous. I can see this opening up a hornet’s nest.
“We also need to consider sometimes violence against Indigenous women and girls is perpetrated by other Indigenous women and girls for all sorts of reasons. I don’t know if we want to be automatically moving to that criminalizing that behaviour even more.”
As well, while violence against Indigenous women and girls is an issue, so is violence against women in general, he said.
“I think people might think ‘why should the sentence that someone receives for sexually assaulting an Indigenous woman be different than the sentence the same person receives for the same activity where the victim is non Indigenous?’” he said.
He doubts such a measure would withstand a constitutional challenge.
Corrections reform, including more ‘non-jail’ facilities
For those who critique and study the Correctional Service of Canada, the inquiry’s recommendations are nothing new — some date back several decades — but there is a feeling that, maybe now, some will get traction.
Before the 1960s, Indigenous people made up 1 or 2 per cent of prison populations and that share has risen ever since, to the point where about a quarter of all federal inmates are Indigenous. They are the fastest growing prison population in Canada, despite the introduction of Indigenous programming.
“What I quite liked about it is the recommendations are focusing on decarceration strategies,” said Vicki Chartrand, an associate professor in sociology at Bishop’s University who specializes in penal policy and colonialism.
The inquiry calls for CSC to take urgent action to create non-jail facilities to house women and girls, and to strategically locate them to allow for “localized placements and mother-and-child programming.”
CSC “underutilizes” these already available options, Chartrand said. The inquiry calls for funding parity for these facilities in line with typical CSC-operated facilities.
The inquiry also recommends the CSC create an office of the deputy commissioner for Indigenous issues, something the Office of the Correctional Investigator — the federal prisoners’ ombudsperson — has been calling for more than a decade.
Former correctional investigator Howard Sapers said CSC kept refusing, saying it would be too bureaucratic. (CSC already has deputy commissioners for women and health care.)
“It makes no sense that such an important area of policy and programming and emphasis — as evidenced through the mandate letters that were given to the commissioners of correction over the last few years — that they wouldn’t have a senior official responsible for the file,” said Sapers. “Maybe this time it will have traction.”
Another “back to the future” moment Sapers found disappointing was a call to return to key women’s correctional strategies set out in 1990. “That’s how far things have strayed,” said Sapers.
Evaluate the impact of mandatory minimum sentencing
This recommendation follows one of the calls to action from the 2015 Truth and Reconciliation Commission report which urged the federal government to amend the Criminal Code so that judges could be given more discretion in crafting sentences for offenders by taking into account various factors including Indigenous identity.
The federal Liberal government has not reined in mandatory minimums despite saying they would review them after coming to power in 2015. When the government proposed its massive bill to revamp the criminal justice system last year, the bill was silent on mandatory minimums, with then-justice minister Jody Wilson-Raybould saying the government was still looking into the issue.
Independent Sen. Kim Pate took it upon herself to introduce a bill in the Senate that would allow judges to decide for themselves whether to impose the mandatory minimum, based on recommendations from past reports. That bill has been referred to the Senate’s legal and constitutional affairs committee but may have to be introduced again after the fall election.
Criminal defence lawyers have also been saying for years that action on mandatory minimums is long overdue.
“Mandatory minimum sentences significantly and disproportionately impact racialized defendants including Indigenous women and more must be done to immediately address this systemic problem,” said Michael Lacy, president of the Criminal Lawyers’ Association.
Establish ‘robust and well-funded’ Indigenous civilian police oversight bodies
Indigenous branches could be established within already existing “reputable civilian oversight bodies” within a jurisdiction, the report suggests. These bodies would oversee investigations into alleged police negligence or misconduct, as well as cases involving Indigenous peoples.
In his public consultations for his sweeping report on police oversight in Ontario, Court of Appeal Justice Michael Tulloch found that many Indigenous people felt targeted by the Ontario Provincial Police and municipal police officers in their communities. But they did not feel there was any recourse through a civilian police watchdog, such as the Office of the Independent Police Review Director; many didn’t know it existed.
Tulloch found that oversight bodies “have chronically failed to engage with Indigenous communities” — a fact that is “especially true in rural and northern communities.”
In an emailed statement, Brian Gray, a spokesperson for Ontario’s ministry of the attorney general, cited the province’s newly passed policing legislation, which impacts the Special Investigations Unit, the civilian agency that investigates police-related deaths, serious injuries or allegations of sexual assault. Under the new act, the SIU “would have authority to investigate First Nations police in jurisdictions where a First Nation police service board has been constituted.”
“In those situations, First Nations police would be subject to the same oversight as municipal police and the Ontario Provincial Police,” Gray said.
Gray added that the OIPRD, which will be renamed as the Law Enforcement Complaints Agency, will have a new mandate “to oversee misconduct complaints for police officers employed by a First Nation board constituted under the statute,” he said.
Spokesperson Scott Bardsley said the federal Public Safety Ministry is reviewing the report, and noted that the RCMP are overseen by that Civilian Review and Complaints Commission, an independent agency that “ensures that public complaints made about the conduct of RCMP members are examined fairly and impartially.”
Creating a national strategy to ‘ensure consistency in reporting mechanisms’ for missing Indigenous women and girls
The report proposes this be led by the Canadian Association of Chiefs of Police, the national organization that represents police leaders. Part of the goal would be to establish “standardized response times” to reports of missing Indigenous persons and women and girls.
Calling the national strategy “important,” the association said in a statement Monday that it was grateful for the national inquiry’s trust on the issue. The organization said it was committed to studying the report and its recommendations, and to identify “how it can assist police services across Canada with supports and education to aid in their understanding and implementation of the National Inquiry’s recommendations.”
“The (association) remains committed to continuing to strengthen its relationships with the Indigenous community and Indigenous partners,” it said in a statement.
Mandatory training for all justice system professionals in Indigenous cultures and histories
“I certainly support mandatory training. I think we should be doing that right at the law school, or kindergarten,” said Sen. Kim Pate. “It’s that lack of awareness, the impact of colonization on Indigenous peoples, that has significantly contributed to racism.”
Pate is also in charge of scrutinizing Bill C-337, which would require judges to have mandatory training on sexual assault law. Pate supports the bill.
The National Judicial Institute already provides some training on cultural competency “and will undoubtedly reflect on what more they might do, recognizing that in keeping with principles of judicial independence, professional development must remain under the control and supervision of the judiciary,” said Johanna Laporte, a spokeswoman for the Canadian Judicial Council.
Ontario’s Superior Court has, in partnership with the National Judicial Institute, undertaken programs to increase understanding of Indigenous cultures and histories, said court spokeswoman Norine Nathanson.
“Judicial education resources on Indigenous cultures, histories, and related case law and legislation have been developed by the court and are available to all judges. These resources are continually updated as new information and issues emerge,” she said.
Chief Justice Heather Smith also established an Indigenous judicial advisory committee in 2018. “The committee considers judicial education opportunities, increasing judicial engagement with Indigenous communities and stakeholders and other internal court policy matters related to Indigenous issues,” Nathanson said.
The Law Society of Ontario, which regulates the province’s lawyers and paralegals, “applauds” the recommendation for enforced cultural competency standards, said spokeswoman Susan Tonkin, adding the regulator had been working on the issue for some time.
For example, working in conjunction with its Indigenous advisory group, the law society released “Guidelines for Lawyers Working with Indigenous Peoples” in 2018, Tonkin said
“The guidelines are a tool primarily to assist lawyers who act for Indigenous peoples and recognize the need for the law society to implement safeguards for Indigenous peoples engaged in legal processes,” she said. “The law society also established Canada’s first specialty certification in Indigenous legal issues in 2016, to properly articulate the Indigenous perspective and to effectively serve Indigenous clients.”
Funding police services in northern and remote Indigenous communities
Indigenous communities must be served by forces that have, for example, officers with the necessary tools and experience when probing cases involving sexualized violence, including sexual assault kits, and knowledge of trauma-informed questioning, the report states.
The Ministry of Public Safety and Emergency Preparedness is carefully reviewing the report, spokesperson Scott Bardsley said Monday. He stated that the federal government has invested $291.2 million to go toward investments in equipment, salaries and additional officers, as well as $88.6 million in policing facilities.
“In addition to its 48 per cent funding responsibility under the (First Nations Policing Program), the ministry offers a number of bilateral grant programs to support First Nation police services such as top-up funding to ensure wage parity,” said provincial Ministry of the Solicitor General spokesperson Brent Ross.
Ross also cited a new grant that will see First Nation police services receiving the same funding as last year.