Ottawa's Indigenous Peoples Court sees successes and growing pains

Greg Meekis after performing a smudging ceremony  at the IPC. [Photo © Jenna Cocullo]

Before the proceedings in Courtroom 7 can begin, Greg Meekis steps in front of the judge and begins to light sage, one of the four traditional Indigenous medicines, in an abalone shell. Holding the shell and an eagle feather, he says a prayer and lets the smoke waft through the room. One by one, people line up and use their hands to guide the smoke over their bodies.

This is called a smudging ceremony, and it marks the beginning of a day in the Ottawa Indigenous Peoples Court, referred to commonly as the IPC.

The ceremony is one of a few things that makes the IPC unique. It is meant to bring a sense of belonging and healing to Indigenous offenders and allow everyone in the room to speak and listen to one another in a positive way. Aside from integrating traditional cultural practices into the justice system, the IPC’s mandate is to find alternatives to jail time by connecting Indigenous offenders with community programs.

“The court helps them connect with the culture and recognize that they are Indigenous,” says Meekis, a bail supervisor at the Odawa Native Friendship Centre. “One of my clients, in his own words, told me that he felt more human as opposed to them just calling out a file and a number.”

The court opened its doors Sept. 11, 2017. A year and a half in, some criminal defence lawyers say they are not utilizing the court out of concern that the judges who sit on the IPC bench are not Indigenous and not always properly trained on Indigenous issues, that their clients are sometimes better off going through non-IPC courts, and that there is a lack of funding to support diversion programs.

A lack of dedicated resources

Indigenous courts, sometimes called Gladue courts, are a product of the Supreme Court’s landmark 1999 Gladue decision that demands sentencing courts consider all sanctions other than prison and take into account individual circumstances. Indigenous adults are overrepresented in Canadian prisons, accounting for 28 per cent of the federal inmate population, but making up only three per cent of the general population.

The IPC only deals with bail and plea hearings, adjournments and sentencing for Indigenous offenders – not criminal trials.

Ewan Lyttle, a criminal defence lawyer who has been volunteering with Indigenous offenders for nearly a decade, says that the justice system in general lacks adequate funding and it is the specialized courts like the IPC mental health courts and addiction courts that suffer the consequences.

“What we often see is a lack of consistency. You won’t get sort of the same prosecutor or the same Crown in given courts – even specialty courts. You hope that you’re going to have a dedicated Crown in the mental health court, in the drug court, and in the IPC,” he says. “But I think just the reality is they just don’t have the resources to do that.”

The IPC is funded through the Ministry of the Attorney General, Aboriginal Legal Services and legal aid, but there is no money allocated toward training criminal lawyers working in the public sector, Crown judges, and prosecutors, says Lyttle.

Meekis says some Crown prosecutors recommend more prison time than criminal attorneys believe is appropriate given an Indigenous offender’s circumstances.

“A lot of the lawyers prefer to transfer their clients out to a regular court but that defeats the purpose of the IPC. Most of them don’t even make this decision with the client,” says Meekis.

Capital Current spoke with one criminal defence attorney, on the condition of anonymity, who says lawyers sometimes avoid the IPC in favour of courtrooms with judges who will take a more liberal approach in sentencing their clients.

He hoped that the IPC would be “light and swift” in its sentencing but “finds that the court is often neither, so it’s disappointing in that regard.”

While he says he remains optimistic about the IPC in Ottawa, the unnamed Ottawa lawyer says it’s going to take some creativity to fix the underlying issues. And it needs an Indigenous judge on the bench “yesterday.” There are no Indigenous judges serving in Ontario.

Justice Julie Bourgeois, who serves on the IPC, agrees that an Indigenous judge would bring important cultural knowledge to the table and help facilitate a better experience for offenders.

“Imagine you are about to get sentenced by a judge who can’t even pronounce your name. I’m not very good at pronouncing Indigenous names – I always ask if I’m pronouncing it right. But I always think – it’s not reassuring,” says Bourgeois.

Connecting offenders to community resources

Bourgeois says she has seen positive results through the IPC. Defence attorneys will often ask for extra time to get their clients connected to services, but she says it’s not a “get out of jail free card.” Its main benefit is to connect offenders to the community services that are appropriate for their healing. She says offenders will return in a month or two and it’s obvious to her that they’d been utilizing the services they need.

Meekis can point to successes as well, including one instance in which a judge decided to go against the Crown’s recommendation for a harsh prison sentence. Instead, his client had her sentencing suspended. Since then, she has not committed any new offences and has been seeking help from community programs. 

Research shows that culturally-based programming can help prevent people who have been charged from reoffending. Outreach workers for Indigenous community centres such as Odawa and the Wabano Centre for Aboriginal Health are on hand to work with people being sentenced – which many say is the most valuable aspect of the IPC.

The Ottawa Court of Justice doesn’t track specific IPC hearings, but estimates that in the 16 months after the court officially opened, its courtrooms saw 1,719 appearances for 388 individual accused. However, those numbers include some non-IPC cases.

Lyttle’s biggest criticism of the system is that the success of alternative sentencing depends on well-funded community resources, but there is an acute lack of culturally appropriate services for Indigenous people in Ontario, such as intensive in-patient drug addiction programs. There are no Indigenous-specific inpatient therapy centres in Ottawa for offenders who need intensive drug addiction or mental health counselling.

While the IPC aims to be a culturally appropriate gathering place, the architecture of the courtroom is a physical reminder of the fact that this is still the British justice system – not an Indigenous one.

“Just look at the room,” says the lawyer who did not want to be named. “It’s got the coat of arms at the top. And the accused in custody in a box. It’s all about authority, but in the case of Indigenous people it’s a bit dehumanizing,” he says. 

“For the most part I think we are taking positive steps forward but then again, sometimes when there is a new Crown there or a new judge that’s on the IPC for the first time, we take a step backward and it’s just a regular court with an Indigenous title on it,” adds Meekis.