Building tools for justice
The Canadian justice system is responding to a growing need to overcome systemic barriers in accessing justice for Indigenous peoples. Public commissions and reports have indicated there is much room to expand in the area of Indigenous justice. A particular concern is how these commissions and reports on Indigenous justice influence outcomes for Indigenous peoples encountering the justice system. Looking back, the 1996 Royal Commission on Aboriginal peoples (“RCAP”) was a positive advancement for understanding the impact of colonialism on Indigenous peoples and the need for change. Moving forward, current inequities in Indigenous justice reveal the limitations of implementing and measuring change in the justice system as noted in reports such as RCAP and the Truth and Reconciliation Commission’s Calls to Action (“CTA”). Although the current movement toward reconciliation and transformation of legal and governance systems impacts Indigenous Canadians, systemic barriers in accessing justice for Indigenous peoples persist today.
A significant challenge to implementing solutions for overcoming systemic discrimination within the justice system is measurement and reporting. Few resources exist that specifically address what changes have occurred as a result of past commissions and reports. More importantly, information regarding Indigenous peoples within the justice system is often not measured in a meaningful way to support positive outcomes. Positive outcomes for Indigenous peoples in the justice system must include substantive results that comprise strength-based indicators as cited in the First Nations Mental Wellness Continuum (2015). These indicators promote a balanced perspective of wellness that includes purpose, hope, belonging and meaning.
The CTA recommendations included the need to implement measurable outcomes and meaningful reporting to overcome complex systemic barriers created by colonialism. Perhaps this is a period when we may explore the need for resources that guide measurement of indicators in the justice system that reflect the impact of future reports similar to the RCAP and CTA. One may ask how are justice actors such as judges and lawyers able to affect positive change without ongoing information pertaining to the impact of the reports on the justice system?
One way to look at this question is to imagine the issue twofold. The first is to think of RCAP and CTA for their comprehensive informational component but also for persuasive value in guiding justice actors in their work with Indigenous peoples. Judges and lawyers are left to interpret these reports based on institutional policy. This creates a risk that the recommendations may be applied unevenly because institutional policies vary. Not measuring the implementation of the recommendations leaves gaps in the perceptions necessary for equitable justice for Indigenous peoples.
The Office of the Auditor General (“AGO”), has reported that Canada, in response to the CTA, committed to implementing institutional policy changes that will impact Indigenous peoples positively. However, recent AGO reports cite inadequate data measuring and reporting leading to significant gaps in implementing positive outcomes. Because the outcomes are not being met, it appears the implementation of the CTA in various institutions has fallen short. Systemic discrimination still vaguely remains embedded in our justice system. This is problematic because the equitable delivery of Indigenous justice requires clear directions for eliminating systemic barriers that exist in our justice system.
If there are to be any positive systemic changes in the justice system, one must consider extending public commissions to encompass a more customized body of guidelines. Thus, it is important to build an application that can be shared and applied in a comprehensive way to the important justice initiatives that are underway. If beneficial information and recommendations from the RCAP and TRC were followed by comprehensive follow-up mandates, much-needed guidance could be applied to the work of justice actors in the vital work with Indigenous peoples.
Randy Robinson is an Algonquin lawyer from the Timiskaming First Nation. He is currently appointed the Northern Representative of the Canadian Bar Association’s Aboriginal Lawyer’s Forum.