Indigenous Courts

• Author: Jonathan Rudin
• Pages: 317-334

317

Indigenous

Courts

9

I. Courts from Section 107 of the Indian Act ..................... 319

II. Indigenous Courts in the Provinces and Territories .............. 323

A. Nova Scotia ........................................ 323

B. New Brunswick ..................................... 324

C. Ontario ........................................... 325

D. Saskatchewan ...................................... 327

E. Alberta ............................................ 329

F. British Columbia .................................... 330

III. Conclusions ............................................. 331

Best Practices ............................................ 334

Copyright © 2022 Emond Montgomery Publications. All Rights Reserved.

318 Indigenous People and the Criminal Justice System

The term “Indigenous courts” is a broad catch-all for initiatives that have developed to

better address the needs of Indigenous people who find themselves before the courts.

At the outset, it must be recognized that these courts are not Indigenous courts in the

sense that they dispense Indigenous justice or that they operate according to Indigen-

ous law. Rather, these initiatives are set up within the existing justice system and

apply the laws set out in the Criminal Code.1 What makes them Indigenous courts is

the particular orientation that they take to resolving matters.

It can be argued that whenever an Indigenous person is before the court, that

court is, for that time, an Indigenous court. Section 718.2(e) of the Code applies

in all courts, so it is not open to a court sentencing an Indigenous oender to say

that because there is no Indigenous court in the jurisdiction, R v Gladue2 cannot be

applied. The Supreme Court of Canada made it very clear that the section applied to

every court across the country.3

At the same time, it must be recognized that a court made up exclusively or pri-

marily of Indigenous accused persons is not, for that reason alone, an Indigenous

court. It cannot be assumed that just because the docket consists primarily of Indigen-

ous people, a court is properly applying Gladue and has at its disposal all the resources

it needs to do its job properly. A court full of Indigenous people may be part of the

problem, or it may be part of the solution.

The number of Indigenous courts in Canada is increasing rapidly. Because the

administration of justice is a provincial and territorial matter, and because there are no

Indigenous courts at the Superior Court level, it is dicult to obtain a comprehensive

picture of the developments across the country. It is likely that the list of courts set

out here will be joined by others shortly.

This chapter will begin by looking at courts that have developed from section 107

of the Indian Act4 and thus have a long—if until recently, dismal—history of dispens-

ing justice in First Nations. The chapter will then look at various Indigenous courts

across the country. Finally, the chapter will draw conclusions from the examination

of the dierent initiatives that have emerged.

1 RSC 1985, cC-46 [Code].

2 [1999] 1 SCR 688, 1999 CanLII 679 [Gladue].

3 See ibid at para 91, where the Court said, “Section 718.2(e) applies to all aboriginal persons

wherever they reside, whether on- or o-reserve, in a large city or a rural area.”

4 RSC 1985, cI-5.

Copyright © 2022 Emond Montgomery Publications. All Rights Reserved.