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Everyone involved in criminal justice is aware of the dramatic over-representation of Indigenous people in Canada’s criminal justice system and prisons. But despite all the attention, now going back many years, the situation is actually getting worse. It’s been clearly demonstrated that Indigenous people are more likely to be arrested for similar behaviours, more likely to be convicted, spend more time in jail when convicted, are less likely to be paroled, and more likely to be sent back to jail while on parole. The system is discriminatory.
Jonathan Rudin has had a long career working to address some of these issues, including playing a leading role at Aboriginal Legal Services. Now Rudin has published a new book, Indigenous People and the Criminal Justice System: A Practitioner’s Handbook (Emond Publishers), that is intended to help lawyers provide better service to Indigenous people while also educating many of us about the issues involved.
Two recent online reviews by lawyers provide strong support for the book. The Robichaud Law posting says that the book “provides essential cultural, legal, and societal insight into the adversities facing Indigenous people in the criminal justice system”. It includes material for defense lawyers representing Indigenous clients, including discussing the meaning of important decisions such as Gladue and Ipeelee (which are not being fully implemented even after Supreme Court decisions).
The book also discusses issues of Indigenous identity, and how that affects legal processes, including but not limited to criminal sentencing. For example, how should “defence counsel, the Crown, and Judges approach accommodating an accused who wishes to hold an eagle feather while testifying, or to smudge prior to giving testimony?” Even more, the question of who ‘counts’ as Indigenous can be problematic, as taken up in the recent controversy over the prison placement of Terri-Lynne McClintic.
A second review in Ideablawg describes Rudin’s book: “It is a carefully written book for a broad audience of legal practitioners on complex legal issues. Yet it is also a compassionate book, profoundly articulating the failures of our profession and legal system to address historic and continuing wrongs against the Indigenous people of Canada. “
History and new proposals
“Rudin summarizes each of the 13 Inquiries and Reports tabled since 1989, which have ruminated on Indigenous people in the criminal justice system. Starting with Donald Marshall Jr and ending in the 2015 Truth and Reconciliation Report, it becomes evident that for almost 30 years our system has expounded on these legal failures. It is equally clear, that for an equal number of years we have done little to nothing to change the gross inequalities inherent in our society which has [sic] caused those failures.”
Another interesting aspect of the book is a chapter “dedicated to Indigenous courts as organic entities, holding the promise of a more responsive and proportionate Canadian legal system” along with other practices such as sentencing circles. As an example, in June of this year, The Donald Marshall Junior Centre for Justice and Reconciliation opened on the Wagmatcook Reserve in Nova Scotia, involving provincial and superior courts and incorporating Indigenous traditions and healing. However whether such practices can ever be more than a small part of the justice system is uncertain; they certainly cannot replace the need for reform in mainstream practices.
Both reviews conclude that the book provides a great deal of valuable information to lawyers involved with any of these issues – which must surely include almost all criminal lawyers and prosecutors. It would doubtless also be valuable to non-lawyers with an interest in these issues. One must wonder, though, whether another similar book 20 years from now will record significant progress on any of these challenges