A Time for Change: Modernizing the Canadian Criminal Justice System and Renewing Canada’s Relationship with Indigenous Peoples

Notes for an address by
The Honourable Jody Wilson-Raybould, PC, QC, MP
Minister of Justice and Attorney General of Canada

To the
The Campagnolo Lecture Series
Comox, B.C.
September 27, 2018

Check against delivery

Gilakas’la. Good evening.

It is good to be back on the Island and here in Comox.  I went to high school here – Highland Sr. Secondary.  I am so pleased to see old friends and family in the audience – including my mother Sandy Wilson. 

But before I begin, I must, of course, acknowledge that we are gathering on the ancestral lands of the K’òmoks people.  I come from the the Musgamagw Tsawataineuk and Laich-Kwil-Tach peoples, from northern Vancouver Island and the mainland.  Part of the Kwakwaka’wakw, the Kwakala speaking peoples.  I am from the eagle clan.  My father is Hemas Kla-Lee-Lee-Kla – Bill Wilson – and my grandmother was Pugladee – Ethel Pearson.  I am registered with the Indian Act band know as the We Wai Kai Nation – which has lands reserved for it in Campbell River and on Quadra Island.  My husband, Tim, who is also here tonight, try to get back to our home at Cape Mudge as much as we can.

So thank you for the introduction and thank you to the CV Community Justice Centre for inviting me to speak tonight.  Thank you, as well, to North Island College for their support for this event and for all of you that are here.

And most importantly, I do want to acknowledge Iona Campagnolo after whom this lecture is named.  I am so very thrilled that you could make it.  It is wonderful to see you.  Iona, you are a woman who broke so many political barriers and dedicated your career to this country and specifically, to British Columbia.

Let me say from the outset certainly a lot has happened in the three years since I was given the great privilege to have been elected the Member of Parliament for Vancouver-Granville and then honoured to have been asked by Prime Minister Trudeau to be Minister of Justice and the Attorney General of Canada – an appointment I think that speaks volumes about how far we have come as a country, but also about how far we still have to go.

As I have said elsewhere, I view the appointment not so much a reflection on myself but rather a symbol of change.  That in a nation, not so long ago, where an Indigenous person could not vote, let alone run for office or practice as a lawyer, is now the principal lawyer in charge of administering the law and advising its government.

For me, it has become even clearer over the last few years just how significant this is when you realize the challenges that still remain – both externally and internally within government – in changing a system that, when it comes to Indigenous peoples, is still fundamentally based on colonial institutions and operating through out-dated laws and policies.  

So part of what I want to reflect on tonight is how after three years as a Minister of the Crown I still have to contend – both personally and professionally – with a colonial legacy that remains pervasive despite best intentions and which is exacerbated by the trials and tribulations of partisan politics.

That said, progress is being made and I am deeply optimistic and confident there is light at the end of the tunnel as we move forward as a country with the work of supporting Indigenous Nation rebuilding within a strong, diverse and vibrant Canada.  But significant issues still remain, and I want to share some thoughts on how we overcome them. 

For me, it is all about finding balance in society and this annual lecture series on Restorative Justice provides a space for bold ideas and reflections on how we achieve this.  Judge Ross Green when he gave this lecture defined restorative justice as to; “restore harmony between the offender, the victim and the community, after a transgression.”  When former Chief Justice, the Right Honourable Beverly McLachlin was here she spoke of restorative justice as a way to heal communities – and reminded us of the history of restorative justice as being one of the first and most human forms of justice.

For me, my understanding, support, and work to advance restorative justice is framed by my background.  In my culture, and one that many of us in this room share, there is great importance placed on reflecting on the experiences one has had, the lessons those carry, and passing those on so that they may be of assistance to others.  One of those that was passed on to me – and which helps guide all I do – is about the role of balance in life and existence.  In our culture, all things are in their greatest state of well-being when there is balance: whether it be balance between humans and the natural world, between groups of peoples, within a family or community, or in how we live and organize our own lives.  Balance is viewed as the proper state of things where conditions of harmony and justice flourish, while imbalance is what gives rise to conflict, contention, and harm.

 Such a holistic approach to keeping balance in society helps to ensure that all people can achieve their goals and meet their full potential and contribute to community regardless of circumstance or fate.

In the Indigenous political and legal system in which I was raised, it is in the Big-House where balance was maintained.  It is in the Big House where our laws are made, disputes settled and important decisions taken.  In this system there are no political parties – rather, there is a belief in consensus.  The issues are debated and while everyone may not agree with every aspect of a decision to be taken, consensus, and if necessary compromise, is sought in order to achieve the balance in society.  This helps to ensure that decisions are durable – legitimate – and survive the test of time.  Maybe this was because we all lived together in small villages and people did not simply leave – but – I like to think it is because we value everyone’s opinion and everyone’s voice counts.  Not just the few. 

These legal traditions are quite different then the ones that I was formally trained at law school, and in supporting the expansion of restorative justice programs within the broader justice system, we are finding ways that the plural and diverse legal traditions in Canada can play their role in building peace, safety, and harmony in society, and play their role in addressing serious challenges like the overrepresentation of Indigenous peoples in our criminal justice system.

With those initial thoughts in mind, let me take some time first to reflect on some of the on-going challenges to reconciliation and the empowerment of Indigenous peoples.  Next I will turn more specifically to restorative justice with some comments on the incremental steps that are now being taken in support of the more ambitious objective of reconciliation.

Reconciliation and Empowerment of Indigenous Peoples

Simply stated, there is a need for “reconciliation” because we have a history of such imbalance in the relationship with Indigenous peoples in this country.  Rather than a history of distinct peoples, Nations, and governments – Europeans and Indigenous peoples – coming together to form a balanced and proper relationship with one another – the predominant reality has been the imposition of laws and policies that denied the basic rights and freedoms of Indigenous peoples.  This broke up the Indigenous Nations, governments, and systems of laws, land-holding, community and family.  While some treaties were entered into in the past that promised a balanced relationship, these typically have not been honoured or upheld.  More broadly denial of Indigenous rights, including treaty rights, has been the norm.

Today, we see the effects of this imbalance all around us in the poverty, disempowerment, and marginalization of Indigenous peoples, including massive rates of suicide, a crisis of Indigenous children in care, and, of course, overrepresentation of Indigenous peoples in the criminal justice system.  All of these are symptoms of our history of an imbalanced relationship – of imposition and colonialism, rather than true partnership and co-operation.

In seeking balance we can find solutions through reconciliation based on the recognition of Indigenous rights and thereby strengthening our system of cooperative federalism.  We now understand how the socio-economic conditions and challenges faced by Indigenous peoples are completely intertwined and interconnected with issues of Indigenous rights.   Our colonial history has been one of disempowerment, imposition, and control by government over the lives of Indigenous peoples – spiritually, physically, culturally, socially, politically and legally – with the result being patterns of powerlessness, poverty, and hopelessness.  Transforming these social conditions requires supporting the work of Indigenous peoples to determine their own futures, re-build their Nations and governments, exercise control and jurisdiction and be responsible for the well-being of their peoples -- to uphold and protect their rights and freedoms.

There have been, of course, some important milestones, which promised to overcome this history of imbalance.  Perhaps most important was the adoption of section 35 of the Constitution in 1982 which “recognized and affirmed” the title, rights, and treaties of Indigenous peoples.  As we know, this was at the same time as we adopted the Charter of Rights and Freedoms.  But if we honestly look back, we see that the promise of section 35 has largely not been fulfilled because of choices that were made that maintain the imbalance.

For example, consider for a moment the rights all of us hold under the Charter – freedom of speech, religion, association and so on.  We do not question the existence of these rights.  While we will continue to have disagreements about the scope, extent, or expression of certain rights, Government does not say to individual Canadians that they must “prove” that they have a right to “free speech” before taking action to uphold and implement those rights.  Rather, after 1982, active steps have been taken – and continue to be taken every day – to ensure those rights are protected.  This includes internal processes and requirements to ensure new laws are tested and examined to ensure they are compliant with the Charter, to amending old legislation which is clearly inconsistent with the Charter, to changing laws which the courts say should be adjusted for Charter compliance.

This has not been the case with Indigenous rights in section 35 of the Constitution.  Rather then taking action to recognize, uphold, and implement these rights, successive governments insisted that these rights had to be proven through long and expensive court proceedings.  Even then, as a result of hundreds of court decisions that have upheld Indigenous rights, very few laws have been changed to demonstrate recognition and respect for Indigenous rights. 

Indeed, we live in a country where the primary law governing the lives of the majority of Indigenous peoples – First Nations – is still a colonial law –  the Indian Act, which is over a century old, and seeks to define who Indigenous peoples are and impose patterns of life on them.

In other words, the imbalance remains in our midst.  So while we have made progress on many fronts… at the same time we have continued to perpetuate and maintain the denial of rights, and ideas, systems, and laws, that prevent the conditions of harmony, justice, and equality – of true recognition and reconciliation – to flourish.  

So how do we truly overcome this imbalance – and advance true reconciliation?

Let me be candid for a few minutes.

I believe there are three things needed for true reconciliation to take root in Canada.  First, we must want and desire it to happen.  Second, we must know how to accomplish it.  And third, we must have the volition and will to see it through – we must take tangible action.  To say it another way, we must have the intention, the knowledge and capacity, and the indomitable will to transform long entrenched patterns of injustice and inequality, and replace them with new patterns grounded in the recognition and implementation of Indigenous rights.

Not that long ago – perhaps even only a decade ago – I probably would have said we are seriously deficient in all three of these areas.  But this has changed.  Because Canadians, people like you – all across this country – in new and dynamic ways every day – are expressing the desire to see true reconciliation manifest itself in the life of society.  

We also know how to accomplish true reconciliation.  Years of tireless advocacy by leaders before us, dozens of reports and studies – including the findings of Royal Commissions including the Truth and Reconciliation Commission, and hundreds of court cases – as well as the practical experiences on the ground with examples of where there has been success –all show us the way forward and tell us what needs to be done – and it all comes back to recognizing rights and acting on them – including taking the concrete action to change the laws, policies and operational practices that are offside with reconciliation as we support Indigenous peoples in rebuilding.  We do have the answers. 

The question now is do we have the volition and the will to see it through – to take action.  And this is where I see ourselves today.  While strides forward have been made – we are not there yet. 

We have to constantly remind ourselves that words – especially in the context of work such as reconciliation – have meaning.   “Recognition” for Indigenous peoples across this country, and as a basis for true reconciliation, has meaning.  It means that Indigenous peoples governed and owned the lands that now make up Canada prior to the arrival of Europeans.  It means that Indigenous laws and legal orders that stewarded the lands for millennia, remain and must continue to operate in the contemporary world.  It means that the title and rights of Indigenous peoples are inherent, and not dependent or contingent on court orders, agreements, or government action for their existence, substance, and effect.  It means that treaties entered into historically, must be fully implemented based on their spirit and intent, oral histories as well as texts, and consistent with the true meaning of a proper nation-to-nation and government-to-government relationship.  It means that the distinct and diverse governments, laws, cultures, societies, and ways of life of First Nations, Métis, and Inuit are fully respected and reflected.

For Canada, recognition means resetting our foundation to properly reconcile – to finish the unfinished business of confederation.  What is more, for many Indigenous peoples, recognition is the lifeline that will ensure the survival and rebuilding of their cultures, languages and governing systems within an even stronger Canada.

But words are also easy.  And too often we see the tendency – especially in politics – to use important words that have real meaning and importance, carelessly.  We see them being applied to ideas and actions that in truth do not reflect their actual meaning – even, sometimes, their opposite.  We see “recognition” applied to ideas that actually maintain “denial”.  We see “self-government” used to refer to ideas or processes that actually maintain control over others.  We see “self-determination” applied to actions that actually interfere with the work of Nations rebuilding their governments and communities.  We see “inherent” in the same breath as the contradictory idea that rights are contingent on the courts or agreements. 

When we see this being done it does not advance reconciliation. It actually undermines it.  It causes confusion, chaos, and division.  It treats a challenge – a challenge that is vital for the survival and well-being of children, women, families, and communities across this country – as a ‘game of rhetoric’.  It trivializes – often out of ignorance or political expediency – a moral, social, and economic imperative for our country.

Words, in the work of reconciliation, are also cheap without real action – action that goes to the core of undoing the colonial laws, policies, and practices, and that is based on the real meaning of reconciliation.  We all need to understand this.

The path of justice and equality is not advanced or achieved through half-measures, good intentions, or lofty rhetoric.  And it is certainly not achieved through obfuscation or confusion about what we mean when we speak. Hard choices, innovative actions, transformations in laws and policies, new understandings and attitudes, new patterns of behaviour – this is what is needed.

Reflecting this, I outlined in many speeches in recent years – what I see as minimum elements of new relations based on the recognition of rights – building on what Indigenous peoples have advocated over generations.   These include: 

• Harmony between the laws of Canada and the United Nations Declaration of the Rights of Indigenous Peoples;
• The replacement of the federal Comprehensive Claims Policy and Inherent Right of Self-Government Policy, and Consultation and Accommodation approaches with policies based on true recognition;
• Legislated, binding, standards on all public officials to ensure they act in all matters with Indigenous peoples based on recognition of title and rights;
• Legislative, binding, obligations on the Crown to take action in partnership with Indigenous nations to implement models of self-government that are self-determined by Indigenous peoples;
• Accountable, independent, oversight of the conduct of government respecting Indigenous rights – as well as new methods of dispute resolution that include applications of Indigenous laws and processes;
• New institutions – that are independent of government, and designed in partnership with communities – that support the work of rebuilding their nations and governments; and,
• Development of proper processes and structures between Canada and Indigenous governments for decision-making, including in order to obtain free, prior, and informed consent.

Restorative Justice

I want to now move from a high-level discussion on rights recognition and reconciliation, and talk about criminal justice reform and restorative justice.

As most of you I am sure are aware – our current criminal justice system disproportionately affects the most vulnerable segments of our population.  For example, we know that Indigenous peoples interact with our criminal justice system in shockingly high numbers.

The statistics are bleak.

The rate of violent victimization among Indigenous people in Canada is more than double that of non-Indigenous people.

Indigenous adults comprised 4.1 percent of Canada’s population, but represented 27 percent of admissions to federal custody and 30 percent in provincial and territorial custody.

In 2015-16, despite representing approximately 5 percent of Canada’s total female population, Indigenous women made up 38 percent of the federally incarcerated female population in Canada.

In 2016-17, Indigenous youth accounted for 46 percent of admissions to correctional services, while representing just 8 percent of the Canadian youth population.

All these figures, and the tragic reality they help illustrate, are, of course, completely unacceptable and must change.

As a former prosecutor, this story is all too familiar to me.  A young person, often an Indigenous man, commits a non-violent crime, comes into contact with the criminal justice system, and never is really able to pull himself free.

He gets caught in a vicious cycle of court appearances, court orders, breaches of court orders, and returns to custody.  Soon, he is spending more time behind bars than he is out of them.  This man’s interactions with the criminal justice system have further marginalized him, making him even more vulnerable.

This story is really a by-product of our history of imbalance, and a sign of how much is yet to be done.  The occurrence of this tragic pattern is inseparable from the historic and contemporary impacts of colonialism and the denial of Indigenous rights that I described earlier.  It is in such a context that disempowerment, hopelessness, cycles of violence, and desperation grow.  It is also in that context that a criminal justice system has emerged with structures, patterns, and norms that are often alienating, unresponsive, and not culturally relevant.

That is why the work of supporting the recognition and implementation of Indigenous rights, including Indigenous self-determination and the inherent right of self-government, is so critical to establishing a positive foundation where current and future generations of Indigenous youth, are born and raised in conditions where their well-being and ability to thrive will continually increase.  Where they have hope, are proud to be Indigenous and consequently their interactions with the criminal justice system should continually decrease. 

The work to accomplish this includes supporting Indigenous self-governments in the work they must do and lead in developing their own systems for the administration of justice.  The overall success or failure of rebuilding Indigenous nations in Canada, and the successful implementation of self-government, will in large part be determined by how well Indigenous nations can enforce and adjudicate their own laws, as well as other governments’ laws, and how well such systems will fit within the broader legal system in Canada.

At the same time, we must also act on other paths to increase or introduce measures and initiatives within the current justice system aimed at reducing the likelihood of an Indigenous person being at disproportionate risk of getting caught in a continuous cycle of interactions with the criminal justice system.

So let us imagine a Canada in which the justice system better aligns with the needs of all Canadians.  What if an offender’s first interaction with the criminal justice system did not become the first in a series?  What if it triggered mechanisms designed to address the factors that inspired the criminal behaviour in the first place?  What if we intentionally and deliberately built off-ramps to the system so that an individual’s first interaction with the justice system gave them avenues to pursue and to ensure that it was also their last?

Clearly, we need innovative solutions and there are solutions.  One of these is to consider greater use of restorative justice measures and other alternative measures to incarceration, where appropriate – such as using provincially established First Nation Courts that typically deal with sentencing after a person has pleaded guilty to criminal code offences.

These measures seek to make both the victim and the offender active participants in the journey for justice; emphasize repairing relationships; ensure victims have a powerful voice and this process allows them to heal, while at the same time focuses on the offender taking important accountability for their actions; and making sure the differences between cultures and norms are understand.  Again to find balance.

Restorative Justice

In this sense, I view restorative justice as acting as a kind of “circuit-breaker” from the cycle that so many find themselves caught in.

In Canada, restorative justice is currently used in every province and territory.  It is supported by legislation and federal, provincial and territorial government programs and policies.  It is used by communities, programs, police, courts, and corrections, as well as by organizations like yours, the Comox Valley Community Justice Centre.

Over the years, the federal government has shown leadership in this area by enabling Restorative Justice with legislation and policy; providing training; supporting innovative practices; and conducting research and evaluations.

Internationally, the Government of Canada has also been a leader.  I was honoured to attend the UN Commission on Crime Prevention and Criminal Justice in Vienna earlier this year, as head of the Canadian delegation, in order to co-sponsor and speak to the most recent resolution in support of Restorative Justice.

That all said, and while restorative justice has been part of Canada’s criminal justice system for over 40 years, and has proven effective over that period, it is still not as widely available across the country as it should be.  We need to do more… as it works.

A 2011 Department of Justice Canada report found that Indigenous people who completed a community-based alternative to mainstream justice, such as restorative justice, were significantly less likely to re-offend than those who did not.  I am committed to expanding this resource so it can be more widely used and accepted across the country.

Importantly, measures such as specialized courts and restorative justice are aimed at solving the problem that caused the behavior in the first place, as opposed to strictly placing the primary focus on punishment.  This provides offenders, where appropriate, with a way out of the system. 

While I strongly believe that offenders must be held to account for their actions, I also believe that the system must be fair for all those who come before it.

In addition to the expansion of specific restorative justice initiatives, there is a need to also address other factors that contribute to tragic cycles of incarceration.

As many of you will be aware earlier this year, I introduced Bill C-75, a major piece of legislation to reform the criminal justice system and address delays – a bill which is currently before the House.

Bill C-75 does this in a number of ways.  It does so by proposing changes to how bail is granted and to how breaches of bail conditions will be administered.

Accused who do not have access to needed supports and services, such as housing, health care, and social services, are at a higher risk of breaching bail conditions – this can result in further needless incarceration while awaiting trial, which further contributes to the overrepresentation of Indigenous people and vulnerable persons in the criminal justice system.  

There are also proposed changes to how juries are selected.

While Indigenous people are overrepresented as victims and offenders, they are underrepresented on juries.  We continue to work toward a jury selection system that better represents our nation’s diversity and that enjoys the confidence of all Canadians.

We have also changed the way we appoint judges in Canada.  We have instituted a more transparent and open process for choosing federally appointed judges, with a focus on promoting a modern bench that also better reflects Canada’s diversity.  

We believe that a diverse judicial bench allows those who come before the criminal justice system, either as victims or accused, to see themselves better represented in the system, which helps build confidence in our institutions.

Consistent with this, I have made it a priority of mine to ensure that Indigenous people, women and marginalized communities, are better represented on the bench.  The new process has resulted in more Indigenous people being appointed but there is always room for improvement. 

With respect to the Supreme Court of Canada, our government has also reformed how justices are selected. A potential consideration for candidates now includes their knowledge of Indigenous legal traditions. While there is currently no Indigenous person on the Supreme Court, I can certainly foresee that historic day coming.

Conclusion

So in conclusion I know I have covered a lot of terrain in this talk.  We find ourselves in a period of significant change with great opportunity although not without significant challenges.  

While considerable progress has been made, the work of achieving true reconciliation involves addressing the imbalance that has plagued our country historically and continues to do so today.  The effects of this imbalance are seen in all aspects of society, with the justice system being a core example.  Restorative justice represents innovation and action that seeks to tackle the imbalance in one area where it is most visible and impactful. 

As Minister of Justice, my message has always been consistent and considered – both internally and externally – that transformative change requires a coherent and comprehensive approach to the true recognition of the inherent rights of Indigenous peoples.  This work is incredibly hard but must continue.  We all need to be advocates in this work.  I am sure you will hold all governments and elected officials accountable to creating the space to enable the deconstruction of our country’s colonial legacy.

Finally, we will know when reconciliation is achieved when there is balance – when Indigenous Nations are full partners within our federation, with an improved quality of life, with practicing and thriving cultures.  It is our collective task and responsibility to ensure this day.

Gilakas’la.  

Thank you very much.