Percentage of Indigenous people in prison ‘a major problem,’ says top judge

As part of the Supreme Court of Canada’s 150th anniversary, Chief Justice Richard Wagner is leading a group of senior judges through Yellowknife for two days to share about the court and its work, while listening and learning from Northerners.

Wagner, along with two other Supreme Court justices, the head of the NWT Court of Appeal and NWT Chief Justice Shannon Smallwood, met with the general public in the Great Hall of the NWT Assembly and Elders at the Arctic Indigenous Wellness Foundation Camp.

Today, the group of judges will meet with high school students for a mock trial, and workers with Wellness Court and the Intimate Partner Violence Treatment Option Court.

When meeting with media on Sunday morning, the panel was asked how Indigenous laws can work with the colonial system.

Justice Wagner said many people confuse Indigenous law and Canadian law.

“Courts have been releasing decisions on Indigenous rights for many, many, many years now, more than 50 years, at least, but applying the Canadian law, in other words, the Charter of Rights, different legislations, that’s not Indigenous law as such,” he said.

“There is no doubt that for the moment, essentially, the country is governed by common law and civil law, but there is also an influence more and more about how Indigenous law itself can apply to society. It’s a work in progress and and we should not ignore it.”

Examples of community-based courts that use traditional methods to address justice issues include the Tsuu T’ina adapting traditional Piikani peacemaking, while Siksika developed its Askapiimohkiiks mediation approach for family and child protection issues, with resolutions sometimes going to the Provincial Court.

Wagner also called the very percentage of Indigenous people behind bars compared to the general population as “unacceptable” and that it’s up to politicians to find solutions.

“There is over-representation of Indigenous people in prison throughout the country, and this is a major problem,” he said.

“The court will will provide its own solution when the legal issue, or one legal issue attached to this situation, is brought before the court, but it will be up to the elected officials and Parliament, if need be, to deal with that situation. But it’s unacceptable.

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“It’s not up to the courts in general — and not the Supreme Court of Canada — to dictate what elected officials, what government should do.”

Justice Michelle O’Bonsawin is the first Indigenous person on the Supreme Court.

Supreme Court Justice Michelle O’Bonsawin adresses the audience at the Great Hall of the NWT Legislative Assembly on Sunday. NWT Supreme Court Chief Justice Shannon Smallwood is at left. By coincidence, both Indigenous women are trailblazers in the legal system. (James O’Connor/CKLB)

She said it’s important for the Court to make these types of regional visits to learn first hand about what people think of the legal system and how they live their lives.

“We bring that information back to share with our peers, but it’s also part of our own cultural competency to understand,” she said.

“I’m an Indigenous person, but I’m not an Indigenous person who lives here. So some may think an Indigenous person from Ontario is going to understand the lived realities of someone from the Northwest Territories, but that is not so.

“So it adds to my own personal knowledge to understand about knowledge and traditions from the different communities.”

Behchokǫ̀ Chief Bertha Rabesca Zoe’s public emergency declaration to fight to keep drugs out of her community — adding to pleas from other leaders — was brought before the legal panel.

Rabesca Zoe told the 21st Tłı̨chǫ Government Annual Gathering in August the results of the drug trade are seeing “zombies” walking the streets at night, their bodies ravaged by drugs.

Similar concerns have been heard in communities across the NWT.

Justice Nicholas Kasirer, said the Supreme Court of Canada is nine people and “it’s not designed, socially designed, institutionally designed, to study a social problem as complicated as the one that you put forward.”

He continued: “And it would almost be inappropriate if we weighed in and gave our opinion without the ability to do the work that elected officials do, I don’t think people in the North would, at the end of the day, appreciate it, but you’re right to say it’s a pressing problem that finds expression in legal cases that will come before us and that will decide.”

The role of the mainstream media to provide accurate and trustworthy legal reporting of courts and their decisions is also in jeopardy, as budget cuts in newsrooms across Canada have eliminated some traditional full-time beats for journalists.

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Said Wagner: “We understand there was a time when when the traditional media were assigned to the courts, in every province and at the Supreme Court — I remember that there were some media assigned specifically to the court, but those days are gone, and traditional media, as you know, is shrinking a bit.

“Financial resources are not there. We are sensitive to that, and we used to … count on the traditional media to properly inform the public about our decisions.”

As a result, the Supreme Court Court has adopted measures to help the general assignment journalists understand the rulings it issues.

NWT Supreme Court Chief Justice Shannon Smallwood — yes, it’s confusing with the two Supreme courts, but provinces have Court of King’s Bench as their top courts — said it’s important that people learn or get more knowledge about how the justice system operates, “because I think there’s a lot of misinformation.”

The first Indigenous woman on the NWT’s senior court continued:  “When I refer to misinformation, what I (mean is) people having a mistaken information about what is involved, for example, and this is not a specific case, but referring to the wrong sentence, or what the maximum sentence.”

Justice O’Bonsawin said it’s hoped this visit will help clarify the vital democratic institution’s role, as it acts as the guardian of the Constitution and the Canadian Charter of Rights and Freedoms.

“I think it’s important to de-mystify the role of the court and how that fits and how the different actors play a role in that system,” she said.

“So, by providing that information to the different members of the public, I think comes a better understanding and lessens the fear of those that have to appear in front of that system. Because if you do not really know the role of the actors and how you fit into that system, I could see that it would be a frightful place to go and to de-mystify it, I think would be a huge improvement.”

UPDATE: Several typos in the original copy have been corrected.