Observers express optimism, support for B.C. First Nations justice strategy

Law360 Canada (March 13, 2020, 9:14 AM EDT) -- British Columbia has revealed a strategy for its justice system aimed at reducing the number of Indigenous people who find themselves before criminal courts and ensuring First Nations are more involved in the legal services that affect them.

The B.C. First Nations Justice Strategy, which was signed March 6, was developed in partnership with the B.C. First Nations Justice Council (BCFNJC) and First Nations leadership. It lays out plans to develop a “presumption of diversion” aimed at pursuing the least restrictive appropriate response to criminal conduct, and to establish a network of 15 regional First Nation Justices Centres, which would create “safe and welcoming places that provide legal help and early resolution programs, as well as support services for healing and wellness.”

“It is an honour to be part of the first justice strategy for Indigenous peoples in British Columbia that is authored by Indigenous peoples themselves,” said Attorney General David Eby. “That it took this long to happen is tragic. That it is finally happening should bring hope for a better future. I look forward to working with Indigenous peoples and leaders across the justice sector on this historic initiative.”

It also recommends transitioning legal aid services for Indigenous people in B.C. from the Legal Services Society (LSS) to an Indigenous controlled entity, and establishing an agency to ensure proper implementation of Gladue principles. The government said work will begin by engaging impacted government ministries on the development of a joint implementation plan, recognizing that many of the strategies will take further engagement and funding, along with the involvement of the federal government. Over the coming months, Ministry of Attorney General staff and the BCFNJC will continue working together to develop plans to implement the strategy, which has $2.8 million dedicated to it this year.

The B.C. Assembly of First Nations (BCAFN), the Union of B.C. Indian Chiefs and the First Nations Summit all expressed their support for the strategy. BCAFN regional chief Terry Teegee said it “creates the necessary space for recognition and implementation of Indigenous justice systems.”

“First Nations will have the opportunity to restore and reclaim their legal systems and structures according to specific traditions, laws, knowledge, experiences and contexts,” he said. “This will necessarily include the expansion of many community-based justice programs, which are vital to testing and advancing transformation of the justice system.”

Ken Armstrong, president of the Canadian Bar Association, B.C. Branch (CBABC), said he was “pleased to see the B.C. government take this important step forward by endorsing a First Nations Justice Strategy that advances many of CBABC’s recommendations.” In its 2017 platform paper CBABC argued systemic discrimination towards Indigenous people needed to be examined at every level of the provision of government services including how policies are framed and services delivered in the administration of justice.

“The experience of Indigenous citizens with our justice system has not been a positive one,” said Armstrong. “CBABC has long advocated for the critical evaluation of policy and program implementation in provincial corrections, policing, legal aid funding, the exercise of prosecutorial discretion and the overall operation of the courts in a manner that meaningfully advances the objective of reconciliation with B.C.’s Indigenous people.”

Kyla Lee of Acumen Law Corporation, a Vancouver-based criminal lawyer who is of Métis descent, said she is “cautiously optimistic” about the plan. She added Indigenous people statistically tend to be involved in the justice system as defendants more than anybody else, and often face more serious charges and longer sentences than non-Indigenous offenders.

“Any time government imposes something like this you have to have that caution, because even the best intentions can often lead to negative results. But the notion that this is going to be a strategy to revert people from the court system to more traditional methods of dealing with Indigenous justice does make me optimistic, because there is going to be a lot more autonomy and self-determination when it comes to how Indigenous people are dealt with in court,” she said. “We see this already with the few First Nations courts we already have in B.C. but they are limited in their mandate. So, I think this is going to already expand upon what is already a good foundation there for keeping people out of the system, and hopefully keeping them from being put in custody in the first place.”

Lee said she hopes the plan spurs action in other jurisdictions, including Ottawa.

“Part of the reason I’m cautiously optimistic is because of the financial commitment I have seen being put into this. I don’t think $2.8 million is enough money to make this an effective program,” she said. “But every program that is attempting to stop the tide of Indigenous people becoming involved in the justice system is something worth investing money in.”

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