Ministry of the Attorney General Français

Debwewin Jury Review Implementation Committee

Final Report

April 2018

Table of Contents

  1. Letter to the Minister
  2. Debwewin: Truth
  3. Message from Elder Barney Batise
  4. From Tragedy to Hope
  5. What is the Iacobucci Report?
  6. Community Engagement Discussions
  7. The Debwewin Implementation Committee’s Final Advice
  8. Conclusion
  9. Miigwetch, Niá:wen (Thank You)

Letter to the Minister

The Honourable Yasir Naqvi
Attorney General of Ontario
720 Bay Street, 11th Floor
Toronto, Ontario M7A 2S9

Dear Minister,

In accordance with the reporting requirements outlined in the Debwewin Implementation Committee’s Terms of Reference, please accept the Final Report of the Debwewin Implementation Committee.

On behalf of the Committee, we would like to thank you for your ongoing support and previously stated commitment to implement the recommendations made in Mr. Frank Iacobucci’s report, entitled First Nations Representation on Ontario Juries, released in February 2013.

The underrepresentation of First Nations people on Ontario juries has been a longstanding issue and is one that has been of utmost importance and concern for many First Nations citizens and leaders across Ontario.

Since the inception of the Debwewin Implementation Committee, we have visited with Indigenous communities across the province – met with citizens, leaders, Elders and justice workers to determine the best way forward on this issue, while remaining respectful and open to all opinions and views.

We have built relationships with these communities and we continue to encourage open dialogue with the hope that our work will make lasting change.

Working in partnership with Indigenous communities, it will be a significant achievement when Indigenous people are better represented in the jury system and their voices are heard in a fair and representative justice system that is inclusive of everyone in this province.

Sincerely,

Photo of: Alvin Fiddler Co-chair, Debwewin Jury Review Implementation Committee, Grand Chief, Nishnawbe Aski Nation Signature of Alvin Fiddler

Alvin Fiddler
Co-chair, Debwewin Jury Review Implementation Committee
Grand Chief, Nishnawbe Aski Nation

Photo of: Irwin Glasberg Co-chair, Debwewin Jury Review Implementation Committee Assistant Deputy Attorney General,Ministry of the Attorney General Signature of Irwin Glasberg

Irwin Glasberg
Co-chair, Debwewin Jury Review Implementation Committee
Assistant Deputy Attorney General, Ministry of the Attorney General

Debwewin: Truth

The Name and Logo

The name and logo

The name Debwewin was given to the Jury Review Implementation Committee by Elder Barney Batise, a member of the Implementation Committee and a respected Nishnawbe Aski Nation Elder and former Chief of Matachewan First Nation. Debwewin is the Ojibway word for truth. Elder Batise explained that he could not find an equivalent name for jury in Ojibway but, given the nature of the Implementation Committee’s mandate, Debwewin was an appropriate option. He explained that this word is capable of encompassing two meanings: the principle of truth and the role of a jury, which is to seek truth.

Elder Batise explained that the Eagle Feather is an appropriate symbol to use as the logo as it represents truth, wisdom and courage. He explained the teaching that the Eagle is wise enough to know that a change is needed and seeks the courage to execute change.

“I wanted to talk about the name of the group: Debwewin. Debwewin is a strong, ceremonial name, it is a spirit name. Whoever came up with that name is a gifted person to have come up with the name for the group. Talking about the jury, the word brings honesty, respect, friendship. Those are just a few [of the meanings]. Debwewin is a very powerful name…”

Elder Gilbert Smith, Naicatchewenin First Nation

“We cannot fail. Debwewin is a very strong word – an Anishinaabe word – it not only means truth, it encompasses the heart, the heartbeat of the drum, the heartbeat of the individual, what excites the spirit of the body. If you are untruthful, if you deny Debwewin, things will not go the way we want them to go. We can’t fail because it is our jurisdiction to succeed. Let’s succeed for another thousand and thousand of years like our ancestors did when they first originated sunlight.”

Elder Allan White, Naotkamegwanning First Nation

Message from Elder Barney Batise

Debwewin means truth, and so, when the committee members adopted this name, in essence, we became “truth seekers”. Indeed, we have discovered many truths on our journey.

Given the degree of difficulty in addressing the 17 recommendations in Mr. Iacobucci’s Report, Debwewin members had to be courageously innovative in order to produce a blueprint towards success. At the same time, our thoughts were anchored by Indigenous cultural values and we prioritized engagement with Indigenous communities. We listened carefully as we were reminded of historical Indigenous justice systems that once thrived in our communities, and we endeavoured to balance these practices with the current system in innovative and meaningful ways.

At times, it was distressing to learn how the justice system failed Indigenous people and failed to uphold our rights. In some cases, we learned that all it would have taken to make things right was fundamental knowledge of cultural norms. In the context of so much harm caused, this was a particularly distressing truth to learn in its simplicity.

I vividly recall a Cree woman who told us her experience of testifying as a witness in court. She remembered feeling the weight and cruelty of the language barrier as the court failed to gain the full benefit of her truth. Hearing stories like this from Indigenous women and men, youth and Elders, throughout Ontario, was a constant reminder of why we were doing this work.

Our Elders have taught us to always ask the Creator to bless what we have achieved, and to be ever thankful. We are thankful for the many truths that we have learned on this journey; and we ask the Creator to bless the fruits of our work. We hope that they will prevail, but only the Creator knows how we will go forward from here.

It is my hope that we all learn from what is written in the Debwewin Final Report and in our final implementation advice. I sincerely thank all those who participated.

Miigwetch,

Elder Barney Batise

Elder Barney Batise
Debwewin member, Elder Barnety Batise

From Tragedy to Hope

On January 8, 2006, a fatal fire occurred in the cellblock area of the Nishnawbe-Aski Police Service (NAPS) detachment in Kashechewan First Nation. Two young men, aged 20 and 22, who had been arrested for intoxication, tragically died in the fire. Because of the lack of sufficient funding for police services in Kashechewan, the building was particularly susceptible to the rapid spread of the fire. There were no fire detectors, no fire extinguishers and no fire services. The cells were made of wood and had padlocks with a key locking them shut. The mattresses in the cells weren’t fire proof and the fire went out of control quickly. When the fire broke out, the police officer with the keys to the padlocks was not at the police detachment. One police officer on duty suffered serious burns trying to save the two young men but was not able to open the cells in time.

The next year, in 2007, two more young First Nations men tragically died. A 27-year old member of Fort William First Nation died as a result of a methadone overdose while being detained in the Thunder Bay District Jail. Also in 2007, a 15-year old member of Poplar Hill First Nation went missing in Thunder Bay, where he was attending Dennis Franklin Cromarty High School. His body was later found in the McIntyre River. In all four cases, the coroner’s inquest juries ruled the deaths accidental.

During the coroner’s inquests into all four deaths, all of the families requested that there be an Indigenous juror from Northern Ontario on the inquest jury to provide important context and perspective to the final recommendations. Specifically as a result of efforts made to include Indigenous representation on the jury selected for the inquest into the death of the two young men from Kashechewan First Nation, it was revealed that First Nations people who live on-reserve have been systemically excluded from the jury roll. This is because the Ontario government uses the Municipal Property Assessment Corporation Act (MPAC) list, which is a registry of all private landowners in Ontario, to create the jury roll. Because reserve lands are not held privately, First Nations people who live on-reserve are generally not included on the source list for the Ontario jury roll. Alternative sources of information about individuals who live in these communities are also incomplete and inadequate.

What is the Iacobucci Report?

When this information came to light, and to address the underrepresentation of Indigenous people on juries, Nishnawbe Aski Nation requested that the Ontario government take steps to investigate the issue. In response, the government appointed former Supreme Court of Canada Justice Frank Iacobucci in August 2011 to carry out an Independent Review and make recommendations to:

Mr. Iacobucci travelled to Northern Ontario and spoke to Indigenous leadership and community representatives to gather information and input for his final report. His mandate was to review the process for including individuals living in First Nations on the province’s jury rolls and make recommendations on how to enhance First Nations representation on the jury roll. During these community visits, it became clear to Mr. Iacobucci that there was a widespread distrust of the justice system on the part of Indigenous people due to the history of attempts at assimilation as well as ongoing racism and colonial violence. In addition to the problem of jury roll representation, it was determined that these systemic issues needed to be addressed.

In February 2013, Mr. Iacobucci released his report entitled First Nations Representation on Ontario Juries (the Iacobucci Report). He made 17 recommendations to address both the exclusion of First Nations people who reside on-reserve from the Ontario jury roll as well as broader systemic challenges relating to the relationship between the justice system and Indigenous people within Ontario. Mr. Iacobucci’s 17 recommendations covered a variety of areas, including:

Of the 17 recommendations, Recommendation 1 was the creation of the Debwewin Implementation Committee (Debwewin), which was tasked with providing advice to the Deputy Attorney General on the implementation of the remaining recommendations.

Debwewin and community members in Ottawa – February 2015
Debwewin and community members in Ottawa – February 2015

Community Engagement Discussions

In order to receive input on how to implement Mr. Iacobucci’s recommendations, Debwewin organized and participated in 13 community engagements throughout Ontario. Engagements took place in the following locations and communities:

*This community engagement session included Métis youth.
**This community engagement session was specifically for Inuit youth.

The discussions at these engagements focused on justice issues that affect Indigenous people. There were many common themes that were addressed at multiple sessions. One example of a recurring concern that Debwewin heard from community members was the need for the revitalization of Indigenous legal systems and traditions (including Indigenous language, ceremonies and protocols) and the need for the Canadian justice system to address the colonial legacy upon which it is based.

Other topics discussed at the community engagements included the current barriers to Indigenous participation on juries, including the lack of transportation and inadequate compensation and culturally relevant personal supports for jurors. Debwewin also heard from community members that legal representation for Indigenous people is not equivalent to that provided for non-Indigenous people. Community members raised numerous concerns about the availability and quality of legal services in Northern Ontario specifically, including legal aid certificate services.

Another concern expressed by community members related to Northern Ontario was the inconsistent sittings of remote and fly-in courts. It was noted that some fly-in courts only sit two or three times annually, which means that accused are left to sit in jail (often pleading guilty to crimes they did not commit due to a lack of legal services) while they wait for a bail hearing or trial date, contributing to the overrepresentation of Indigenous people in custody.

During the community engagements, there were a number of suggestions put forward to help improve the current justice system for Indigenous people. Some of the most commonly heard suggestions included:

Debwewin members at the Elders Forum in Toronto – January 2016
Debwewin members at the Elders Forum in Toronto – January 2016
Map of community engagment locations
Community engagment locations

The Debwewin Implementation Committee’s Final Advice

To provide comprehensive final implementation advice to the Deputy Attorney General, Debwewin members held regular monthly meetings, reviewed a significant amount of research, and arranged for consistent engagement with Indigenous Elders, youth, community members and legal professionals in various areas. The following provides short summaries of Debwewin’s Final Advice.

The Implementation Committee

Recommendation 1: The Ministry of the Attorney General establish an Implementation Committee consisting of a substantial First Nations membership along with Government officials and individuals who could, because of their background or expertise, contribute significantly to the work of the Implementation Committee. This Committee would be responsible for the oversight of the implementation of the below recommendations and related matters. In view of the importance and urgency of the matter, I recommend that the Committee be established as soon as practically possible.

Implementation Update: The Implementation Committee was created in September 2013. It was co-chaired by then Nishnawbe Aski Nation Deputy Grand Chief Alvin Fiddler and Assistant Deputy Attorney General Irwin Glasberg. Elder Barney Batise, a member of the Committee, gave the Committee the name “Debwewin,” which is the Ojibway word for “truth”.

Over the course of its three and a half year mandate, Debwewin met 35 times and held 13 Indigenous community engagement sessions in various communities and urban centres across Ontario. Debwewin also hosted an Elders’ Forum to seek the advice, guidance and input from Elders from across Ontario on the various recommendations from the Iacobucci Report. As Debwewin drafted its final advice, the input of Indigenous Elders and community members was carefully considered.

During its mandate, Debwewin wrote 17 pieces of final advice to the Deputy Attorney General in response to the 17 recommendations contained in the Iacobucci Report. In addition, Debwewin also prepared Round Up Advice on a number of topics related to important justice issues that fall outside the Iacobucci Report’s 17 recommendations.

Medicine wheel planning tool
Medicine wheel planning tool

The Indigenous Justice Advisory Group

Recommendation 2: The Attorney General establish an Advisory Group to the Attorney General on matters affecting First Nations and the Justice System.

Final Advice: The Aboriginal Justice Advisory Group (AJAG) was created in September 2014. The AJAG was made up of both non-Indigenous and Indigenous representatives. The group met quarterly to discuss justice system issues impacting Indigenous people in Ontario, and to explore innovative solutions in order to improve the experience of Indigenous people in contact with the justice system.

In late 2016, AJAG changed its name to the Indigenous Justice Advisory Group (IJAG) and reconstituted its membership to consist entirely of Indigenous members. The reconstitution of IJAG aligned with the goal of Recommendation 2 of the Iacobucci Report, which was for the Attorney General “to seek the candid advice and wisdom of those directly affected, namely First Nations.” Currently, IJAG’s membership includes First Nations, Métis and Inuit representation.

Indigenous Cultural Competency Training for Justice Sector Government Workers

Recommendation 3: After obtaining the input of the Implementation Committee, the Ministry of the Attorney General provide cultural training for all government officials working in the justice system who have contact with First Nations peoples, including police, court workers, Crown prosecutors, prison guards and other related agencies.

Final Advice: Debwewin’s final advice was that the Indigenous Justice Division (IJD) of the Ministry of the Attorney General (MAG) develop a cultural competency curriculum in consultation with Indigenous advisors, representatives and educators. Debwewin felt that the curriculum should be the basis of mandatory training provided to staff in justice sector ministries and public servants generally. One goal of this training is to ensure that Indigenous people’s backgrounds, worldviews and experiences are understood and respected within the criminal justice system and by its administrators.

Based on the extensive feedback that Debwewin received from Elders and community members, Debwewin’s final advice was that the training use anti-racism, anti-oppression and decolonization theories in order to:

Supplementary Advice: In addition, Debwewin prepared supplementary advice pertaining to Recommendation 3, which, in part, provided additional details regarding tailored training for legal professionals in various categories.

One example of this specific training included advice that IJD develop comprehensive training on criminal justice issues for duty counsel, defence counsel and crown prosecutors. In the case of crown prosecutors, Debwewin’s final advice was that this training be mandatory and include a review of factors that contribute to Indigenous overrepresentation in the criminal justice system and a review of the law regarding the application of Gladue principles 1 to any proceeding that affects an accused person’s liberty.

Debwewin’s final advice also included that the Criminal Law Division (CLD) and IJD within MAG engage in discussions to determine how IJD can provide meaningful input on revisions to the Crown Policy Manual concerning prosecutions of Indigenous people. If the Manual does not already include this focus, the section on bail hearings should be revised to include the importance of Gladue at the bail stage.

Debwewin’s final advice was that cultural competency training in relation to Indigenous people be mandatory for all staff working at Gladue Courts and for community based justice programs, court staff and government legal professionals operating within Specialty Courts across the province, all lawyers called to the Bar in Ontario, and all Ontario law students (in the form of a mandatory law school course). For lawyers practicing in the area of Aboriginal law or representing Indigenous clients and communities, Debwewin’s advice was that a more significant period of initial training as well as on-going, annual training should be required. Debwewin’s advice further included that Indigenous community based justice coordinators or program workers as well as Indigenous Elders working in the justice system receive training in order to provide them with support in their respective roles.

Debwewin also developed advice specifically related to Gladue, including the development of a comprehensive repository of Gladue related information, services and resources and the creation of more detailed and comprehensive Gladue Panel Standards by Legal Aid Ontario (LAO).

Studies on Legal Issues Affecting Indigenous People

In Recommendation 4, Mr. Iacobucci identified three key areas that merited further study: (a) legal representation for Indigenous people, particularly in the North; (b) First Nations policing; and (c) the Aboriginal Court Work Program.

4(a) – Study on Legal Representation in the North

Recommendation 4: The Ministry of the Attorney General carry out the following studies for eventual input by the Implementation Committee:

  1. a study on legal representation that would involve Legal Aid Ontario, particularly in the north, that would cover a variety of topics, including the adequacy of existing legal representation, the location and schedule of court sittings, and related matters;

Final Advice: Debwewin spent a significant amount of time considering various issues that create barriers for Indigenous people to access effective legal representation across the province, particularly in Northern Ontario. To inform its final advice regarding a study of legal representation in the North, Debwewin reviewed relevant literature, heard from panels of experts and engaged with Indigenous people through community engagement sessions.

Due to the broad potential scope of the proposed study in the Iacobucci Report on legal representation of Indigenous people across Ontario, Debwewin decided that the study should be split into two Phases. The IJD completed Phase I of the study during Debwewin’s mandate, which culminated in a report entitled “Barriers to Accessing Justice: Legal Representation of Indigenous People within Ontario” (Themes Document).

The Themes Document outlines the predominant barriers and concerns relating to legal representation for Indigenous communities in Northern and Southern Ontario found in publicly available reports, academic articles, and presentations to Debwewin and addressed during Debwewin’s community engagement sessions and the Elders’ Forum. The issues addressed in the Themes Document include the lengthy intervals between fly-in court hearings, the lack of appropriate court facilities, and the structure of the bail and remand system, and the use of technology in court proceedings. Where appropriate, Debwewin provided advice on how to improve access to justice for Indigenous people in light of these significant barriers. The Themes Document also addressed several gaps for Indigenous people in relation to accessing LAO services across Ontario, and included specific advice aimed at improving access to these services.

Debwewin members in Kenora - January 2015
Debwewin members in Kenora - January 2015

4(b): Study on First Nations Policing

Recommendation 4: The Ministry of the Attorney General carry out the following studies for eventual input by the Implementation Committee:

  1. a study on First Nations policing issues, including the recognition of First Nations police forces through enabling legislation, the establishment of a regulatory body to oversee the operation of First Nations law enforcement programs, the creation of an independent review board to adjudicate policing complaints, and the development of mandatory cultural competency training for OPP officers;

Final Advice: Given the significant amount of research that has been done in the area of First Nations policing as well as the recent comprehensive federal evaluation, Debwewin’s final advice was that there was no need to conduct a further study on First Nations policing.

However, based on the numerous reports on First Nations policing conducted to date, Indigenous community input through the Elders’ Forum and Indigenous community engagement sessions, Debwewin developed advice on a number of issues related to First Nations policing.

To begin, Debwewin recommended that First Nations policing in Ontario be recognized legislatively and the process to draft a legislative framework be completed either with or by First Nations communities and policing organizations, Indigenous leadership, and other relevant bodies as deemed appropriate.

In respect of police oversight bodies, Debwewin encouraged MAG to consider the future recommendations of the full Tulloch Review and that any new oversight body that may be recommended in the Tulloch Review be created with the full participation of Indigenous people.

Pursuant to Debwewin’s supplemental advice prepared in response to Recommendation 3 of the Iacobucci Report, Debwewin also advised that the Ministry of Community Safety and Correctional Services (MCSCS) should collaborate with IJD in the creation and provision of cultural competency training for police and oversight bodies.

Related to the above, Debwewin recognized the limited scope that MAG has in regards to addressing issues confronting policing within First Nations, which falls within the mandate of MCSCS. That said, there was consensus among Debwewin members that the link between MAG and policing was clear due to MAG’s launching of the Review of Police Oversight Agencies. As a result, Debwewin’s advice was that both MAG and MCSCS work together and collaboratively with federal, provincial and territorial justice colleagues and, most importantly, with Indigenous leadership and governments, to provide solutions for stable and long term funding for First Nations policing agreements. It was also recommended that Debwewin’s advice on Recommendation 4(b) of the Iacobucci Report be shared with MCSCS and the Ministry of Children and Youth Services (MCYS).

Debwewin’s final advice also included that MAG ensure that negotiations addressing the funding of police services be mindful and reflective of the theoretical underpinnings of Jordan’s principle, which is a children-first approach to addressing needs, with jurisdictional cost determinations being secondary. Much in the same manner, in its final advice, Debwewin pressed the government to take a community first approach to ensure that the safety and wellbeing of Indigenous communities is the primary concern during negotiations.

Finally, Debwewin noted that many past recommendations addressing issues affecting the policing of Indigenous people and the relationship between Indigenous people and the police have not been implemented. As such, Debwewin’s advice was that any outstanding recommendations concerning First Nation policing in Ontario be reconsidered and re-evaluated for implementation in order to address longstanding and current issues.

Debwewin members at Akwesasne First Nation – September 2014
Debwewin members at Akwesasne First Nation – September 2014

4(c) – Study on the Aboriginal Court Worker Program

Recommendation 4: The Ministry of the Attorney General carry out the following studies for eventual input by the Implementation Committee:

  1. a review of the Aboriginal Court Worker program and an examination of resources required to improve the program.

Final Advice: In light of the federal government and the Ontario Federation of Indigenous Friendship Centres’ (OFIFC) comprehensive studies of, and recommendations relating to, the Aboriginal Court Worker program, Debwewin concluded that it was unnecessary for MAG to conduct a further study of this program. Of note, the federal government’s study on this program was released after the release of the Iacobucci Report. Based on extensive reports and its engagement with Indigenous communities and organizations, Debwewin concluded that the Aboriginal Court Worker program provided valuable services to its clients. The key issue with the program was that, despite a high demand for services, all Aboriginal Court Worker service delivery agencies lack sufficient funding.

While Debwewin applauded the increases in funding from both the federal and Ontario governments for the Aboriginal Court Worker program announced in their respective 2016 budgets, Debwewin’s final advice was that MAG assess the sufficiency of the increased funding for the program on an annual basis going forward and make increases to funding to support the program as needed.

Assistant Deputy Attorney General for Indigenous Justice

Recommendation 5: The Ministry of the Attorney General create an Assistant Deputy Attorney General (ADAG) position responsible for Aboriginal issues, including the implementation of this Report.

Final Advice: On December 17, 2014, as a result of Debwewin’s advocacy work, the Ministry announced that Kimberly Murray was to be appointed as the first ever Assistant Deputy Attorney General (ADAG) of the Aboriginal Justice Division (now IJD). Kimberly Murray is a member of the Kanehsatake Mohawk Nation and was called to the bar in 1995. She is the former Executive Director of the Truth and Reconciliation Commission of Canada and, prior to that, she was the Executive Director of Aboriginal Legal Services; a multi-service legal organization serving Indigenous people within Ontario. Notably, a First Nation Elder and Debwewin member, Elder Barney Batise, who is not a government employee, served as a member of the ADAG hiring panel.

In April 2015, IJD officially began its work. IJD’s mandate is to repair the relationship between MAG and Indigenous communities within Ontario. IJD’s Mission Statement is “to support the reclamation of Indigenous legal principles and systems and strengthen justice for Indigenous people within Ontario” and its Vision Statement is a “transformative and unified circle of justice rooted in sovereignty, self-determination, reciprocity and reconciliation.” Key to repairing relationships is IJD’s unique approach, which involves:

Public Legal Education for Indigenous People

In Recommendation 6, Mr. Iacobucci identified a number of key areas related to education, including: the development of educational materials that provide comprehensive information on the justice system to First Nations people; the establishment of First Nations liaison officers; and the creation of an intensive summer internship programs for law students.

Debwewin members at Nipissing First Nation – September 2016
Debwewin members at Nipissing First Nation – September 2016

6(a) Plain Language Brochures Translated into Indigenous Languages; and 6(c) Educational Instruments

Recommendation 6: After obtaining the input of the Implementation Committee, the Ministry of the Attorney General provide broader and more comprehensive justice education programs for First Nations individuals, including:

  1. developing brochures in First Nations languages with plain wording which provide comprehensive information on the justice system, including information respecting the role played by criminal, civil, and coroner’s juries;
  1. commissioning the creation of video or other educational instruments, particularly in First Nations languages, that would be used to educate First Nations individuals as to the role played by the jury in the justice system and the importance of participating on the jury;

Final Advice: Since these recommendations are closely linked, Debwewin provided advice on recommendations 6(a) and 6(c) together. Debwewin’s final advice was the development of public legal education (PLE) resources, which contain legal information that is specifically targeted for First Nation, Inuit and Métis people. Debwewin advised that these resources should cover many areas of law – not just criminal law – that affect Indigenous people. Debwewin recommended that IJD work with communities to determine what topics and areas of law would be the best focus of the PLE resources.

Debwewin’s final advice included the development of the following specific PLE resources. This list was not intended to be exhaustive and IJD staff responsible for PLE development should consider all available PLE tools, not just those listed below.

Debwewin’s advice was that all of the PLE tools created should be written in plain language. Debwewin recommended that IJD use its discretion when deciding which PLE instruments should be translated into Indigenous languages and which Indigenous languages those should be.

6(b) Justice Liaison Program

Recommendation 6: After obtaining the input of the Implementation Committee, the Ministry of the Attorney General provide broader and more comprehensive justice education programs for First Nations individuals, including:

  1. establishing First Nations liaison officers responsible for consulting with First Nations reserves on juries and on justice issues;

Final Advice: Debwewin’s advice regarding the Justice Liaison program followed consultation with Indigenous communities regarding the communities’ specific needs. Following these engagements, Debwewin’s advice was that MAG establish Justice Liaisons through a phased-in approach over two years, with a particular focus on communities in the North. Debwewin considered this to be one of the most important programs to implement in order to address the underrepresentation of First Nations people on Ontario juries.

Debwewin envisioned the Justice Liaisons as providing necessary education, support and information to Indigenous communities about juries and justice issues. Ideally, Justice Liaison positions would be staffed by Indigenous people from the communities they are serving. The goal of the Justice Liaisons would be to ensure that Indigenous people in contact with the justice system are better informed about the system itself and the processes involved. Through education, Justice Liaisons would hopefully reduce reluctance on the part of Indigenous people to complete juror questionnaires and simultaneously improve representation of Indigenous people on juries.

6(d) Debwewin Summer Law Program

Recommendation 6: After obtaining the input of the Implementation Committee, the Ministry of the Attorney General provide broader and more comprehensive justice education programs for First Nations individuals, including:

  1. considering the feasibility of a program that would enlist students from Ontario law schools to participate in intensive summer education and legal assistance programs for First Nations representatives, dealing with the justice system generally and the jury system in particular, in consultation with Chiefs, and Court Services officials.

Final Advice: Debwewin’s advice was that that MAG partner with Ontario law schools to engage law students to provide PLE and, where appropriate, legal assistance to Indigenous communities within Ontario.

The Debwewin Summer Law Student program was initiated in 2014. Since that time, it has provided significant benefits to Indigenous host organizations, law students and law schools. The program has also helped MAG in its efforts to rebuild relationships with Indigenous communities within Ontario. In light of the success of the program that operated during Debwewin’s mandate, Debwewin’s advice was to create a permanent Debwewin Summer Law Student program through a phased-in approach.

Debwewin’s advice was that two students from each of the seven law schools within Ontario participate in the program during the summers of 2016 and 2017, respectively. Beginning in the summer of 2018 and on a permanent basis going forward, Debwewin’s advice was that three law students from each Ontario law school participate in the program, totaling 21 law students participating every summer.

Debwewin community engagement session in Kenora – January 2015
Debwewin community engagement session in Kenora – January 2015

Feathers of Hope Justice & Juries: A First Nations Youth Action Plan for Justice

Recommendation 7: With respect to First Nations youth, in addition to having a youth member on the Implementation Committee, the Implementation Committee should request that the Provincial Advocate for Children and Youth facilitate a conference of representative youth members from First Nations reserves to focus on specific issues in the relationship between youth, juries, and the justice system, addressed in this report. The Provincial Advocate for Children and Youth should prepare a report on that conference; prior to submitting the report to the Implementation Committee the Provincial Advocate for Children and Youth should consult with PTOs and other First Nations associations.

Final Advice: The Provincial Advocate for Children and Youth (PACY) organized the Feathers of Hope Forum focusing on Justice and Juries, which took place in Thunder Bay, Ontario from November 17-20, 2014. PACY reported that 150 youth attended the Forum with 85% travelling from northern and remote First Nations communities. A number of Debwewin members also attended. Métis and Inuit youth were not represented at the Forum.

Following the Forum, the March 2016 final report, entitled Feathers of Hope: A First Nations Youth Action Plan (FOH Report) was released. Based on the FOH Report’s findings, Debwewin’s advice was that the following mechanisms be established to allow Indigenous youth to participate meaningfully in the justice system:

The complete FOH Report is available on the PACY website: http://digital.provincialadvocate.on.ca/i/259048-foh-report

Debwewin members visiting Kenora - January 2015
Debwewin members visiting Kenora - January 2015

Exploring Alternative Databases to Create the Source List for the Ontario Jury Roll

Recommendation 8: The Ministry of the Attorney General, in consultation with the Implementation Committee, undertake a prompt and urgent review of the feasibility of, and mechanisms for, using the OHIP database to generate a database of First Nations individuals living on reserve for the purposes of compiling the jury roll.

Recommendation 9: In connection with this review, the Ministry of Attorney General and First Nations, in consultation with the Implementation Committee, consider all other potential sources for generating this database, including band residency information, Ministry of Transportation information and other records, and steps that might be taken to secure these records, such as a renewed memorandum of understanding between Ontario and the Federal government respecting band residency information or memorandums of understanding between Ontario and PTOs or First Nations, as appropriate.

Final Advice: In response to Recommendations 8 and 9, and after significant review and deliberation, Debwewin advised MAG that the OHIP database had the greatest potential to generate a representative jury list. Utilizing the OHIP database to generate a jury list would require notice to Ontario health card holders and applicants, as well as sufficient safeguards to ensure that data is being used in accordance with privacy laws. Debwewin canvassed other forms of data collection to generate a jury roll and identified the following limitations:

Debwewin further advised that, if MAG decides to utilize the OHIP registry, the following important issues should be considered:

Debwewin members and community members at Chippewas of Rama First Nation – July  2014
Debwewin members and community members at Chippewas of Rama First Nation – July 2014

Amending the Juror Questionnaire

Recommendation 10: The Ministry of the Attorney General, in consultation with the Implementation Committee, consider amending the questionnaire sent to prospective jurors to:

  1. make the language as simple as possible;
  2. translate the questionnaire into First Nations languages as appropriate;
  3. remove the wording threatening a fine for non-compliance and replacing it with wording stating simply that Ontario law requires the recipient to complete and return the form because of the importance of the jury in ensuring fair trials under Ontario’s justice system;
  4. on the premise that a First Nations member living on reserve in Ontario satisfies the Canadian citizenship requirement under s. 2(b) of the Juries Act, add an option for First Nations individual to identify themselves as First Nations members or citizens rather than Canadian citizens;
  5. enable First Nations elected officials, such as Chiefs and Councillors, as well as Elders, to be excluded from jury duty; and
  6. provide, through an amendment to the Juries Act, for a more realistic period than the current five days for the return of jury questionnaires.

Final Advice: On March 3, 2015, Debwewin members held a focus group made up of interested Indigenous participants to provide feedback on simplifying and removing threatening language in the juror questionnaire. The focus group participants provided useful feedback to ensure that the format and language of the questionnaire were more likely to be agreeable to Indigenous people who are potential jurors.

Based on feedback received from the focus group, Debwewin provided MAG with interim advice that the following revisions be made to the juror questionnaire:

In addition to its interim advice, Debwewin’s final advice, based on the focus group’s feedback, included the following:

Debwewin Co-chair Alvin Fiddler at Sandy Lake First Nation – October 2014
Debwewin Co-chair Alvin Fiddler at Sandy Lake First Nation – October 2014

Increasing the Chances that Potential Jurors Actually Receive the Juror Questionnaire

Recommendation 11: The Ministry of the Attorney General, in consultation with the Implementation Committee, consider implementing the practice from parts of the U.S., that when a jury summons or questionnaire is undeliverable or is not returned, another summons or questionnaire is sent out to a resident of the same postal code, thereby ensuring that nonresponsive prospective jurors do not undermine jury representativeness.

Final Advice: In response to the recommendations in Iacobucci’s Report, MAG (through its Court Services Division (CSD)) implemented a Return from Post Office (RPO) pilot project in the judicial districts of Bracebridge and Thunder Bay, where CSD followed up with every questionnaire that was returned by the post office as undeliverable. Debwewin’s advice was that this pilot project continue into 2018. At the conclusion of the 2018 jury roll, Debwewin recommended that CSD should then evaluate the success of the RPO project.

In order to properly assess the results of the RPO pilot, Debwewin’s advice was that one responsibility of the Justice Liaisons (in reference to Recommendation 6(b)) should be the provision of public education sessions for Indigenous communities about the role of juries in the criminal justice system. Debwewin’s advice was that the RPO project should be extended to districts where Justice Liaison workers are present.

Debwewin’s also advised that discretion should remain with the judiciary on how to respond to individuals who do not attend for jury selection. Optimally, the judiciary’s (and other decision makers) response in such cases would be informed by the Indigenous cultural competency training that they receive (in reference to Recommendation 3) as to the reasons why potential jurors may fail to attend court when summoned. Debwewin believed that enhanced education would assist in ensuring better informed decisions are made with respect to deciding whether to reprimand or exercise discretion against those failing to attend court when summoned for jury duty.

Volunteer Jury Service

Recommendation 12: The Ministry of the Attorney General, in consultation with the Implementation Committee, consider a procedure whereby First Nations people on reserve could volunteer for jury service as a means of supplementing other jury source lists.

Final Advice: After considering this issue, Debwewin members expressed the following three different perspectives with respect to advice concerning the desirability of employing a volunteer jury list for criminal trials. Debwewin did not reach consensus on this piece of advice.

  1. A process to permit First Nations people on reserves to volunteer should be used to supplement the existing process for identifying jurors.

Currently, CSD staff maintain source lists of people who live on reserve. Staff rely on the best list available to them each year, the accuracy of which can vary widely. In practice, the lists available range from a 2001 Indigenous and Northern Affairs Canada (INAC) list to an up-to-date list of people living on reserve provided by the local community leadership.

Some Debwewin members felt strongly that allowing people to volunteer to supplement existing jury source lists would positively impact the justice system. The Debwewin members who supported this option felt that it would be an example of positive government-to-government relationships between First Nations people and Ontario. These members were mindful of Mr. Iacobucci’s finding that the “justice system, as it relates to First Nations people, and particularly in Northern Ontario, is in crisis.” This finding, which was confirmed during community engagement sessions in which Debwewin participated, means that the status quo for jury selection as it relates to First Nations people is not acceptable.

Debwewin members who supported this option appreciated that any volunteer process for jurors in criminal trials could be subject to legal challenge. These members were also of the view that the possibility of legal challenge arises with any development of the criminal law and that the existence of risk is no excuse for failing to pursue positive changes in the justice system.

Debwewin members and law students at the Bora Laskin Faculty of Law, Lakehead University, Thunder Bay – July 2014
Debwewin members and law students at the Bora Laskin Faculty of Law, Lakehead University, Thunder Bay – July 2014
  1. A process to permit First Nations people on reserves to volunteer should be used to supplement the OHIP database, as described in Debwewin’s advice pursuant Recommendations 8 and 9 of the Iacobucci Report.

Some Debwewin members supported using a volunteer jury process solely to supplement the OHIP Database, which would be the primary source list for juror enumeration.

For these members, support for the use of a supplementary volunteer juror process is premised on many of the same reasons outlined in perspective #1. These members were concerned, however, about retaining the current system of annually requesting up-to-date lists of on-reserve residents from First Nations governments to use as the underlying source list.

Members who supported this option believed, as did Mr. Iacobucci, that using a volunteer list to supplement a comprehensive database, such as OHIP, provided another opportunity for First Nations participation on juries. This option would also minimize the personal information received by CSD to create the jury roll because court staff would receive only the names and addresses of people who have specifically volunteered or who have been randomly selected from the OHIP database.

  1. No process for volunteering for jury duty should be used in criminal trials.

One Debwewin member felt strongly that allowing people to volunteer to supplement jury source lists would have a negative impact on the criminal justice system and would not achieve the desired results. This member believed that the use of a volunteer process in the criminal justice context would contravene the randomness principle and, thus, violate an accused’s Canadian Charter of Rights and Freedoms right to a fair trial and right to a trial by an impartial jury. It was the view of this member that any interference with the random nature of the selection of potential jurors at any stage of the process would improperly interfere with the impartiality and representativeness of the jury roll.

Translation Services for Indigenous Jurors

Debwewin members visiting the Akwesasne Mohawk Court – September 2014
Debwewin members visiting the Akwesasne Mohawk Court – September 2014

Recommendation 13: The Ministry of the Attorney General, in consultation with the Implementation Committee, consider enabling First Nations people not fluent in English or French to serve on juries by providing translation services and by amending the jury questionnaire accordingly to reflect this change.

Final Advice: Mr. Iacobucci’s recommendation highlighted the barriers experienced by people whose primary language is an Indigenous language, and the corresponding inadequate level of translation services available for those who speak Indigenous languages. In preparing advice pursuant to Recommendation 13, Debwewin considered that there were currently only 27 First Nations interpreters in Ontario who could provide translation services in Cree (West Coast Swampy Cree), Ojibway or Oji-Cree and that the level of services varied geographically. Debwewin considered many challenges with implementing translation services for jurors, including:

Debwewin also canvassed other jurisdictions that have considered the issue of translation services for jurors and found that Indigenous language speakers were accommodated in various ways through the development of Indigenous Language Court services in Saskatchewan, Nunavut and New Mexico.

In light of the above considerations, Debwewin’s advice was that:

Community engagement at Kashechewan First Nation – February 2016
Community engagement at Kashechewan First Nation – February 2016

Reviewing Eligibility for Jury Service

Recommendation 14: The Ministry of the Attorney General, in consultation with the Implementation Committee, adopt measures to respond to the problem of First Nations individuals with criminal records for minor offences being automatically excluded from jury duty by:

  1. amending the Juries Act provisions that exclude individuals who have been convicted of certain offences from inclusion on the jury roll, to make them consistent with the relevant Criminal Code provisions, which exclude a narrower group of individuals;
  2. encouraging and providing advice and support for First Nations individuals to apply for pardons to remove criminal records; and
  3. considering whether, after a certain period of time, an individual previously convicted of certain offences could become eligible again for jury service.

Final Advice: After much discussion, Debwewin’s advice did not include specific amendments to the Juries Act. Rather, Debwewin’s advice was that MAG engage with the federal government through federal, provincial and territorial forums, and recommend that Public Safety Canada undertake the following three tiered approach to providing pardons for Indigenous people.

  1. Automatic Pardons Program

This would be a program whereby criminal records of all Indigenous people convicted of crimes are expunged after five years. In order to be eligible for such a program, five years must have passed from the completion of an individual’s sentence (in alignment with the previous standard for a pardon prior to the 2011 amendments to the Criminal Records Act), no new convictions can have been entered during this time, and the individual cannot have any outstanding criminal charges against them.

For a variety of reasons, Debwewin’s advice was that this program should be made available to Indigenous people on the basis of self-identification; similar to the process followed in order to qualify for services provided by Gladue Report Writers, Gladue Aftercare Workers and for the Aboriginal Court Worker program.

While the Debwewin members did not reach consensus on precisely which crimes would disqualify an individual from this process, some Debwewin members felt that individuals convicted of indictable offences or hybrid offences that are proceeded with by way of indictment should not be eligible for the program, reflecting Parliament’s intention to treat summary and indictable offences differently.

  1. Legal Recognition of Community Amnesty Processes

In addition to the proposed Automatic Pardons Program, Debwewin’s advice was that Ontario work with the federal government to create protocols and procedures to recognize the authority of an Indigenous community to offer its members amnesty. This would also have the legal effect of granting pardons to these community members.

This advice stemmed from opinions expressed during community engagement sessions. During these sessions, Debwewin heard from community members who expressed a desire for pardons to be made more readily available, in accordance with Indigenous concepts of amnesty and forgiveness. In some Indigenous communities, this process would rely on individuals who have committed offences acknowledging their wrongdoing(s) and making amends before the community, including its Elders. After these steps have been taken, the community would offer the individuals amnesty and forgiveness and help them reintegrate into the community.

  1. Repealing the 2011 Amendments to the Criminal Records Act

Debwewin recognized that the proposed Automatic Pardons Program and Community Amnesty Process would require systemic changes that will take time to implement. In the interim, Debwewin’s advice was that governments take steps to make it easier for Indigenous people to obtain pardons and records suspensions by Public Safety Canada repealing the 2011 amendments to the Criminal Records Act. A repeal of these amendments would grant access to the pardons regime to individuals who have committed indictable offences and Indigenous people living in urban areas.

In addition, Debwewin’s advice was that MAG work with other provincial government ministries to explore options and avenues for providing supports for Indigenous people to apply for pardons and record suspensions, including offering advice and information through education or outreach programs. As outlined in Debwewin’s advice pursuant to Recommendation 6(b), Justice Liaisons could play a key role in helping Indigenous people with this responsibility.

Preventing the Discriminatory Use of Peremptory Challenges

Recommendation 15: The Ministry of the Attorney General discuss with the Implementation Committee the advisability of recommending to the Attorney General of Canada an amendment to the Criminal Code that would prevent the use of peremptory challenges to discriminate against First Nations people serving on juries.

Final Advice: The concern articulated by Mr. Iacobucci in relation to this recommendation was that even if all his recommendations were implemented, their influence could be undermined by the discriminatory use of peremptory challenges by counsel to exclude Indigenous persons from serving on a jury.

The vast majority of Debwewin members, including all of the Debwewin Indigenous Caucus 2 members and all but one of the non-Indigenous Debwewin members, provided the same advice regarding Recommendation 15: to abolish the practice of peremptory challenges altogether. The one Debwewin member in favour of the continued use of peremptory challenges pointed to the fact that judges can intervene if it appears that counsel are using peremptory challenges in a discriminatory manner, but agreed that reform of the peremptory challenge provisions in the Criminal Code might help to stem their potential discriminatory use.

In light of these competing perspectives, Debwewin’s final advice was that MAG develop training and resources for crown prosecutors regarding peremptory challenges and Indigenous jurors. The advice also included that MAG approach the Law Society of Ontario to develop and provide education, training and resources for all lawyers, particularly defence counsel, which addresses the dangers of the discriminatory application of peremptory challenges.

Debwewin further recommended that the Deputy Attorney General ask the Chief Justice of the Superior Court of Justice to include peremptory challenges in the judicial training curriculum, in particular as their use related to Indigenous jurors. Debwewin’s advice was also that the Deputy Attorney General direct CLD, in consultation with IJD, to amend the Crown Policy Manual to include more detailed discussion and guidance regarding Indigenous justice issues as it pertains to juror challenge procedures.

Finally, Debwewin’s advice was that the Deputy Attorney General suggest to the federal government that peremptory challenges in the Criminal Code be reviewed with the goal of addressing the potential for their discriminatory use against Indigenous jurors.

Debwewin members in Kenora - January 2015
Debwewin members in Kenora - January 2015

Reviewing Levels of Juror Compensation

Recommendation 16: In view of the concerns I have heard and the fact that current jury compensation is not consistent with cost-of-living increases, I recommend that the Ministry of the Attorney General refer the issue of jury member compensation to the Implementation Committee for consideration and recommendation.

Final Advice: Through its engagement sessions, Debwewin learned that Ontario’s legislative and regulatory scheme for juror compensation does not provide for adequate juror compensation, supports and coverage of expenses. For example, in contrast to British Columbia and Manitoba, which reimburse the actual cost of child care (and jurisdictions, which have a scheme for providing child care allowances), Ontario’s scheme does not provide an allowance or any coverage to offset costs for child care and/or potential juror’s dependents. In addition, Debwewin learned that Ontario’s current juror compensation scheme fails to provide adequate meal allowances, thereby making it difficult for jurors to afford healthy meals. Conversely, some of these supports and expenses are provided for lawyers, court staff, and judges who fly into remote Indigenous communities for court, suggesting that Ontario is undervaluing the work of its jurors and the sacrifices they make to exercise their civic duties.

In light of these realities, after much deliberation, Debwewin’s advice was that jurors be reimbursed for actual expenses incurred to serve on a jury, a change which could be enabled by language in the regulations pertaining to “reasonable living expenses” rather than making legislative changes. The regulatory language is flexible enough for CSD to account for the cultural needs of a prospective juror and any additional needs arising from geographic distance from their community. CSD staff should receive education in order to expand their knowledge about the meaning of “reasonable living expenses” in order to appropriately apply the regulation. Justice Liaisons could also potentially assist in determining what kinds of additional supports should be provided in a particular community.

Debwewin’s advice also included that juror compensation rates should be adjusted to reflect inflation and current economic realities across the province. To fairly compensate jurors, MAG should consider compensating jurors for days one through 10 of a trial, as well as implementing a model of juror compensation based on minimum wage, which creates a guaranteed standard daily rate. MAG should also consider implementing a mechanism to reimburse those who are unable to return to their home communities on days during which the jury is not sitting (i.e. weekends) at the same rate at which they are reimbursed for days the jury is sitting. Debwewin also advised that MAG should evaluate the appropriateness of any compensation increases implemented.

Community engagement in Kenora – January 2015
Community engagement in Kenora – January 2015

Creating a Volunteer Jury Roll for Coroner’s Inquest Juries

Recommendation 17: The Ministry of the Attorney General, in consultation with the Implementation Committee, institute a process that would allow for First Nations individuals to volunteer to be on the jury roll for the purposes of empanelling a jury for a coroner’s inquest.

Final Advice: In October 2014, based on Debwewin’s preliminary advice to the Deputy Attorney General, the Volunteer Juror Pilot Project commenced in the judicial districts of Thunder Bay and Kenora. The Volunteer Juror Pilot Project established a means of collecting a supplemental list to the compulsory jury roll. This list was to be used during a full-year cycle for the operation of the jury roll for the purposes of coroner’s inquests. To authorize this project, a regulation (O.Reg 266/14) was passed under the Coroners Act, which set out how the Volunteer Juror List could be compiled and used in future coroner’s inquests in the Thunder Bay and Kenora judicial districts.

Debwewin considered the success of the Volunteer Juror Pilot Project in relation to a number of coroner’s inquests that occurred within these judicial districts. Based on the challenges and successes of the Project, Debwewin’s final advice was that the regulation under the Coroners Act, allowing for the Volunteer Juror Pilot Project, be extended geographically to all jurisdictions within Ontario and be made permanent.

In order to support the Project, Debwewin’s final advice was also that MCSCS provide funding for future volunteer juror projects, work with First Nations communities to collaboratively gather names of volunteer jurors for future coroner’s inquests, maintain the Volunteer Juror List, provide culturally appropriate support services to volunteer jurors, and support the Office of the Chief Coroner in order to increase its capacity to work with Indigenous communities.

Final Round Up Advice

Over the course of its three and a half year mandate, Debwewin completed a significant amount of research, consulted with a number of legal experts, and, most importantly, held a number of community engagement sessions, hosted an Elders’ Forum and interacted with many Indigenous leaders and community members. Through this research and as a result of these discussions, Debwewin became aware of a number of important justice issues that fall outside of the 17 recommendations in the Iacobucci Report and formulated advice in response to these issues.

In relation to the importance of incorporating the voices and perspectives of Indigenous Elders and youth in decision-making processes, Debwewin’s advice was the creation of Elders and Youth Councils to provide guidance and advice to IJD in its continued work to rebuild the relationships between MAG and Indigenous people within Ontario.

During Debwewin’s community engagement sessions and the January 2016 Elders’ Forum, there were many reports of feelings of fear and intimidation experienced by Indigenous people involved in the Canadian court system, especially during fly-in court proceedings. In response to these reports, Debwewin’s advice was that the Deputy Attorney General discuss potential best practices for the judiciary with the Chief Justice of the Ontario Court of Justice in order to reduce fear and intimidation in the fly-in courts.

The hardships experienced by Indigenous people living in the North in relation to the extensive and expensive travel required to attend proceedings at courthouses located in cities and towns was another concern expressed at community engagement sessions and the Elders’ Forum. In response, Debwewin’s advice was that the CSD and IJD work together to determine where there are particular challenges for Indigenous people to attend court locations and come up with solutions to alleviate these hardships. Debwewin’s advice was also that CSD and IJD begin by focusing, in particular, on the logistical hardships in Northern Ontario. Debwewin suggested that solutions may include providing travel funding to attend court hearings, working with other local service providers supported by other government ministries and changing the location of court hearings to make them more accessible to Indigenous community members. Additionally, it was noted that increasing community based justice programs would alleviate the issues caused by the distance between courthouses and Indigenous communities.

During its mandate, Debwewin heard from many people that Elders need to play a key role in the delivery of justice within Indigenous communities. In response, Debwewin’s advice was that IJD continue to work with Indigenous communities to determine key roles for Elders within the Canadian justice and restorative community based justice processes. Debwewin also recommended that IJD provide appropriate training for Canadian justice professionals and Elders to help them work together effectively.

The importance of the revitalization of Indigenous languages was consistently impressed upon Debwewin members. It was noted that having Indigenous language speakers available to provide support for Indigenous people in understanding and navigating Canadian justice processes, especially in courts, should be a priority. As a result, Debwewin’s advice was that MAG prioritize the hiring of Indigenous language speakers for justice sector positions that have a high degree of interaction with Indigenous communities. In addition, Debwewin’s advice was that an Indigenous language speaking judge or justice of the peace be hired to support the successful establishment of the Indigenous Language Court Pilot.

In accordance with information gathered at community engagement sessions related to the need for more Indigenous lawyers, Debwewin’s advice was that IJD work with the Law Society of Ontario (LSO) to set up a support system for Indigenous lawyers, particularly for those practicing in Northern Ontario. It was noted that supports may include: a reduction on LSO annual fees; reduced or waived continuing professional development (CPD) costs for LSO programs; funding for travel for CPD courses; funding for fees for CPD courses not offered by LSO; funding for or waiver of fees for Indigenous lawyers related to certified specialist programs offered by LSO; reduced LAWPRO insurance fees; and mentoring programs. In addition, Debwewin’s advice was that IJD should work with LSO to provide supports for Indigenous law students in preparing for the Bar Admissions tests.

Related to the use and availability of specialty courts in the province, Debwewin’s advice was that, in consultation with the judiciary, MAG should explore expanding the use and locations of specialty courts, including mental health, addictions and Gladue Courts/Indigenous People’s Courts in Northern Ontario.

At many community engagement sessions, Indigenous leadership and community members indicated to Debwewin that the lack of enforcement measures in the context of Band Bylaws cause a significant gap in regulating issues central to the governance of Indigenous communities. In response, Debwewin noted that it supported IJD in working collaboratively with Indigenous leadership, police services, crown prosecutors and the judiciary to support projects focused on the enforcement of Band Bylaws. Debwewin’s advice was that the Indigenous Justice Advisory Group (IJAG), which was established in accordance with Recommendation 2 in the Iacobucci Report, include Band Bylaw enforcement as a focus of their future work.

Debwewin was told repeatedly at community engagement sessions that many Indigenous communities object to the imposed Canadian justice system regulating the lives of Indigenous people. As a result, Debwewin’s advice was that MAG prioritize the funding and expansion of Indigenous community based justice programs with a view to increasing the availability and use of these programs as well as reducing the impact of the Canadian criminal justice system within Indigenous communities. Debwewin stressed that key aspects of supporting community based justice programs is recognizing the inherent right of Indigenous people to self-government and supporting Indigenous governments in the design of local approaches tailored to the needs and realities of each particular community.

Debwewin members flying to Sandy Lake First Nation – October 2014
Debwewin members flying to Sandy Lake First Nation – October 2014

Conclusion

Over the years, many reports have been written on how to improve various elements of the criminal justice system, only to be shelved and ultimately ignored. Through the creation of Debwewin, the Government of Ontario took an important step towards ensuring that the recommendations made in the Iacobucci Report make a real difference in the lives of Indigenous people within the province. It is extremely important that future reports and recommendations be accompanied by implementation or oversight mechanisms like the Debwewin Implementation Committee.

Debwewin members at Sandy Lake First Nation – October 2014
Debwewin members at Sandy Lake First Nation – October 2014

Miigwetch, Niá:wen (Thank You)

An enthusiastic and heartfelt thank you to all the First Nations communities and Indigenous organizations that hosted the Debwewin Implementation Committee and, in particular, all the individuals who have trusted and shared their views in order to help Debwewin make informed decisions.

A special thank you to the Jury Review Implementation Project Team and IJD staff for their dedication and support throughout Debwewin’s mandate and in the drafting of this Final Report.

Attorney General Yasir Naqvi and Debwewin members at the Debwewin Closing Ceremony in Toronto – November 2016
Attorney General Yasir Naqvi and Debwewin members at the Debwewin Closing Ceremony in Toronto – November 2016

Footnotes

1 R. v. Gladue is a 1999 decision of the Supreme Court of Canada (SCC) that addressed the over-representation of Indigenous people in the justice system. In Gladue, the SCC found that in sentencing Indigenous offenders, judges are required to take into account the following considerations, often referred to as “Gladue principles”:

  • Unique individual background factors of the person, in the context of the legacy of colonialism and systemic discrimination, that may have played a part in bringing the Indigenous offender before the court; and
  • Culturally relevant sentencing procedures and sanctions that may be more appropriate than incarceration because of the offender’s Indigenous heritage or connection to their community. Particular focus should be given to alternatives to incarceration, such as restorative justice models, that are often more effective and appropriate for offender, community, and public safety.

The courts have since expanded the application of Gladue principles to any proceeding where an Indigenous person’s liberty is at stake, including bail, long-term or dangerous offender applications and extradition applications.

2 The Indigenous Caucus was composed of all of the Indigenous members of the Debwewin Implementation Committee.