Nishnawbe Aski Nation Grand Chief Alvin Fiddler says a landmark decision by the Ontario Court of Justice shows the need for a complete transformation of the justice system.
In a recent lengthy court decision, Justice David Gibson ruled a law around intermittent sentences and how it affects Indigenous offenders from remote communities results in discrimination.
He was asked to consider the constitutional rights of six young mothers from Pikangikum, who aren’t able to serve their impaired driving sentences in the First Nation on weekends, but instead pay their own way to serve time at the Kenora District Jail.
In his ruling, Justice Gibson recognized the inherent harms the Ontario justice system has produced in relation to Indigenous peoples’ experiences and acknowledged the need to transform the justice system so that it’s culturally relevant and inclusive of Indigenous history and traditions.
Alvin Fiddler called it a thoughtful and well-reasoned decision that reaffirms the position of many First Nations leaders and legal experts that the colonial justice system simply doesn’t work for their communities.
He is urging the Crown to not waste time by seeking an appeal and seize the opportunity to transform the administration of justice.
The Kenora District Law Association says Justice Gibson “recognized that individuals appearing before the Court from remote, fly-in First Nations face additional barriers and hardships that are not otherwise experienced, including systemic racism and the extension of the corrosive effects of colonization. This decision further recognizes the alarming conditions experienced by those incarcerated at the Kenora District Jail and the lasting impacts similar to those experienced by residential school survivors.”
Here is the full statement from John Bilton and Karen Seeley as counsel:
R. v. Sherry Turtle et al. – Constitutional Challenge (Pikangikum F.N.)
On Friday October 2, 2020 Justice David Gibson of the Ontario Court of Justice rendered his decision in Kenora, Ontario regarding a constitutional challenge by six Indigenous women who live on the Pikangikum First Nation. All were convicted of impaired driving offences for which a jail sentence of less than 90 days would be imposed. Many people sentenced in such circumstances are permitted to serve their sentences intermittently– usually on weekends – thus sparing them from the need to be separated from their families for an extended period of time or lose their jobs. The Crown accepted that an intermittent sentence would be appropriate for these six Indigenous women but because Pikangikum is a remote fly-in community, hundreds of kilometres from the nearest jail, this type of sentence is not a real option.
Justice Gibson’s decision speaks powerfully about the Crown’s continuing failure to meet its Treaty obligations to the people of Pikangikum First Nation and the resulting “corrosive effects of colonization.”
In finding that the practical unavailability of an intermittent sentence for the six Pikangikum First Nation women in this case is discriminatory and violates section 15 of the Charter of Rights and Freedoms, His Honour’s related contextual analysis recognizes that the Treaty’s aim of mutual assistance actually became, given the real power imbalance favouring the Crown, “an exercise in the crudest form of colonization, with devastating consequences for the people of Pikangikum.” The practical unavailability of an intermittent sentence for these six women, due to the prohibitive logistical and financial burdens associated with travelling from their remote community to the jail and back every weekend, combined with the effects of leaving their children and traditional territory to serve a sentence in the persistently brutal conditions of the Kenora District jail, illustrates this crude expression.
Justice Gibson’s clear description of the replacement of traditional, indigenous systems of effective governance with colonial systems, including residential schools and the similarly destructive effects of the inhumane conditions at the Kenora District Jail, as well as the related outcomes of family fragmentation, culture loss, systemic intoxicant abuse, and the world’s highest suicide rate, reveals a longstanding human catastrophe. Given that this history persists to the present, His Honour also found that the citizens of Canada reasonably expect, in order to maintain confidence in the Canadian justice system, that the Crown will honour its constitutionally entrenched Treaty obligations and choose a different path with Pikangikum First Nation; one that demands, for all practical and humane purposes, it consult with that community in a manner revealing true mutual assistance and respect for that Nation’s history and expectations of self-sufficiency.
The governments of today would be wise to heed this judicial call to action.
NAN @gcfiddler says a landmark decision by the Kenora Superior Court last week shows the need for a complete transformation of the justice system. https://t.co/MANgctS1hL
— Nishnawbe Aski Nation (@NANComms) October 5, 2020
