• Brayden McDonald (Student Editor)

Book Review of “Indigenous People and the Criminal Justice System: A Practitioner’s Handbook”


“Indigenous People and the Criminal Justice System: A practitioner’s Handbook” by Jonathan Rudin is a comprehensive guide to the challenges and considerations that arise from working with Indigenous persons in the criminal law context. Jonathan Rudin graduated from Osgoode Hall in 1977. Since then, he has been deeply involved in the advancement of the justice system as it relates to Indigenous persons. He was involved in the landmark cases Gladue 1 and Ipeelee 2, played a crucial role in the establishment of a Gladue (Aboriginal persons) Court in Toronto and has greatly influenced the creation and development of Gladue reports. Since 1990, Jonathon Rudin has carried on his work as Program Director of Aboriginal Legal Services in Toronto. A much more detailed account of his achievements can be found in the Foreword of the Handbook, written by Justice Harry S LaForme. The editors, Brian H Greenspan and Justice Vincenzo Rondinelli, are highly respected experts in the criminal law field, both having accumulated many accolades of their own. Each of the individuals who came together to produce this book has had decades of experience with Indigenous persons and the Canadian justice system.

It is an indisputable fact that Canada’s Indigenous peoples have had a difficult and largely negative relationship with the nation’s justice system. These difficulties have manifested themselves in many ways, not the least of which is the severe over-representation of Indigenous persons in Canada’s prisons. This handbook provides readers with the context necessary to understand the challenges that Indigenous persons face when interacting with the justice system, and with the tools to address these challenges in court.

The Handbook provides guidance not just for defence counsel, but for Crown prosecutors and even the judiciary as well. It walks the reader through the considerations that should be taken at relevant stages of proceedings, from inquiring about an individual’s Indigenous identity, to sentencing, and even to possibilities for the expansion of current principles into new areas of law.

Following an introductory chapter, Chapter 2 briefly reviews the thirteen different commissions and inquiries into the problems that have arisen for Indigenous persons in the justice system. The findings of these studies, along with the author’s analysis, provide the reader with a crucial contextual foundation for understanding the subsequent chapters.

The third chapter opens with a discussion of how to ask whether someone is Indigenous. This can be a difficult question, and the Handbook deals with how to pose it clearly and tactfully, in a way that is most likely to elicit a positive response. It also emphasizes the importance of not relying on preconceived notions of what it means to be Indigenous. Terminology associated with various Indigenous groups, such as “Métis” for example, can have different meanings to different people and in different contexts. It is important to bear this mind when formulating a question about how an individual self-identifies. The author then spends some time discussing the importance of understanding cultural differences, such as differing speech mannerisms or practices. These may be misinterpreted or misunderstood by other participants in the justice system, resulting in an Indigenous person’s testimony being found less credible, or accommodation of a cultural practice being refused. Thus, it is important to understand these differences, and educate other participants on them when necessary.

Chapter 4 looks at the most significant jurisprudence relating to Indigenous persons and the justice system. There is a critical analysis of each of the cases and an explanation of its implications on the state of the law. The main focus is on “the Trilogy” of Williams 3, Gladue and Ipeelee, although other relevant cases are also considered. An understanding of these cases, particularly the Trilogy cases, is crucial for defence counsel, prosecutors and judges alike. They fundamentally altered the way in which Indigenous persons’ cases are to be considered by courts. Without an understanding of these cases and what they call for, Indigenous persons cannot be appropriately and effectively represented, prosecuted or judged.

The discussion of those cases segues nicely into discussion of Gladue and sentencing in Chapter 5. The author begins by outlining the principles that arose from Gladue and Ipeelee, and what is necessary to meet the obligations that those cases impose. This requires information, both about the specific life experiences of the person before the court and about the broader experiences of their family and the group or groups from which they draw their origins. How to obtain this information, particularly through a Gladue report, is explained. The author looks in detail at the availability of Gladue reports in each province and territory, including who is responsible for their creation, how they are funded, the approximate number produced in each jurisdiction each year, and how to go about acquiring one. The appendices include a mock Gladue report that is very helpful for demonstrating the type of information that should be sought in such a report and how it should be presented. Discussion then shifts to Gladue factors, the systemic and background factors that help to elucidate the realities faced by an Indigenous person before a court. The author sets out what should be considered as a factor, and then speaks to how these factors should be presented both effectively and with sensitivity to their personal, and often distressing, nature. Finally, the chapter considers come recent jurisprudential and legislative developments, as well as waivers of Gladue considerations.

Chapter 6 considers the application of the Gladue principles in legal contexts other than sentencing. The author addresses the application of Gladue principles to bail proceedings, firearms prohibitions, dangerous offender hearings, military tribunals, review board hearings, parole, civil contempt, extradition hearings, professional discipline and the exercise of prosecutorial discretion. In many of these instances the application of Gladue principles has already begun, while in others it has been resisted. Each instance is the subject of critical and thoughtful analysis by the author. There is also discussion of other areas where the author argues for the application of Gladue principles.

The seventh chapter examines sentencing circles. The advantages and disadvantages of the larger “first wave” and smaller, more focused “second wave” sentencing circles are described, with reference to several cases where such methods were implemented. The author outlines the types of considerations that a court and counsel should take into account when deciding whether to hold a sentencing circle. A major issue that many courts have with sentencing circles is that they take much longer than regular sentencing proceedings. At the end of the chapter, the author argues for out-of-court circles as a way to address this challenge.

The final chapter of the Handbook details the various Indigenous courts across Canada. The author explains what precisely is meant by the term “Indigenous Court”. The definition and history of courts from s. 107 of the Indian Act 4 is also explained. The author then embarks on a summary of existing Indigenous courts by province and territory, from East to West. Indigenous court systems and their respective features are summarized as they exist in Nova Scotia, New Brunswick, Ontario, Saskatchewan, Alberta and British Columbia. At the time that the Handbook was written, it is noted that the remaining provinces and territories had not instituted Indigenous courts.

The Handbook serves as an excellent tool, not only for defence counsel, but for anyone in the legal profession who may find themselves working with clients or accused persons that are Indigenous persons. The history of the relationship between the Canadian justice system and Indigenous peoples is both long and complex. However, this Handbook presents the most legally relevant aspects of this history in a way that is both concise and accessible, making it a perfect resource for a busy practitioner seeking a practical, working grasp of the material. The author strikes the perfect balance between historical context and practical advice. The book is well organized, making it easy to find specific information quickly. Especially useful are the Best Practices pages at the end of each chapter, which list all of the recommended practices within the chapter along with the page on which they can be found. Equally useful are the appendices, which are a treasure trove of useful resources including links to numerous primary and secondary sources and a mock Gladue report.

“Indigenous People and the Criminal Justice System: A practitioner’s Handbook” is an excellent resource. Whether one is a defence counsel, a Crown prosecutor, a judge, or even a student looking to pursue a criminal law career in the future, this book provides the tools necessary to understand and work with Indigenous persons effectively and with empathy. It strikes an effective balance between theory and practice, and presents it all in a way that can be quickly understood and applied. For anyone involved in the criminal justice system, regardless of your role, this is one book that you will want to keep on a nearby shelf.

Publisher: Emond Publishing Page Count: 305 Publication Date: August, 2018

Regular Price: $115 Series Subscription Price: $100

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Endnotes

1 R v Gladue, [1999] 1 S.C.R. 688.

2 R v Ipeelee, 2012 SCC 13 , [2012] 1 SCR 433.

3 R. v. Williams, [1998] 1 S.C.R. 1128.

4 Indian Act, RSC 1985, c I-5.

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