Call to Action # 30: Actions and Commitments


January 4, 2023

Govt. Actions to Reduce Overrepresentation

B.C. top court broadens sentencing law aimed at reducing Indigenous incarceration rates

British Columbia’s top court has broadened the sweep of a sentencing law meant to reduce incarceration rates among Indigenous peoples, ruling that Indigenous-specific sentencing can be applied even to offenders who have become disconnected from Indigenous communities and are only minimally aware of their heritage.

“Disconnection is one of the very harms associated with Canada’s colonial history and assimilationist polices,” Justice Len Marchand, the first Indigenous member of the B.C. Court of Appeal, wrote this week in a 3-0 ruling.

The decision reduces a five-year prison sentence to four in a case involving an unprovoked, near-fatal stabbing. It is not the first appellate ruling to mention disconnection. Ontario’s top court has taken a similar position, but Alberta’s is on the other side, cautioning against expanding sentencing principles “almost to a level of pure ethnicity.” The issue has not been debated at the Supreme Court of Canada, but the disparity in rulings means the nation’s highest court would have a compelling reason to take up the matter in the event of a future appeal.

The B.C. ruling applies directly only in that province, but will be read by judges across the country and could prove to be influential.

The offender, David Kehoe, is a Métis man who prosecutors argued had not been aware until recently of his Indigenous background. He was convicted of aggravated assault after he used a kitchen knife to stab a man who had played loud music in the parking lot of an apartment building where Mr. Kehoe lived.

Mr. Kehoe, who was 30 at the time of the 2018 stabbing, had a record of 33 prior offences as a youth and as an adult. (The victim suffered a lacerated liver and punctured lung, and received life-saving surgery. He did not submit a victim-impact statement at Mr. Kehoe’s sentencing hearing.)

Under federal sentencing law, judges must pay particular attention to the circumstances of Indigenous offenders. The Supreme Court interpreted that law in a case called Gladue (which involved a fatal stabbing) to mean that the history of colonization has harmed Indigenous peoples, and that they are therefore entitled to special efforts to reduce their overrepresentation in the penal system. Social workers and others write “Gladue reports” for judges at sentencing time to detail Indigenous-related background factors.

Murray Sinclair, who chaired Canada’s Truth and Reconciliation Commission, said the decision on Mr. Kehoe’s case is an important one. “You’ve got an appellate court basically reminding trial judges to stop taking such a slack-ass attitude toward Gladue. Because that’s been the trend in the last several years,” he said.

Indigenous incarceration rates continue to rise. As of Christmas Day, 34 per cent of federal male prisoners were Indigenous, and among female prisoners the rate was 48 per cent, according to the Office of the Correctional Investigator. Indigenous peoples account for a little over 5 per cent of the country’s population. In 1997, they made up 3 per cent of the population and 12 per cent of men in federal prison.

In Mr. Kehoe’s case, the Gladue report noted addiction in his immediate family, homelessness as a teenager, abandonment by his mother and stepfather, the stabbing death of his brother and normalization in his family of violence and neglect.

B.C. prosecutor Grant Lindsey noted in his arguments that Mr. Kehoe’s parents and grandparents had not gone to residential schools. His criminality was related in part to growing up with a non-Indigenous stepfather who used and trafficked drugs, Mr. Lindsey said. Justice Alan Ross of the B.C. Supreme Court accepted that there was little nexus between Mr. Kehoe’s Indigenous background and his crime, and sentenced him to five years in prison.

But the B.C. Court of Appeal said Justice Ross and the prosecutor misunderstood the harm done by Canadian policies. Justice Marchand, citing the Truth and Reconciliation Commission’s final report, wrote that Canada deliberately sought to eliminate Indigenous communities as distinct peoples. The real issue, he said, was the role that Mr. Kehoe’s disconnection played in his coming before the court.

Justice Marchand, who was appointed by the Trudeau government to the appeal court in 2021, added it was not “simply a coincidence” that Mr. Kehoe’s Métis mother had fallen into an unstable, dysfunctional environment. He cited the report of the National Inquiry into Missing and Murdered Indigenous Women and Girls to make that point.

He wrote that he agrees with Justice Ross that an unrehabilitated Mr. Kehoe presents a danger to society, but he added that there are signs Mr. Kehoe is rehabilitating himself.

Jonathan Rudin, special projects director at Aboriginal Legal Services, a Toronto legal clinic, said Justice Marchand writes sensitively and intelligently on Gladue-related issues, and did so as a lower-court judge as well.

“He said on the facts of this case, you need to look at what the dislocation of the Métis community means, even though it may be difficult for some people to articulate it. How do you articulate what you don’t know?”

The B.C. decision also highlights how federal sentencing law is being pulled in two directions in another sense. Quebec’s top court, for instance, has stressed the need for tough sentences to deter and denounce crimes committed by Indigenous men against Indigenous women.

January 20, 2022

BC First Nations Justice Strategy

Dept. of Justice, Canada – Announcement of the signing of a tripartite memorandum of understanding (MOU) between BC, Canada and BC First Nations Justice Council to support the implementation of the BC First Nations Justice Strategy, as well as funding to support Indigenous Justice Centres in British Columbia. The parties have committed to work together on advancing shared priorities relating to Indigenous justice.

That includes:

  • addressing the overrepresentation of Indigenous peoples in the justice system
  • nhancing restorative justice and First Nations-led community justice programs

This important work will be guided by the principles outlined in the United Nations Declaration on the Rights of Indigenous Peoples, and by an integrative, holistic and comprehensive approach to address all forms of interactions between Indigenous peoples and the justice system.

Through the Justice Partnership and Innovation Program, the Government of Canada will provide over $8.9 million over five years to the BCFNJC as it continues to support and expand the number of Indigenous Justice Centres in BC. This funding will also support the BCFNJC’s Virtual Indigenous Justice Centre, a unique web-based platform that allows for the delivery of remote legal services to Indigenous peoples across the province.

November 2, 2018

Govt. Actions to Reduce Overrepresentation

Eleventh Justice Summit: Indigenous II

 Planned in partnership with representatives from the B.C. Aboriginal Justice Council and the Métis Nation British Columbia, the event invited Indigenous leaders and community experts, as well as justice and public safety leaders, to discuss Indigenous peoples’ experiences with B.C.’s justice system and how the system can be improved. Participants discussed the importance of increasing the use of the Supreme Court of Canada’s decision in the Gladue case, supporting community-led justice solutions and building the capacity of Indigenous communities in ways that support self-determination. After the 11th summit, three recommendations were identified that reflect the most widely supported ideas that arose during the two days of dialogue. These recommendations offer a framework for continued discussion on how to reshape the justice system in ways that work for Indigenous peoples.

January 13, 2020

Govt. Actions to Reduce Overrepresentation

First Indigenous Court in New Westminster

The province’s first Indigenous court was established in New Westminster in 2006, with the seventh iteration scheduled to begin sitting monthly at the Williams Lake courthouse in May. An Indigenous court is a sentencing court — it does not conduct trials, but it provides an Indigenous perspective, based on a holistic and restorative approach, to sentencing individuals who have acknowledged responsibility for their criminal offences. Local Indigenous elders and knowledge keepers who have completed a program of orientation give advice on a healing plan, which may then be incorporated as part of a fit sentence for the individual who has pleaded guilty. Courts are located at New Westminster, Duncan, Kamloops, North Vancouver, Merritt and Prince George.

March 6, 2020

Govt. Actions to Reduce Overrepresentation

First Nations Justice Strategy

The BC First Nations Justice Council (BCFNJC) and the Province endorsed and signed a new First Nations Justice Strategy. The BCFNJC’s action is supported by resolutions from the BC Assembly of First Nations, the Union of BC Indian Chiefs and the First Nations Summit. The First Nations Justice Strategy sets a path for the partners involved in the strategy and the criminal justice system to work together to:

  • reduce the number of First Nations people who become involved with the criminal justice system;
  • improve the experience of those who do;
  • increase the number of First Nations people working within the justice system; and
  • support First Nations to restore their Indigenous justice systems and structures.

Strategy highlights include:

  • a two-path approach that transforms the existing criminal justice system and builds the path toward restoring First Nations laws and justice systems;
  • establishing a network of 15 regional First Nations Justice Centres around the province;
  • developing a systemic approach to implementing the Gladue decision;
  • establishing a presumption of diversion to divert First Nations people from the court system, wherever possible;
  • improving cultural competency in the justice system;
  • establishing roles for Elders and Knowledge Keepers within the justice system; and
  • increasing community justice programming in each First Nations community.

September 23, 2022

Govt. Actions to Reduce Overrepresentation

Govt. of BC funds pilot program to address structural factors contributing to Indigenous overrepresentation in the criminal justice system

NationTalk: tkwəɬniwt (Westbank), Syilx Territory, BC: Recommendations from an independent investigation into ‘repeat offenders’ were announced today by the Province of BC. Among these was a recommendation for the Province to fund the development of a pilot project, designed and led by the BC First Nations Justice Council (BCFNJC) to address the structural factors that contribute to overrepresentation of Indigenous people in the criminal justice system. While BCFNJC remains concerned that the investigation was conducted without disaggregated race-based data, we are pleased with the Province’s swift action in accepting this recommendation.

The pilot will be developed and, if fully funded, led by the BCFNJC Indigenous Justice Centre (IJC) in Prince George, BC which houses a diverse team committed to providing wrap-around legal services to the city and surrounding communities. Indigenous-led initiatives, rooted in Indigenous culture and laws, are the only way to build strong solutions. The BC First Nations Justice Strategy and the IJCs have the potential to be that solution, promoting diversion and offering comprehensive services to the most vulnerable Indigenous people in BC.

“We welcome the Province’s announcement as a step in the right direction” said BCFNJC Chair, Doug White. “Too often the underlying factors driving contact with the criminal justice system go ignored. Funding dedicated to better understanding these factors is limited, and the existing culturally appropriate supports and programs are insufficient. With this pilot, the BCFNJC intends to focus on harm reduction, education, and providing the necessary supports that promote diversion and healing for our people and communities.”

Ensuring that individuals can develop and maintain a personal connection at IJCs across British Columbia, but especially in Prince George, is important for ensuring that the cycle of harm is no longer repeated and that individuals can grow and heal to find safety and security in a good way.

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About the BCFNJC:
The BC First Nations Justice Council has been entrusted with the mandate to transform the justice system and create better outcomes for Indigenous people through implementation of the BC First Nations Justice Strategy.

The Strategy, signed March 06, 2020, was jointly developed by the BC First Nations Justice Council, BC First Nations communities and the Province of British Columbia. It includes 43 actions along two paths which involve the reformation of the current system as well as the restoration of First Nations’ legal traditions and structures.

Media Contact:
BC First Nations Justice Council
Marissa Baecker
Director of Communication and Engagement
Main: 778-940-1520
Direct: 778-738-3967
Cell: 250-470-7779

October 5, 2021

The Virtual Indigenous Justice Centre

Government of BC – The Virtual Indigenous Justice Centre (VIJC) is a partnership between the Province and the BC First Nations Justice Council (BCFNJC). The centre will provide a range of assistance and supports to Indigenous peoples, including First Nations, Inuit and Métis, who are otherwise not eligible and/or cannot access legal aid, including:

  • providing legal advice and representation to Indigenous clients in rural and remote communities for family and criminal court cases who would not otherwise have access to support, or for clients in other legal proceedings which could reasonably lead to imprisonment or a child becoming in need of protection;
  • working with the court, where appropriate, to divert legal matters from the formal court system to less intrusive measures, such as alternative dispute resolution processes, mediation and restorative justice processes, in consultation with officers of the court and local protocols;
  • helping Indigenous peoples access the legal, social, housing, transportation and health and wellness supports to positively and adequately address the challenges many people face in dealing with the current mainstream justice system.