Excerpted From: Hadley Friedland, To Light a Candle: A Solution-Focused Approach Toward Transforming the Relationship between Indigenous Legal Traditions and the Criminal Justice System, 56 U.B.C. Law Review 69 (September, 2023) (108 Footnotes) (Full Document)

HadleyFriedlandLawyers tend to be perfectionists, and problem solvers, so it has always puzzled me how we can tolerate our criminal justice system being repeatedly deemed a massive failure for Indigenous peoples without taking drastic action to change it. The Final Report of the Truth and Reconciliation Commission of Canada (“TRC Final Report”) called for nothing less than the rebuilding and full implementation of Indigenous justice systems, in addition to reform efforts: in short, a transformation. Yet many legal professionals within the current criminal justice system cannot imagine what this would look like or how this could work in practice.

In this article, I examine some of the intellectual barriers and stepping stones toward more respectful, and effective, relations between Indigenous legal traditions and the criminal justice system, which foster common goals of just, safe, and peaceful communities. First, I briefly review the ample evidence of the failure of the criminal justice system in relation to Indigenous peoples. Second, I discuss Gladue/Ipeelee sentencing principles as a small but important current space for engaging with Indigenous laws. Next, I invite readers to join me in thinking about this space--opened up by Gladue/Ipeelee--through a “Vogon Justice” thought experiment, which draws on the Hitchhiker's Guide to the Galaxy. I then suggest five strategies for a solution-focused approach for some of the necessary intellectual work needed for transforming the relationship between Indigenous legal traditions and the criminal justice system. These are: (1) Address absences and assumptions; (2) Return to first principles; (3) Distinguish principles from practices; (4) Defer to Indigenous jurisdiction and justice program decisions when possible and (5) Seek guidance and support from urban Indigenous organizations when possible. Finally, I conclude by arguing that obviously this intellectual work is necessary, but not sufficient for the needed change. Greater respect, resourcing, and enforcement of Indigenous justice principles and processes are required for the fulsome transformation called for in the TRC Final Report.

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This article argues for a return to first principles and a focus on the intellectual work that is necessary for criminal justice system actors to more respectfully and productively engage with Indigenous legal principles today. It sets out a solution-focused approach with five strategies for either starting or deepening this intellectual work. It is my hope that these strategies, used in conjunction with others, may be stepping stones to assist us to move toward more respectful relations, and a just, peaceful, and safe society, in the future.

However, it is also vital to acknowledge that this intellectual work is necessary, but not sufficient, to robustly respond to the Truth and Reconciliation Commission's calls to action relating to Indigenous laws and the current criminal justice system. The TRC Final Report calls for nothing less than a transformation in our justice system. Minimally, this will require those with the authority and ability to do so to increase respect for Indigenous approaches to justice, redefine relationships, rethink the past, and, most importantly, equitably resource Indigenous justice systems. I appreciate the candles that have been lit by Indigenous and other justice professionals working diligently in the small spaces available in our current criminal justice system. Greater respect, resourcing, and enforcement of Indigenous justice principles and processes would allow us to use these candles to light a larger, much needed fire.

University of Alberta, Faculty of Law.