Landmark Decision in Pikangikum Constitutional Challenge Shows Need for Justice Transformation
Thunder Bay, ON: Nishnawbe Aski Nation (NAN) Grand Chief Alvin Fiddler says a landmark decision by the Ontario Court of Justice last week shows the need for a complete transformation of the justice system.
“Justice Gibson’s thoughtful and well-reasoned decision reaffirms the position of many First Nations leaders and legal experts that the colonial justice system simply doesn’t work for our communities. I acknowledge his respectful consideration of the history of injustices faced by the members of Pikangikum and his finding that members who reside in the community do not receive equal treatment under the law,” said Grand Chief Alvin Fiddler. “I urge the Crown to not waste time by seeking an appeal and seize this opportunity to transform the administration of justice.”
The case (R. v. Sherry Turtle, Audrey Turtle, Loretta Turtle, Rocelyn Moose, Cherilee Turtle, Tracy Strang) centers on the inability of applicants to serve intermittent sentences in their home communities. The six Pikangikum members are required to pay their own expenses to travel to Kenora to serve their sentences at the local jail. In his 36-page decision, Justice David M. Gibson upheld the applicants’ position that that their right to equal benefit of the law under the Charter of Rights and Freedoms was violated.
Justice Gibson’s entire decision was read and translated into Ojibway over a lengthy court proceeding on Friday that lasted nearly eight hours. He captured the disparities and discrimination experienced by Pikangikum First Nation, and the suffering that has transpired due to the “corrosive effects of colonization”, stating that:
“In these circumstances, where the Pikangikum people’s traditional lifestyle has been disrupted by over harvesting, the systematic separation of children from their parents in residential schools, upsetting delicate family structures and ancient oral traditions, causing widespread dependency, substance abuse, violence and an epidemic of youth suicides, while the government refuses to fulfil its solemn treaty promise to assist, any legal regime of that government that has the effect of extending the damaging effects of colonialization, will be wrongfully discriminatory.”
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 is culturally relevant and inclusive of Indigenous history and traditions. He also identified the need to incorporate Elders into the justice system for their guidance and knowledge for what a successful traditional justice system could look like, relying on the evidence of the late Elder Whitehead Moose, stating:
“Pikangikum and other Treaty #5 Nations had traditional means of keeping the peace in their communities that pre-date contact with Europeans by thousands of years. In my view it is important for trial courts working in these communities to understand these means and to harmonize our approaches to sentencing with traditional understandings of justice.”
Friday’s decision reaffirms the urgent need to completely rethink a justice system that includes correctional institutions, not unlike the Kenora jail, which Justice Gibson states has “grotesque similarities [to] residential schools that have caused such lasting damage to Indigenous communities”
Ontario simply cannot afford to wait as the justice system continues to perpetuate these historical traumas on Indigenous people. Meaningful transformation must begin today.
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