When the Truth and Reconciliation (TRC) released its report in 2015, there were a number of items that centred on the criminal justice system and the over-representation of Indigenous people in courts and jails. The TRC identified a lack of sensitivity amongst lawyers working with residential school Survivors, which in some cases resulted in inadequate legal services. They included two calls to action for lawyers, first that the Federation of Law Societies ensure that lawyers receive appropriate cultural competency training (26) and that law schools require all students to take a course in Aboriginal people and the Law (27). The education of lawyers with respect to Indigenous issues is critically important, especially for those working in the criminal justice system, and Jonathan Rudin’s “Indigenous People and the Criminal Justice System” is an essential resource.
The book combines a comprehensive framework of the history of Indigenous people and the criminal justice system in Canada with a practical approach to how lawyers can work with Indigenous clients. The first chapter outlines the history of the various commissions in Canada that have identified the long-standing over-representation of Indigenous peoples, as well as the (often ignored) recommendations. This discussion provides a good backdrop to the following chapters, in which we see how the caselaw has developed.
Rudin covers the requisite important cases of R v. Williams, R v. Gladue and R v. Ipeelee, but frames this discussion with a review of two earlier cases. By going through the cases of R v. Sinnisiak and Uluksuk from 1917, the first Inuit men who were tried under Canadian law, and R v. Fireman, a case from 1969 in Attawapiskat, Rudin highlights the vast differences between Indigenous traditions and the Canadian court system and the assumption of the superiority of the Western approach. Still, particularly in Fireman, we see the first consideration of how the court was able to take into account the circumstances of an Indigenous person, well before s. 718(2)(e) of the Criminal Code was passed.
In the section on sentencing, Rudin does a thorough analysis of what information should be provided to the court in order to properly undertake a Gladue analysis. Rudin emphasizes that it is insufficient to simply say “My client is an Indigenous person,” and that it is important to highlight the client’s personal and background circumstances and how they are connected to systemic issues such as the dislocation of Indigenous communities and intergenerational impact of residential schools. Along with the seminal cases, he includes cases from the provincial courts to demonstrate how judges have applied this analysis. Such cases may be difficult to find using simple keyword searches on legal databases, but provide an excellent resource for practitioners to structure their submissions on sentencing. Later on, a chapter on sentencing circles highlights the history, benefits and challenges of sentencing circles.
Importantly, Rudin covers some of the basic things that lawyers need to keep in mind when working with Indigenous clients, particularly with respect to the issue of identity. He parses through some of the challenges that non-Indigenous lawyers may face when trying to ascertain whether their client is an Indigenous person. He encourages the reader to ask the question in a way that is inclusive, explaining why it is important.
The book also addresses different areas of criminal law that affect Indigenous clients, such as bail, firearms prohibitions, dangerous offender applications and review board hearings. These areas provide guidance as to how counsel might properly address the background factors in order to more persuasively advocate for their clients. The book further contemplates how the principles in Gladue might be expanded to other areas, including corrections and trials themselves.
“Indigenous People and the Criminal Justice System” provides a comprehensive background of the evolution of the interaction of Indigenous people with the criminal justice system, while giving practitioners useful and practical tools to better interact and advocate for their clients. Indeed, the book is an important resource for lawyers who are committed not only to reconciliation but to providing competent legal counsel to their Indigenous clients.