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Stephen Ford Lecture: Restoring Indigenous Jurisdiction over Criminal Law

Mohawk lawyer Stephen Ford set out what needs to shift in within and without the criminal justice system to afford fairness to Indigenous people

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On February 27th, the Criminal Law Club and the Indigenous Students’ Alliance welcomed Stephen Ford back to Queen’s Law for the third time. Ford has worked as a sole practitioner since 2002, currently running his practice out of Toronto. Throughout his legal career he has fought for the protection of Aboriginal rights and advocated for legal reforms that address the unfair treatment of Indigenous populations in our justice system.

Ford offered a valuable and much appreciated perspective, one that was particularly relevant in the wake of recent judgments. On February 9th, a jury in Battleford, Saskatchewan found Gerald Stanley not guilty of second-degree murder for the killing of Colten Boushie, a 22-year old Cree man, after he fired a gunshot at Mr. Boushie’s head. Less than two weeks later, Raymond Cormier was found not guilty of second-degree murder in the death of Tina Fontaine, a 15-year old Indigenous girl whose body was found at the bottom of Winnipeg’s Red River. The Crown has since stated that they will not appeal either of these acquittals.

These high-profile cases have provoked a wealth of discussion on the state of the justice system in our country. As Max Fineday described in the Toronto Star following the acquittal of Raymond Cormier, for Indigenous populations across the country, these verdicts have “clearly reinforced feelings of hopelessness.” There is a strong feeling that these events have once again brought to the forefront the reality of pre-existing issues with a justice system that has failed to adequately protect these individuals.

As someone who has represented an exclusively Aboriginal client base, Ford knows that these incidents are indicative of deeply rooted issues, rather than mere aberrations. These issues, according to Ford, are not in the system itself, but rather in the biases that exist in the administration of this system. To properly address the long-standing issues related to the treatment of Indigenous populations under our legal system, Ford stated that transformative change is required. These recent events have helped to elucidate the fact that the gradual, incremental changes that have been made thus far have been ineffective in addressing the issues that they were enacted to address.

In particular, the Gladue Principles were enacted in 1999 to recognize the unique circumstances faced by Aboriginal offenders. Section 718.2(e) of the Criminal Code states that during the sentencing process, a court should consider “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.” Ford is particularly experienced in this area, being the first person to successfully apply such principles in the context of a bail hearing. In reality, however, he noted that these principles have not proven to be very effective in achieving their intended purpose. Indigenous populations are subject to heavier sanctions than any other group, with this disproportionality only growing.

Ford argues that the solution to this problem needs to be found from outside of the system, rather than from within.  Within the current system, the existing biases and often discriminatory public opinions make it impossible to truly achieve substantive equality for Aboriginal populations. With that in mind, Ford spoke of the need for Indigenous decolonization, a rejection of the idea that Aboriginal populations must accept the way things are because they cannot be changed. The solution begins with the exertion of Indigenous sovereignty, with an important component of this being an application of legislation based on Indigenous law. Ford concluded that sovereignty is attainable and requires a restoration of Indigenous jurisdiction over criminal law matters in their territory. While there has been a reluctance to engage in such action, it is necessary, as it has become clear that the only way for Aboriginal populations to achieve justice is through themselves.

As someone with limited education on Aboriginal issues in the context of criminal law, Stephen Ford’s lecture was powerful, enlightening, and unlike any law school experience I have had thus far. While these are highly pertinent and important issues that effect a large segment of the Canadian population, they are seldom discussed. Our justice system is far from perfect. With that in mind, we should strive to gain exposure to different perspectives, educate ourselves, and engage in meaningful and respectful dialogue, in order to work towards a system that ensures the fair treatment of all individuals.

Sean Costen is a 1L Staff Writer.

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