Weekend reads: Aaron Pete on the Canadian justice system

Indigenous communities are paying a price for political correctness

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One of the best things about building an independent media platform is getting the opportunity to highlight the next generation of talent. I was happy to welcome Aaron Pete as guest host of the Lean Out podcast last summer. And today, I’m pleased to bring you one of his thought-provoking essays, originally published at The Hub. Aaron is a graduate of the Peter A. Allard School of Law at the University of British Columbia, a council member with Chawathil First Nation, the host of the Bigger Than Me Podcast — and one of the most original young Canadian thinkers I’ve come across. — TH

Political correctness is doing more harm than help for Indigenous communities in Canada.

As a member of the Chawathil First Nation council near Hope, British Columbia, a native court worker for nearly five years, and a graduate of the Peter A. Allard School of Law at UBC, I have been deeply involved in addressing the unique challenges facing our Indigenous communities. It’s something we all should think about.

A great deal of empathy and respect is owed when discussing these complex and sensitive issues. However, I’ve found that these conversations are increasingly being led and based more on emotion and political correctness instead of substance, evidence, and logic.

Indigenous people in Canada have overcome a lot of adversity over the past 150 years, in large part due to government initiatives like the Indian Act, Indian Residential Schools, and the Sixties Scoop. The effects of all this have led to the loss of the language in many Indigenous communities, which in turn has meant the loss of culture. Many First Nations have stories told in their languages that haven’t been translated into English. Without that translation, the story is lost and so too are the teachings. This loss has resulted in a lack of tradition, direction, support, and common understanding throughout communities, as well as a lack of coping skills that contributes to high substance use, addiction, and crime rates.

People now empathize with these realities. In 1996, informed by Indigenous overrepresentation in prisons, Parliament created section 718.2(e) of the Criminal Code which indicates that a court imposing a sentence on an Indigenous person should take into account “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.”

In 1999, this direction of restraint was reaffirmed when the Supreme Court of Canada made its infamous Gladue decision which calls for an Indigenous offender’s personal and familial history to be compiled for judges to consider when sentencing. All this was based on an understanding of the adversity Indigenous people have had to overcome and the government policies that impeded their success.

However, just because this is an empathetic approach, doesn’t make it an unbridled good. And what has this empathetic approach got us? Things have gotten worse. In 1999, when the Gladue decision was made, Indigenous people represented approximately 17 percent of admissions to the federal prison system. Twenty-five years later, a whopping 33 percent of the federally incarcerated population are Indigenous, while Indigenous people only make up around five percent of the country.

During my undergraduate studies at the University of the Fraser Valley, a fundamental principle was drilled into us: the importance of “evidence-based approaches.” This means not merely acting on intuition or emotion but instead studying, understanding, and implementing policies which have been proven to be effective. Evidence is a principle that should guide our decision-making around Indigenous communities. However, that’s not happening. The policies created don’t seem to be based on real facts and figures. And the policies don’t appear to be fixing the problems they’re meant to solve.

More recently, First Nations courts are being rolled out nationwide. But this is not based on a solid foundation of evidence suggesting they reduce Indigenous recidivism or incarceration rates. Instead, it is based on appealing to the heartwarming notion of “cultural accommodation.” In my experience, First Nation courts still take place in a courtroom, but often only involve a few elders and some community service providers. Healing plans are developed with the offender, who has to plead guilty in order to enter the process.

The idea behind it is that by making the process more “cultural” alongside elders, and pulling in community resources, the offender’s life path will ultimately be improved. While parts of it are admirable and potentially true, we don’t really have any research being done into this issue. Simply adding a drum to a courtroom is not going to solve the problem or ensure justice is done.

Canada has not only worked to make culturally sensitive courtrooms, they’ve also been Indigenizing prisons with elders and smudging. Near my community in British Columbia, there is something called the Kwìkwèxwelhp Healing Village, which is a minimum-security prison. Local elders attend to meet with inmates to support them in reconnecting with their culture and traditions. Again, this work sounds absolutely fantastic. It sounds wholesome, understanding, and potentially effective.

The problem is that if we just follow what makes us feel good, without critically analyzing this to make sure it works, we are doing the people in these institutions a disservice. If someone addicted to alcohol wants help, it’s not our role to solely celebrate their willingness to seek help. It is incumbent on us to find them help and make sure there’s a reasonably high chance that the help they seek will actually help address their problem. When you see your doctor, you want to know they are providing you with a health-care solution that has proven to be effective, not just a treatment that sounds good.

My critics will argue these programs require more time, analysis, and funding to prove their worth. They’ll say the purpose of these approaches is to provide culturally appropriate resources, rather than to directly tackle overrepresentation and recidivism. But these approaches were often originally sold as ways to address overrepresentation and recidivism rates. What we need to accept is that the solution to these systemic problems will not be delivered in the courtroom. By the time it gets there it’s already too late. Instead, we need to think long-term and focus our attention upstream.

Upstream solutions

We know the basic resources needed for communities to thrive: a safe clean home, two-parent households, quality healthcare, higher high school graduation rates, economic opportunities, and childcare. Yet, many First Nation communities don’t have this. We hold massive justice forums on Indigenous issues without discussing any of these fundamental topics.

We’ve all heard that preventative measures are important and tackling issues early can have long-term benefits. Further, there’s also a lot of research on Adverse Childhood Experiences (ACEs) and their potential impacts. An ACE test asks very basic questions about a child’s lived experiences like, “Did your parents insult you or humiliate you?” or “Did you feel you had enough food in your house?” The more yeses the higher your ACES score, the higher your ACES score the greater risk you have of having health and mental health issues.

ACEs-related health consequences cost an estimated economic burden of US$748 billion annually in North America, according to a 2019 study published in The Lancet.

We, as citizens, share a common desire: to address the root causes of criminal behaviour in our society, rather than see people end up behind bars. We need Canadians to reach their full potential by contributing to our economy, culture, and communities. We benefit when people share their skills, abilities, and knowledge. As taxpayers, we should not be funding an expanding prison system or new justice pilot projects, but instead investing in more constructive solutions.

Yet, the federal and provincial governments are making financial investments not based on evidence, but based on the whims of Indigenous political lobbying organizations, like the Assembly of First Nations, that aren’t required to prove how they’re actually solving the problem or provide concrete evidence on the impact of their initiatives. Add to this the fact that these organizations only demand things from government, rather than demanding Indigenous nations actually deliver essential services to their communities.

Indigenous communities have a history of having governments decide how to spend money in their regions without their input through the Indian agent. That was wrong. However, political correctness has now swung the pendulum in the other direction. There has been an overcorrection. Today, communities are developing plans and programs independently with little accountability or evidence.

Some may celebrate this as a sign of flourishing self-government. However, if these programs and plans don’t result in the real improvement of First Nation members’ quality of life, educational attainments, and economic position, then they shouldn’t be celebrated. Conservatives also need to come up with new fleshed-out solutions to these issues. Jail not bail may be a great slogan, but it is not a real plan.

Indigenous people do not care who makes the plan, but whether their lives are improving. These are real people who want economic prosperity, comfort, culture, connection, and community.

It is time we move beyond political correctness and engage in candid discussions about the efficacy of our approaches to Indigenous nations.

We need a comprehensive review of existing justice programs, the implementation of robust data collection, and a transparent analysis of the results. We must be bold in questioning existing paradigms and brave in adopting methods that are proven to work, even if they challenge the current narrative.

By doing so, we honour not just the spirit of our cultural heritage but also the pragmatic necessity of crafting a just society for all Canadians.

Aaron Pete is a graduate of the Peter A. Allard School of Law at the University of British Columbia, a council member with Chawathil First Nation, and the host of the Bigger Than Me Podcast.

If you’re interested in the Canadian justice system, check out Lean Out’s podcast interview with UBC law professor Benjamin Perrin, on his book Indictment: The Criminal Justice System on Trial.