Therapeutic jurisprudence looks at how the law affects people, including their emotions and behaviours, and whether the law produces therapeutic or anti-therapeutic results.

Conference participants explored this topic in the context of Indigenous people’s disproportionate imprisonment in colonial corrections systems, championing innovative practices as alternatives. Traditional courts, such as First Nations Court, seek reconciliation rather than incarceration and are helping transform and restore the generations hurt through cultural genocide.
In Canada, according to the country’s correctional investigator, nearly one-quarter of today’s federal prison population is Aboriginal. In 2011, 41 per cent of all women and 25 per cent of all men incarcerated in Canada were Aboriginal. The incarceration rates for Aboriginal people continue to rise even though they represent only four per cent of the population, with Aboriginal adults now being put in prison at a rate that is almost ten times the national average.

‘The historical trauma overwhelmed our ability to cope’

Gerald Kematch is from Sapotaweyak Cree Nation in Manitoba. He spent 19 years in prison for shooting the three men who raped and tortured his little sister. Gerald’s mother committed suicide because of what she had experienced in residential school, the mother of his own children was killed, and his 11-year-old son took his own life.

“I wish for nobody to be institutionalized in that system,” said Kematch. “Residential schools took away from our people the ability to think for ourselves. The historical trauma overwhelmed our ability to cope because we had never experienced anything like that.”

Kematch works as an addictions specialist focused on historical and intergenerational trauma. His life of service to others is the fruit of a process that gets at the root causes of offending behaviour and encourages a holistic way of healing.

This process involves a healing plan, a component of restorative justice that is used by some First Nations communities. A healing plan addresses the different types of resources required to meet a person’s needs, and it can be transformative. Marion Buller Bennett, a member of the Mistawasis First Nation in Saskatchewan, has seen the results. As the first and still the only female Aboriginal judge appointed to the Provincial Court in BC, she established the province’s original First Nations Court eight years ago.

The impetus for the court came from a bail hearing, where Judge Buller Bennett felt there was something familiar about the prisoner’s behaviour and asked if he had ever attended a residential school.
The man answered affirmatively and went on to share the trauma he had experienced, adding that he had never before told anyone. “That was the beginning for me. It was in my court, and something had to be done,” recalled Judge Bennett. Recognizing in the man a strong survivor, she told him he was someone to be celebrated and honoured.

Judge Bennett went on to found the First Nations Court in New Westminster, BC, which uses an Aboriginal holistic approach that includes the medicine wheel and values founded on trust, honesty and unconditional love, recognizing that all people need respect, recognition and belonging. Most individuals who go before the First Nations Court are intergenerational survivors of residential schools, poverty, racism, homelessness and all kinds of abuse.

Judge Bennett says she honours those who complete their healing plans with a traditional blanket ceremony. “At the end of the healing plan is a celebration because the person has come a long way, and we acknowledge their hard work and changes they’ve made. Who they are when they start in the First Nations Court and who they are on graduation day are two different people.”

Diane Sandy serves as an elder at the Kamloops First Nations Court. “It was such an emotional thing when we first gave a blanket to a young girl who finished her healing plan,” she recalled. “I love this work because you listen to the stories that go on in these people’s lives, the hurt, pain and anger of where they have been and what they have done, and our role is to say, ‘We are here, we are listening, let us guide you, let us help you heal yourself.’”

The crying month

Historical legacies of trauma can be heard in the statements of the 6,000 survivors who testified as part of Canada’s Truth and Reconciliation Commission. Chief Wilton Littlechild, a TRC commissioner, is one of many on a journey for what he describes as “truth, forgiveness, healing, justice and reconciliation.”

The TRC’s Missing Children and Unmarked Burials project has identified the graves of over 4,000 children put in residential schools. In Commissioner Littlechild’s community of Red Deer, Alberta, ceremony was held for the graveyard near the school where the bodies of three school children were stacked on top of each other. These and countless other stories of physical, sexual and cultural abuse are part of Canada’s racist colonial policy.

“They came for our children. The Indian residential schools and the ‘kill the Indian in the child’ policy tried to get rid of the Indian problem,” explained an elder from the First Nations court. “Healing plans are much more important than punishment plans.” This is how traditional Aboriginal approaches to conflict resolution are rebuilding people who have been torn down for generations by colonial punishment systems.

Aboriginal families used to call September “crying month,” explained Commissioner Littlechild, “because of all the communities across Canada where people were crying because the children were taken. “
Commissioner Littlechild was one of those children taken to residential school. The state and church were engaged in stealing and destroying culture.

Littlechild explained that children who spoke their language had pins put through their tongues, their cultural practices were forbidden and their identities were attacked. The direct assault on families damaged the generational bonds that would otherwise have been cemented.

The children who survived the residential schools found ways to courageously resist. Commissioner Littlechild remembers how he and a group of boys would form a line and hold hands, with the child on the end touching a blade of grass to the electric fence that kept them captive. The electricity ran through all of them, and together they proved that the strength and courage of their people would survive.

In 1959 only 1 per cent of all children in care were First Nations children. By the end of the 1960s, close to 40 per cent of the children in care were Aboriginal. Today nearly half of children in care are Aboriginal.
Reflecting on his time as commissioner of the TRC, Littlechild talked about how he has journeyed with so many others through their stories. “I knew the abuse was there at the school, but I did not realize the depth of the abuse that went on across the country — kids captured and isolated for the pedophiles that were there.

“I focus on the strength and resiliency of the people, survivors who stood before me at the TRC and said, ‘I am going to make things better. I am going to heal.’”

Healing more important than punishment

The overrepresentation of Indigenous peoples in colonial justice and corrections systems is a global phenomenon. The Vancouver conference examined Indigenous therapeutic jurisprudence not only in the context of the First Nations Courts, but also the Tsuu T’ina Nation’s Office of the Peacemaker, the Tribal Healing to Wellness Courts of the United States, the Rangatahi Courts of New Zealand and the Australian Koori Court.

The conference was spearheaded by Dr. Shelly Johnson, an Indigenous scholar and professor of social work at the University of British Columbia. Her three-year First Nations Court Research Project, funded by the Social Sciences and Humanities Research Council of Canada, marks the first time in Canadian history that an Indigenous university research team is assessing an Aboriginal justice initiative in Canada. Dr. Johnson noted that after reviewing the first 50 case files that appeared before First Nations Court, “The trauma in the files jumps off the page.”

To better understand the systemic barriers that Aboriginal people face when interacting with the justice system, Dr. Johnson and her team are examining a number of variables, including how many people before the court are residential school survivors, have been in foster care, have lived in poverty or had their children put in care. Interviews with clients, victims, the judiciary and support workers involved with First Nations Courts are ongoing, and more interviewees are needed. The project is also looking at the impact of Gladue, a legal precendent that provides for alternative justice and recompense for Aboriginal peoples, on client sentencing and healing.

Dr. Johnson acknowledged that provincial policy can be at odds with healing plans and that social workers have often been the ones to take Aboriginal children away from their families. Through her restorative leadership and vision, the conference highlighted the resiliency and strength of Indigenous people around the world and celebrated the power of traditional Indigenous healing, while also strengthening the solidarity shared between leaders working to safeguard a better tomorrow for coming generations.