New N.S. policy aims to ensure fair treatment of Indigenous Peoples in courts

HALIFAX -- The Nova Scotia government has launched a new policy to ensure the fair treatment of Indigenous Peoples facing criminal prosecution, eight months after the province opened the country's first superior court on a First Nations reserve.

The Public Prosecution Service said Tuesday the new approach recognizes the special legal and constitutional status of Indigenous Peoples, along with their unique history, circumstances and culture.

The policy will influence all aspects of criminal cases involving Indigenous Peoples, including the decision to prosecute, restorative justice, arraignment, bail and sentencing.

"Indigenous people are unique in this country, and equality and fairness doesn't always mean treating everyone exactly the same," said Josie McKinney, a senior Crown attorney who is also Mi'kmaq and Maliseet.

The Supreme Court of Canada has recognized the unique history of Indigenous Peoples and their treatment by the criminal justice system in two landmark cases: R. v. Gladue and R. v. Ipeelee.

The Criminal Code also requires an Indigenous offender's unique circumstances to be considered in order to apply a fair sentence.

"It's incumbent upon us to consider those circumstances in order for Indigenous Peoples to have fair treatment," McKinney said.

Ingrid Brodie, a chief Crown attorney, said the new policy is a step-by-step guide for Crown lawyers to effectively address what is already enshrined in law for Indigenous Peoples.

"We drilled down beyond just strategic talking points into the practical how-to's at each stage of a prosecution," she said.

"The policy is intended to help a Crown attorney appreciate at each stage of a prosecution what they would practically do differently when handling a case involving an Indigenous defendant."

Brodie said the policy will help Nova Scotia more effectively decrease its rates of victimization, crime and incarceration among Indigenous Peoples by conducting "culturally competent prosecutions."

There are 33,845 people of Aboriginal identity in Nova Scotia -- about 2.7 per cent of the province's population, according to Statistics Canada's 2011 National Household Survey.

However, figures from the Justice Department show that Indigenous Peoples are over-represented in the province's jails, making up 10 per cent of total admissions in 2013/14.

That percentage dropped to nine per cent the following three years, and sat at eight per cent in 2017/18 -- well above the provincial average.

Nova Scotia is the fourth province in Canada, after Ontario, B.C. and New Brunswick, to create a policy to ensure the fair treatment of Indigenous Peoples in the court system.

It comes 30 years after Nova Scotia's 1989 Royal Commission on the Donald Marshall Jr. Prosecution.

Marshall, a Mi'kmaq man who was wrongly convicted of murder, served 11 years in prison before being acquitted.

Martin Herschorn, Nova Scotia's director of public prosecutions, said there have been incremental changes since the inquiry into the high-profile wrongful conviction three decades ago.

But he said the new policy represents a "very significant milestone."

"It empowers Crown attorneys to be knowledgeable of the law and to apply that law because it does call for special treatment of Indigenous Peoples and it can be somewhat controversial at times," Herschorn said.

"But notwithstanding that, it is the law of this country and we want to respect the law and respect the rights of Indigenous Persons by respecting those decisions of the Supreme Court of Canada."

Last June, Nova Scotia became the first province in Canada to open a superior court on a reserve.

The Gladue Court in Wagmatcook First Nation, Cape Breton, incorporates Indigenous restorative justice traditions and customs.

Attorney General and Justice Minister Mark Furey says Indigenous Peoples in Nova Scotia have the right to expect fair treatment within the criminal justice system.

"This policy provides additional clarity for our Crown attorneys," he said in a statement on Tuesday.

The policy references years of dislocation, lack of economic opportunity, and forced family disruption through residential schooling and child welfare systems and the ensuing loss of culture, language and traditions.

A spokesperson for the Mi'kmaw Legal Support Network could not immediately be reached for comment on the new policy.