Balancing Justice with Cultural Competency: The Advantages of Elder Participation in Criminal Trials

Written by Robert Johnstone

A characteristic found across all cultures is the respect owed to those who have lived long enough to retain knowledge and pass it along to the next generation. This admiration is appropriately given for Indigenous Elders, who serve as keepers of their people's history, spirituality, and cultural values. Although disrupted through the process of colonization, their knowledge gathered over millennia also embodies the foundations for Indigenous Law.[1] This knowledge once constituted a variety of peace-keeping processes and dispute resolution practices that were in effect long prior to the imposing of Euro-Canadian legal systems on Indigenous peoples.[2] Traditionally, Elders served their communities in roles “now held by contemporary Euro-Western judges, prosecutors, lawyers, police, juries, and witnesses”.[3] Canada’s path to reconciliation with Indigenous communities must determine appropriate methods of seeking justice, including where Elders are integral participants of the legal system. This blog will examine how the role of Elders has the potential to positively impact the future of Canadian criminal proceedings through providing a unique perspective on the facts of a case and promoting a culturally respectful approach to Indigenous legal traditions and evidence.

Oral Evidence and the Hearsay Rule

Indigenous peoples have historically used oral history as an evidentiary record, meaning information was carefully passed down from generation to generation.[4] However, when oral history was offered as evidence in Euro-Canadian criminal court trials, it was challenged based on the hearsay rule.[5] This presented an immense obstacle for Indigenous peoples not only in criminal proceedings, but also land title and Aboriginal rights claims. However, the Supreme Court of Canada 1997 decision of Delgamuukw v British Columbia created an exception to the hearsay rule for Indigenous oral evidence. Chief Justice Lamar stated that “the laws of evidence are to be “adapted” to ensure that oral history is “accommodated and placed on an equal footing” with written forms of evidence in the context of Indigenous land and rights claims”.[6] This important decision in the history of Canadian Indigenous Law paved the way for Elder participation in land title claims, rights claims and assisting with criminal proceedings through the acceptance of oral history as valid evidence.

The Potential Impact of Elders on Criminal Trials

Indigenous Elders possess a wealth of knowledge and understanding about Indigenous cultural values, beliefs, and practices that can inform and contextualize the facts and circumstances of a criminal case. Additionally, they can offer crucial testimony and evidence that traditional methods of evidence gathering and presentation may not capture. Elders can play a role in bridging the gap between Indigenous and non-Indigenous perspectives in a criminal trial, offering a more nuanced understanding of the facts and circumstances. This is especially relevant when addressing cases involving individuals who have experienced severe trauma or abuse, including residential school survivors or those who have lived in impoverished and remote reserve communities. The involvement of Elders in criminal trials can also help to increase trust and respect between the Indigenous community and the legal system, promoting a more collaborative approach to justice. Building trust between the Canadian justice system and Indigenous communities is a crucial challenge, and Elders, who are often central to Indigenous leadership, are vital for progress. Lastly, Elders living in Indigenous communities often have firsthand knowledge of the people or events surrounding a case, which can provide valuable insight for the court.

Key Cases Demonstrating the Role of Elders in Criminal Trials:

R. v. Moses – This decision was significant for its consideration of the use of Indigenous oral testimony from Elders in a criminal trial. The Court recognized the potential impact of this evidence on the outcome of a trial and the importance of Elders in providing a unique perspective on the facts and circumstances of the case. This demonstrated that Elders bring a wealth of knowledge and understanding of Indigenous cultural values and practices to contextualize the facts of the case. It also highlights the need for greater recognition for Indigenous sovereignty in the Canadian legal system.[7]

R. v. Horseman – This decision considered the role of Elders as sources of knowledge and understanding of Indigenous cultural practices in a criminal trial. The case recognized the importance of Elders and the impact of their evidence on the outcome of a proceeding.[8]

R. v. Gladue – This decision recognized the obligation to consider the circumstances of Indigenous peoples in sentencing decisions. This included considering the impacts of colonization. The Court further stated that the involvement of Elders in criminal trials can help increase trust and respect between the Indigenous community and the legal system.[9]

Final Notes: Moving Forward

Canadian courts have gradually become more open to the participation of Indigenous Elders in criminal trials when following in accordance with traditional practices. In response, the Federal Court issued Practice Guidelines for Aboriginal Law Proceedings, which has the guiding principle of remaining flexible with the application of court rules in order to take into account Indigenous perspectives.[10] The Guidelines also contain acceptable methods of alternative testimony for Elders, which includes traditional songs, dances, the use of cultural objects and activities on the land.[11] In 2019, the BC Supreme Court permitted elders to testify on a panel, despite the Court’s rules not providing for group or panel evidence.[12] The Court, as stated in the decision of Ignace v British Columbia (Attorney General) acknowledged “the need to recognize the unique traditional methods by which Indigenous peoples transmit their oral history”.[13] Currently, the courts have resisted putting in place formal procedures for determining the admissibility of Indigenous oral history or the use of Elders in criminal proceedings. To continue the path towards reconciliation, the Canadian justice system will need to further utilize the valuable commodity that constitutes Indigenous Elder knowledge.

[1] Shelly Johnson, “Developing First Nations Courts in Canada: Elders as Foundational to Indigenous Therapeutic Jurisprudence” (2014) 3:2 Indigenous Social Development at 1. [2] Ibid. [3] Ibid. [4] DGW Barristers and Solicitors, “Indigenous Oral History in the Courts”, online: dgwlaw.com <https://www.dgwlaw.ca/indigenous-oral-history-in-the-courts/>. [5] Ibid. [6] Alexandra Potamianos, “The Challenges of Indigenous Oral History Since Mitchell v Minster of National Revenue” (2021) 26:3 Review of Current Law and Law Reform at 5. [7] R v Moses, [1992] 3 C.N.L.R. 116. [8] R v Horseman, [1990] 1 S.C.R. 901. [9] R v Gladue, [1999] 1 S.C.R. 688. [10] Supra note 4. [11] Ibid. [12] Ibid. [13] Ibid.

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The views and opinions expressed in the blogs are the views of their authors, and do not represent the views of the Faculty of Law, or the University of Manitoba. Academic Members of the University of Manitoba are entitled to academic freedom in the context of a respectful working and learning environment.