Getting legal help
Why is it important to tell your lawyer you are Aboriginal?
It is important that you, as First Nations people, Métis people and Inuit people self‑identify your Aboriginal ancestry. Legal Aid Ontario asks that you do this regardless if you live on or off‑reserve, if you are status or non‑status, or if you live in a rural or an urban area.
It is important to identify yourself as an Aboriginal person so that your lawyer or duty counsel can follow the areas of law that deal with Aboriginal rights. For example, the Criminal Code, the Youth Criminal Justice Act and the Child and Family Service Act all have parts that consider the unique legal status of Aboriginal people in Canada.
How Canadian law treats Aboriginal people
Our goal in collecting this information is to compile accurate statistics and information so that we can better serve the legal needs of clients, and make sure suitable services are available.
The Constitution Act of 1982 clearly says that "aboriginal peoples of Canada" include "the Indian, Inuit and Métis peoples of Canada." Legal Aid Ontario wants to ensure that it is providing appropriate legal representation to people who come within this constitutional definition.
The Criminal Code and Youth Criminal Justice Act
The Criminal Code of Canada addresses over‑representation of Aboriginal people in the Canadian criminal justice system in Section 718.2 (e), which recognizes the need to consider additional factors when sentencing an Aboriginal offender. Section 38 (2)(d) of the Youth Criminal Justice Act is about sentencing principles that apply to young Aboriginal offenders.
These sections provide direction to judges when sentencing an offender and require the court to remember that:
- All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
The courts have decided in cases like Gladue and others that the factors a judge should consider when sentencing an Aboriginal offender include "the unique background and systemic factors, which may have played a part in bringing the particular offender before the courts."
If you are convicted of a crime, intend to plead guilty to an offence or if you are seeking bail, your lawyer or duty counsel will have to ask you questions regarding your background to be able to explain to the court what principles should be considered in your case.
Child and Family Service Act
If you find yourself in a child welfare situation, parts of the Child and Family Service Act take into account the family's Aboriginal culture and heritage in deciding the "best interests" of a child. For example, subsection 37(4) states:
The child is an Indian or Native person, the person shall take into consideration the importance, in recognition of the uniqueness of Indian and Native culture, heritage and traditions, of preserving the child's cultural identity.
Another section of the Act recognizes that Aboriginal people should be entitled whenever possible, to provide their own child and family services, and that all services to Aboriginal children and families "should be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family."
Other considerations your lawyer may need to take into account
It is important to tell Legal Aid Ontario and your lawyer that you are Aboriginal so that if you are interested, and there are available options, your lawyer can refer you to Aboriginal Community Justice Programs or other Aboriginal service providers.
Information on your background also allows your lawyer to assess whether the Indian Act affects your legal matter. For example, if you live on‑reserve, your rights to property you owned in marriage may be different than non‑Aboriginal people in Ontario.