4. Findings

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4.1 Relevance

4.1.1 Continued Need for the Indigenous Courtwork Program

Indigenous peoples continue to be overrepresented in the criminal justice system. According to Statistics Canada data (Figure 1), Indigenous peoples accounted for 31% of total adult admissions to correctional services while representing only 5% of the Canadian population in FY 2020-2021.7,8 Statistics Canada data illustrates that although the number of Indigenous peoples admitted to custody per year has been in decline, from 74,823 in FY 2016-17 to 44,941 in FY 2020-21, the percentage of total adult Indigenous admissions to correctional services has increased from 26% in FY 2014-15 to 31% in FY 2020-21.9 Overrepresentation rates vary by provincial and territorial jurisdiction. The two provinces with the highest overrepresentation were Manitoba (77%) and Saskatchewan (77%), in FY 2020-21.10

Figure 1: Percentage of Adult Custody Admissions to Correctional Services Versus
Percentage of Population of Canada by Indigenous Identity, FY 2020-21

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This figure illustrates that Indigenous peoples accounted for 31% of total adult admissions to correctional services while representing only 5% of the Canadian population in FY 2020-2021.

Source: Statistics Canada. 2022. Adult custody admissions to correctional services by Indigenous identity (Table: 35-10-0016-01). https://www150.statcan.gc.ca/t1/tbl1/en/tv.action?pid=3510001601.

Indigenous peoples have higher rates of guilty pleas and are more likely to be represented in remand and denied bail.11 A study on Indigenous administration of justice offences in Alberta noted that Indigenous offenders have longer criminal histories and higher recidivism rates than non-Indigenous offenders.12 A re-contact study with the Saskatchewan justice system found that Indigenous peoples were significantly more likely than non-Indigenous people to have re-contact with police following correctional involvement (80% versus 57%).13 Furthermore, a study by the Office of the Correctional Investigator found that Indigenous peoples are overrepresented in custodial settings (as opposed to supervision in the community), use of force, maximum security, structured intervention units (“segregation”), self-injury incidents, attempted suicide incidents, and suicides in correctional facilities.14

The literature indicates that various factors contribute to Indigenous overrepresentation in the criminal justice system, both as offenders and victims.15 Some factors contributing to this overrepresentation are higher rates of poverty, poor living environments, unemployment, underemployment, foster care, and overall life chances.16 Key informants similarly indicated that Indigenous peoples continue to be overrepresented in the criminal justice system due to systemic barriers such as disproportionate disadvantages in education, health care, housing, and poverty.

“Courtworkers are the primary point of contact for clients in gaining understanding and represent a place of trust for clients. Clients come to Courtworkers for information they can rely on and safely share information. This role is unique compared with any other actor in the justice system including defense lawyers. The role of Courtworkers is for clients to know they have someone of their community to help them.”
– SDA Representative

The continuing overrepresentation and challenges faced by Indigenous peoples in the justice system contribute to the continued demand for services offered by Courtworkers. There is consensus among key informants, Courtworkers, court and justice officials, that Courtworkers play a unique and important role. Courtworkers help Indigenous clients better understand the complex justice process and the role of various players, and inform them of the supports that are available to them and how to access these supports. They assist Indigenous peoples navigate the justice system in various ways such as filling out forms for legal aid, introducing them to a lawyer, and provide information and guidance throughout the court process. They help clients understand their rights, the questions being asked and the decisions being made. In addition, given the complexity of the justice system and court proceedings and for some, their mistrust in the justice system, Indigenous clients before the court may feel intimidated or anxious and the Courtworkers’ presence and assistance also helps in this regard. Challenges such as language barriers may also result in Indigenous clients making decisions or agreeing to actions that they do not understand. Indigenous people require someone to advocate for them in court and provide follow-up support between court appearances.

4.1.2 Consistency with Government of Canada Commitments

The federal government has pledged its commitment to renew its relationship with Indigenous peoples, work in consultation and cooperation with Indigenous peoples, and advance reconciliation through the development and implementation of action plans, strategies, and related legislation. The ICW Program is aligned with the most notable federal commitments in this regard. Specific examples of how the ICW Program aligns with federal commitments are described below.

Gladue Principles. "Gladue Principles" come from a Supreme Court of Canada decision in a case called R. v. Gladue. These Principles state that the overrepresentation of Indigenous peoples in the criminal justice system is a serious and complex issue rooted in systemic discrimination and the history of colonialism and that pre- and post-charge diversion, alternative measures and other community-based options should be considered for Indigenous peoples in conflict with the law, including culturally appropriate restorative and traditional Indigenous justice processes.17 During the evaluation period, ICW Program project funding was provided to support organizations to undertake Gladue-related projects and research, as well as training for Gladue report writing.

Truth and Reconciliation Commission Calls to Action. Undertaken between 2007 and 2015, the Truth and Reconciliation Commission culminated in a Final Report with 94 Calls to Action to further reconciliation between Canadians and Indigenous Peoples. Examples of alignment between the ICW Program and Calls to Action include Call to Action 27 to ensure lawyers receive cultural competency and Indigenous rights training; and Calls to Action 30 and 38 to reduce overrepresentation through diversion to restorative justice programs.18

National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG) Calls for Justice. The federal government launched a federal pathway in 2021 in response to this Calls for Justice report as part of an action plan to help end the tragedy of missing and murdered Indigenous women, girls, and 2SLGBTQI+ people. Part of this action plan includes investing in justice programs.19 In a recent update on the federal pathway, it was reported that the ICW Program had been expanded to better support Indigenous families navigating the Canadian justice system.20 Another example of the alignment of the ICW Program is Call for Justice 5.11 that calls on all levels of government to expand restorative justice programs and Indigenous People’s Courts. A key activity of Courtworkers is to refer their clients to these types of services.

The UN Declaration on the Rights of Indigenous Peoples (UN Declaration). In June 2021, the UN Declaration on the Rights of Indigenous Peoples Act received Royal Assent; it provides a roadmap for the Government of Canada and Indigenous peoples to work together to implement the UN Declaration based on lasting reconciliation, healing, and cooperative relations.21 The objective of the ICW Program that Indigenous peoples obtain fair, just, equitable and culturally relevant treatment aligns with Article 40 in the UN Declaration which states that: “Indigenous peoples have the right to access to and prompt decision through just and fair procedures for the resolution of conflicts and disputes with States or other parties...” The ICW Program also aligns with Article 13, which states that: “States shall take effective measures to ensure that … Indigenous peoples can understand and be understood in political, legal and administrative proceedings, where necessary through the provision of interpretation or by other appropriate means.”22

4.2 Effectiveness

4.2.1 Provision of culturally relevant information, services and programming

The ICW Program served an average of 67,201 clients a year from FY 2016-17 to FY 2019-20, which is consistent with the annual average of 68,115 ICW clients served from FY 2014-15 to FY 2015-16.23, 24 The number of clients served in FY 2020-21 has decreased slightly, perhaps due to the pandemic; however, not all provincial and territorial data was available at the time of the evaluation.

Based on data across ten provincial and territorial jurisdictions, the ICW Program served an annual average of 48,405 clients (60% male, 30% female, 9% youth, and 1% other) with a charge from FY 2016-17 to FY 2019-20. During this period, the highest proportion of these clients were located in Ontario (23%) followed by Alberta (21%) and Manitoba (15%). Indigenous clients without a charge represent a smaller number of the overall client base, with an average of 15,504 served on an annual basis from FY 2016-17 to FY 2019-20.25 The highest proportion of clients without a charge that were served were located in Alberta (36%), Manitoba (28%), and Nova Scotia (12%).

“I make referrals to court programs such as alternative measures and mental health diversion, as well as community programs for mitigation of sentencing such as domestic violence programming, treatment, counselling, and Indigenous programming. My role is to present these factors to the court and coordinate with the Crown prosecutor to make sure they are accurately represented on record. I also explain these roles and factors to family members who are unfamiliar with the legal process. By participating in community events, panels, and volunteer programs, I work to make communities aware of the legal process and services that we can provide. I also sit on youth panel programs to provide alternative measures services and diversion to community programs and resources to avoid criminal records.”
— Courtworker

The number of ICW Program services per client has increased compared to the last evaluation period. The annual average ratio of services per client increased from 1.9 for the period from FY 2014-15 to FY 2015-16 to 2.3 services per client from FY 2016-17 to FY 2019-20. As described later in the report, this increase is due to several factors including an expanded role to meet the urgent needs of Indigenous communities dealing with the pandemic, an increase in services to Indigenous persons involved in family and/or child protection justice systems, and greater involvement in advocacy for restorative programs and more holistic supports.

Courtworkers provide a wide range of in- and out-of-court services and information that clients may need. Examples of in-court services include assisting clients to appear before the court by attending court, providing information about relevant legal procedures to clients, and providing information to the court on community resources available and sentencing options. Out-of-court services include client intakes, preparing cases, and providing non-therapeutic counseling and emotional support. Performance data shows that the ICW Program provided an annual average of 151,324 services including 70,829 in-court services and 80,495 out-of-court services from FY 2016-17 to FY 2019-20.

Courtworkers played a key role by providing culturally relevant information to assist Indigenous individuals in navigating the justice system and referring them to culturally relevant services. As indicated in Figure 2, the  most frequently mentioned types of information, services, and programming provided in Criminal Court by the Courtworkers surveyed are: information about the criminal justice process; assistance to Indigenous persons involved in the Court as victims, witnesses, or family members; referrals to other services (e.g., social, medical, education, employment, and Indigenous community support); and referrals to legal resources at key stages (e.g., arrest, trial, and sentencing). Other services that Courtworkers often provided to clients include advocacy for Indigenous peoples before the Court and the promotion and facilitation of community-based justice initiatives. These are similar to the most frequent services provided by Courtworkers as reported in the 2018 evaluation.

Figure 2: Types of Culturally Relevant Information, Services and Programming Provided by Courtworkers in Criminal Court

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Figure 2: Types of Culturally Relevant Information, Services and Programming Provided by Courtworkers in Criminal Court

Type of Culturally Relevant Information, Services and Programming Provided by Courtworkers in Criminal Court	Percentage
Information about the criminal justice process	97%
Assistance to Indigenous persons involved in the Court as victims, witnesses, or family members of those involved	95%
Referrals to other services (e.g., social, medical, education, employment, and Indigenous community support)	92%
Referrals to legal resources at key stages (e.g., arrest, trial, and sentencing)	91%
Advocacy for Indigenous people before the Courts, providing liaison, and promoting two-way communication	91%
Advocacy for services before the Court to ensure they are delivered	80%
Promotion and facilitation of community-based justice initiatives	80%
Other (please specify):	21%
n=76 Courtworkers

Note: “Other” included outreach to communities, education on historical trauma (e.g., Gladue reports, historical background information, etc.), other referrals, and liaising with court officials with respect to release plans, family law, and civil law issues.

Courtworkers providing services in Family Court most frequently provided contact information for legal aid or a lawyer, referrals to other agencies, and spoke for their clients or explained a procedure to them (see Figure 3).

Figure 3: Culturally Relevant Information, Services and Programming Provided by Courtworkers in Family Court

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Figure 3: Culturally Relevant Information, Services and Programming Provided by Courtworkers in Family Court

Type of Culturally Relevant Information, Services and Programming Provided by Courtworkers in Criminal Court	Percentage
Information about the criminal justice process	97%
Assistance to Indigenous persons involved in the Court as victims, witnesses, or family members of those involved	95%
Referrals to other services (e.g., social, medical, education, employment, and Indigenous community support)	92%
Referrals to legal resources at key stages (e.g., arrest, trial, and sentencing)	91%
Advocacy for Indigenous people before the Courts, providing liaison, and promoting two-way communication	91%
Advocacy for services before the Court to ensure they are delivered	80%
Promotion and facilitation of community-based justice initiatives	80%
Other (please specify):	21%
n=76 Courtworkers

Note: “Other” included referrals to appropriate programming, application to the courts for mediation, custody and parental support, emotional support, and transportation to meetings.

"I assist in Judicial Dispute Resolutions when the other party has a lawyer. If it's two self-represented litigants, I don't attend—they may not need my support there. The Judge who's mediating their conversation, they know what they're doing. They're amazing. They just want to hear the information from the parties firsthand and see if they can resolve their dispute without going to trial.”
— Family Courtworker

A majority of Courtworkers also indicated they provided referrals for alternative dispute resolution. One such type of alternative dispute resolution is Judicial Dispute Resolutions which provide a way to reach a final resolution of less complex family law cases and is led by a Judge with the participation of the parties in question.

Courtworkers are familiar with the culture, language, and history of the communities they serve and this helps them to build trust with their clients and understand the context of their involvement in the justice system. They are also able to leverage their connections to resources and programs in the community to serve clients. Examples of resources and programs that may be available in the community include programs that address intergenerational trauma, healing ceremonies (e.g., smudging), extrajudicial sanctioned programs, restorative justice programs, mediation programs, substance use and mental health programs.

4.2.2 Client’s awareness of their rights, obligations and available resources

The evaluation found that the ICW Program assisted Indigenous peoples in being more aware of their right to speak on their own behalf and/or to request legal counsel. Information provided by Courtworkers also helped clients better understand the nature of their charges and the functioning of the criminal justice system. The ICW Program clients surveyed indicated that they most frequently received information from Courtworkers on the court process, preparing for court, how to get a lawyer, how to apply for legal aid, and an explanation of their charges.

Most of the ICW Program clients surveyed indicated that the information they received from Courtworkers was helpful in making them more aware of their rights, obligations and access available resources. Clients also indicated that information provided to them by a Courtworker most frequently helped with:

• understanding the court process (89%);
• understanding the meaning of their plea (89%); and,
• how to divert their Criminal Court case to restorative justice processes, diversion, community justice programs, or alternative justice processes (87%).

Clients also frequently mentioned that information provided to them by a Courtworker helped them:

• get a lawyer (legal aid) for their case (81%);
• connect with community resources (e.g., addictions, mental health services, housing, employment, training, etc.) (78%); and,
• access specialized courts (e.g., First Nations Court, Gladue Court, Community Court, Drug Treatment Court, Wellness Court, Mental Health Court) (75%).

As indicated in Figure 4, ICW clients also frequently reported high levels of satisfaction with the information they received from their Courtworker. These responses are similar to what was reported in the 2018 evaluation.

Figure 4: Satisfaction of Indigenous Courtwork Program Clients with the Information Provided by Courtworkers

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Figure 4: Satisfaction of Indigenous Courtwork Program Clients with the Information Provided by Courtworkers

Type of Information Provided	Percentage of clients surveyed that indicated they received information from an Indigenous Courtworker	Percentage indicating satisfied or very satisfied with the information received
My charges	75.70%	94.91%
The court process	77.12%	93.69%
Preparing for court	68.04%	95.15%
The meaning of the plea	59.53%	94.25%
How to get a lawyer	67.47%	92.76%
How to apply for legal aid	67.18%	92.66%
Resources in the community	51.22%	94.03%
Restorative justice processes	31.48%	91.38%
Appeal process	10.85%	72.73%
Access to specialized court	20.54%	88.63%
Case planning	69.70%	97.78%
Supervised visits	42.62%	83.33%
Crisis intervention	41.67%	91.67%
Alternative dispute resolution	45.90%	96.43%

4.2.3 Provision of information and advice to judicial and court officials

Courtworkers (86%) and judicial and court officials (79%) most frequently reported that Courtworkers provided the courts with information about legal and community/social resources available to clients, information about alternative/restorative justice programs available to clients in their community (i.e., non-custodial options), and information about cultural traditions and social needs pertaining to clients (Figure 5). Courtworkers also provided information on the client’s family, the historical trauma experienced, and how these factors relate to involvement in the court system. These findings are similar to the 2018 evaluation where judicial and court officials stated that Courtworkers increased their understanding of the circumstances of the Indigenous accused persons before the court as well as the implications of cultural and historical considerations.

Figure 5: Information and Advice Provided by Courtworkers to Judicial and Court Officials

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Figure 5: Information and Advice Provided by Courtworkers to Judicial and Court Officials

Type of Information and Advice Provided by Courtworkers to Judicial and Court Officials	Percentage
Information about legal and community/social resources available to clients in their community	79%
Information about alternative/restorative justice programs available to the clients in their community (i.e. non-custodial options)	75%
Information about cultural traditions and social needs pertaining to clients	74%
Gladue reports	51%
Other	14%
None of the above	7%
Judicial and Court Officials (n=57)

Most judicial and court officials surveyed were satisfied (44%) or very satisfied (33%) with the usefulness of the information provided to them by Courtworkers (Figure 6). This level of satisfaction is similar to that reported in the 2018 evaluation. Judicial and court officials frequently mentioned that the ICW Program is an integral part of the court process as it provides insight into a client’s life and the obstacles that they face. The information they receive as a result of the Program is important information that they would otherwise not have access to.

Figure 6: Satisfaction with Information Provided by Courtworkers to Judicial and Court Officials

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Figure 6: Satisfaction with Information Provided by Courtworkers to Judicial and Court Officials

Judicial and Court Officials Level of Satisfaction	Percentage
Very satisfied	33%
Satisfied	44%
Somewhat satisfied	17%
Not very satisfied	4%
Not at all satisfied	2%
n=57 Judicial and Court officials

One of the reasons some judicial and court officials indicated a lower level of satisfaction regarding the usefulness of the information they received was Courtworkers’ variable skills and abilities (i.e. different levels of training and experience), which constrained their effectiveness in providing information to the court. Judicial and court officials also indicated that the limited services available in some communities constrains the ability of Courtworkers to make referrals to basic services such as transportation, housing, education, employment, and mental health and substance use programs.

While there is general agreement among judicial and court officials that the information provided by Courtworkers is useful and valuable, evidence suggests that there continues to be a need to further increase awareness of the role and value of Courtworkers amongst this group. This need was identified across multiple provincial and territorial jurisdictions with respect to Indigenous cultural understanding, circumstances of clients and communities, and community-based programming available.

4.2.4 ICW Program contribution to Judicial and court-official decision making

Most judicial and court officials surveyed (85%) responded that they have used information provided by Courtworkers to inform their decision-making and court processes. More specifically, they indicated that the information:

• Raises awareness about the culture and traditions of each community in order to craft appropriate sentences.
• Assists prosecution and defense with decision making on certain court conditions (e.g., avoiding recommending court conditions with which the client would be unable to comply).
• Assists with decisions on release (e.g., information regarding personal circumstances of an offender, homes available for release, and resources and support available to him in the community).
• Assisting with decisions to refer cases to Indigenous People’s Court.

As indicated in Figure 7, about half of judicial and court officials agreed that Courtworker services have made a big or very big difference in increasing the use of non-custodial options and rehabilitative programming, compared to about three quarters of the Courtworkers surveyed.

Figure 7: Impact on the Use of Non-Custodial Options and Rehabilitative Programming

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Figure 7: Impact on the Use of Non-Custodial Options and Rehabilitative Programming

Impact on the Use of Non-Custodial Options and Rehabilitative Programming	Judicial and Court Officials (n=57)	Courtworkers (n=82)
Very big difference	21%	42%
Big difference	28%	32%
Medium difference	30%	23%
Small difference	9%	3%
Not at all	12%	0%

“The information that Courtworkers provide to lawyers in court does make a large difference with increasing the use of non-custodial options. However, it is important to note that there are limited resources, community supports and/or rehabilitative programming made available in remote communities. In addition, there is a stigma associated with accessing these resources within remote communities, which in turn, deters clients from willingly accessing them. Therefore, often times Indigenous clients can find themselves appearing before the court for similar charges and thus, custodial sentences are given stronger consideration.”
– Judicial and Court Official

Judicial and court officials who perceived that Courtworker services did not make a big difference in the use of non-custodial options or rehabilitative programming indicated that the impact is limited due to the limited programming available in some communities, particularly in remote areas. It is important to note that there is no control on whether a client follows through and participates in these programs and non-custodial options may not be appropriate depending on the nature of the crime (e.g., nature of violence).

4.2.5 Facilitation of partnerships between Indigenous communities, community justice systems, and the criminal justice system

The extent to which the ICW Program can have a positive effect on the use of alternative measures and community resources is linked to the strength of the relationships and partnerships developed between the Courtworkers and the communities they serve. Courtworkers who have developed good working relationships with service providers in the community are not only aware of what services and supports are available, but when they may be available to refer their clients.

On average, Courtworkers reported developing 4.4 partnerships and strengthening 3.7 partnerships per Courtworker. As indicated in Figure 8, the most frequent types of partnerships developed or strengthened by Courtworkers are with judicial and court officials, treatment centres, Indigenous organizations, and youth community justice committees.

Figure 8: Courtworker Partnerships Developed or Strengthened

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Figure 8: Courtworker Partnerships Developed or Strengthened

Type of partnerships developed or strengthened	Percentage
Judicial and court officials	31%
Treatment centres	23%
Indigenous organizations	23%
Youth community justice committees	13%
Bail verification programs	10%
Violence against women advocacy case teams	10%
Law enforcement (police boards, RCMP)	8%
Victim and witness programs	4%

Courtworkers have contributed to partnerships through various means such as formal memoranda of understanding, referrals to services, and inviting judicial and court officials to participate in traditional events. They are well connected in their communities through their participation in events and activities (e.g., outreach in schools), work with community justice workers, and relationships with community organizations.

4.2.6 Contribution to fair, equitable, and culturally sensitive treatment before the Court

ICW Program clients surveyed indicated that Courtworkers advocated on their behalf when meeting with court officials and other stakeholders, educated them about the justice system and their rights, assisted with release plans and Gladue reports, and helped with access to resources such as attending mental health appointments and housing supports. They also helped them avoid unneeded time spent in custody and unnecessary additions to their criminal record, which has helped them to continue their education, preserve their hunting rights, and return to work. Clients frequently commented that they appreciated the support of Courtworkers in walking them through a difficult time in their lives, which made them feel valued, cared for, and less stressed and anxious.

Overall, 95% of clients were satisfied or very satisfied with the information provided to them by the Courtworkers as indicated in Figure 9. Almost all ICW Program clients indicated they would recommend Courtworker services to other Indigenous people.

Figure 9: Level of Client Satisfaction with Information Provided by Courtworkers

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Figure 9: Level of Client Satisfaction with Information Provided by Courtworkers

Level of Client Satisfaction	Percentage
Very satisfied	74%
Satisfied	21%
Somewhat satisfied	3%
Not very satisfied	1%
Not at all satisfied	1%
n=468 clients

Courtworkers contributed to clients’ abilities to make informed decisions before the Court. A study on guilty pleas among Indigenous peoples in Canada described factors that may contribute to guilty pleas even when an Indigenous person is not guilty, such as language barriers, distrust in the justice system, and a cultural premium placed on agreement, cooperation, and taking responsibility.26 Among clients surveyed as part of this evaluation, 23% of those who pleaded guilty and 51% of those who pleaded not guilty indicated it was because their Courtworker explained the meaning of the plea which helped inform their decision.

Almost all key informants perceived that the ICW Program contributed to clients receiving fair, equitable, and culturally sensitive treatment before the court. These respondents noted that Courtworkers contributed to this goal by providing culturally relevant services and supports to clients and advocating for them before the court (e.g., explain a client’s history and barriers such as access to transportation, housing and finances). In addition, Courtworkers promoted cultural values (e.g., use of Elders in providing services), ensured culturally safe spaces are provided to clients, and referred clients to culturally relevant services, including treatment options.

However, the following factors were seen to limit the impact that the ICW Program can have on a client’s experience in the court and in accessing culturally relevant services:

• varied skill levels of Courtworkers in providing services;
• limited/insufficient availability of Courtworkers in some communities;
• gaps and availability issues in the program and services to which Courtworkers can make referrals; and,
• client’s prior negative experience with the justice system.27

Furthermore, consistent with findings of the last evaluation, just over half of clients surveyed indicated they would have preferred contact with a Courtworker sooner, as it would have been helpful to talk to a Courtworker as soon as they were arrested and charged, rather than have the first contact with a Courtworker during a court appearance.

4.2.7 Contribution to Indigenous cultural values being reflected in justice administration

Courtworker services have made a positive contribution towards increasing relevant Indigenous cultural values being reflected in the Canadian justice administration. Courtworkers contribute by providing information on client circumstances, needs, and cultural values, elements which, in turn, impact sentencing. For example, Courtworkers have brought Elders to court to provide information about clients’ backgrounds and cultural traditions. Often, cultural and client information is conveyed in Gladue reports, which impact sentencing and court decisions. In terms of integrating Indigenous cultural values in court itself, Courtworkers have integrated the use of smudging, of eagle feathers for swearing in and of other Indigenous symbols (e.g., an oil lamp symbol for Inuit people).

A majority (58%) of judicial and court officials surveyed consider Courtworkers as essential to the court’s understanding of the Indigenous experience with the justice system, and in connecting Indigenous persons with relevant Indigenous-led community-based programs and services. They noted that Courtworkers provide information on alternative measures that take into consideration clients’ Indigenous cultural values. In addition, they liaise with the Crown about sentencing options and provide information about community programs based on their needs. One half of judicial and court officials perceived that Courtworkers are embedded in the court processes in terms of their role being recognized as essential to the court’s understanding of the Indigenous experience within the criminal justice system.

Some key informants, Courtworkers, and judicial and court officials reported that the ICW Program has not made a big difference in increasing relevant Indigenous cultural values being reflected in the Canadian justice administration. The reasons provided included:

• the court system is slow to change;
• variable skills and abilities of Courtworkers (e.g. some have more experience and training than others);
• limited programs available for referrals;
• lack of buy-in and education among some judicial and court officials regarding the role of Courtworkers (e.g., some defence counsel may not request Gladue reports and some judges and Crowns are not open to receiving advice from Courtworkers); and,
• the limited capacity of Courtworkers (e.g., Courtworkers are not present in every court room).

A research project on Canadian judiciary’s experiences with Gladue found several reasons why judges may not order a full Gladue report, including the length of time it takes to obtain a report, whether there is a Gladue writer in the jurisdiction, the quality of previously ordered Gladue reports, concerns over the competence of Gladue writers, and whether the Gladue information is helpful. This research noted that Indigenous offenders also may not request a full Gladue report because they do not want to discuss their past trauma, or they do not have access to information on their family history.28

A few key informants and Courtworkers indicated a continued need for education of judicial and court officials with respect to ensuring Indigenous cultural values are reflected in justice administration.  Education topics suggested by respondents include colonialism, intergenerational trauma, residential schools, missing and murdered Indigenous women and girls (MMIWG), the 60’s scoop, land issues, reserves, treaty rights, and racism. These respondents also indicated a need to continue to educate judicial and court officials about the circumstances of clients and communities and of the community-based programming that may be available.

4.3 Program Design and Delivery

4.3.1 GBA+ considerations in planning and delivery of the ICW Program

Different groups of Indigenous clients require additional types of support from Courtworkers due to their unique needs and the barriers they face in accessing the justice system. A majority of Courtworkers indicated that they tailored the services for diverse groups of Indigenous peoples involved in the justice system to help them obtain equitable treatment. The groups most commonly identified across all lines of evidence as needing additional support from Courtworkers include:

• Individuals experiencing homelessness. Indigenous peoples are overrepresented among those who live in over-crowded housing and experience homelessness. According to Statistics Canada, Indigenous peoples were almost twice as likely to live in crowded housing compared to the non-Indigenous population (17% versus 9%) in 2021.29 Another study found that a higher proportion of Indigenous peoples compared to non-Indigenous people had experienced unsheltered homelessness in the past (12% of off-reserve First Nations peoples, 10% of Inuit and 6% of Métis versus 2% of non-Indigenous people in 2018).30 Indigenous individuals experiencing homelessness face additional barriers in accessing justice services since they sometimes have no fixed address or phone, have difficulty recalling court dates, cannot receive mail communications regarding their case or share mailboxes with other individuals, resulting in lost mail. In addition, some lack adequate transportation to the court for appearances. These factors can lead to breaches of their conditions of parole and additional charges.
• Women. Though most Indigenous peoples interacting with the justice system continue to be men, there has been an increase in women offenders. According to a report by the Office of the Correctional Investigator, the proportion of Indigenous women comprising all federally sentenced women has increased from 33% in 2013 to almost 50% in 2021.31 This factor increases the demand for ICW services that are tailored to women such as childcare services and assistance dealing with domestic violence.
• Youth. According to Statistics Canada, Indigenous youth represented 43% of youth admissions to correctional services, even though Indigenous youth represented 9% of the youth population (12-17 years) in Canada in 2018.32 Key informants and Courtworker survey respondents stated that some contributing factors to this overrepresentation are that some Indigenous youth lack a parent or stable home where they can receive mail and/or they lack a computer or phone causing loss of contact with lawyers. Respondents also indicated that youth require more holistic assistance from Courtworkers in navigating the justice system, including the involvement of family members in supporting referrals to community services and the provision of wraparound supports.
• 2SLGBTQI+. Within many Indigenous communities and cultures, there has been a long-held acceptance of gender diversity, now commonly reflected within the term "Two-Spirit." According to the 2021 Census, Indigenous peoples aged 15 and older were twice as likely to be transgender or non-binary as non-Indigenous people (0.6% versus 0.3%).33 A 2021 Justice Canada study found that Indigenous 2SLGBTQI+ individuals can face barriers in the justice system since racism and colonial violence can be further intensified by intersecting homophobia. Also, many processes and structures presume individuals are cisgender and heterosexual, rendering 2SLGBTQI+ individuals invisible in legal processes.34

Courtworkers surveyed reported the estimated percentage of clients they served annually by GBA+ group. As indicated in Table 3, the most frequently reported groups were women and people experiencing homelessness. Individuals under the age of 30 and those with health or medical conditions were also frequently mentioned.

Note: “Other groups” included immigrants (non-Indigenous people) (5), male clients (5), people needing translation (2), people struggling with addictions, and victims of crime.

Almost all interviewees reported that the ICW Program is flexible in meeting the needs of diverse groups as it provides a safe space for clients regardless of how they identify. They also noted that Courtworkers provided customized support to clients based on their needs such as bus tickets for clients with mobility issues to attend court, cell phones to be able to remind homeless individuals of court dates, and translation services for clients with language barriers. Courtworkers also made referrals to services (e.g., mental health supports, women’s shelters, and youth programs) and partnered with relevant service providers (e.g., agencies working with 2SLGBTQI+ individuals). Finally, Courtworkers supported diverse groups of clients by informing judicial and court officials of their specific needs, such as those related to persons with disabilities.

Courtworkers have received training on equity, diversity and inclusion, particularly related to working with families affected by MMIWG and clients with substance use and fetal alcohol spectrum disorders (FASDs) issues. At the 2019 ICW Program National Gathering, a breakout session was offered that focused on the National MMIWG Inquiry and Systemic Racism. Among the 27 respondents who completed the evaluation for the breakout session, the majority of participants found the session to be helpful and wanted more information on the topic. One of the challenges identified with respect to ICW Program delivery for the diverse groups of clients was a lack of training among Courtworkers on the specific needs of these groups (e.g., legal rights and services available in the courts and in the communities).

4.3.2 Challenges Affecting ICW Program Service Delivery

The evaluation found three key challenges affecting Program delivery that were most frequently identified across various lines of evidence. They are:

Insufficient number and high turnover of Courtworkers. Several key informants noted that the ability of Courtworkers to perform their primary activity of supporting Indigenous peoples to navigate the justice system is constrained due to a lack of capacity. Courtworkers are not serving all Indigenous communities in some provincial and territorial jurisdictions, particularly in rural and remote areas. The low pay of Courtworkers relative to other justice professionals such as probation officers makes it difficult to recruit and retain Courtworkers with the required skillset (e.g., familiarity with the law and justice process). It also results in a high level of turnover and an ongoing need for training new Courtworkers. Other factors affecting recruitment and retention noted by key informants include labour shortages across various industries, increasing rates of retirement amongst longstanding Courtworkers, and Courtworker burnout from high caseloads and frequent contact with high-need clients. The increased cost of living, particularly related to travel costs, is also impacting Courtworkers’ ability to meet client needs, especially those traveling to circuit courts.

Lack of ongoing and enhanced Courtworker training. Since 2018, the ICW Program has provided funding for various training activities in different jurisdictions. These training activities included a two-day National Courtwork Gathering in 2019, training related to the expansion of Family Courtwork services, FASDs training, and training for Gladue report writing. Justice Canada has developed an updated ICW curriculum35 in 2022. However, there is a need for ongoing and enhanced training that facilitates skills upgrading and peer-to-peer support.

Courtworkers surveyed as part of the evaluation most frequently mentioned the following areas in which training would be beneficial:

• Working with clients who have mental health and substance use issues;
• The needs and rights of 2SLGBTQI+ individuals;
• The effects of intergenerational trauma;
• Family violence;
• Changes to the laws (e.g., Criminal Code and Divorce Act);
• Gladue Principles,
• MMIWG and systemic racism,
• Peacemaking and sentencing circles;
• Working with parents in family court; and,
• Changes to reporting.

The 2021 Native Courtworker and Counselling Association of British Columbia (NCCABC) report also identified a need for training Courtworkers on how to employ Indigenous-based ceremony and protocol in virtual meetings that are client-specific and locally-relevant; training Courtworkers on technology skills required for virtual Courtwork; and developing local and national protocols to enhance access to and safety of client information and court documents in virtual service procedures.36 This research also recommended training for Courtworkers regarding mental health and wellbeing support (e.g., self-care, life promotion, and mental wellness/wellbeing).

Lack of sufficient mental health training and supports for Courtworkers. The COVID-19 pandemic and the expanded role of the ICW Program has resulted in an increased workload and greater demand on Courtworkers due to the increased complexity of client needs and increased involvement in addressing the holistic needs of clients (e.g., emotional support, food, and clothing). Courtworkers’ responsibilities have also increased due to an expanded role in advocacy for restorative justice programs and increased involvement in specialized courts. Along with managing a higher client service intensity (i.e., the annual average ratio of ICW services per client increased from 1.9 to 2.3 services per client comparing 2014-15 to 2015-16 with 2016-17 to 2019-20), this has contributed to a high level of burnout among Courtworkers. There is a need for wellness and mental health supports to help mitigate these stressors and retain Courtworkers.

The 2021 NCCABC also suggested implementing increased mental health supports as Courtworkers transition back into regular systems as there are long term impacts on mental health due to the COVID-19 pandemic. The report also stated that both Courtworkers and their clients were in greater need of mental health support due to the changes in services delivery, and the global stressors that arose due to the pandemic.37

To maximize the potential impact of Courtworkers, it is critical that they are able to refer their clients to culturally relevant community justice programs, legal representation and mental health and substance abuse services. The following challenges were identified in this regard:

Lack of sufficient restorative,alternative, community-based justice programs for Courtworker referrals. Courtworkers provide referrals to programs that enable the resolution of conflicts outside the justice system such as pre- or post-charge diversion programs, Indigenous-specific intimate-partner violence programs, dispute resolution programs (e.g., mediation), extrajudicial sanction programs, bail supervision or verification programs, residential programming, youth prevention programs, and survivor and victim services. However, key informants and Courtworker survey respondents indicated the lack of such alternative community-based justice programs in many communities. This in turn can lead to judicial and court officials being left with limited non-custodial options for Indigenous peoples involved in the justice system. According to a study by Public Safety Canada, in FY 2017-18, there were 240 restorative justice programs delivered across Canada, which reported receiving a total of 22,576 referrals (16,155 offenders and 10,107 victims).38 The number of referrals represents only one third of the average number of ICW clients served annually (67,145 from FY 2016-17 to FY 2018-19).

Insufficient culturally safe legal representation for Courtworker referrals. Key informants and Courtworker survey respondents indicated a lack of culturally safe legal aid representation to which clients can be referred. Courtworkers also indicated a reluctance among some legal aid representatives to take on Indigenous clients, particularly those with mental health or substance use issues or those living in rural and remote communities. Justice Canada’s 2021 Evaluation of the Legal Aid Program found that despite efforts of legal aid plans to adapt and expand services to reach vulnerable populations, there are some unmet needs for those living in rural and remote areas and Indigenous populations.39

Insufficient culturally relevant mental health and substance use services for Courtworker referrals. Courtworkers facilitate referrals to therapeutic or healing programs that provide wraparound supports, particularly for those with mental health and substance use issues. Key informants and survey respondents indicated that lack of referrals to mental health and substance use programming leads to more failures to comply with court orders and increased incarceration for Indigenous peoples. A study on Indigenous administration of Justice Offences in Alberta stated that substance use was the greatest issue for Indigenous offenders.40 Key informants and survey respondents also indicated that many Indigenous people in the justice system are dealing with substance use issues, intergenerational trauma, trauma from systemic racism, mental health conditions, and a history of abuse and violence. These factors compound to make it even more difficult for individuals to adequately access, understand, and navigate the justice system. A key challenge is the limited availability of these services and some exclusion criteria that may limit their access to some programs (e.g., if there is a sexual offence, assault charge, prolonged detainment and lost welfare privileges, they may not be able to access all supports).

4.3.3 Impact of COVID-19 on the ICW Program

The COVID-19 pandemic had a significant impact on the delivery of the ICW Program by making it difficult to access clients and increasing the workload of Courtworkers. The key impacts of the pandemic on the delivery of the Program were:

Reduced access to services. The pandemic resulted in a reduction in access to services as many services such as legal aid, shelters, domestic violence supports, and treatment facilities ceased operating or moved to a virtual delivery model. The 2021 NCCABC study found that the pandemic resulted in increased waitlists and closures of services typically used for client referrals.41 Key informants and survey respondents reported that it was challenging for Courtworkers to even reach clients due to lockdowns of correctional facilities and closures of public places where clients would typically access the internet (e.g., public libraries). Some circuit courts ceased operating completely due to travel restrictions and the high rates of COVID-19 in some communities. New barriers to access were inevitably created as services moved to a virtual delivery model since clients often lacked the technology to attend virtual court and faced Internet connectivity barriers particularly in northern, rural, and remote communities. Virtual services also made it difficult to establish relationships with Indigenous clients, and further distanced Indigenous peoples from the justice system process. There was an increased number of warrants issued for Indigenous-accused individuals because clients missed virtual court appearances.42

Expanded role of ICW Program. The role of Courtworkers was expanded during the pandemic to meet the urgent needs of communities, such as supporting Canada Emergency Response Benefit applications, providing meal kits, and conducting wellness checks with clients, which increased the workload of Courtworkers and contributed to a high level of burnout.43

Switch to virtual mode of delivery. ICW project funding was provided in response to the COVID-19 pandemic to support the purchase of phones, laptops, internet access, and headphones so Courtworkers could expand their service delivery to include a virtual mode. Courtworkers connected with clients using social media and vehicle-to-vehicle meetings and provided clients with access to cellphones, computers, and internet in their offices. There was an increase in the use of technology during the COVID-19 pandemic (e.g., phone and FaceTime meetings, requests for client to appear on CCTV from prison, one-on-one private spaces for persons attending court to access the court via Zoom using a laptop, and digital filing).

Some Courtworkers used a hybrid method, maintaining some in-person contact with clients, while connecting with courts virtually. According to the NCCABC report, innovative practices that emerged as a result of COVID-19 include communicating with clients and Crown via email to resolve charges, sending paperwork over text, revising forms to allow for clients to provide verbal consent, conducting sentencing, intakes and pleas by phone, conducting video bails, creating culturally sensitive signage for clients, and making technology accessible for both clients and Elders.44

The NCCABC report found that ICW Program services needed more technological, operational, and training support during the pandemic. The report also indicated a requirement to develop protocols for how Courtworkers enter First Nations communities to deliver services in a virtual model.45

Increased complexity and severity of client needs. Key informants and survey respondents stated that the isolation resulting from the COVID-19 pandemic led to increased tensions, stress, and anxiety within families and communities, which contributed to greater alcohol, opioid, and other drug use. This trend resulted in more complex client needs due to higher rates of overdoses, poverty, housing insecurity, child neglect, domestic violence issues, and other violent crimes (e.g., major assaults, homicides, and sexual assaults). Homelessness and poverty also increased as a result of the pandemic due to limited employment options and inflation, particularly in northern communities. According to a study by the First Nations Health Authority, there was a 119% increase in toxic drug deaths among First Nations people in British Columbia from 2019 to 2020 (from 116 to 254 deaths).46 Statistics Canada reported that in 2020, there were 201 Indigenous victims of homicide, an increase of 12% from 179 in 2019 and the rate of homicide for Indigenous peoples was seven times higher than for non-Indigenous peoples.47 Violent crimes can cause significant traumas for Indigenous communities that last decades and also impact Courtworkers who are from those communities.

4.3.4 Other Changes to ICW Program Delivery

The role and workload of Courtworkers has expanded in the last four years due to changes in ICW Program delivery. The following examples describe the changes in the delivery of the ICW Program that have occurred in the last four years in addition to those described previously as a result of the COVID-19 pandemic.  

Increased services to Indigenous persons involved in family and/or child protection justice systems. The ICW Program was expanded in 2021 to support the provision of culturally competent services to Indigenous persons involved in the family and/or child protection justice systems. An additional $6.7 million spread over three years was allocated to the ICW Program for these services. As of October 2022, ICW Program funding agreements are in place with five provincial and territorial jurisdictions to deliver Family Courtwork services.48 Prior to this expansion, several jurisdictions were involved in piloting and delivering Family Courtwork services. Family Courtwork has been provided in Alberta for over 50 years and in Ontario for over 20 years. Both provinces have Family Courtworkers who also provide services in Criminal Court and other courts. In 2018, a pilot project on an Indigenous Family Healing Court was initiated in British Columbia. In FY 2020-21, the Saskatchewan Aboriginal Courtworker Gathering pilot project was launched to meet the increasing demand for family, youth and criminal Courtworkers.

“Family Courtworkers are more hands on. When we open a file, we are with it until it closes with children services and the children are returned home. We have a lot more involvement with that. We have service team meetings. We meet with other community members included in those files. With criminal, I think they just do that. I think the difference is that with regular Criminal Court to Family Court is we're a little bit more involved.”
– Family Courtworker

The majority (67%) of Courtworkers surveyed provided services in Family Court. Family Courtworkers assist a range of individuals such as youth, couples who are separating or divorcing, and families involved in child welfare matters. The Family Courtwork case study identified some examples of information, services, and programming that Family Courtworkers have provided to judicial and court officials. This includes reports about supervised visits, program completion letters, and clients’ success rates. The main differences in the roles of Family Courtworkers compared to Criminal Courtworkers are the higher level of complexity and longer involvement in cases, particularly those involving the custody of children, and the increased emotional support required. There are also increased challenges in Family Court due to Courtworkers working with families in a crisis situation and the emotionally charged nature of these cases. This can lead to an increase in the time spent on a file and burnout among Family Courtworkers.

Adoption of innovative and promising practices in delivering Courtwork services. Several innovative and promising practices that have been implemented in some jurisdictions were identified through the key informant interviews, Courtworker survey, and document and data review. This included:

• Creating a management table to discuss client circumstances. It was noted that management tables facilitated Courtworkers in connecting clients to appropriate services (e.g., housing first, and language programs).
• Creating a catalogue of resources from each province and territory to determine the promising practices that are being utilized.49
• Implementing electronic data management systems. Some Courtworkers developed Google documents to track and manage client court dates and appearances, which assisted with data tracking. Others used electronic documents to record Courtworker activities and network with other service providers.
• Developing innovative approaches in Indigenous Courts such as healing plans and peacemaking which help prevent clients from having a criminal record.

4.4 Efficiency

4.4.1 Justice System Cost Savings Attributable to the ICW Program

Cost saving estimates were developed for the evaluation based on Courtworker survey data, external research on the costs to the justice system (e.g., cost per arrest), as well as Program data on the total number of Courtworkers in Canada supported through the ICW Program. It should be cautioned that there are limitations to the analysis of estimated justice system cost savings, as the analysis relies heavily on Courtworker recollections and opinions about the number and nature of interactions with clients. The analysis also does not include a control group or counterfactual assessment (e.g., of costs that would have occurred without Courtworker involvement).

The Courtworkers surveyed indicated that they contributed to justice system cost savings by preventing clients from avoidable arrests. The two main ways that Courtworkers prevent clients from unnecessary arrests are: 

• Helping prevent clients from arrests by ensuring that they appear in court. Courtworkers help prevent clients from failing to appear in court by reminding them of court dates and ensuring clients show up for court. They also provide transportation to the court and basic needs (e.g., emergency clothing and food) to ensure clients, such as those who may be experiencing homelessness, are more prepared and focused on the court appearance. If the Courtworker did not provide this service, it could have resulted in the client failing to appear in court and an arrest warrant being issued.
• Helping prevent arrests by ensuring that clients do not break their conditions of parole. To prevent clients from breaking conditions of parole, Courtworkers help court personnel contact clients, clarify conditions of parole with clients, remind clients of court dates, and review release plans to ensure they are tailored to the individual and reflective of their needs and level of participation with probation and/or parole. If the Courtworker did not provide this service, it could have resulted in the client breaching conditions of parole and an arrest warrant being issued.

The Courtworkers surveyed estimate that, on average, they each helped approximately 20 clients per month avoid unnecessary arrests by undertaking activities such as ensuring that they do not fail to appear in court or break conditions of their parole. A 2016 Public Safety Canada study estimated the cost of an arrest in Canada at $1,149.50 By extrapolating the number of arrests prevented to the estimated total of 230 Courtworkers in the ICW Program, this results in estimated cost savings to the justice system of $63.4 million (Table 4).

The Courtworkers surveyed also stated that they contributed to justice system cost savings by preventing clients from going into custody by advocating for alternative, non-custodial, restorative justice options at sentencing. Courtworkers provided background information on clients and information about programs available in the community to judicial and court officials which led to non-custodial sentencing decisions. If the Courtworker did not provide this service, it could have resulted in more clients going into custody. The Courtworkers surveyed estimated that, on average, they each helped prevent 15 clients per month from going into custody unnecessarily. According to a 2015 Public Safety Canada study on the costs of crime, the cost of adult custody was estimated at about $224 per inmate per day.51. By extrapolating the estimated number of custodial stays prevented by the 230 Courtworkers in the ICW Program and assuming that the average length of custody is one day, this results in estimated cost savings to the justice system of $9.3 million per year (Table 4). 

The combined cost savings to the justice system by preventing clients from unnecessary arrests and going into custody are estimated to be up to $72.7 million per year (Table 4). This amounts to an estimated cost savings to the justice system of up to $316,000 per Courtworker per year.

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