Vers la reconnaissance d’une compétence autochtone en matière de justice pénale adolescente

origines croisées et principes partagés — Partie I

Abstract

Colonialism in Canada has profoundly shaped both youth protection and juvenile justice—two regimes that have historically operated within institutions that sought to rehabilitate youth whose families were seen as incapable of educating their own children. So-called “model” families and children were defined in contrast to Indigenous families and children, who were portrayed as needing to be civilised and assimilated into the non-Indigenous majority. Today, the Act Respecting First Nations, Inuit and Métis children, youth and families (2019) affirms the jurisdiction of Indigenous peoples over child and family services. Given this recognition, we argue that it is desirable for Indigenous communities also to begin taking charge of youth criminal justice. Four analytical components support this argument. First, there are significant overlaps, both in Canadian law and in various Indigenous traditions, between youth protection law and youth criminal justice law. Second, Indigenous communities have already begun assuming responsibility for youth protection, particularly following the coming into force of the 2019 federal legislation. Third, Canadian law regarding youth criminal justice is guided by standards that are similar to those that characterize Indigenous legal traditions—particularly rehabilitation, reparation for harm done, and community involvement in decision-making. Finally, the widespread phenomenon of young people with a dual mandate in youth protection and youth criminal justice suggests that their realities are intimately linked.