Can I Rely on Indigenous Law in Court?

Most judges are not experts in Indigenous law and many have very little knowledge of it at all. Not all Indigenous laws are written down or in a form that judges can use. Sometimes Indigenous laws will conflict with Canadian criminal law and judges will need to decide what should happen in that case.

There are not a lot of examples of Indigenous law being used in cases within the Canadian criminal justice system but there is a lot of discussion about how this can happen. Where it has been used, there generally needs to be a way for the judge to understand the Indigenous law (some evidence of the law within the community) and then a judge will try to see how that law sits together with the Canadian law, how to resolve any differences and to come to a decision that meaningfully addresses the situation. See  Don Couturier, "Judicial Reasoning Across Legal Orders: Lessons from Nunavut" (2020) 45:2 Queen's LJ 319.

You can read more about this in Don Couturier, "Judicial Reasoning Across Legal Orders: Lessons from Nunavut" (2020) 45:2 Queen's LJ 319.

You can hear Sarah Arngna'naaq (prosecutor) and Dr. Hadley Friedland (law professor) talk about Indigenous legal orders in the criminal justice system in a podcast episode from the Canadian Institute for the Administration of Justice titled "Engaging with Indigenous Legal Orders in Theory and Practice".