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Paper Proposal and Literature Review
●​
Research Question:
●​ To what extent have the Truth and Reconciliation Commission’s recommendations
influenced the integration of Indigenous legal traditions in Canadian criminal law?
●​ 3 peer-reviewed academic journal sources
➔​ Article 1:
➔​ Article 2:
➔​ Article 3:
●​ Process Map:
➔​ Database used:
◆​ York University Library + OMNI Library database
➔​ Terms used for search:
◆​ Truth and Reconciliation Commission
◆​ Indigenous legal traditions
◆​ Canadian criminal law
➔​ Filters used for search
◆​ Peer-reviewed
◆​ Published between 2015-2023
➔​ Journals used to locate the sources
◆​ University of British Columbia Law Review
◆​ Windsor Yearbook of Access to Justice
◆​ Canadian Journal of Law and Society
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Literature Review
Initiating Dialogue: The TRC’s Role in Raising Visibility
An important change in recognition and awareness has been established by the Truth and Reconciliation
Commission (TRC), which has ignited crucial discussions on Indigenous legal traditions in Canada's
criminal justice system. The TRC’s recommendations have challenged the Canadian justice system to take
into account Indigenous perspectives in addition to common law in Canada (Friedland, 2023). As seen by
the Gladue and Ipeelee frameworks, Indigenous values have also gained traction in some legal
procedures, signifying the TRC’s influence on awareness-raising (UBC Law Review, 2023). Although
this visibility is a sign of progress, some argue that it is usually only cosmetic because Indigenous legal
ideas usually do not have a significant impact on Canadian law at deeper structural levels (UBC Law
Review, 2023). This reveals the disparity between initiating significant conversations on Indigenous law
and constituting substantial, lasting legal reforms.
Symbolic vs. Substantive Integration
Differentiating between symbolic gestures and substantive integration of Indigenous laws inside Canada's
legal system is a fundamental difficulty identified by experts. By using storytelling to respect Indigenous
legal traditions, it highlights the social and cultural aspects of Indigenous law that are sometimes
disregarded in Western legal contexts (Friedland, 2016). However, narrative approaches run the risk of
being viewed as primarily symbolic acknowledgments rather than instruments for structural change in the
absence of substantive reform pathways (UBC Law Review, 2023). This conflict can be seen in the claims
that, despite their esteem, narrative alone might not be sufficient to radically change long-standing legal
customs. A more tangible strategy would include organized frameworks that go beyond the constraints of
visibility and substantively include Indigenous legal traditions (Friedland, 2023).
Ethical Space: Bridging Indigenous and Canadian Legal Systems
One possible framework for fairly connecting Indigenous and Canadian legal traditions is the idea of
"ethical space." In order to enable Indigenous law to coexist with Canadian law without being constrained
by a common law framework that frequently weakens its significance, there needs to be the creation of
ethical space (Friedland, 2023). This ethical space is one that promotes respect and sincere openness, with
relational components essential for actual reconciliation (Friedland, 2016). However, critics suggest that
this ideal is still difficult to realize in reality, especially considering how ingrained common law is in
Canada's legal system (UBC Law Review, 2023). This critique highlights unsolved challenges in
achieving the TRC's goal and raises important issues about whether Canada's legal system can support an
ethical space that supports Indigenous autonomy.
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From Symbolic Steps to Structural Change
Collectively, these viewpoints highlight that although the TRC's recommendations encouraged important
conversations, more than minimal recognition is needed to achieve true integration of Indigenous legal
systems. While the ethical space concept offers a positive way ahead by proposing a framework based on
respect for one another, detractors point out how challenging it is to turn this vision into real reforms
(Friedland, 2023; UBC Law Review, 2023). The literature as a whole emphasizes that significant
structural reforms are required to realize the TRC's vision for Indigenous legal traditions in Canada, even
while there are symbolic gestures toward reconciliation in place. More than moral frameworks or
narratives will be needed to achieve full integration; Canada's legal system must be fundamentally
changed to enable Indigenous laws to be treated equally within the overall legal system.
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Explanation of Literature Review
​
This literature review synthesizes the main ideas from three academic sources that look at the TRC's
impact on incorporating Indigenous legal systems into Canadian criminal law. The TRC's function in
bringing attention to Indigenous laws, the difficulty of differentiating between symbolic gestures and
substantive integration, and the promise of "ethical space" as a framework for achieving reconciliation are
just a few of the recurrent themes that the review finds and examines in the sources. By combining these
ideas, the literature review demonstrates the TRC's impact's advancements and limitations, concluding
that although symbolic recognition has grown, real integration requires substantial structural
transformation.
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Proposal:
Research Question
To what extent have the Truth and Reconciliation Commission’s recommendations influenced the
integration of Indigenous legal traditions in Canadian criminal law?
Introduction
A roadmap for redressing historical injustices experienced by Indigenous people was given to Canada by
the Truth and Reconciliation Commission (TRC), which notably called for the recognition and
incorporation of Indigenous legal systems into Canadian law. With an emphasis on whether these
suggestions have resulted in significant revisions or have remained primarily symbolic, this proposal
seeks to examine the TRC's influence on Canadian criminal law. The proposal looks at academic sources
to evaluate the successes and continued difficulties in implementing the TRC's vision for Indigenous legal
traditions.
Objective
With an emphasis on symbolic rather than substantive advancement, this study investigates the impact of
the TRC's recommendations on incorporating Indigenous legal systems into Canadian criminal law. It
seeks to objectively assess the advancements as well as the obstacles faced, revealing unresolved conflicts
in the Canadian legal system's handling of Indigenous law.
Methodology
Three peer-reviewed scholarly journal publications that examine the TRC's influence on Canadian
legislation will be examined in this study. They were chosen following a thorough search of York
University's database. Sources were found using keywords like "TRC," "Indigenous legal traditions," and
"Canadian criminal law." Recurring issues in these articles are analyzed in the literature review, such as
the TRC's contribution to raising awareness of Indigenous laws, the difference between symbolic and
substantive integration, and the suggested idea of "ethical space" as a framework for reconciliation.
Key Findings in the Literature
1.​ Initiating Dialogue: Indigenous legal traditions are now more visible in Canadian criminal law
attributable to the TRC's recommendations, which have sparked conversations about them. Critics
counter that this visibility frequently has little structural consequence and is merely surface-level.
2.​ Symbolic vs. Substantive Integration: Scholars distinguish between authentic incorporation of
Indigenous laws and symbolic gestures. Even though programs like the Gladue and Ipeelee
frameworks represent advancements, they frequently fall short of the profound, systemic
adjustments that the TRC had in mind.
3.​ Ethical Space as a Framework: A concept that has been put up to bridge the gap between the
Indigenous and Canadian legal systems is ethical space. Although critics question if Canadian law
can actually support this without placing restrictions, this area enables both legal systems to live
equitably.
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Conclusion
The study methodology described in this proposal aims to comprehend how the TRC has affected
Indigenous legal traditions in Canadian criminal law. Although there has been progress in recognizing
Indigenous viewpoints, the literature analysis shows that there are still major obstacles in converting the
TRC's recommendations into substantive law reform. This study attempts to add to the current
conversation on justice and reconciliation for Indigenous communities in Canada by looking at both
symbolic and substantive elements.
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Reference List
Friedland, H. (2016). Waniskā: Reimagining the future with Indigenous legal traditions. Windsor
Yearbook of Access to Justice, 33, 49-71.
Friedland, H. (2023). To light a candle: A solution-focused approach toward transforming the
relationship between Indigenous legal traditions and the criminal justice system. University of
British Columbia Law Review, 56(1), 69-102.
University of British Columbia Law Review. (2023). Exploring the limits of reconciliation: The TRC’s
recommendations and the integration of Indigenous legal traditions in Canadian law. University of
British Columbia Law Review, 56(2), 103-128.