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First Nations Court

Elders of the First Nations Court

Picture courtesy of Courthouse Libraries BC

New Westminster’s courthouse – home of the First Nations Court

This spring the province’s fourth First Nations Court (FNC) opened. There are now FNCs in New Westminster, North Vancouver, Kamloops, and Duncan.

Aboriginal people are over-represented in jails across Canada; a recent report shows that 23% of federal inmates are of Aboriginal descent while Aboriginal people only make up 4% of Canada’s population. FNC was created to tackle this problem.

The court, which can be used by anyone who self-identifies as Aboriginal, is not a traditional court. It takes a different approach to sentencing; one that Judge Buller Bennett – the presiding judge of New Westminster’s FNC – says “[takes] a First Nations perspective, being a holistic and restorative approach to sentencing.” This means that everyone – the judge, Crown counsel, community members, and the individual – all work together to create a healing plan. A healing plan addresses the root cause of the crime and aims to help the accused, the community, and the victim move on. This focus on community and collaboration is what is unique about FNC.

Every session of FNC is attended by a group of First Nations elders. The elders’ role is to represent the community at the hearings. They share their experiences, talk about resources available to help with whatever issues the person being sentenced may have, and just generally try to engage and create a sense of community and responsibility to that community that may have been missing. For the elders, it is a very personal experience; it’s not just a chance to help the individual but to help create a stronger community as well.

Ray Auckland – from the Tsimshian Nation in Prince Rupert and from the Raven Clan – is one of the elders at the FNC in New Westminster. He sees the FNC as a chance to help those who didn’t have the opportunities that he did. As a child, Ray’s adopted parents managed to keep him out of residential school, a fate that his siblings and many other people in his village couldn’t avoid. He was able to preserve the language and way of life in the village. Seeing the effects of residential schools on his peers was one of the motivators behind his decision to join the FNC.

There was one fellow from my village who was incarcerated a few years ago. I found out that he went to Indian residential school. He was taken as a young child of six years old and was traumatized by his experience there. He resorted to drinking to cover up his shame and hurt.

It’s been 10 years since this person has been incarcerated. He’s no longer drinking and doing well. He still keeps in touch with me and phones me often. We have a good friendship.

This relationship showed me how much of a difference that support can be to help make a person’s life better.

This is one of the main reasons that I got involved with First Nations Court.

This attitude and the participation of the elders are essential to the court’s success. One of the most positive things about the court is “the court’s role in helping people take responsibility for their actions and for changing their own lives and dealing with the consequences when they make poor choices,” said Queenie Archibald, an Ojibway elder. The elders help combat recidivism by helping not only to increase the access to much needed services such as drug treatment, education, and counselling, but also by creating a sense of community and obligation that helps offenders think of themselves as contributing members of society.

This is what Clifford White, who had worked in the justice system for over 40 years, liked most about FNC — it’s a chance to see a system designed to provide support to the individual and an opportunity for change:

Where else in the criminal justice system will you find individuals wanting to come back. Judge Buller Bennett provides them with an opportunity to not only make their live better, but also an opportunity to give back in helping their brothers and sisters along the way. What an empowering concept!

The 2nd Annual Courage in Law Award

Pam & JCB AwardOn March 20 of this year, the Indigenous Law Students’ Association at UBC Law gave out their annual Courage in Law Award. The award is given to recognize people who have shown leadership and courage in advancing legal services for indigenous people and fostering diversity in the legal profession.

Among the recipients was our very own Pamela Shields who manages Aboriginal services for LSS. Among her other work at LSS, Pamela has been instrumental in promoting and implementing Gladue rights throughout the province. Gladue rights are the Criminal Code rights to special consideration that a judge must give an Aboriginal person when setting bail or during sentencing.

The award was also given to retired Judge Cunliff Barnett and Gail Davidson. Judge Barnett is known for taking his court to Indigenous communities where he created space for indigenous legal traditions in his judicial decisions. He is currently involved with the First Nations Court in Kamloops. Gail Davidson serves as the executive director of Lawyers’ Rights Watch Canada and has worked to advocate for the protection of indigenous women’s rights in Canada.

Not content with just receiving an award that day, both Pamela Shields and Judge Barnett went on to give presentations to UBC law students, speaking about Gladue rights and how to make space for indigenous legal traditions in the criminal court system.

To learn more about Gladue, see Aboriginal legal rights — Gladue on the LSS website, as well as Are You Aboriginal? (fact sheet) and our Gladue Primer.

My day in BC’s First Nations Court

Picture courtesy of Courthouse Libraries BC

A few months ago I had the opportunity to sit in on a session at BC’s First Nations Court (FNC). It was an experience I won’t soon forget.

Despite working for legal aid for a while now, I don’t have much experience with courtrooms. I realize it’s not like Law and Order in real life, but that doesn’t stop me from hearing the theme song whenever I pass by the courthouse. So, the FNC was a splash of cold (refreshing!) water.

The first thing you notice when you enter the room is that it’s not your traditional court set up. Instead of facing off against each other, the judge, Crown counsel, defendant, and others sit around a horseshoe-shaped conference table. This alternate setting is representative of the court as a whole.

FNC can be used by anyone who self-identifies as Aboriginal — status or non-status, First Nations, Metis, or Inuit, living on or off reserve — and who has or will plead guilty to, or has been found guilty of, a crime. The court is there only for sentencing and follow-up. It takes a more holistic and restorative approach to justice, one that respects and values Aboriginal culture and supports Aboriginal communities. (Editor’s note: FNC may also hear cases related to child protection in some circumstances.)

This means the judge, Crown counsel, community members, and family work with the individual and the lawyer to find a healing plan — a plan to address the root causes of the crime and help the accused, the community, and the victim move on. Succeeding as a result of a healing plan is not a sure thing, however. You have to show real commitment to improving yourself and taking part in the program to take advantage of FNC.

For example, one of the cases I saw was a young man who had pleaded guilty to assaulting his step-father. He explained that his step-father had been abusive to him and his mother in the past. One night, after an argument, he assaulted his step-father. As he explained what had happened, he displayed genuine regret over his actions. He then went on to talk about how he was attending anger management sessions.

After he spoke, his mother told everyone about his childhood and her relationship with the step-father. It was powerful to watch; at one point, she began to cry, which caused her son to cry. I don’t think there was a single person in the room who didn’t experience some chest-tightening.

After she had spoken, the rest of the participants were given a chance to speak. At every session of the court, a council of elders also attends to give support. A few of the elders stood up to offer information on different programs that they thought might help him deal with his issues.

This session wasn’t the end for him, however. The judge ordered that he come back in a month to report on his progress and finalize his healing plan. I’m pretty sure that I’ll be back too.

You can find more information on First Nations Court, as well as about Aboriginal legal issues and services, by visiting www.legalaid.bc.ca/aboriginal.

Nate Prosser is the online outreach coordinator at LSS.

Hot off the press: Speaking to the Judge Before You Are Sentenced

Speaking to the Judge Before You Are Sentenced has been revised and redesigned as an easy-to-read brochure. This brochure outlines the possible sentences for someone who pleads guilty or who a judge finds guilty at trial, and now includes information for Aboriginal people regarding their Gladue rights and what this means for sentencing, as well as information about First Nations Court. The brochure also describes what the convicted person can do to prepare to speak to the judge, and what he or she can say to the judge, before the judge decides on a sentence.

Hot off the press: Aboriginal Harvesting Rights: If You’ve Been Charged with a Harvesting Offence

Aboriginal Harvesting RightsThis new fact sheet is for Aboriginal people who have been charged with a harvesting offence (such as illegal hunting or fishing). In Canada, Aboriginal rights, including harvesting rights, are protected under the Constitution Act. These rights are based on the activities, practices, and traditions that are fundamental to the distinctive cultures of Canada’s Aboriginal people—and may include the right to fish, hunt, trap, gather plants, and harvest wood on their ancestral land. This fact sheet explains Aboriginal harvesting rights and who they apply to. The fact sheet also explains how to get legal help (including applying for legal aid) and what other legal options may be available, such as restorative justice and First Nations Court.

First Nations Court expanded duty counsel has a new phone number!

Rob Frederickson, expanded duty counsel for First Nations Court in New Westminster, now has a new toll-free number: 1-877-601-6066. He can still be reached at 604-825-1861 for those of you in Greater Vancouver.

Duty counsel are lawyers who give free legal advice at court, the day of court, while expanded First Nations duty counsel are lawyers who help people apply for First Nations Court and give legal advice on or before the day of court. You or your client can call Rob Frederickson at 1-877-601-6066 (no charge) or 604-825-1861 for information about applying to have a sentencing hearing in First Nations Court.

First Nations Court is located at the New Westminster Provincial Court, and is presided over by Judge Marion Buller Bennett. First Nations Court takes a holistic, restorative, and healing approach to sentencing, with a focus on rehabilitation whenever possible. The court sits once a month and hears criminal and related child protection matters. The court can hear cases referred to it from all over BC.

For more information about First Nations Court, Gladue rights (Gladue refers to the unique consideration judges must give an Aboriginal person when sentencing or setting bail), and more, check out the LSS fact sheet Are You Aboriginal? Do You Have a Bail Hearing? Are You Being Sentenced for a Crime? Do You Know About First Nations Court?