Walking the healing path.

By The Honourable Judge Marion Buller Bennett

First Nations Court commenced in November, 2006, in New Westminster, B.C. It came about as a result of several factors: case law and amendments to the Criminal Code that require a judge, on sentencing, to apply the principle that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders;” the increasing number of incarcerated First Nations people notwithstanding this amendment; and, the myriad of reports and studies that have found that the justice system must take new approaches in its treatment of First Nations people.

The people who come to the court have identified themselves as belonging to a First Nation. They come to the court by referral from Crown, defence, and the court itself.

First Nations Court is for sentencing of criminal matters and mediation of family court matters. The First Nations Court can take guilty pleas to any offence over which a Provincial Court judge has jurisdiction.

After the charge is read and the plea taken, a pre-sentence report, with a Gladue component is ordered. On the next appearance, Crown counsel describes the offence and position on sentence. Then, everyone in the courtroom has the opportunity to speak. That may include the offender, Legal Services duty counsel, elders, social workers, court workers, probation officers, family members, victims and police officers. The discussion stops only when everyone has said all that they need to say. If there is a family court matter, that matter is included in the discussion.

The goal of the court is to take a First Nations perspective, being a holistic and restorative approach, to sentencing. So, in addition to the person’s education, employment history and past criminal history, the court hears about a person’s extended family, his or her current needs for housing and health services, the availability of community-based resources and other relevant information. If there is a family court file, youth court file or a related matter, those matters are heard at the same time.

Then, the person is sentenced, but the sentence is referred to as a “healing plan.” The goal is to go to the root cause of the offending behaviour and provide the person with the assistance that she or he needs. Therefore, the healing plan may include referrals to probation officers, native court workers, band-employed counsellors, native centres and programs offered by Health Canada.

If there is a family court matter, then orders are made by consent, with terms that do not conflict with the healing plan. The healing plan and family court orders are meant to complement each other and draw in all of the available and appropriate resources.

The person will appear on future dates for a review of the healing plan. Changes can be made to the plan, if required.

The court has established credibility with First Nations in the Lower Mainland and enjoys their ongoing support. The court has been welcomed to sit in several First Nations territories. Representatives of First Nations across the province and the country have attended and observed the court in action.

The court has enjoyed great success due to the support and commitment of many individuals: Crown counsel, probation officers, court workers, court staff; and, the North Fraser District judges. New Westminster contacts for the court are Ms. Wendy VanTongeren Harvey, Crown counsel and Ms. Lila MacDonald, Judicial Case Manager.

The Honourable Judge Marion Buller Bennett, Provincial Court of British Columbia.

This article was published in the June 2010 issue of BarTalk. © 2010 The Canadian Bar Association. All rights reserved.