First Nations court seen as path out of vicious cycle

'We can do it here,' Tke'mlups lawyer says

Mike Youds / Kamloops Daily News
May 3, 2012 01:00 AM

Justice Marion Buller Bennett speaks at TRU Thursday.

Local bands have asked for a First Nations court to be established in Kamloops, delegates heard Thursday at an Aboriginal justice forum at TRU.

The forum focused on the Aboriginal sentencing principles of Gladue, recently reaffirmed by the Supreme Court of Canada, while hosting Justice Marion Buller Bennett of First Nations court in New Westminster.

Of Aboriginal descent, the judge took it on her own initiative six years ago to open the province's first court dedicated to restorative justice for sentencing on criminal and family court matters. A similar court opened in North Vancouver last month.

"Judge Buller Bennett is restorative justice personified," said Pamela Shields, manager of Aboriginal services for the Legal Services Society. "It's a path out of this endless cycle of aboriginal people being caught up in the criminal justice system."

Aboriginals are vastly over-represented in the system and their rate of incarceration is far higher than their proportion of the population. The disparity has long been explained as a reflection of poverty, language and cultural differences, but there may be other underlying factors.

One speaker described the issue as the consequence of centuries of colonial domination compounded by residential schools and the removal of children from their families.

Prof. Shelly Johnson, a TRU social work instructor, pointed to "historical trauma theory," a relatively new concept. The theory holds that populations historically subjected to long-term, mass trauma - colonialization, smothering of rights and title, destruction of culture and family - exhibit a higher prevalence of disease.

"What this says is, we need a lot of time and a lot of understanding to realize what brought us to this point and how we move forward," Johnson said.

Buller Bennett described First Nations court as a work in progress. She became dissatisfied a decade ago with how she could sentence Aboriginal people and how she could deal with First Nations families in a more constructive way.

An amendment to the Criminal Code requiring judges to consider alternatives other than prison for all offenders, particularly Aboriginal offenders, helped bring about the change.

The judge had an epiphany when she first asked an offender to share his life experience with the court. The man was astonished, but she could see the change in him as a result.

"Everyone else in the courtroom thought I'd completely lost it," she said. "But that was when I changed."

First Nations court takes a holistic and restorative approach, the judge explained. After a plea is taken, she orders a pre-sentence report with a Gladue component. Next, the Crown describes the offence and position on sentencing, and then everyone in the court can speak to the case, including the offender, elders, social workers, family members, victims and police.

Sentencing is referred to a "healing plan," its aim being to get to the root of the problem and provide supports and referrals to services that counter recidivism. Two-way community involvement is critical to the process, she noted.

"People who are marginalized don't think they have anything to offer," the judge said. "Included in the community, they're not so marginalized … And they become a person of value."

Linda Thomas, legal manager for Tk'emlups te Secwepemc and one of the forum hosts, pointed out that the Kamloops court registry is the largest and busiest in Interior B.C. Aboriginals represent 7.7 per cent of Kamloops' population, so there is a significant need for First Nations court.

"I think we can do it here," she said.

Together with Skeetchestn and Simpcw First Nations, Tk'emlups has formed an Aboriginal justice council. On behalf of all Secwepemc bands, Tk'emlups wrote to Attorney General Shirley Bond early this year to a sitting of a First Nations court in Kamloops but there has been no response.

Thomas described the court as a recognition of a unique history.

"It's not a get out of jail card. It's not a sentence reduction. It's a whole other way of doing court."

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