First Nations Court opens in North Vancouver
The judge is out of her usual judging clothes and the court sheriff wears no gun.
It’s not immediately apparent — not at first — if these are just oversights, but when Judge Joanne Challenger turns from the convicted man to the packed public gallery and asks for any suggestions on sentencing and the hands go up, it becomes clear: First Nations Court is different.
It began in North Vancouver in February, modeled on a similar program in New Westminster that allows anyone who identifies as aboriginal and has been convicted of a crime in provincial court to have their sentence decided in a court that gives special heed to First Nations history.
Today is only the second ever sitting of the special sentencing court inside North Vancouver’s provincial courtroom No. 2.
And with the judge beckoning for sentencing input from any and all in attendance, a bidding war has begun for Anthony (not his real name), an 18-year-old just convicted of assaulting a police officer.
For the Saskatchewan-born teenager, this is not his first offence. In fact, he was already being arrested on an outstanding warrant at Lonsdale Quay when the North Van Mountie who spotted him was attacked.
But now in courtroom No. 2, a chorus of social workers, First Nations reps, aboriginal friendship groups and counsellors are all telling the judge the same thing: We want him.
“We’d be willing to take him in,” Sundance chief Rueben George of the Tsleil-Waututh First Nation pipes up to the judge, who’s seated not on her bench as usual, but down beside the convicted teen and his lawyer with piles of files spread between them.
“As well as our mentoring program,” George ups the ante, “we also have a healing program that’s a 12-week program we’d like to offer up as well.”
Turning to Anthony, Judge Challenger asks, “Are you willing to do that?”
And with a firm yes, he accepts his sentence — not just the Tsleil-Waututh programs, but a year’s probation, alcohol and mental health counselling, a best attempt to get his Grade 12 equivalent, an apology to the officer he kicked and a solemn promise to learn about his First Nations heritage.
Favouring terms like “healing plan” instead of the typical judge’s sentence, First Nations Court skirts the punitive stick of the traditional justice system for the it-takes-a-village approach to righting historical wrongs on both sides of the judge’s bench.
Breaking the chain
“Do you know why it is so many First Nations, particularly young men, go to jail and so many First Nations people have issues with substance abuse and alcohol?” the judge asks Anthony.
Approximately 35 to 45 per cent of all youth criminal cases heard in North Vancouver court in the last three years have been against aboriginal youth, while aboriginals only account for about two per cent of the population served in North Van, West Van, Squamish and Whistler.
Anthony’s answer to the judge is that on the Saskatchewan reserve he hails from, people choose welfare over work because they’re already provided a roof over their head by the band. That, at least, is what his grandmother — a heroin addict — told him growing up. He now lives in a West Vancouver foster home.
“Do you know why your people are on reserves?” Judge Challenger asks. “It has nothing to do with who you are as a human being and everything to do with the circumstances you saw growing up and what your parents saw growing up and everything their ancestors went through since contact with Europeans,” she continued. “Trauma can transfer from generation to generation and it’s important that you learn that alcoholism isn’t something that’s part of being First Nations. Your people didn’t even use alcohol before contact. But everything was taken away. Most of your people were killed from disease, much of it intentionally spread. Canada was not good to its First Nations people.”
While for some that may sound like a classic case of a judge legislating — or at least editorializing — from the bench, or very near her bench, it’s actually a requirement of the Criminal Code of Canada that “sentencing judges consider all available sanctions other than imprisonment and to pay particular attention to the circumstances of aboriginal offenders” [S. 718.2e].
Solidified in the Supreme Court of Canada’s landmark 1999 decision in the R. v. Gladue manslaughter case involving the stabbing of a young Nanaimo man by an intoxicated teenage aboriginal woman, the Gladue decision is the forebearer of North Vancouver’s First Nations Court.
Justice system, not legal system
Aboriginal youth are the fastest growing demographic in Canada and, as was shown locally, are already exponentially over-represented in the Canadian justice system. That’s kept people like Andrew Van Eden, the Tsleil-Waututh’s Justice and Special Projects Officer, very busy.
“For myself, sitting there in court while this young man who isn’t even from here is talking, I’m thinking, ‘Man, we’ve got these resources this person could take advantage of and I hope the judge is aware of it,’” Van Eden tells The Outlook in his office on the Tsleil-Waututh reserve.
He says it’s too early yet to tell if First Nations court is working on the North Shore, adding that the biggest struggle so far has been getting all the arms of the justice system — cops, courts, parole and prisons — to work in concert.
“That’s the failure of the traditional justice system, that too often it deals with a crime as if that’s all that it is because there’s too much legal jargon of one person’s rights over another’s,” he says. “When really it’s about this one criminal moment in a person’s life as a result of a whole lot of other things that have happened. And if you don’t look at all the other mitigating circumstances and the history, you’re never going to address criminality.”
But luckily here on the North Shore, he says, joint efforts between the Tsleil-Waututh and Squamish bands to address issues of crime and restorative justice alongside other service providers like the Integrated First Nations Unit of the North Van and West Van police, are starting to show gains in raising awareness of the court in the community.
And it’s something that ought to spread to all parts of the country, Van Eden says, as our best effort yet to forge a justice system from a merely “legal” system for all Canadians.
“It makes sense that North Vancouver has a First Nations Court” he says. “But my only other response to that is that it also makes sense for every other community to now have them too.”
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