First Nations Sentencing Court

On Monday January 23, 2012, her Honour Judge Challenger invited representatives from the North Shore Community including members of the Squamish Nation, to introduce the First Nations Sentencing Court that was to commence on February 14, 2012 in North Vancouver Provincial Court.

The other objective of this meeting was to develop restorative justice committees that represent the different Nations. This new sentencing court will encourage involvement of elders for the purpose of counseling and guidance. It will also aim to incorporate the First Nation traditions such as carving, food gathering, and participation in long houses in sentences for offenders. First Nation offenders will have the opportunity to address the community and apologize for their actions. Those who have been convicted of more serious crimes may even go into isolation by being placed in remote areas, something that was traditionally done within tribes.

Her Honour emphasized that the First Nation Sentencing Court is not meant to be a two-tier justice system. Its objective is to serve the purpose of a normal sentence while incorporating the First Nation values. The importance of these values have been highlighted in s. 718.2(e) of the Criminal Code and by the Supreme Court of Canada decision in R v Gladue [1999] 1 SCR 688. The Court in that case said:

Section 718.2(e) is not simply a codification of existing jurisprudence. It is remedial in nature. Its purpose is to ameliorate the serious problem of overrepresentation of aboriginal people in prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing. There is a judicial duty to give the provision’s remedial purpose real force.

To be put before the First Nations Sentencing Court, the offender has to identify himself or herself as a First Nations person. They do not have to be from the local nation. There is no need for a formal referral to this Court but rather a request by the offender. In this Court, the judge sits at a lower level with the public and others will sit in a circle. People from the community are invited to speak and make submissions. Counsel will have to be mindful of these submissions. There may be prayers and offenders will be encouraged to talk to elders. If there are addiction issues and there are no treatment programs available, the community may still assist the offender.

Her Honour, Judge Challenger also emphasized that, for certain offences, people will still face jail as a consequence based on primary grounds. However, if counsel requests that their client wishes to address the community, their sentence may be mitigated. Counsel should also keep in mind that the First Nations Sentencing Court is not for everyone. Her Honour gave an example that in Bella Bella, B.C., people convicted of drug trafficking were seen as greedy and they were actually banished because the community did not want to deal with them. They had no place in the community. A lot of factors are taken into consideration and one of them is the nature of the offence.

The First Nations Sentencing Court is held once per month in the afternoons.

Up Next

Human Trafficking in Canada