I visited First Nations Court this past week in the Cowichan Valley. In the Halkomelem language Cowichan is Quw̓utsun̓, which means “the warm land”. I did not know what to expect when the directions took me to a place called River Road adjacent to the core of Duncan down a winding dirt road next to an embankment that once held a river but due to a severe drought the area is now referred to as a “dead zone”.
There were two security officers in uniform when I walked into the building attached to one of the Cowichan Tribes Big Houses and they pointed me into a long narrow room with one red horizontal stripe painted across the middle of the wall all around. Inside, four grey plastic folding tables were put together in the middle of the forming a square. There were only about a dozen people in the room when court commenced that morning. When the judge walked in, he was dressed in his robe, and everyone stood up as he took his seat at one of the chairs that had the word gym spray painted on the back in white with a stencil. After the judge was seated four Elders took their rightful place sitting in the four corners of the tables. There was room for a defense lawyer directly in front of the judge and the prosecutor to the judges left. Before court was called to session the judge asked everyone in the room to introduce themselves which is often customary in Indigenous legal orders.
The first accused was a young man charged with clamming out of season. His lawyer, dressed in suit and tie, first felt the need to explain why he had a huge band aid on his forehead before the proceedings. To the amusement of those in the room, he told us how over the long weekend he had been attacked by a swarm of hornets when cutting up an old tree stump. After everyone had a good laugh at his expense, the Elders were able to go around the circle and speak to the accused one by one sharing their insight and advice. One of the Elders reminded the young man that clamming out of season was not only against the law but that it could have also gotten people in the community sick as he had been collecting clams for a feast in an area that was off limits for that reason.
Many of the people in court that day were there for minor domestic incidents and when the Elders spoke to them you could sense the overwhelming emotion in the room. The Elders exemplified love and care when speaking in a gentle, kind and forgiving manner. Counsellors, court workers and community workers with job and educational resources on hand, were there at the ready to talk to the accused afterwards and offer them any help they would require in completing their mandatory requirements for reparation. The entire process was an informal and effective way of helping people rather than only punishing them and I was thankful to have bore witness. Even the judge made a joke or two about rap music with one of the defendants in an effort to be relatable and not so stuffy. Of course, there are still issues with lawyer case loads as one lawyer who claimed to have known the family of the accused for many years had mentioned to the court that he recently lost a close family member by way of a highway accident when in actuality their loved one had passed on from something completely unrelated which showed the “on the spot” guess work that can often be at play when lawyers are tasked with dealing with multiple case files.
As someone who has sat in on this type of sentencing circle structure in community before and also within regular judicial criminal proceedings, I know that the former is extremely effective because there are supports in place for people long after the court is not in session and the one definitive factor is that the people who are there genuinely care, in particular the Elders.
It is the practice of both Indigenous law and common law side by side, equal, that eliminates the often rushed or backlogged court room. It also a space for healing, reflection, retribution, and respect of the two justice systems that are at play. In a country where we are seeing and upholding the value of Indigenous law more and more, we must learn how to harness it and utilize it further to create systemic changes in an entrenched legal system that all too often forgets about the humanity and dignity that everyone deserves. Rather than simply analyzing the logistics of a case and passing it off or focusing on the punishment we should be implementing First Nation’s courts across the country for accessible navigation that provides a path, especially for repeat offenders, out of the institutionalization of the justice system that so many Indigenous people are caught up in having been given an unfair chance to succeed.
This blog was written by Katlia Lafferty.