Two aboriginal groups are exploring plans for First Nations courts in their communities – a tool proponents say can be more effective than standard criminal courts.
A September briefing note from the B.C. Ministry of Justice released through freedom of information says the Tsilhqot'in National Government and Sto:lo Tribal Council are considering establishing such courts.
B.C. already has four First Nations courts. They differ from standard courts in that they include First Nations elders in the process and offer healing plans to help the offender's rehabilitation and repair the harm done to the community by the crimes.
Chief Joe Alphonse, tribal chairman of the Tsilhqot'in National Government, which is based in Williams Lake and represents several First Nations communities, said the regular criminal justice system has not worked, as evidenced by the region's high crime rate.
"Right now, you throw somebody in jail for six months and they just become better and better at their craft because you're enabling them to become educated by real criminals," he said in an interview. "Things just keep escalating and you want to stop that escalation from happening and that's what this process will enable us to do."
Chief Alphonse said it is unclear when any Tsilhqot'in court would open. He said he has been in contact with B.C. Provincial Court Chief Judge Thomas Crabtree and has been invited to visit some of the other First Nations courts but has not yet been able to do so.
Chief Alphonse said a system in which offenders speak with community elders rather than a judge they may have never met could prove beneficial.
"We don't want to adopt a B.C. process or a Canadian process. We don't want our programs to look exactly like that. Why would we? It doesn't work for us," he said.
Dana-Lyn Mackenzie, associate director of indigenous legal studies at the University of British Columbia's school of law, said the four First Nations courts currently in operation in B.C. are sentencing courts. An offender has to plead guilty to go through the process.
Ms. Mackenzie, who also practises part-time at the university's Indigenous Community Legal Clinic and has appeared in First Nations court on behalf of clients, said the four courts, which are in North Vancouver, New Westminster, Kamloops, and Duncan, have some differences. For example, she said, the North Vancouver court will hear cases involving indictable offences, while the New Westminster court will only hear matters that have no prospect of jail time.
The First Nations courts are in provincial courthouses and typically sit one day a month in one courtroom. Ms. Mackenzie said B.C. could use more First Nations courts – she said Surrey has a particular need – and they should sit more often.
"When you have a dedicated Crown and judges who are dedicated to the principles and the idea behind First Nations court, they can allow the offender to take their time and work with elders and work with community members," she said in an interview. "…In Provincial Court, you're very pressed for time."
Ms. Mackenzie said she has appeared at the First Nations court in North Vancouver and, unlike in standard courts, the judge sits at a table with the offender, counsel and elders rather than at the bench.
Ms. Mackenzie said she has no statistics on recidivism rates for offenders who go through First Nations court, but said anecdotal evidence leads her to believe they make a difference.
"I would think there is a much higher success rate because it's a more restorative, healing approach to sentencing. … I think it allows the offender to really come to terms with what they did and realize how it impacts their community," she said.
A Provincial Court spokesperson said it could not provide statistics or information on First Nations courts, as the chief judge was unavailable.
A B.C. Ministry of Justice spokesperson said in a statement that the ministry will soon publish a specialized courts strategy that "will guide the consideration for the development of new specialized courts and assist communities in assessing which justice solutions may be the most responsive and effective for them."
The spokesperson said any decision to create a specialized court is not made by government alone. The ministry works with the judiciary, community and other justice system stakeholders to "evaluate requests, assess community needs and consider the availability of resources."
The Ministry of Justice briefing note was written in preparation for 30-minute meetings with the Tsilhqot'in National Government and Sto:lo Tribal Council on Sept. 9, 2015.
The Sto:lo Tribal Council, which is based in Agassiz, did not return messages seeking comment.