THE ADVOCATE V O L . 7 5 P A R T 2 M A R C H 2 0 1 7 195 MAINTAINING A “HAPPY MEDIUM” BETWEEN THE CRIMINAL COURTS AND FIRST NATIONS By Samuel McDonald* It is the most overlooked criminal court in New Westminster. Barristers with 20 years’ call are unaware of its existence. Labelled as “social work” for duty counsel and unsuspecting articling students, many observers misperceive it as a government initiative. However, this First Nations Court is tasked with the most pressing problem in criminal law: lowering the aboriginal incarceration rate. Recent census data indicates that adults who identified as aboriginal (First Nations, Inuit, Métis and Native) comprised 4.5 per cent of British Columbia’s population and constituted 27 per cent of B.C. Corrections inmates.1 Nationally, the 4 per cent aboriginal populace (First Nations, Inuit and Métis) is overrepresented, with 25 per cent in federal institutions.2 The urgency of this situation is highlighted by the 10 per cent increase in federal incarceration between 2005 and 20153 and the youthful composition of aboriginal communities across Canada.4 Since 1992,5 the courts have tried to break this fact pattern by involving First Nations communities in the sentencing process. Circle sentencing is designed to find the root of the offender’s problem and motivate him or her to solve it. The process removes the hierarchy of the courtroom, replaces the feeling of condemnation with support and allows judges to distinguish each case for creative sentences. While critics charge that it undermines the principle of equal treatment under the law, the circle is limited to crimes without a minimum sentence and subject to the Crown’s recommendation. As one defence lawyer remarked, “It’s really open to the Natives who aren’t bad enough to send to prison.”6 The criteria for determining “slightly bad” from “bad enough” are constantly changing for the Crown and Vancouver’s Indigenous Community * The author gratefully acknowledges the assistance of Judges Marion Buller and Alexander Wolf, Crown Counsel Andrew Baldwin, the Native Courtworkers Amber Katzel and Julie Wright, UBC Professor Shelly Johnson, the staff and students of the Indigenous Community Legal Clinic, and participants of interviews and surveys.
March Pages 2017
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