When Justice Doesn’t Scale: Some Thoughts on the First Nations Court

I was recently lucky to attend the Law Courts Center‘s Truth and Reconciliation Dialogues – “A View from the Bench” with Judge Marion Buller. Judge Buller talked about having a crisis of conscience in adjudicating cases with Aboriginal defendants and approaching the Chief Justice with the idea of a First Nations court, which was founded almost ten years ago.

The court is run out of the courthouse in New Westminster, British Columbia, with duty counsel and elders who get honoraria, but it has been unfunded until recently. It is a sentencing court that is open to people who self identify as First Nations, who plead guilty, who are not facing a custodial charge, and who want that option. The court is careful about terminology: instead of offenders they have clients. The goal is to work with the whole person and develop a “healing plan” instead of a “sentence”. This involves helping people address their own problems that led them to commit the crimes and find ways to help them heal personally and reintegrate into society.

The court includes elders, and welcomes offenders’ families, victims and their families, and tribal government representatives to participate in the process. Once a healing plan is developed, the court checks in with the client monthly for a time, and then as needed, until the plan is complete. If the client has problems meeting the terms of the healing plan the court will examine what the problem is and change it or help the client accomplish what they need to do. Judge Buller says she is not averse to picking up the phone and calling people the client is having problems communicating with — she has found that judges don’t generally have a problem with people not taking their calls.

Healing plans are personal and draw on the individuals’ backgrounds: one client wrote a rap about the dangers of domestic violence. The program also recognizes the part communities play in reintegrating people. A plan is not complete without considering what harms have been done to others and making amends to heal the community and re-establish the client’s place in it. At the end of the healing plans that clients are blanketed by the elders, and Judge Buller said that the change in the people is amazing.

There are criticisms of the First Nations Court: many people say that what the court is doing is more like social work than adjudicating. There isn’t data to qualify what effects the First Nations Court has on client outcomes, though they are currently doing a research project to better quantify the court’s impact. The court requires that clients be able to appear in person, which limits access to those who live in the Lower Mainland or who have the means to travel. Judge Buller’s response was that the criticisms may have merit, but that the work wasn’t getting done and this is a start.

The discussion raised several questions for me. Walking about with my particular set of professional tools, I wonder what this means for legal information. The hammer of librarianship tends to look for the printed word (or at least recorded information in some format). I asked Judge Buller about whether the decisions of the court are published, and she informed me they are not. This makes sense from the perspective of the court itself, and in the context of the Aboriginal oral tradition, but it concerns me that the main method for communicating information about courts’ decisions and the way they are distributed to influence other courts’ judgments is in the form of printed judgments. By not making the decisions of the First Nations Court available it limits the influence of the court’s decisions for those being sentenced elsewhere.

Stare decisis is a way for particular judgments to scale. A decision made one time can affect an unlimited number of the decisions that come after. The influence of a published court judgement is a good example of something scalable: a decision may never be cited or it may be cited thousands of times with no more effort on the part of the issuing judge. Publication greatly increases the likelihood that a particular decision will have wider influence.

Many people are endorsing technological solutions for access to justice, but the First Nations Court is an example of why this won’t be enough for those most in need of justice. Technology innovators want to solve legal problems once for an unlimited number of people, which will allow them to provide the service more cheaply than is possible with current methods. While there are undoubtedly opportunities to use this approach to provide legal assistance more affordably for many, there is a significant number of people for whom technological solutions will never be sufficient. They need social interventions.

People with complicated problems need help from other people. The legal system and its hurried ways, exacerbated by the billable hour, can be intimidating for anyone. Lawyers who appear in First Nations Court have said that time slows there, and the process certainly sounds more time intensive than it does in other courts. Even so, it seems impossible to calculate the worth of those committing crimes, their victims, families, and wider communities experience justice instead of a sentence.

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