First Nations court seen as path out of vicious cycle

                                             Justice Marion Buller Bennett

By Mike Youds, Daily News Staff Reporter

Local bands have asked for a First Nations court to be established in Kamloops, delegates heard Thursday at an Aboriginal justice forum at TRU.

The forum focused on the Aboriginal sentencing principles of Gladue, recently reaffirmed by the Supreme Court of Canada, while hosting Justice Marion Buller Bennett of First Nations court in New Westminster.

Of Aboriginal descent, the judge took it on her own initiative six years ago to open the province’s first court dedicated to restorative justice for sentencing on criminal and family court matters. A similar court opened in North Vancouver last month.

“Judge Buller Bennett is restorative justice personified,” said Pamela Shields, manager of Aboriginal services for the Legal Services Society. “It’s a path out of this endless cycle of aboriginal people being caught up in the criminal justice system.”

Aboriginals are vastly over-represented in the system and their rate of incarceration is far higher than their proportion of the population. The disparity has long been explained as a reflection of poverty, language and cultural differences, but there may be other underlying factors.

One speaker described the issue as the consequence of centuries of colonial domination compounded by residential schools and the removal of children from their families.

Prof. Shelly Johnson, a TRU social work instructor, pointed to “historical trauma theory,” a relatively new concept. The theory holds that populations historically subjected to long-term, mass trauma — colonialization, smothering of rights and title, destruction of culture and family — exhibit a higher prevalence of disease.

“What this says is, we need a lot of time and a lot of understanding to realize what brought us to this point and how we move forward,” Johnson said.

Buller Bennett described First Nations court as a work in progress. She became dissatisfied a decade ago with how she could sentence Aboriginal people and how she could deal with First Nations families in a more constructive way.

An amendment to the Criminal Code requiring judges to consider alternatives other than prison for all offenders, particularly Aboriginal offenders, helped bring about the change.

The judge had an epiphany when she first asked an offender to share his life experience with the court. The man was astonished, but she could see the change in him as a result.

“Everyone else in the courtroom thought I’d completely lost it,” she said. “But that was when I changed.”

First Nations court takes a holistic and restorative approach, the judge explained. After a plea is taken, she orders a pre-sentence report with a Gladue component. Next, the Crown describes the offence and position on sentencing, and then everyone in the court can speak to the case, including the offender, elders, social workers, family members, victims and police.

Sentencing is referred to a “healing plan,” its aim being to get to the root of the problem and provide supports and referrals to services that counter recidivism. Two-way community involvement is critical to the process, she noted.

“People who are marginalized don’t think they have anything to offer,” the judge said. “Included in the community, they’re not so marginalized … And they become a person of value.”

Linda Thomas, legal manager for Tk’emlups te Secwepemc and one of the forum hosts, pointed out that the Kamloops court registry is the largest and busiest in Interior B.C. Aboriginals represent 7.7 per cent of Kamloops’ population, so there is a significant need for First Nations court.

“I think we can do it here,” she said.

Together with Skeetchestn and Simpcw First Nations, Tk’emlups has formed an Aboriginal justice council. On behalf of all Secwepemc bands, Tk’emlups wrote to Attorney General Shirley Bond early this year to a sitting of a First Nations court in Kamloops but there has been no response.

Thomas described the court as a recognition of a unique history.

“It’s not a get out of jail card. It’s not a sentence reduction. It’s a whole other way of doing court.”

The Amazing, Sad & Very Good World of the Children’s Panel

By Clara Glynn, The Guardian.co.uk

In Scotland, if you’re under 18 and you commit a crime, chances are you’ll end up in front of a children’s panel, not a court. Photograph: Mark Harvey/Alamy

In Scotland, if you’re under 18 and commit a crime, or if you’re abused or neglected by your parents, or indeed if you are in almost any kind of serious trouble, the chances are you won’t end up in court. Instead, you will find yourself in front of a “children’s panel”.

I moved to Scotland from England 12 years ago, and I’m still amazed by some of the differences between the two countries. In Scotland the age of criminal responsibility is eight, which is barbaric, though thankfully it’s about to rise. But the youth justice system is a model of enlightened, forward-thinking sanity. It’s a paradox.

A children’s panel is made up of three unpaid volunteers. The family and any other interested parties – social workers, teachers, relatives – sit around a table and discuss the child’s situation, and after 45 minutes the panel decide what should happen. These very ordinary people have extraordinary power, from locking up a child in a secure unit to taking him away from his parents and into the care of the local authority.

Because of the strict rules around confidentiality and children, the children’s panel doesn’t get much publicity, but I’ve been attending panels as an observer, and interviewing panel members to research a radio play. I’ve been amazed at the sadness and the goodness I’ve come across. The sadness because, unless you’re a social worker or you live in one of the worst Glasgow schemes, you probably have no idea of the situation many children find themselves in. Families with three generations of drug addicts, children whose neglect is so extreme it amounts to abuse. One of the professionals I interviewed described his job as “hacking away at the permafrost with a teaspoon”.

Goodness because, in spite of the terrible odds, you see examples of courage and selflessness that are just amazing. The foster mother who poured love into a difficult teenager and turned her life around. The granny who stepped up to the plate when no one else would and took on her daughter’s children. The child who emerged as a sane human being from a background that would poll-axe most of us.

The panel members are an interesting bunch – making difficult decisions with clarity and care. The youth justice system in Scotland is powered by these people – 3,000 volunteers across the country who give up an afternoon every two weeks to sit on a panel. One panel member told me he did it because he had a boring job in IT, and he wanted “to do some good in the world, if that doesn’t sound soft”.

Each panel has to be mixed gender – as more women than men volunteer, in practice this means each panel I saw had one man on it. Many of them were younger than I was expecting. They were from all sorts of backgrounds, from a taxi driver to a civil servant to a former merchant seaman with two armfuls of tattoos. You could say the children’s panel is David Cameron’s “big society” in action. Come north, you Tories – watch and learn.

The ethos of the children’s panel is non-judgmental. It’s not about reward or punishment, it’s just about what’s best for the children. Because there are usually no lawyers, because everyone sits around a table together and anyone can chip in, there is a real feeling in the best panels that we’re all in this together, trying to get to a solution. At the end of the session, once everyone has had a chance to speak, the panel members make their decision. They do it straight away. They get no chance to consult each other; it all happens in front of the family. I couldn’t do it. But I’m glad they can.

Restorative Justice Approach Avoids Jail in Tragedy Where Man, 57, Died

Story From Times Colonist – 24th April 2012

The family of Victoria musician Richard (John) Caspell, who died following a collision in Victoria three years ago, stood in Western Communities Court Monday and tearfully embraced the woman whose SUV struck him down as he rode a motorcycle.

Cheryl Gervais pleaded guilty to driving without due care and attention after the Crown reduced the charge from dangerous driving causing death.

During the sentencing hearing Monday, provincial court judge Ernie Quantz fined Gervais, 39, the minimum $100, “a fine that shouldn’t be viewed as trivializing the harm caused.”

Gervais will not face a one-year prohibition because she voluntarily gave up driving for a year to pay her respects to the accident victim, court heard. She volunteered with the B.C. SPCA because that was a cause Caspell believed in, and bought the family a tree to be planted in John’s memory.

Gervais has spoken publicly to groups large and small about the dangerous combination of cellphones and driving.

Caspell, 57, was heading on his motorcycle to a meeting on April 26, 2009, when he was struck by Gervais’s SUV, and thrown 10 metres, at the intersection of Government and Bay streets.

The worst of his injuries was a badly fractured ankle and the surgeon declared him to be a very lucky man, all things considered. He went to the operating room on May 1 and the next day, he was encouraged to stand.

Caspell felt light-headed and his heart stopped.

Twenty minutes later, he was pronounced dead. A blood clot had lodged in his lung.

Gervais told the police that although she had not been texting before the accident, she was distracted by her cellphone. She was given a ticket for driving without due care and attention.

When Caspell died, that ticket was revoked and Gervais, the mother of a young child, was charged with dangerous driving causing death, a charge that carries a maximum prison term of 14 years.

Paul Caspell, John’s brother, learned of Gervais’s situation and began looking into the restorative justice process, where the families of the victim meet with the offender to try to come up with a satisfactory punishment.

The idea was not to replace a judicial decision but to find ways for Gervais and the Caspells to begin healing, court heard.

The Caspell family didn’t want Gervais to go to jail, and the Crown subsequently withdrew the dangerous-driving charge and reinstated the lesser charge of driving without due care and attention. Gervais pleaded guilty.