When lawyers arrive for court each Wednesday in Wagmatcook, Cape Breton, they make their way down corridors lined with original works from three Indigenous artists, past signage in two languages, English and Mi’kmaw, and head to the courtroom in time for the opening Smudging ceremony. Then the lawyers take their seats — at a circular bench.
Canada’s first Indigenous court is now in session in Wagmatcook First Nation. “This is unique in Canada,” said Judge Laurie Halfpenny MacQuarrie, who presides over the court.
The new court incorporates the sentencing and bail hearings that distinguish Gladue courts in this country. These courts, which get their name from a 1999 Supreme Court of Canada decision that highlighted concerns about the discrimination against and over-representation of Aboriginal people in the justice system, are intended to serve Indigenous people who have matters before the court. They differ from traditional courts in that they take into account broader issues facing Aboriginal people, such as the trauma of residential schools.
The court in Wagmatcook First Nation, however, goes beyond the services of a Gladue court. “We do arraignments. We do bail hearings. There is a wellness court,” said Judge Halfpenny MacQuarrie. Judge Laurie Halfpenny MacQuarrie The court schedule is based on providing these services on a rotational basis. The first Wednesday of each month, for example, is arraignments. Trials are conducted the second and fourth Wednesdays of each month. “I wanted people to be able to be tried in their community,” said Judge Halfpenny MacQuarrie.
Nova Scotia’s Indigenous court is about more than location, however. Its appearance — the circular bench, for example, is “a powerful symbol for people who come into the court,” noted Judge Halfpenny MacQuarrie — is distinctive as are its processes. Once a month for half a day, for instance, a health and wellness court is held. The program, for Indigenous offenders who plead guilty and are at a high risk to reoffend, looks at the underlying factors that contribute to the person coming into conflict with the law. Sentencing process is delayed up to 24 months to allow offenders time to proceed through their individualized healing plans.
The court also has offices for prosecutors, sheriffs and Nova Scotia Legal Aid as well as private space for counsel and their clients. A dedicated room is available for Mi’kmaw court workers.
The need to enhance justice for Indigenous peoples has been an issue for decades. In 1989, the Royal Commission on the Donald Marshall, Jr., Prosecution, which investigated the wrongful conviction of an Indigenous man in Sydney, N.S., recommended that the provincial court take steps to establish regular sittings of the court on reserves. More recently, the Truth and Reconciliation Commission urged courts to take the residential school legacy into account in their decision making.
Nova Scotia’s new Indigenous court is helping to address these and other recommendations.
“This is the beginning of a new justice experience journey for our people, as identified in the Marshall Inquiry and the Truth and Reconciliation Commission Calls to Action,” Chief Norman Bernard of Wagmatcook First Nation said at the official opening of the court, held on National Indigenous Peoples Day.
The goals of the court may be aspirational, but its roots were more mundane. Court closures in the province necessitated that members of the Wagmatcook and We’koqma’q First Nations travel an hour or more each way for court appearances in an area where there is no public transportation. “I was issuing warrants after warrants for non-appearance of Indigenous people. … I knew it wasn’t a lack of respect but distance,” said Judge Halfpenny MacQuarrie.
That concern led to discussions with the First Nations communities and […]
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