Justice Systems (Legal Information for Indigenous People)

Circuit court in remote communities

Smaller and more remote communities are often on a Circuit Court system. In Bella Coola and Bella Bella, for example, the Provincial Circuit Court sits every 3 months for 3-4 days and every 6 months in Klemtu, for a day. What this means is that there is no regular sitting BC Provincial Court here. Rather, a traveling court team comes to town for regular scheduled sittings. “Court” means one room of trestle tables occupied by lawyers, clerks, Sheriffs and the Judge and rows of chairs filled with waiting community members.

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In these communities a 3-month Circuit can mean people could wait for 3 months to have their matter started, much less resolved. Sometimes it can mean 3 months until people are able to speak with a lawyer for anything beyond summary advice on the telephone. Having said that, some matters can be resolved more quickly. Remand court happens monthly with video court appearances being heard in Vancouver Provincial Court. Criminal matters can go from First Appearance to trial within a year, and other dispositions even more quickly. Because the Circuit has 2 family counsel available, family matters can sometimes be resolved via collaborative mediated processes, and through access to the court for family conferences, etc.

Family, Child Protection, Criminal, Motor Vehicle Act and Small Claims are all heard at Circuit Court. Family matters include child guardianship, parenting time and responsibilities, child and spousal support, protection orders, etc. Regulatory offenses under the Wildlife Act (provincial) and Fisheries Act (federal) are also dealt with at Circuit Court. These can include harvesting offenses.

Legal supports

For the remote communities of the Central Coast, understanding and engaging the law is impeded by physical isolation, overburdened circuit courts, rotating police forces and cultural differences in dispute resolution. Courts can raise a lot of anxiety. People need to understand what they are facing, what options are possible and what support is available.

There are a growing number of legal resources to support people who are

• being charged with a criminal or harvesting offense,
• dealing with the MCFD on a child protection concern, or
• coming before the court to ask for help with a contested family matter.

Legal Aid BC lawyers

“Duty Counsel” lawyers can give you basic advice about your legal rights, obligations and the court process. You can also apply to Legal Aid BC to have a lawyer appointed to represent you for family, child protection, criminal matters and harvesting offenses. https://legalaid.bc.ca/legal_aid/legalAdvice

If you need help applying for a legal aid lawyer, Legal Aid BC Community Partners and Law Foundation of BC Legal Advocates can help with your application. They can also provide legal information and advocacy on a wide range of matters. Legal Advocates such as these provide free and confidential services throughout the province.

For legal advocacy near you, see:

• www.povnet.org/find-an-advocate and
• www.legalaid.bc.ca/legal_aid/communityPartners

Coming up, this Indigenous-specific programming:

• Native Courtworkers, [insert: p.8]
• Indigenous Justice Centres (IJC), [insert: p.8]
• Restorative Justice Programs, [insert: p.9]
• Gladue Services, [insert: p.10-11]
• Indigenous Courts, [insert: p.12]

Legal aid eligibility

You are eligible if:

• You have a legal problem in the following legal aid coverage areas:
  • criminal charges
  • harvesting offenses
  • serious family problems
  • child protection matters
  • mental health
  • prison issues
  • immigration and refugee issues
• Your net monthly household income is at or below financial guidelines (depends on legal issue and household size).
• You match the criteria required for your specific legal aid coverage area.

To apply call 1-866-577-2525 (Legal Aid BC).

Family matters

You are eligible if:

• You meet income requirements.
• Your family matter is urgent: e.g. denial of access to child, violence, taking child from jurisdiction, etc.

You will need to have the following information:

• Proof of Income (pay stubs, social assistance slips, bank statements)
• Why/ how your matter is urgent. Call a Legal Advocate for help with this.

Child protection matters

You are eligible if:

• You meet income requirements.
• MCFD or a delegated Aboriginal agency has taken or threatened to take your child away from you.

You will need to gather the following information:

• Proof of Income (pay stubs, social assistance slips, bank statements)
• Name of Social Worker
• Court dates or Investigation details

Get legal advice as soon as possible when dealing with Ministry of Children and Family Development (MCFD).

Criminal matters

You are eligible if:

• You meet income requirements.
• Crown in seeking jail time.

You will need to gather the following information:

• Your legal issue and the charges from the police
• Your Promise to Appear
• Proof of Income (pay stubs, social assistance slips, bank statements)
• Initial Sentencing Position issued by the Crown (states whether facing jail time)

You could get “early referral contracts” for legal advice, if the crown is not seeking jail.

Youth have a right to a Legal Aid lawyer but they need to call Legal Aid to get one referred.

Harvesting offences

You are eligible if:

• You meet income requirements.
• You are Indigenous (Status or non-Status).
• The charge affects your ability to follow a traditional livelihood of hunting and fishing.

You will need proof of income and the ticket information.

If you are charged with a criminal offence

• Do not speak to the police.
• Get legal advice as soon as possible.
• You are not required to make or sign a statement with police.
• Do not talk in public or on any social media such as Facebook about the charges.

You can get legal information, legal advice and potentially legal representation from Legal Aid BC. www.legalaid.bc.ca/legal_aid/criminalAndImmigrationDutyCounsel

Plain language publications about court matters: the “Defending Yourself” series, “Gladue and You,” etc. available at www.legalaid.bc.ca/publications

Call a Native Court Worker, Community Partner or Legal Advocate to help you apply for Legal Aid.

Native Court Workers
http://www.nccabc.ca
1-877-811-1190 all BC
+Ext 362 - Williams Lake
+Ext 356 - Bella Bella/Klemtu

Native Courtworkers can assist you at every stage of the court process. The purpose of the Native Courtworker is to facilitate and enhance access to justice by assisting Indigenous people involved in the criminal justice system to obtain fair, just, equitable and culturally sensitive treatment.

Indigenous Justice Centres (I.J.C.)

Culturally-appropriate information, advice, support and representation for Indigenous people. The I.J.C.'s are continuously expanding their services to better meet the legal needs of Indigenous people in BC, so be sure to check in with the I.J.C.'s for help with Indigenous-based legal services to see if your issue is covered.

You qualify if:

• You are Indigenous or self-identify as Indigenous.
• You have a legal issue that falls under either criminal or child protection.
• You have been declined by Legal Aid BC.

Call BCFNJC for an Indigenous Justice Centre near you. 1-877-602-4858 or Remote communities call Virtual I.J.C. 1-866-786-0081

Restorative Justice

Restorative Justice refers to justice systems that focus on accountability, healing and the restoration of balance. The justice systems of Indigenous people have traditionally drawn their justice practices from cultural values such as these. As colonization replaced Indigenous systems with a criminal justice system prioritizing punishment and incarceration, restorative justice outcomes for Indigenous peoples plummeted. There have been attempts to reform the justice system with diversion programs that take criminal matters from the courts and divert them to alternative processes. This is often seen with Youth offenders. More recently, we have seen more Indigenous community-based justice programs offering culturally-based responses to harms (crimes) that occur in their communities.

This can still involve the diversion of situations from the criminal justice system but, in addition, it can also involve placing these matters back within the Indigenous legal traditions of the community.

Restorative Justice practices can be different in every community.

Restorative Justice programs allow for justice processes such as restitution, healing circles, circle sentencing, peace keeping circles, participation in community or cultural events, isolation, banishment, ect.

Restorative Justice Resources in the Region:

• Nuxalk Restorative Justice Program provides culturally based services to court-involved community members.
• Nuxalk Safety Committee may make recommendations to the RCMP, the Court, Nuxalk Chief and Council, and Hereditary Leadership.
• Heiltsuk Gvilas Community Justice Office works to deal with justice issues in the community, to prevent and respond to conflict and harm. This is done through Heiltsuk value based processes that engages elders, adults, and youth. Heiltsuk Justice has an “open door” policy and provides services to all in the north central coast.
• Williams Lake Restorative Justice 250-392-9709.
• Youth charges may be referred by police to diversion or Restorative Justice programs - called an extrajudicial measure.

For a listing of Restorative Justice Programs throughout the Province see the BC First Nations Justice Council website. www.bcfnjc.com/directory-services

Gladue Reports

Gladue Reports document an offender’s unique struggles as a survivor of colonialism. The purpose of these reports is to assist the court in finding alternatives to prison, and in turn, decrease the overrepresentation of Indigenous people in Canadian jails.
– Honourable Harry S. LaForme, First Peoples Law Report, Nov 24, 2021

Indigenous people have specific rights, Gladue rights, when they become involved with the criminal court. It is important to know about these rights and make use of them if you are facing jail time, either at bail hearings or sentencing after a conviction. Ask your lawyer about these rights. You want to have lawyer who knows about these rights. Call the BC First Nations Justice Council for help with this at 1-877-602-4858.

Gladue rights come from the Supreme Court of Canada decision R. v. Gladue (1999). This case involved the sentencing of an Indigenous woman convicted of manslaughter. In that decision, the Court said” In sentencing an aboriginal offender, the judge must consider: (A) The unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and (B) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection.”

If you identify as Indigenous and are charged with a crime, the judge must apply these Gladue principles when you’re in a criminal court. This means the judge must consider your personal and unique circumstances as an Indigenous person when they make a number of decisions about you, such as your bail or sentence.

Gladue reports could include background factors that may have contributed to bringing an Indigenous offender before the courts, for example Residential school, 60’s scoop, intergenerational trauma, etc.

If you do not want a Gladue Report, you are still covered by section 718.2(e) of the Criminal Code:

Courts are to consider Indigenous backgrounds and consider all available sanctions besides imprisonment. Sanctions must be reasonable and consistent with harm done to the victim or community.

How to obtain a report:

www.bcfnjc.com/information-for-the-public

• The Gladue reports program in BC is administered and managed by the BC First Nations Justice Council.
• Anyone who self-identifies as First Nations, Métis or Inuit has Gladue rights and can request a Gladue report.
• Gladue rights apply whether you live on or off reserve.
• The BCFNJC prepares Gladue reports for bail, sentencing, appeals, long-term offender hearings, dangerous offender hearings and parole hearings.
• Ask your lawyer to request a Gladue report.

Gladue Services 1-877-602-4858

ISSUE - MISSING BC FIRST NATIONS JUSTICE COUNCIL BCFNJC "JUSTICE THROUGH SELF-DETERMINATION"

NOTE: Please note they can take up to 8 weeks to complete. It is your right to request a report, but they are not required.

CAUTION: Gladue reports can be traumatic for some individuals and their families. Family and community members may be interviewed to help with the report.

Interested in becoming a Gladue Report Writer?

• Training is available through the Indigenous Perspectives Society: 250-391-0007
• Training is 10 weeks and costs $1800

www.ipsociety.ca

Gladue Reports

If you identify as Indigenous and plead guilty or are found guilty of a crime, you might be able to have your bail or sentencing hearing in a First Nations/Indigenous Court in BC. Indigenous Courts are available to status and non-status people, First Nations, Métis, and Inuit, living on or off reserve. You have the choice to have your matter heard there. Talk to your lawyer or Indigenous Court duty counsel (1-877-601-6066) about what’s best for you. You could be brought into an Indigenous Court by referral from a judge, defense lawyer, or Crown Counsel.

"In First Nations/Indigenous Court, the judge, your lawyer, Crown counsel (government lawyer), Indigenous community members, and your family work with you to come up with a healing plan. A healing plan is a way to help you, your community, and the victim of your crime move on. You have to accept responsibility for your actions and work on issues that may have contributed to get you in trouble with the law in the first place."

– Gladue and You, Legal Aid BC

A court established and staffed by the provincial government, which includes Small Claims Court, Youth Court, and Family Court. The Provincial Court is the lowest level of court in British Columbia and is restricted in the sorts of matters it can deal with. It is, however, the most accessible of the two trial courts and no fees are charged to begin or defend a family law proceeding. The Family Court of the Provincial Court cannot deal with the division of family property or any claims under the Divorce Act. See "Divorce Act," "judge" and "jurisdiction."

A person licensed to practice law in a particular jurisdiction by that jurisdiction's law society. See "barrister and solicitor."

The testing of the claims in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a decision resolving the parties' claims against one another that is final and binding on the parties unless successfully appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction."

(1) A lawyer, or (2) the advice given by a lawyer to their client.

Under the old Divorce Act, the schedule of a parent's time with their children under an order or agreement, replaced with "parenting time" and "contact" in the new Divorce Act. Access usually referred to the schedule of the parent with the least amount of time with the child. See "contact," "custody" and "parenting time."

A person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority."

Under the Family Law Act, a term which describes the time a guardian has with a child and during which is responsible for the day-to-day care of the child. Under the Divorce Act, a term which describes the time a spouse has with a child and during which is responsible for the day-to-day care of the child. See "guardian" and "spouse."

A payment made by one spouse to the other spouse to help with the recipient's day-to-day living expenses or to compensate the recipient for the financial choices the spouses made during the relationship.

Processes used to resolve legal disputes, including negotiation, collaborative settlement processes, mediation, arbitration and litigation.

A request to the court that it make a specific order, usually on an interim or temporary basis, also called a "chambers application" or a "motion." See also "interim application" and "relief."

In law, defending a claim by denying the truth of a fact supporting the claim; a rejection of the truth of facts alleged.

With respect to courts, (1) the authority of the court to hear an action and make orders, (2) the limits of the authority of a particular judicial official, (3) the geographic location of a court, or (4) the territorial limits of a court's authority. With respect to governments, (5) the authority of a government to make legislation as determined by the constitution, or (6) the limits of authority of a particular government agency. See “constitution."

In law, (1) the federal and provincial governments and their departments and agencies, or (2) lawyers employed by the federal and provincial governments to prosecute criminal offences.

(1) Information which establishes or tends to establish the truth of a fact, or (2) the conclusion of a logical argument. See "evidence" and "premises."

In contract law, a promise made by someone about a certain state of affairs, like "the plumbing was replaced last year" or "I had a vasectomy two years ago." See "misrepresentation."

A judge of the superior courts of British Columbia, being the Supreme Court and the Court of Appeal.

In law, a phrase used to indicate secondary relief or a secondary ground of relief in a claim or application, usually presented as an option to the primary relief or primary ground of relief sought. For example, "I'd like to have all of the house but, in the alternative, I'll take half." See “motion," “pleadings," and “relief."

In law, in British Columbia a person under the age of 19.

A conclusion made by a judge which decides a point of law or a fact in dispute.

The highest level of court in Canada. This court hears appeals from the decisions of the Federal Court of Appeal and the provincial courts of appeal, including the Court of Appeal for British Columbia. There is no court to appeal to beyond this court. See "Court of Appeal" and "Supreme Court."

In law, (1) a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application, (2) a judgment, or (3) the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as their findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law" and "findings of fact."

(1) In law, a court proceeding; a lawsuit; an action; a cause of action; a claim. (2) A historic decision of the court; case law. See "action," "case law, " "court proceeding," and "precedent."

A person appointed by the federal or provincial government to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government, or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, subject to appeal.

In law, a calculation of the allowable legal expenses of a party to a court proceeding, as determined by the Supreme Court Family Rules. The party who is most successful in a court proceeding is usually awarded their "costs" of the proceeding. See "account," "bill of costs," "Certificate of Costs or Expenses" and "lawyer's fees."

In law, any proceeding before a judicial official to determine questions of law and questions of fact, including the hearing of an application and the hearing of a trial. See "decision."

A lawyer paid by legal aid or the government who provides limited legal assistance to people on the day that they are in court.