Almost 150 years ago, British Columbia judge Matthew Begbie sitting in New Westminster ordered the execution by hanging of Chief Ahan for his part in the Chilcotin War of 1864. Now, once a month, the First Nations Court sits at New Westminster with Judge Marion Buller Bennett presiding in the courthouse outside which stands a statue of Begbie puffing on his pipe. “It’s like we’re doing it under his nose,” she chuckles.
Buller Bennett is B.C.’s first female First Nations judge, having been appointed to the Provincial Court bench in 1994. She left the civil and criminal law practice she had been in since being called to the bar in 1988. Buller Bennett, who sits in the Vancouver suburb of Port Coquitlam, is a member of Saskatchewan’s Mistawasis First Nation. She received a bachelor’s degree in anthropology from the University of Victoria before going on to study law there as well.
Sitting in the calm of the chambers lounge in Port Coquitlam, Buller Bennett says she began to look at the law as a career when she realized she had gone as far as she could toiling for a large corporation. “I got as far as I could without a post-graduate degree of some sort. I went to law school thinking I would be a solicitor — contracts, wills, that sort of thing. In my first year of law school, like everyone else, I had a criminal law course and the professor made it all come alive for me, and I knew that’s where I belonged — in a courtroom,” she says.
Now, she’s one of the few female First Nations judges who’ve sat on the bench across the country. Others she cites are Mary Ellen Turpel-Lafond, B.C.’s first provincial representative for children and youth on leave from the Saskatchewan Provincial Court; retired justice Rose Boyko of the Ontario Superior Court of Justice; Justice D. Terry Vyse of the Ontario Court of Justice; and Justice Jennifer Power of the Supreme Court of B.C.
Buller Bennett says it’s important to have First Nations judges on the bench “to reflect our culture and what our society is.” And, in pursuing that, the stepmother of three and grandmother of one has served as both a director and president of Canada’s Indigenous Bar Association. “It helped me get to know aboriginal lawyers across the country and the issues they are dealing with,” she explains. “I got to know case law.”
She says aboriginal case law deals with a wide range of areas including criminal law, family law, and the Indian Act. Furthering her education on aboriginal legal issues, Buller Bennett was commission counsel for 1994’s Cariboo-Chilcotin Justice Inquiry. Her work drew praise from Commissioner Anthony Sarich. “Her courage and determination brought all of the elements of success together,” Sarich wrote in the commission report. “Her wisdom and ability will carry her to whatever professional attainment she aspires.”
Buller Bennett also penned her own report on legal services for Aboriginal People in B.C. the previous year. She has also been a member of the B.C. police commission and the Law Courts Education Society of B.C. “The legal services for aboriginal people in B.C. was really lacking in a lot of areas . . . in terms of areas of law and availability of legal counsel,” she says, toying with a colourful, beaded bracelet she got on the Tsuu T’ina Nation southwest of Calgary.
Those experiences shaped her attitude in the courts today, the judge says. “I am very sympathetic to lawyers who take legal aid cases. It’s very important for aboriginal people to have representation.”
And those are situations Buller Bennett sees played out often when she does northern B.C. circuit courts, a role she assumed three years ago. The circuit operates four times a year and sits in Atlin, Good Hope Lake, and Lower Post. “In Lower Post, the circuit court is held in the band office that used to be a residential school,” she says. The school opened in 1940 and closed in 1975. In 2008, it became the subject of Tlingit filmmaker Duane Gastant’ Aucoin’s film My Own Private Lower Post, an exploration of the effects his mother’s time at the school had on his family.
Aucoin sees Buller Bennett’s role in Lower Post court as an aid to community healing. “I find it quite ironic that it’s in the Lower Post residential school,” he says. “The justice system has been used against us instead of helping us heal ourselves. It’s quite encouraging to have a judge who understands where we come from.”
Overall, Buller Bennett says the mainstream court system has not worked for aboriginals. And then there’s the Supreme Court of Canada’s 1999 R. v. Gladue decision, which decreed judges must take into account the unique circumstances of aboriginal offenders when passing sentence. But, she says, it was the appearance before her of a half-native man that had a huge impact on her course in aboriginal law. “He had a horrendous life,” she says. “In the course of a bail hearing, he disclosed for the first time he was a residential school survivor. He wasn’t using it as an excuse, not looking for an easy way out. He’s just a textbook example of what’s wrong with our legal system. I think I imposed a sentence I wouldn’t have ordinarily imposed. I changed in how I had been sentencing.”
And so, “with help from the aboriginal community, I decided we should have a court,” she says. The court doesn’t sit in a regular courtroom, she explains. Rather, it’s more of a conference setting with the accused, defence, Crown, and service workers in attendance. “It’s a very supportive thing because people feel safe, because everyone is around a table, it feels comfortable.”
“It’s all by consent,” she adds. “The victim is not forced to attend. The offender is in First Nations Court because they want to be. In some cases, it’s the first time a person has actually been able to speak to a judge.”
Buller Bennett says the approach is a holistic one using the principles of the medicine wheel. “The medicine wheel is divided into four parts: the mental, emotional, physical, and spiritual parts,” she explains. Those need to be in balance for a person to have a fulfilling life, she adds. “The goal of the court is to help them develop their own healing plan because their life is out of balance somewhere. We have to find the roots of that imbalance and put the supports in place to help the offender.”
And, she explains, issues from other courts can all be dealt with in the First Nations Court. “We try to take a holistic approach to sentencing,” she says. “Where there is a family court matter or a youth court matter, we can deal with all those issues at the same time.” Healing plans are reviewed, but the judge says the recidivism rate is fairly low.
Buller Bennett says judges are inherently constrained from what they can do in the community. But, she adds, she does what she can to encourage aboriginal students. “A long time ago, I had an amazing day in court,” she says. “There was myself on the bench, the lawyers, and the deputy sheriff, all of whom were aboriginal. I thought, ‘What an amazing day.’”
On reflection, what does Buller Bennett get from her work? “The sense I’m doing something right,” she says. “I learn a lot from the people who come into court. I feel I get a lot more from the people than I give them.”
