April 9, 2025
I’ve been approached in the courtroom and asked whether I was the Native Courtworker. I replied, “No. I’m a Native lawyer. Can I help you?”
(“Story of an Indigenous Woman Lawyer” as read by barbara findlay in But I Was Wearing a Suit (2018) at 10:16)
Act as Agents of Accused in Criminal Code Exception
B.C.’s Lieutenant Governor ordered in 2018 that “the Indigenous Courtwork Program is approved as a program referred to in section 802.1 of the Criminal Code.”
Section 802.1 of the Criminal Code limits the permitted use of agents in summary trials for penalties greater than six months. Wrote the judge at para. 25 of “Reasons for Ruling of the Honourable Judge A.A. Fradsham Re Agent Representation at Trial” (R. v. Spiry, 2005 ABPC 309):
The object of section 802.1 is to provide a level of protection to persons accused of summary conviction offences. It is an attempt to balance the desire that such persons have assistance at their trials with the need for that assistance to meet an acceptable level of competence (lest it not be any “assistance” at all). The section effects that balance by limiting the use of agents to situations where the accused faces no more than six months imprisonment.[3]
[3] An exception is created for corporate defendants and agents who fall within a provincially approved programme.
Use Expertise and Leadership in Service to Clients
UVic Law Professor David Leo Milward, a member of the Beardy’s & Okemasis First Nation in Saskatchewan, in his 2009 PhD dissertation at UBC entitled Raven Grows New Feathers: Realizing Contemporary Indigenous Visions of Justice in Canada Through the Culturally Sensitive Interpretations of Legal Rights, noted (at p. 298) that “the expectation in Canada is that a member of the bar is usually necessary to advocate a criminal accused’s cause during a trial.” He went on to consider s. 802.1 in light of tribal court systems in the U.S. (at p. 299) (footnotes omitted):
The American experience is instructive here. Tribal court systems frequently rely on tribal advocates, community members admitted to practice without any educational or examination requirements. The Navajo, Rosebud Sioux and Pine Sioux have apparently gone so far as to administer their own tribal bar examinations. The Red Cliff Band of Lake Superior Chippewas Tribal Law and Constitution allows lay advocates to practice before tribal court upon passing a bar exam that tests knowledge of Indian law and the local tribal code. Perhaps this concept could be adapted to Canada.
The Native Courtworker and Counselling Association of British Columbia signed a 2019 Memorandum of Understanding with the Legal Services Society of B.C. “Regarding Indigenous Justice Services Initiatives.” Their objectives included “determining ways to work together and achieve better outcomes for our Indigenous clients”.
In this MOU, which the parties call a “living document that will evolve as the relationship is defined and a foundation for working together is established, “NCCABC and Legal Aid BC recognize “NCCABC’s leadership and expertise in Indigenous Justice service delivery, and acknowledge its relationships, networks and collaborative approach to meeting Indigenous client needs.”
Indigenous courtworkers in B.C. use their expertise and leadership in many ways in service of Indigenous clients. They do this in communities throughout the province.
The Federal Court’s Action Committee on Modernizing Court Operations writes that they
serve as bridges between Indigenous people and the Canadian justice system by providing their clients information and assistance throughout justice processes and connecting them to relevant legal and social resources, while also promoting the court’s awareness and appreciation of the values, customs, languages, and socio-economic conditions of Indigenous people.
(Role of Indigenous Courtworkers in Criminal Proceedings at p. 1)
See also the Federal Court publication Working with Indigenous Courtworkers: Useful Tips.
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We acknowledge that the land on which we work is the unceded territory of the Coast Salish peoples, including the territories of the xʷməθkwəy̓əm (Musqueam), Skwxwú7mesh (Squamish), and Səl̓ílwətaʔ/Selilwitulh (Tsleil-Waututh) Nations.