1 First Nations across New Brunswick have been demanding a public inquiry since the deaths of Chantel Moore and Rodney Levy at the hands of police barely a week apart from each other, and less than two months after the failed prosecution of the man alleged to have hit and killed Brady Francis. There are serious problems in the province’s justice system.
2 Mi’gmaq1 and Wolastoqiyik peoples are demanding more than just an investigation into the police conduct in Moore’s and Levy’s deaths; what is sought is a full examination of how New Brunswick’s justice system fails First Nations peoples in the province. Police operate in and are shaped by the wider justice system within which they work. First Nations recognize that you cannot fix one without fixing the other. The Premier is reluctant to agree to an inquiry and public perception of the need for one is mixed. I believe an inquiry is desperately needed and overdue.
3 As a Mi’gmaq woman with numerous personal connections to both New Brunswick2 and Nova Scotia3 and as a lawyer and an academic who has worked for First Nations in both provinces, I often find myself comparing how they are treated. I have long felt that New Brunswick’s treatment of its First Nations people lags decades behind Nova Scotia. A key difference between Nova Scotia and New Brunswick is that in 1989, the Royal Commission on the Donald Marshall, Jr. Prosecution laid bare the overt and systemic racism that exists throughout Nova Scotia’s justice system. That report has served as a major catalyst for positive change.4
4 In 1971, Donald Marshall Jr., a Mi’kmaq man from the Membertou First Nation in Sydney, Nova Scotia, was convicted of the murder of his friend, Sandy Seale, a young African Nova Scotian man. Seale was in fact killed by Roy Ebsary, an older white man, whose violent and senseless act was motivated by racism.5 Marshall spent eleven years incarcerated for a crime that he did not commit. The 1989 Royal Commission concluded that the criminal justice system failed Donald Marshall, Jr. at virtually every turn -- from his arrest and wrongful conviction for murder in 1971 up to, and even beyond, his acquittal by the Court of Appeal in 1983. The Royal Commission found that these failures were due, in part, to the fact that Mr. Marshall was a Mi’kmaq person.6
5 To address the numerous failures of Nova Scotia’s legal system, the Marshall Report contained eighty-two recommendations calling for changes in a wide number of areas. To address the systemic racism that the Commission identified in so many facets of Nova Scotia’s legal system, the report called on various actors in the justice system7 to implement a variety of measures to (1) increase the representation of racialized and Aboriginal peoples in positions of power in the legal system; (2) increase understanding by all justice system actors of the systemic discrimination issues faced by Mi’kmaq and African Nova Scotian communities in the province; and (3) create policies and committees to further positive race relations.8
6 Elsewhere, I have documented how, in light of its 30th anniversary, the Marshall Report has been instrumental in creating meaningful, positive change in Nova Scotia’s justice system.9 Comparing this progress in Nova Scotia to New Brunswick is revealing. As suggested above, New Brunswick lags behind Nova Scotia, often dramatically, despite having more First Nations communities than Nova Scotia and a larger First Nation population.10
| Nova Scotia | New Brunswick |
|---|---|
| The Schulich School of Law at Dalhousie University has an access and support program for Mi’kmaq (the Indigenous Blacks and Mi’kmaq Initiative (IB&M)) and African Nova Scotian students. It has held six dedicated spaces for Mi’kmaq students since 1989 and is supported by the University and the provincial and federal governments. Over thirty years, 200 Black and Aboriginal IB&M students have graduated from Dalhousie Law School.11 | While both New Brunswick universities with law schools have taken some steps to institute supports and programming for Indigenous students, neither the law school at the University of New Brunswick nor l’Université de Moncton have a similar access program and graduate very few Indigenous law students. |
| The Nova Scotia Barristers’ Society counted sixty-four practicing members of the NS Bar who are Mi’kmaq or Aboriginal as of 2018-2019.12 | The Law Society of New Brunswick does not track demographic statistics, but anecdotal evidence suggests that there are only six practicing lawyers of First Nations ancestry who reside within the province.13 |
| The Nova Scotia Barristers’ Society has had at least four Mi’kmaq lawyers sit as members of its governing Bar Council. The incoming president of the Society for 2021-2022, Tuma Young, is a Mi’kmaq man.14 | To the best of my knowledge, the New Brunswick Law Society has never had an Indigenous member sit on its governing body. |
| There are five Indigenous judges currently appointed to the courts of Nova Scotia.15 | There is only one sitting Indigenous judge in New Brunswick, Justice Troy Sweet.16 However, there is currently no sitting judge in New Brunswick who is a member of one of the First Nations communities located in the province (to my knowledge, there has only been one, retired Hon. Judge Graydon Nicholas). |
| There are two courts that sit in First Nations communities in Nova Scotia; the Aboriginal Wellness and Gladue Court in Wagmatcook First Nation and a provincial court judge sits in Eskasoni First Nation.17 | There is one court that sits in a First Nation in New Brunswick: a Healing to Wellness Court sits in Elsipogtog First Nation.18 The Wellness Court in Elsipogtog, which began operations in 2012, was meant to be a pilot project, that if successful would be expanded to other First Nations.19 That has yet to materialize. |
| Nova Scotia’s Legal Aid Commission has had a practice for several years of hiring Mi’kmaq and African Nova Scotia lawyers, as well as having a Mi’kmaq representative on its board of directors, and an Aboriginal Justice Committee.20 It also has dedicated programming, such as in-community visits and dedicated Indigenous Social Workers to assist clients.21 | To my knowledge, the only First Nations lawyer to ever work for New Brunswick Legal Aid brought a human rights complaint against the organization in 2006.22 It does, however, have an Indigenous member on its Board of Directors.23 The organization’s services appear to be more limited than Nova Scotia.24 The organization does not have an Indigenous social worker, and it recently eliminated the position of Aboriginal Duty Counsel in Moncton, despite significant need for such a position.25 |
| The Nova Scotia Department of Justice has a long practice of hiring Mi’kmaq and African Nova Scotian lawyers. Its Public Prosecution Services Division has an Equity and Diversity Committee who, in 2019, developed a policy entitled “Fair Treatment of Indigenous Peoples Prosecution Policy to Direct Crown Attorneys.”26 | To the best of my knowledge, the New Brunswick Department of Justice has no First Nations lawyers, no similar committee, nor any similar policy.27 |
| The Nova Scotia Human Rights Commission has had several Mi’kmaq commissioners.28 The current Chair of the Commission since 2019, Cheryl Knockwood, is a Mi’kmaq woman.29 In addition, the Commission has made efforts in recent years to be more responsive to the needs of Indigenous people in the province, developing a plan for the investigation and resolution of Aboriginal complaints.30 | The New Brunswick Human Rights Commission appears to have had two First Nations commissioners, one serving from 1999 to 2009 and then another from 2009 to 2012.31 Based on annual reports, it does not appear that a First Nations Commissioner has been appointed since 2012. Nor does it appear that the Commission has recently undertaken any initiatives relating to Indigenous peoples in the province. |
| Eight out of thirteen First Nations in Nova Scotia are serviced under the First Nations Policing Program, a program cost-shared between the federal and provincial governments, intended to provide more culturally responsive policing to First Nations communities.32 | Only three out of fifteen First Nations communities in the province are serviced by the First Nations Policing Program.33 In addition, New Brunswick’s 1977 Police Act contains no provisions on accommodating the specific needs and interests of First Nations in the province, unlike some other provinces.34 |
| The Mi’kmaq Legal Support Network in Nova Scotia has been providing government-funded Gladue-writing services for several years, in addition to court worker, customary law, offender reintegration, and victims’ services programs for Indigenous peoples within the province.35 | New Brunswick does not provide Gladue reports for Indigenous offenders, nor does it have an Indigenous court support worker program or Indigenous victim services.36 |
7 Things in Nova Scotia are far from perfect,37 but the government and various other justice actors (i.e., the law school in the province, the provincial law society and legal profession, the judiciary, legal aid services and legal information services, the RCMP and municipal police forces, and the provincial human rights commission) are at least aware that their decisions and actions (or inaction) has and can have negative effects on the lives of First Nations people in the province. The Marshall Report serves as a constant reminder of this in Nova Scotia. With such awareness, justice actors are more likely to see the need for change and act on it. This awareness is sorely missing in New Brunswick. It’s why a public inquiry is imperative.
8 In advocating for First Nations peoples in New Brunswick, I have seen first-hand examples of persons in authority in the justice system fail to appreciate the circumstances, needs, and rights of Mi’gmaq and Wolastoqiyik. I have been taken aback more than once when I have encountered persons in authority who had no knowledge of important cases, statutes, or reports relating to Indigenous peoples that were vital to their positions. When arguing why law or policy mandates a different approach to addressing First Nations issues, I have been given dismissive answers like “we treat everyone the same and the First Nations are not entitled to any special treatment.” Although not all actors within the New Brunswick justice system espouse this view, it is my perception, bolstered by reports from colleagues and Mi’gmaq and Wolastoqiyik leadership and community members, that this is a relatively pervasive attitude within the province’s justice system.
9 It bears emphasizing that this notion of formal equality (i.e., “I treat everyone the same,” “I am colour-blind,” etc.) is woefully outdated. From as early as the cases of O’Malley v Simpson Sears (1986) and Andrews v Law Society (1989), the Supreme Court of Canada has embraced an interpretation of substantive equality over formal equality.38 In R v Kapp (2008), the Supreme Court stated that, “[a]n insistence on substantive equality has remained central to the Court’s approach to equality claims.”39 The principle of substantive equality respects and celebrates differences, recognizing that all human beings are equally deserving of concern, respect, and consideration.40 It recognizes that in order to treat certain individuals and groups fairly, their differences must be accommodated. In cases involving services provided to Anglophone and Francophone communities, the Supreme Court has affirmed that substantive equality can mean distinctive content in the provision of similar services.41
10 In the context of First Nations people, the Canadian Human Rights Tribunal has affirmed that substantive equality means accommodating “the distinct needs and circumstances of First Nations children and families living on reserve, including their cultural, historical and geographical needs and circumstances.”42 To this I would add that Mi’gmaq and Wolastoqiyik peoples’ inherent Aboriginal rights and treaty rights must also be respected and accommodated as a matter of equality and human rights, as well as constitutional law and international human rights law.43
11 I have often observed how perverse it is that Donald Marshall Jr. had to experience a travesty of justice necessitating a public inquiry in order for systemic change to occur in Nova Scotia. But, sadly, that is what it seems to take to force governments and the broader public to see the deep-seated racism and problems within their justice systems. Mi’gmaq and Wolastoqiyik in New Brunswick are forced to tolerate a deeply unresponsive justice system in part because they have not yet had their own public inquiry.
12 Premier Blaine Higgs argues that an inquiry is unnecessary; it would be sufficient to study the recommendations coming out of previous reports like the Royal Commission on Aboriginal Peoples (1996), the Truth and Reconciliation Commission Final Report (2015), and the National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG, 2019).44 The Premier’s stance is an admission that the province has not made serious efforts to implement any recommendations from these reports to date. Its failure to do so is a reflection of the systemic problems in the province’s justice system. Therefore, it does not inspire any confidence to suggest that the province will now belatedly implement the recommendations from these reports, especially when the reasons why the province has previously ignored them is not going to be examined.
13 Second, while there are useful recommendations within these reports that all governments must implement, none of these reports conducted an in-depth study of the specific problems within New Brunswick’s justice system in relation to Mi’gmaq and Wolastoqiyik peoples. As someone who has read these reports, I can confidently say that their recommendations are generally national in scope. There is very little that is specific to New Brunswick. To address the problems in New Brunswick’s justice system that the deaths of Chantel Moore, Rodney Levi, and the failed prosecution into the killing of Brady Francis have tragically highlighted, there needs to be an in-depth study of the workings of this system and how it is failing Indigenous peoples in the province. This is what Quebec did in response to multiple reports of Indigenous women being abused by police in Val d’Or; it established the Viens Commission.45 The province did not try to back peddle on its responsibility to address problems within its justice system by saying that it would look to other reports or rely on the outcome of the national MMIWG Inquiry. To frame this as analogy, when you buy a house, you get an inspection report done on that house to understand if it has any structural problems; you would not rely on an inspection report done for your neighbour’s house, let alone an inspection on a house in a sub-division on the other side of town.
14 Holding a public inquiry into how the various justice system actors in New Brunswick are failing Mi’gmaq and Wolastoqiyik peoples is an act of uncovering the truth. This is necessary if the government is truly sincere in its objective of reconciliation with First Nations in the province.46 As observed by the Truth and Reconciliation Commission, there can be no reconciliation without truth:
15 What happened to Brady Francis, Chantel Moore, and Rodney Levi, especially when considered cumulatively, suggests that deep systemic problems exist within New Brunswick’s justice system, similar to how Donald Marshall Jr.’s wrongful conviction pointed to serious systemic problems in Nova Scotia. New Brunswick desperately needs an inquiry and holding one is imperative if the government is genuine in its commitment to achieving reconciliation with Indigenous peoples in the province. I hope that Premier Higgs reconsiders his position and that the unnecessary and untimely deaths of Brady, Chantel, and Rodney will not have been in vain.