Indigenous advocate demands precedent-setting trial translation for Brady Francis family
'If anybody thinks we're just going to sit back and let this happen, they're wrong'
When Patty Musgrave opened an email from New Brunswick's minister of justice on Jan. 4, she couldn't believe what she was reading.
"I sat here with my mouth open," she said of the letter from Andrea Anderson-Mason in which the minister refused to provide interpretation services at the upcoming trial of the man charged in the hit-and-run death of Brady Francis in February 2018.
Musgrave was hopeful Anderson-Mason would look at this case, involving an Indigenous victim from the Elsipogtog First Nation, and make accommodations so his family could follow the trial of Maurice Johnson, who has elected to be tried in French.
Musgrave, a friend of the Perley-Francis family and the person leading the fight for an interpreter, said no one disputes that Johnson is entitled to a trial in the language of his choice.
The problem, she said, is that members of the Perley-Francis family won't be able to follow the proceedings because they speak Mi'kmaq and English but not French.
"Can you imagine — your child being killed … and then you're sitting in court not even knowing what's happening. It's so wrong. Wrong, wrong, wrong."
The 22-year-old Francis was found dead by the road in Saint-Charles, about 12 kilometres north of Elsipogtog and about 100 kilometres north of Moncton.
In her letter to Anderson-Mason, Musgrave writes: "I know that while Brady stood on the side of the road waiting for his parents to pick him up, his Dad was on the phone with him. His dad heard the truck approach and the phone go dead."
For every sentence in French, the translation needs to happen for the family and, yes, the nationhood of Elsipogtog's Mi'kmaq people. This isn't about 'spectators,' this is about culture and family and Indigenous rights.- Patty Musgrave, Indigenous advocate
She goes on to "beg" the province of New Brunswick to act in the spirit of the Truth and Reconciliation Commission and recognize the family of Brady Francis deserves to be able to follow the trial.
"They're the victim," said Musgrave, who is the Indigenous affairs co-ordinator at Mount Allison University. "They lost their child, their grandchild, their brother, their cousin, their nephew.
"For every sentence in French, the translation needs to happen for the family and, yes, the nationhood of Elsipogtog's Mi'kmaq people. This isn't about 'spectators,' this is about culture and family and Indigenous rights."
Musgrave points to the cases of Colton Boushie and Tina Fontaine as examples of the justice system failing Indigenous people, and said New Brunswick must take steps to ensure this trial is accessible and transparent to all.
"If anybody thinks we're just going to sit back and let this happen, they're wrong."
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Saskatchewan farmer Gerald Stanley was acquitted of murder in the shooting death of 22-year-old Cree man Colten Boushie in February 2018. Later that same month, Raymond Cormier was acquitted of the murder of 15-year-old Tina Fontaine, a member of the Sagkeeng First Nation in Manitoba.
It was just days later, on Feb. 24, 2018, that Brady Francis was killed in a hit and run, and tensions ran high as his community demanded quicker action by RCMP to make an arrest.
Minister refuses interview
CBC News requested an interview with Andrea Anderson-Mason, who said in her letter to Musgrave that the death of Brady Francis is, "a tragic loss felt by all of us, especially his loved ones and the Elsipogtog First Nation community."
Anderson-Mason refused to do an interview, but in a written statement, a spokesperson for the Department of Justice and the Office of the Attorney General said the province is not required to provide translation to the victim's family.
"Our obligation regarding the Official Languages Act is to meet the language needs of all parties directly involved in a case, including the defendant, applicants, respondents and witnesses."
The statement goes on to direct the family of Brady Francis to the Victim Services Program, run by the Department of Public Safety.
For reasonable New Brunswickers it's an unreasonable response ... I honestly don't understand the refusal.- Kevin Arseneau, Kent North MLA
"Families may receive information about the court proceedings through the Victim Services Program. The objective of this program is to assist victims of crime on court proceedings."
Musgrave said she expected more than a recitation of the "rules and regulations" from the minister of justice.
In an email statement, Department of Public Safety spokesperson Alexandra Davis said the department does not provide simultaneous interpretation to the families of victims.
"The next of kin of a deceased victim may receive updated information on the status of court proceedings through their local Victim Services co-ordinator," Davis wrote.
'Whisper translation' offered to families
Musgrave said the Crown prosecutor in the Maurice Johnson case did offer to make a request to the Department of Justice for a "whisper translator," who would sit in the courtroom gallery and whisper to the Perley-Francis family what is being said.
What it's saying to Indigenous people is that, 'We don't care,' that's what it's saying.- Patty Musgrave
It's a solution that recently worked for members of the family of Matthew Hines.
The preliminary inquiry in the Fall for two Dorchester Penitentiary guards charged in the death of Matthew Hines was expected to be conducted entirely in French.
Mathieu Bourgoin, 32, and Alvida Ross, 49, have pleaded not guilty to charges of manslaughter and criminal negligence causing death.
The Hines family's lawyer, Julie Kirkpatrick, said members of the family do not speak French and wouldn't have understood anything.
"It was so important to the family of Matthew Hines to attend that preliminary inquiry and hear the evidence — it was of such fundamental importance to them — that we would have pursued every avenue available to try and make sure that there was translation in the courtroom."
Kirkpatrick said her request for simultaneous translation, where family members would hear an interpreter through headphones, was turned down, but in the end the Crown worked with the Department of Justice and provided a translator in the courtroom gallery who whispered the English translation to family members.
She said given the limited amount of French that was spoken during the preliminary inquiry and the small number of family members, it has been a good solution in this case.
Had the family been larger than five people, or the entire inquiry been in French, Kirkpatrick isn't sure the whispering interpreter would have been adequate.
"If you only have one translator sitting in the middle of the bench in the gallery, you can imagine that it can be hard to hear," she said.
"If that had to happen throughout the entire proceeding, I think that would be very difficult both for the translator and those trying to listen. And also I think it might be disruptive to the proceeding itself."
Musgrave said she has already told the Crown prosecutor that "whisper translation" wouldn't be appropriate for the Perley-Francis family.
"Brady's going to have both his parents, his two sisters, all of his grandparents, aunts, uncles, cousins," Musgrave said. "And from an Indigenous perspective, the role of extended family is extremely important.
"So how is somebody going to sit and whisper to about 40 people? It's not going to happen."
According to the lawyers representing Maurice Johnson, his preliminary hearing scheduled for January has been cancelled and will go directly to trial on a charge of failing to stop at the scene of an accident. No date for the trial has been set.
'We have to set a precedent'
Musgrave calls it unbelievable that in 2019, after the Truth and Reconciliation Commission, that she has to fight for something so basic when it comes to justice.
"What it's saying to Indigenous people is that, 'We don't care,' that's what it's saying," she said of the response from Anderson-Mason.
She points to Article 40 of the United Nations Declaration on the Rights of Indigenous Peoples, which is included in the Truth and Reconciliation report as a framework to improve access to justice for Indigenous people.
"Indigenous peoples have the right to access to and prompt decision through just and fair procedures … for all infringements of their individual and collective rights," it reads.
"Such a decision shall give due consideration to the customs, traditions, rules and legal systems of the indigenous people concerned and international human rights."
Musgrave said if the province won't provide simultaneous English interpretation for the Johnson trial, she will raise the money to hire an interpreter herself.
"We have to set a precedent sometime and it's got to be today," she said.
Local MLA joins fight for interpreter
Kevin Arseneau, the MLA for Kent North, which includes the Elsipogtog First Nation, calls the decision by the justice minister not to offer simultaneous translation "very unreasonable" and said he will join Musgrave in her fight.
"I was very distraught with the answer of the government toward Brady Francis's family and I kind of feel like they didn't really look at it and they just sent some kind of response," he said.
Arseneau, who has been in contact with the family, will be contacting Anderson-Mason for an explanation of the decision and said he will apply as much pressure as he can.
"For reasonable New Brunswickers it's an unreasonable response … and I think that's the minimum that can be done in this case.
"I honestly don't understand the refusal. I can't believe it.