Saskatchewan's first Cree-speaking judge reflects on legacy of Cree court as he retires
Saskatchewan appointed 3 Indigenous women to provincial court bench in past year
The first Cree-speaking judge in Saskatchewan is retiring this week after serving 18 years on the bench.
Judge Gerald Morin, 65, helped set up the Cree circuit court, the first of its kind in Canada, in 2001.
Morin flew into remote northern First Nations with Cree-speaking court clerks and lawyers, and held court sessions in band offices, town halls and community centres. Morin would speak Cree to the accused, victims, and families in crisis as often as possible.
Morin, a member of Peter Ballantyne Cree Nation, believes his understanding of language, culture and history meant Indigenous people felt heard in his courtroom in a way they'd never been before, and that it changed their perception of the justice system.
"When I talk to people, they open up," Morin said.
Morin recounted a case in which an Indigenous man who had beaten up his son stood before him, and the judge relied on his own family scars from residential school trauma to connect with the offender.
"I said, 'I know your dad. My dad knows your dad, because my dad went to residential school with your dad.' Those are things you're not going to hear from a non-Indigenous judge."
Morin is one of only seven Indigenous provincial court judges to ever serve in Saskatchewan.
In the past year, he witnessed the historic appointment of three Indigenous women to the provincial court: Mary McAuley, Natasha Crooks and Michelle Brass.
Prior to that, Saskatchewan had appointed only one Indigenous woman to the bench, Mary Ellen Turpel-Lafond, 20 years earlier in 1998.
"Canada's justice system has been instrumental in colonizing, in brutalizing, in harming Indigenous people," Scott Robertson, the Mohawk president of the national Indigenous Bar Association, said.
Indigenous women were particularly marginalized, Robertson argued. He believes Saskatchewan's appointment of three Indigenous female judges is a significant advancement of Indigenous perspectives within the current system.
Still, three Indigenous judges — after Morin's retirement this week — out of a total of 48 provincial court judges, is not enough given the overrepresentation of First Nations and Métis people in court, jails and prisons, argued Robertson.
In Saskatchewan, Indigenous inmates make up about 76 per cent of incarcerated adults, roughly seven times higher than their representation in the provincial population, according to statistics from the Department of Justice.
Watch: Gerald Morin describes the Cree circuit court
The federal government appointed 10 superior court judges in Saskatchewan in the past year and none are Indigenous, according to federal Judicial Affairs statistics.
Between October 2016 to October 2018, 153 federal judges were appointed across Canada and six are Indigenous.
There are calls for radical changes to the judicial system in the wake of the Gerald Stanley acquittal. Both Judge Morin and his replacement, Judge Mary McAuley, say that Indigenous judges already make a difference in how justice is both served and received in the current system.
Not a 'Get out of jail free card'
McAuley, a Cree-speaking Métis woman from Cumberland House, Sask., arrives at Prince Albert's airport at 7 a.m. to fly out to Pelican Narrows, where she holds court for nine hours, then lands back home at 11 p.m.. It's a gruelling schedule with 11 to 15 days on the circuit every month, but McAuley already loves it.
"It's been very exciting, and it's everything I had hoped it would be," McAuley said.
McAuley worked as a hairdresser and secretary until her mid-30s when she decided to become "a voice for Indigenous people somehow, someway." She became a criminal defence lawyer, opened her own law firm in Prince Albert, Sask., and eventually applied to the judiciary.
"I feel, in my perspective, from where I came from, I can see where they're coming from," McAuley said.
Like Judge Morin, McAuley is adamant that when an Indigenous person stands before an Indigenous judge, it's not a "get out of jail free card." In a criminal case, they both said, the evidence dictates the verdict.
For sentencing, however, both judges say they have a deeper understanding of Gladue principles and what people in their courtrooms have struggled with in their lives — racism, systemic discrimination, residential school abuse, family violence, poverty, drugs, alcohol.
"I've seen a lot of addictions in the community that I grew up in. It was something very close to home," McAuley said. "Some of these issues that some people think, 'Come on, get over it.' It's not that easy for some people. So, it gives you a little bit of perspective, and then it helps you tailor the decisions a little bit better where you're looking at rehabilitation more."
Morin says he understands the ripple effects of chronic poverty and could look at people who committed assaults "through a slightly different lens." Morin says some people violently lash out in frustration after losing a job.
Call for more Indigenous judges
Former Saskatchewan provincial court judge Mary Ellen Turpel-Lafond served from 1998 until 2007, when she left to become the province of B.C.'s first Representative for Children and Youth.
Turpel-Lafond returned to the bench in Saskatchewan briefly in 2016, but she found it "very difficult." She said that in her 10 year absence "matters had not improved for Aboriginal people in the justice system and in many respects I felt they had gone backward."
Turpel-Lafond points to high rates of incarceration of First Nations persons before trial and cuts in restorative justice circles, legal aid, and family group conferencing for youth.
Watch: Mary Ellen Turpel-Lafond is sworn in.
Turpel-Lafond decided to retire from Saskatchewan's judiciary in May 2018 and now teaches law in British Columbia and lobbies for reforms in the justice system.
For some, choice is judge or advocate
Robertson, the president of the Indigenous Bar Association, says the pull between being an outspoken advocate and a judge, who is traditionally silent on public matters, is a serious obstacle to recruiting passionate, skilled Indigenous lawyers to the bench.
"They have no interest in becoming a judge because, the minute they become a judge — and this is going to sound crazy — they lose their ability to advocate."
The limited number of candidates is reflected in applications to the superior court.
Robertson says the Indigenous community has a responsibility to field more candidates, just as selection committees do to appoint more Métis, First Nations and Inuit judges.
He acknowledges that there are many "phenomenal" non-Indigenous judges who, in practice, can do the job with the same sensitivity as an Indigenous judge, yet won't be perceived with the same confidence and trust from Indigenous people.
"The judiciary in Saskatchewan or any province has to be reflective of the diversity of the province ... and I think it does make a big difference," Judge McAuley said. "It can't hurt."
"Never be scared of Indigenous people, as to what they can do," Judge Morin said. "Did I screw up the criminal justice system being who I am? No. I love the law. I respect the law. And I made sure things were done according to law."
Saskatchewan's First Nations and Métis judges
- 1977, Judge Kenneth Bellerose
- 1998, Judge Mary Ellen Turpel-Lafond
- 2001, Judge Gerald Morin
- 2006, Judge Donald Bird
- 2018, Judge Mary McAuley
- 2018, Judge Natasha Crooks
- 2018, Judge Michelle Brass