Jamie Sarkonak: N.B. judge invents the Aboriginal right to be represented by an elder in court

Jamie Sarkonak: N.B. judge invents the Aboriginal right to be represented by an elder in court A man accused of lobster poaching argued that the Constitution gives him the right to use an elder instead of a lawyer in court ... and won One of Canada’s most notorious ex-lawyers practicing fake law is named Glenn Bogue, but courts often dignify him by using his ludicrous stage name, “Spirit Warrior.” He’s an Indigenous sovereigntist who self-identifies as an “unconquered Métis man”; essentially, the LandBack version of a freeman on the land. When he’s not fighting the law society that suspended his licence in 2019 (and revoked it in June) for breaching the rules of the profession, he’s playing the advocate. He takes “clients” and tries to represent them on the basis that the Canadian state and courts have no authority to tell them what to do, and demands millions, sometimes billions, in debt relief or payments from the Crown. His attempts at lawyering are usually shut down in court — but that could change, if a recent decision out of New Brunswick catches on across the country. Recommended Videos In the decision, posted online Sept. 1, Judge Martin Goguen declared that it’s unconstitutional to bar Indigenous elders (or delegates, or “sachem” — tribal leaders) from representing Indigenous clients in provincial court on minor offences. This was just the ruling of one low-ranked judge who can’t set precedent anywhere in the country, but if higher courts liked his thinking, Bogue might be able to pursue a legitimate career in pseudolaw. While courts can oust him for being a vexatious litigant at present, a constitutional right of Indigenous people to be represented by peers could force judges to take him seriously instead of kicking him out. This case wasn’t about Bogue, however. It was about a Mi’kmaq lobster poacher who had been caught and who now wanted to use the services of an elder to defend his charges by arguing that it was his constitutional right to fish. The Criminal Code does allow very specific non-lawyers to represent people in court in certain circumstances: law students are a classic example. But this doesn’t extend to laymen in general, and so, our lobster poacher’s plan for elder representation was against the law. He challenged this on the same basis that he planned to challenge his poaching charges: Aboriginal rights. Goguen listened to the oral history and decided accordingly. He found that Mi’kmaq individuals used elders to represent them in resolving disputes before Europeans arrived on the continent. After contact, he also found that the Mi’kmaq used delegates to represent themselves in treaty negotiations and dispute resolution with the British. Goguen also concluded that this practice has been maintained, scantily, into present day. On these grounds, he concluded that there exists an Aboriginal right to be represented in court by an elder — or any other Indigenous person, because “elder” is a very malleable term. The judge also seemed compelled to give Indigenous non-lawyers constitutional protection as a matter of reconciliation. Though the writing in parts of the decision was poor and riddled with errors, he did seem to find it remarkable that the Indigenous man before the court couldn’t find a lawyer to defend him with an Aboriginal-rights argument: “Before the Applicant received the agent to represent him, he refused to make a plea. He felt under duress. The applicant felt fear of the Department of Fisheries and Oceans. In past charges the applicant was frustrated and self-represented. Many judges recommended lawyers. Every lawyer comes to the same conclusion, that they are not educated in aboriginal law. The applicant requested the assistance of Chief Del Riley.” Whether this is actually true is hard to say based on the decision alone. It’s possible that the Aboriginal rights arguments that the man wanted to make were too far-fetched or too rooted in pseudolaw to make them professionally viable for any lawyer to argue. Perhaps he couldn’t afford the legal fees of fighting an elaborate Aboriginal rights case on a minor charge. Without knowing both sides of that story, it’s hard to be sure. Alas, that didn’t seem to raise any of Goguen’s eyebrows. He even seemed to admit a degree of bias on the highly contentious subject of Indigenous issues: “It is necessary to say, this Court strongly supports the advancement of the law on aboriginal and Treaty rights. Truth and reconciliation require this much; however, the Court also has a clear understanding that such rights must be supported by proper foundational proof and rest on a connecting legal analysis.” In doing all this, it appears that Goguen has blown the gate off of the lawyerly monopoly on legal services. While his decision was limited to the minor end of charges, there isn’t much in the way of scaling it up to matters of higher stakes. Any province that adopts his reasoning will be inviting dozens of Spirit Warriors — perhaps even the man himself — to come set up shop. Courts would expect to hear more completely bonkers arguments. The least rigorous judges would embrace them. This could go very poorly, as Indigenous sovereigntists tend to argue that they’re owed billions, that the Canadian state isn’t real, and that property rights don’t exist. If you believe it’s your duty to advance Indigenous rights, as many of these judges do, you may very well decide that it’s time to give the radical Turtle Islanders what they want. There’s also a very practical problem that comes from allowing any Indigenous person to act as a lawyer: court capacity. Untrained non-lawyers create more work for judges, who are already overextended. The medical equivalent would mean allowing Indigenous herbalists to, say, treat cancer, write prescriptions and order tests. It would likely result in poor health outcomes and create even more work for the actual doctors whose job it would be to clean up any mess. And who knows; if the legal monopoly on lawyering can be obliterated by the Aboriginal rights regime, why not the medical monopoly on doctoring? Given all this, it is somewhat concerning that Gougen was involved in providing professional development sessions to the nation’s lawyers prior to his appointment. Now, as a judge, he’s actively undermining the profession and normalizing absurd readings of Aboriginal rights. If you think overzealous Indigenous litigation was already a substantial threat to Canadian property rights and the integrity of the justice system, just know that the judiciary of New Brunswick is on the leading edge of making it worse. National Post Postmedia is committed to maintaining a lively but civil forum for discussion. Please keep comments relevant and respectful. Comments may take up to an hour to appear on the site. You will receive an email if there is a reply to your comment, an update to a thread you follow or if a user you follow comments. Visit our Community Guidelines for more information.