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

The Saint John Law Courts. Photo by ANDREW BATES/BRUNSWICK NEWSArticle contentOne 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.

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.

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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.”