Under the leadership of former National Chief Delbert Riley, the Micmac Rights Association Legal Team has won an important constitutional victory in the Provincial Court of New Brunswick.
In a decision from Campbellton Provincial Court released today in R. v. Christopher Labillois, Judge Martin A. Goguen ruled that section 802.1 of the Criminal Code violates the Aboriginal rights protected by section 35 of the Constitution Act, 1982 where it prevents a Mi’kmaq defendant from being represented by an Elder or traditional delegate.
Christopher Labillois, a Mi’kmaq harvester and community provider from Ugpi’ganjig First Nation (Eel River Bar) who along with four other Mi’kmaw was charged with fishing lobster without a license sought to be represented by former National Chief Del Riley and his assistant, Tom Keefer. Labillois had been unable to find a single lawyer who argue the case based on his Aboriginal and treaty rights.
In order to be represented by Chief Riley, Labillois filed a notice of constitutional question in June of 2025 and legal brief which was ruled upon today by the judge.
The Court accepted extensive Indigenous oral-history evidence from five witnesses, concerning the traditional role of Elders, knowledge holders and delegates in representing their people and resolving disputes. Significantly, the Crown’s own expert historian did not contradict that evidence. Judge Goguen found that her evidence actually “reinforced the oral history evidence of elder or delegate representation.”
The Court found that this practice reaches back to before European contact:
“I am satisfied that the historic and contemporary procedural right to agent representation by an elder or delegate was present pre contact with the Europeans…”
The Court further found that the practice was integral to Mi’kmaq society, has continued over the centuries, and has never been extinguished.
Most importantly, Judge Goguen held that bringing this ancient Mi’kmaq practice into a modern Canadian courtroom is a legitimate contemporary exercise of the Aboriginal right:
“I am satisfied that elder or delegate representation in summary conviction prosecutions is an aboriginal right that is a logical evolution of the pre contact practice.”
And:
“Evaluated from the aboriginal perspective I find that elder or delegate representation in summary conviction prosecutions is a natural translation to the facts found and interpreted into a modern common law system while respecting the aboriginal perspective.”
The Court therefore found that s. 802.1 infringes s. 35 insofar as it prevents Mi’kmaq people from exercising this right, and recognized an additional exception allowing a Mi’kmaq defendant asserting the Aboriginal right to be represented by an Elder or delegate.
The Court also specifically found that Chief Del Riley and his assistant Tom Keefer meet the requirements to act as an Elder or delegate in the case.
This is another important victory for Chief Riley and the Micmac Rights Association Legal Team in their continuing efforts to ensure that Aboriginal and treaty rights are not merely recognized on paper, but that they are actually exercised in Canadian courts.
The decision is also likely to have implications beyond Christopher Labillois’s case. Chief Riley and other agents in the MRA Legal Team are presently involved in a number of other proceedings in which Mi’kmaq defendants are advancing Aboriginal and treaty rights without lawyers. While each case must be determined on its own facts and law, Judge Goguen has provided a significant judicial recognition that the Mi’kmaq tradition of representation through Elders and delegates can constitute an Aboriginal right protected by section 35.
This decision recognizes something Mi’kmaq people have maintained throughout these proceedings: Indigenous legal traditions did not disappear when Canadian courts were created. They remain living traditions capable of constitutional protection today.
“We fight, we win!” said Micmac Rights Executive member Thomas Durfee in reaction to the decision.