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Sentencing in Aboriginal Communities in Southern Alberta: The Cardston Experience

Prepared by: William M. Wister January 7, 2015

The Cardston Circuit Court and the Kainai Peacemakers The Provincial Court of Alberta, centered in Lethbridge, provides Justice Services to the Blood Indian Reserve in Southern Alberta. This is done as a circuit court sitting three days per week at the Courthouse in the Town of Cardston. The Blood Tribe Police provide the policing services to the Reserve and the Crown Prosecution Service and Legal Aid Services travel to Cardston from Lethbridge for the circuit court sittings. Probation and Victim Services are physically located in the Cardston Provincial Building.
The vast majority of accused persons appearing in Provincial Court in Cardston are Aboriginal, a vast majority of offences having occurred on the Reserve with Aboriginal victims.

The mission statement of the Blood Tribe Police recognizes the historic Aboriginal system of laws and the existences of a society to enforce the laws (Iikunuhkahtsi) which predates colonialism:

The Blood Tribe Police Service has a duty and commitment to provide for the maintenance of peace, order and security to the people of the Blood Reserve and the general public. The Blood Tribe Police Service will ensure and be cognizant through the observance of law and order, that the particular and special needs of the Blood Tribe, its customs and traditions, will be honoured. (1)

The Blood Indian Reserve (Kainai First Nation) is the largest geographic Aboriginal Community in Canada and is home to approximately 12,000 people living in six rural communities, including Standoff and Moses Lake. Today, the traditional social structure of the Kainai Aboriginal community is alive and well, consisting of 21 clans or societies including the following: the Horns, the Brave Dogs, Doves, Buffalo Women, Thunder Pipe Holders and the Beaver Bundle Holders.

The Kainai Peacemakers Program (KPP) has built itself on the strength, oral history and teachings of the clan structure. The KPP was started as a Restorative Justice Initiative and has been federally funded since 1993. Its purpose is stated as follows:

An effort to rejuvenate Blackfoot ways … It strives to ensure the safety
and wellbeing of the community by promoting restorative justice, crime
prevention and healing drawing on a wide range of existing resources in
the community and the blood tribe’s sense of community and collective responsibility. (2)

KPP is based on an elder-centered volunteer strategy and presently has 15 Elders from a variety of clans or societies and the Director, Mr. Tony Delaney, also an Aboriginal Elder. All the elder volunteers in this program are residential school survivors from the St. Mary’s Residential School run by the Catholic Church (Immaculate Conception) or the St. Paul’s Residential School operated by the Anglican/Church of England. Mr. Delaney attends docket appearances in Cardston on a weekly basis and accepts referrals into the Kainai Peacemakers Program from a variety of sources including the Court, Defense counsel, Police and the Crown Prosecutor. The majority of the referrals originate from the Crown Prosecutor. The program can take anywhere from 3 to 6 months to complete. Thereafter a report on the successfulness of the accused in
completing the program will be prepared and presented to the court at the date for sentencing. Based on the Peacemaker’s report, the Crown may elect to withdraw the charge, enter a stay of proceedings or proceed to a sentencing hearing. The KPP report, which is not done as a Gladue Report, may be considered by the Court during the sentencing hearing.

The Cardston Defence

Across the street from the courthouse in Cardston there is a telephone booth located in the Carriage Hill grocery store parking lot. Urban legend recounted by defence counsel and Crown Prosecutors described the “Cardston defence” as follows: the telephone booth in the parking lot is used either by the accused Aboriginal male or the female Aboriginal complainant/victim to call the other to tell them that they are attending court that day so the other can fail to attend and as a result the trial will not be able to proceed. It is fair to say that the complainant has no interest in testifying and having the accused spend time in jail. The use of witness warrants and warrants for the accused have little or no effect on the Crown’s ability to run a trial. If the trial does run, the complainant will likely understate the harm she suffered or offer testimony which differs from her initial statement to police. Although this is not an unusual occurrence in any Provincial Court in Canada, this is an Aboriginal community strategy as opposed to an individual case specific strategy. This response of the Aboriginal community shows a serious conflict in the value systems between the Aboriginal people’s values and the sentencing principles set out in the Criminal Code of Canada. It is within this context that the Kainai Peacemakers Program and its previous programs have been functioning since 1993.

Systemic Aboriginal Cognitive Dissonance?

If a simple definition of cognitive dissonance is the uncomfortable state that occurs for an individual when they hold two conflicting set of values or principles, then can it be argued that all the key players, individually and collectively in the sentencing of Aboriginal offenders, suffer from Systemic Aboriginal Cognitive Dissonance. If that is accepted as a reasonable proposition, then what is the nature and cause of this dissonance? It can be argued that the sentencing of Aboriginal offenders reflects two serious sources of dissonance between the historic Aboriginal community system of laws and the pre-colonial Aboriginal justice system, and the current criminal justice system’s principles. They can best be characterized as a collision of value systems and a power imbalance through systemic oppression. As noted by Justice Iacobucci, J. in his 2014 report of the Aboriginal Jury system in Northern Ontario:

a. Collision of Value Systems: One of the biggest challenges expressed by many First Nations leaders and people is with respect to the conflict that exists between First Nations’ cultural values, laws, and ideologies regarding traditional approaches to conflict resolution, and the values and laws that underpin the Canadian justice system. The objective of the traditional First Nations’ approach to justice is to re-attain harmony, balance, and healing with respect to a particular offence, rather than seeking retribution and punishment. First Nations observe the Canadian justice system as devoid of any reflection of their core principles or values, and view it as a foreign system that has been imposed upon them without their consent. (3)

b. Systemic Oppression: Unfortunately, the criminal justice system represents deep-rooted pain and oppression for many First Nations peoples. The system is perceived not only as a tool to subjugate traditional approaches to conflict resolution in favour of assimilation into the mainstream society, but also as a mechanism by which a myriad of historical wrongs have been perpetrated upon First Nations people. Today, First Nations people see themselves either as spectators to or victims of the justice system, whereas historically they were direct participants in the resolution of conflict within their own communities. To be asked to participate in Canada’s Justice System is seen by many First Nations people as contributing to their own oppression and, therefore, repugnant. These sentiments are not surprising, as many experts and authors have recognized the failure of the Justice System for First Nations. For example, the Royal Commission on
Aboriginal People observed:

The Canadian Criminal Justice System has failed the Aboriginal peoples of Canada – First Nations, Inuit and Métis people, on-reserve and off-reserve, urban and rural – in all territorial and governmental jurisdictions. The principal reason for this crushing failure is the fundamentally different world views of Aboriginal and non-Aboriginal people with respect to such elemental issues as the substantive content of justice and the process of achieving justice. (4)

The traditional restorative justice practices of many indigenous communities stand in stark contrast to the sentencing principles set out in the Criminal Code of Canada. For the purpose of further analysis, the relevant sections of the Criminal Code of Canada are set out below:

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community;
and
(f) to promote a sense of responsibility in offenders, and
acknowledgment of the harm done to victims and to the community. (7)

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(e) all available sanctions other than imprisonment that are reasonable
in the circumstances should be considered for all offenders, with
particular attention to the circumstances of Aboriginal offenders.

Disadvantage Based Sentencing: Gladue, Ipeelee & The Aboriginal Discount

Many courts in Alberta have struggled with the application of Gladue and Ipilee principles in sentencing of Aboriginal offenders. Is the Aboriginal offender less morally culpable than the non-Aboriginal offender? Is the systemic oppression relevant to distinguishing between groups of disadvantaged offenders? Is there any meaningful recognition of the existence of a system of justice which pre-dates Confederation? It can be said that there are more policy considerations then there are clear policy directions. Does sentence parity, as contemplated in section 718.1 C.C., cease to apply at the boundaries of the reserve?

The following policy considerations have been stated and re-stated in numerous cases such as R v Gladue, [1999] 1S.C.R. 688; R v Ipeelee, [2012] 1 S.C.R. 433; R v Wells, [2000] 1 S.C.R. 207 and annotations found in Martin’s Criminal Code: (5)

a. Section 718(e) C.C. should not be read as an automatic reduction of the
sentence for Aboriginal offenders.
b. It is unreasonable to believe that Aboriginal persons do not believe in the
importance of the objectives of denunciation, deterrence and separation.
c. The more violent the offence, the more likely that there will be parity between
sentences for Aboriginal and non-Aboriginal offenders.
d. Courts in sentencing must take judicial notice of such matters as the history of
colonialism, displacement and residential schools and how that history continues
to translate into lower education attainment, lower incomes, higher
unemployment, and higher rates of substance abuse and higher levels of
incarceration of Aboriginal peoples.
e. The movement away from the parity principle can be justified on the full
consideration of unique Aboriginal characteristics put properly before the court.
Failure to consider these enumerated characteristics is an error in law.
f. The restorative justice approach is premised on the assumption that punishment
has no place in the healing process. This restorative justice approach can only
be considered as a reasonable alternative in sentencing when the following
conditions exist :
i. The sentence must be individualized and comprehensive based on
an assessment on the offenders needs and future relationship with
the victim and the Aboriginal community;
ii. The sentence must protect the victim and the community from
future short-term and long-term harm;
iii. The offender must express a willingness to participate in a program
and the community must be willing to accept the accused into a
defined program for the express purpose of a healing process;
iv. The victim must play an important role through direct participation
or be given prominence as part of the healing process;
v. There must be a infrastructure in place which can provide a holistic
process and at the same time protect the community.

Differential Diagnosis

As any physician conducts the diagnosis into the nature of an illness or presenting problem, they must apply rigorous analysis to differentiate the cause and nature of the disorder, and rule out other similar types of disorders. This medical approach may hold some utility for the justice system struggling with the over population of Aboriginal persons appearing before the court system and over-populating the jails. It has been argued that societies build jails to house those that we are afraid of, and fill them with persons we are angry at. Is it simply that the justice system has lost sight of the purpose of incarceration for the Aboriginal population and its importance with the principles of general and specific deterrents to the Aboriginal communities?

In order to begin the process, it is important to define the extent of the disorder. Who is affected from the disorder in Southern Alberta? What is the effect of general and specific deterrence for the Blood Tribe residents? When is it necessary to remove an offender from the community? As noted by Justice Claxon, Court of Queen’s Bench of Alberta, in R v Gouda, 2013 ABQB 121, where the sentencing Judge had failed to order a Gladue Report, and the appellant attempted to introduce new evidence at the appeal. Justice Claxon recognized the importance and requirement of a Gladue Report. The Court went on to recognize the importance of the Judiciary in protecting Aboriginal accused persons from systemic discrimination. Quoting from Gladue, Justice Claxon
placed great weight on the shoulders of the sentencing judge:

… sentencing judges, as front line workers in the criminal justice system, are in the best position to re-evaluate these criteria to ensure that they are not contributing to ongoing systemic racial discrimination (6)

Taking this statement to its logical conclusion, it can be argued that all the key players in the Criminal Justice System share in some fashion in this responsibility and therefore run the risk of suffering from the Systemic Aboriginal Cognitive Dissonance. The police, victim services, defence counsel, Crown Prosecutors, Judges, and KPP volunteers struggle with the angst caused by the inability to consistently deal with the conflicting values and starting point sentences. At a time when the justice system looks more and more to starting point sentences, there is resistance to move to the individualized approach contemplated by Gladue and Ipeelee. As noted by David Labrenz, Q.C. writing in 2014 for the New Crown Orientation in Alberta:

Arcand confirms the notion of starting points for sentencing remains a viable and lawful approach to sentencing accused in Alberta. (7)

To add greater clarity to the variety of issues and moral dilemma which face the system in the sentencing of Aboriginal offenders, Justice Claxon considers three key issues with respect to section 718(e) C.C. :

a. The Guilt Factor: All involved in the system would accept the premise that there is no automatic remission of a warranted period of incarceration or recognition of a reduction for systemic racism. An Aboriginal offender should not expect a reduction of sentence as a starting premise. As Justice Claxon notes, legal scholars point to the opposite conclusion. As a result, it can be argued that section 718(e) C.C. will in effect direct judges to give out lesser sentences for Aboriginal offenders simply because the guilt factor will outstrip the ability of the system to deal effectively with the lack of relevant information about the Aboriginal offender and his community. As noted by Professor Stenning and Roberts, the Aboriginal population in Alberta is over-represented in the correction population by a factor of 7. That is, the Aboriginal people represent 4.9% of the general population of Alberta and represent 36% of the corrections population in the Province. This factor of 7 is the highest factor of any Province in 2001.8 In
considering the ability of the court system to deal with Aboriginal offenders, Stenning and Roberts conclude:

The institutional pressures to move an already overburdened Criminal Justice System along means that there must be some real changes in the way information is gathered and presented regarding Aboriginal people for change to truly occur. (9)

b. Societal Villany: Lack of Moral Standing to Punish:

Systemic and background factors may bear on the moral culpability or moral blameworthiness of the offender. Canadian criminal law, as noted by Justice Claxon, is based on the concept that criminal liability comes from voluntary conduct. As noted by in the handout, Proportionate Punishment and Social Deprivation, reduced culpability comes from the notion of diminished capacity. This, of course, is tempered by the idea that criminal offences are no less harmful by virtue of the fact that the accused are socially deprived. The authors argue that if we reject the diminished capacity argument then the justice system needs to fall back onto the compassion based mitigating factor model. This model could be based either on reduced stakes in compliance by the individual offender; or more broadly speaking on societal failure towards defined or undefined groups of disadvantaged individuals. In considering the societal failure option, the authors propose the following:

All would depend on identifying governmental or class villainy or neglect. It would not be easy to develop doctrines or theories which enable one to identify when this type of fault is present. In the absence of such fault, moreover, the state’s standing to punish could not be called into question.(10)

It can be argued that Gladue calls into question the state’s standing to punish or more accurately to consider general or specific deterrents as a consideration in sentencing in any circumstance involving an Aboriginal offender due to the systemic over-incarceration of an oppressed minority.

c. Guilt based on Unfair Sentences:

Critics argue that sentencing of Aboriginals is unfair to similarly placed disadvantaged individuals. Sentence parity is lost for those unfortunate individuals who are not caught by Gladue and Ipeelee. As Justice Claxon notes, this distinction is criticized by Professor Stenning and Roberts for the Justice System’s harsher treatment of similarly marginalized individuals. The distinction
is obvious and defendable if one considers the underpinning of the oppression experienced by the Aboriginal community and its members. This consideration between the two marginalized groups takes us back to the distinction made earlier between reduced stakes in compliance as opposed to societal failure. Both may require compassion based mitigation on an individual basis but the
societal blame falls clearly to the Aboriginal community. It is a refinement of the “but for” test. But for the actions of the state, the Aboriginal community would not have lost its ability to pass on its teaching and history of laws and use of community sanctions to deal with deviant behaviour.

Healing Options: Four Models of Sentencing in Aboriginal Communities

As in any change process, the only aspect that can be managed is the approach of the change agent themselves. If meaningful change is to occur, it is necessary to look at the Justice system and its willingness to embrace or involve traditional Aboriginal approaches.

As noted by Ross Gordon Green, there are four models of sentencing which have
evolved or have been invented from the Aboriginal communities:
a. The sentencing circle
b. The Elders’ or community sentencing panel
c. The sentence advisory committee d. The community mediation committee. (11)

Ross notes that the origin of these Aboriginal approaches was based on traditional methods of social control through internal community pressure and sanction. As Rupert Ross, an Author (Return to the Teachings) and Crown Prosecutor, was quoted that the Aboriginal use of deterrents was restricted to the concept of banishment:

The pressure on the individual was to maintain a positive relationship with all members of his family, clan and community. Without it, the individual would not survive the harsh elements.

Also noted by Ross and others, the traditional Aboriginal communities used gossip, mocking and teasing as methods of social control.(12)

The movement away from the control of sanctions by the Cree and Ojibwa Bands is seen as a direct result of the colonization arising from the fur trade between 1660 and 1870 and the contact between the Aboriginal communities and the colonizers. (13)

As noted by Ross Green, another key factor in moving away from traditional Aboriginal justice was the movement to large reserves. This action changed permanently the band based approach to dispute resolution:

The move to reserve life meant a significant change in inter-community dynamics and dispute resolution. Life within multi-family reserves often in excess of a thousand inhabitants provided a proliferation of new relationships and an added complexity of life and potential for conflict outside the extended family. (14)

Relevance of Cree and Ojibwa Experience to Blackfoot Communities

The question for the Blackfoot community and the KPP in southern Alberta is much the same as the issues facing the Cree and Ojibwa. What is the historical and traditional approach to dispute resolution and what remains today? Are the observations for the Cree and Ojibwa Bands relevant to an understanding of the Cardston experiences? Are the approaches identified by Ross Green workable in Blood Tribe reserve?

It is fair to say that the sentencing circle is not within the cultural experience of all first nations’ communities. To say otherwise would fail to recognize the unique oral history of each First Nations community.

Further, the circuit court approach to Justice that has been criticized in Manitoba and Saskatchewan may not be a valid consideration for the Aboriginal communities in close proximity to the non-Aboriginal cities like Lethbridge and Calgary. The critics of the ‘flyin” court approach may have some valid concerns when one examines large caseloads, lack of resources and speed with which sentencing are conducted. As noted by Green, the value of circle sentencing as an approach to Aboriginal justice may have some value when considering the KPP Elder conferencing approach:

And it really confronts the accused a lot more…standing….before his community and admitting that he was wrong and explaining why he did it, than to stand before a stranger. It’s easier to stand before a stranger for four to five minutes while the judge sentences you and be done with it, than to sit for an hour or two maybe even three and have a number of people criticize your character and your actions, and you have to defend yourself. (15)

Ross Green points to the greater need for community and victim participation and the exercise of greater discretion by the Crown and the Judiciary as the two key elements to a merging of Aboriginal values into the sentencing process. He points out the following:

The criminal justice process, from initial complaint onwards, has an impact on a broad section of community members, yet little has been done to broaden the range of participants at entencing.(16)

Challenges Facing Southern Alberta

The three challenges facing the sentencing of the Aboriginal offender in Southern
Alberta can be stated as follows:

1. The exercise of discretion by the Crown Prosecutors: this can be considered as one of the key entry points into the Kainai Peacemakers Program. As noted by Joseph Diluca:

Determining a constitutionally tolerable discount that respects the realities of the system and the rights of the accused is a delicate task.(17)

This observation is even more worrisome in light of the conflict with starting point sentences and the SCC directions as set out Gladue et al. Is a 30 % discount within the range of acceptable reductions for a referral to KPP and a plea of guilty?

2. The exercise of Judicial Discretion: This can be seen as the willingness of the court to give proper weight and consideration to the KPP report.

3. The role of appellate review in sentencing discretion. As Ross Green notes, in reality, on appellate review, sentencing discretion is often limited. This discretion is limited by starting point sentences. As Tim Quigley of the University of Saskatchewan points out, the provincial court of appeal acts both to assess quantum of sentence and set policy for sentencing. This approach in the abstract without a complete understanding of the Blackfoot Aboriginal community can work against the proper weighing of a recommendation by the KPP.

A number of authors in considering the future of Aboriginal Justice Initiatives comment on a key factor in affecting meaningful integration of Aboriginal values and practices into the traditional sentencing process as envisioned in the Criminal Code of Canada. The sentencing hearing provisions as set out in the sentencing sections set out in Part XXIII and in particular section 726.1 C.C. As considered in R v Morin, (1995) 101 CCC (3d) 124, there are some serious limitations of the use of traditional Aboriginal processes where the sentence to be considered falls within a federal penitentiary term as the court cannot set out a remedial program.

The key element in affecting change in Cardston is the greater use of discretion at the front end of the system. No charge short of a serious personal injury offence as defined in section 752 C.C should be screened out from the exercise of Crown discretion. Further, it will be necessary for the Crown to examine its practices dealing with remand court. One of the early victims of the aboriginal Cognitive Dissonance was a Provincial Court Judge functioning in isolation in Southern Alberta.

John Reilly was a Provincial Court Judge to a small 3,500 person First Nations community outside of Calgary, Alberta. During his time on the bench in Cochrane dealing with the Stoney Indian Reserve, he witnessed a first nation’s community in crisis with suicide, drug addiction and over-representation in the court system and incarceration. His book, Bad Medicine shows the decline of a Judge in his relationship with the larger community, fellow Judges and colleagues. He eventually resigned his position in 2008 after 20 years on the bench. His words offer some insight into the malaise of a lone voice facing the challenge of Aboriginal Justice Issues:

In those five years from 1981 to 1986, I knew nothing about the Stoney people and it didn’t matter. The wisdom of the day was that you treat everyone equally by treating everyone the same. Therefore you didn’t have to know anything about the individual you are dealing with. I have come to see this opinion as racism. (18)

If the Justice system in Southern Alberta has learned anything about Aboriginal Justice and the conflicting values and sense of oppression of the Blackfoot people then we have learned that the challenge is learning about the Blackfoot culture, listening to the oral history told, retold and re-invented by the Elders and making the “Healing Journey” together.

1 Blood Tribe Police Website: www.bloodtribepolice.com
2 Kainai Peacemakers Program: A Proposal presented to the Aboriginal Justice Strategy, Department of Justice,
Canada
3 Icabucci, Aboriginal Jury System in Ontario, 2010, paragraph 210 4 Ibid, paragraph 247
5 Martin ‘s Criminal Code, 2014 6 R. v. Gouda 2013 ABQB 121, paragraph 1
7 Labrenz, Q. C., David – Sentencing Made Simple: A Basic Sentencing Primer, page 10 8 Rudin, Jonathan: Aboriginal Peoples and the Criminal Justice System, page 19
9 Ibid, page 5 10 Proportionate Punishment and Social Deprivation, Class Hand Out page 69 11 Green, Ross Gordon, Justice in Aboriginal Communities, page 19
12 Ibid, page 31 13 Ibid, page 33
14 Ibid, page 35 15 Ibid, page 41
16 Ibid, page 44 17 DiLuca, Joseph: Expedient McJustice and Principled alternative Dispute Resolution ? A review of Plea Bargaining
in Canada Law Journal 18 Reilly, John: Bad Medicine. A Judge’s Struggle for Justice in a First Nations Community

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