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Saturday, December 9, 2023
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In search of the sentencing circle solution

In search of the sentencing circle solution
Ken MacDougall

I must confess that I’ve never been particularly impressed with how our judicial system metes out “justice” in its sentencing; to me, too much of it is subjective, vindictive and overtly harsh in its application.

I went to school with Steven Truscott, so maybe I’ve been overly sensitized to resist any notion that all punishment should “fit the crime”, and be measurably equivalent to the brutality of the crime itself.

Truscott was accused at the age of 14 of brutally murdering a female classmate, Cheryl Lynne Harper, in 1959, convicted of same on the shakiest of evidence gathered by an indifferent and seriously bored police force, and despite his youth, sentenced to be hanged.

Prime Minister John G. Diefenbaker and Cabinet commuted that sentence to life imprisonment, only to be pilloried for their unwillingness to apply the “principles of justice” emanating from the “eye for an eye, a tooth for a tooth” crowd once carrying the “right to life” banner of that movement’s judgmental sycophants.

Truscott was released on parole in 1969, as court officials were already believing that his was a case of a miscarriage of justice. In 2007, evidence finally emerged that confirmed his innocence, and pointed the finger towards the person most likely to have committed this crime, a non-commissioned officer in the Canadian Armed Forces stationed at Clinton, ON, long since deceased.

Today’s judicial practice delivers punishment for any criminal behaviour as defined not to scientific or statistical fact respecting rehabilitation or recidivism, but rather by the sentiments flowing from a colonizing power exercising its contempt for those who seemingly don’t “understand the civility” of its intended message, and therefore become proportionately overrepresented in our jails.

We then defend our actions by showing disdain for different systems of justice, particularly Sharia law as practised by some factions within the Islamic faith. Typically, Islamophobes will use this as justification for their bigotry and its practitioners cruelty towards women, ignoring the reality of Canadian law having classified its married women as the “property” of their husband and weren’t even legally considered to be “persons” until 1929.

Equally lost in its embellishment of our system of common law is that up to forty years ago a husband, armed with a wooden not exceeding a certain measure as stipulated by law could beat their wives within inches of their lives, or could rape his spouse. Considering that we still see an average of one woman spouse dying as a result of physical abuse by their partner every six days, pretending that our menfolk are not violent and that we respect a woman’s right to control their own lives and bodies is just another Canadian mythological absurdity.

Indigenous sentencing circles, on the other hand, lack the violent thread that weaves its way through our Criminal Code. Such judicial ceremonies only seek to address the consequences of antisocial behaviour by enlisting the support of community and family to help heal the emotional wounds created from criminal action.

As an example, in a 2002 trial involving two Saskatoon police officers abandoning an Indigenous man, Darrell Night, on the outskirts of town to walk home in -25O C weather wearing only a light jacket, one of their lawyers, a Metis woman, requested punishment for guilt be applied through a sentencing circle. That request enraged then-FSIN Vice Chief Lawrence Joseph, who objected to the process being used to resolve a criminal case not involving an Indigenous defendant.

Vice Chief Lawrence Joseph would later question his own initial reaction to the sentencing request, but by then the opportunity to demonstrate the judicial strength of Indigenous law had been already lost. After losing their sentencing appeal, the now ex-officers served 90 days in Manitoba’s Stony Mountain Institute – protected on the “inside” by members of the Indian Posse.
Darrel Night has yet to receive compensation from the City of Saskatoon for his ordeal.

Most of our “white” society is brainwashed to believe that the sentencing circle coddles Indigenous defendants, thus depriving society of their being fully “punished” as an offender. However, in early 2000 Nuxalk First Nation member Billy Andy, seeking admission to a University of Northern British Columbia degree program, undertook a study intended to disclose the reaction of Indigenous offenders to being judged by either the traditional court system or a sentencing circle. Over 90% of the surveyed claimed a preference for traditional court proceedings.

Asked to explain that choice, their responses were equally unanimous – in the regular court system, you simply had to “do the time” without thought as to the potential harm inflicted upon the crime’s victims; in a sentencing circle, however, you were not only forced to confront both your own sense of guilt and harm done to others, but to seek forgiveness and start the healing process of the emotional wounds opened within the victim by your actions.

Just over four years ago I wrote an Op-Ed piece on the sordid manner in which the trial of Gerald Stanley, a Glenside farmer accused of having murdered Colten Boushie, a Cree member of the Red Pheasant band, was handled, using the tool of “what if” that trial had been conducted under the guidelines established for the usage of a sentencing circle in deliberation. At the time, and irrespective of which “side” you expressed your personal sympathies, the “odds” were that no matter how the evidence would be presented in court, Mr. Stanley would be found “Not guilty.”

That supposition turned out to be disturbingly true. Despite there being more than a sufficient amount of evidence that Mr. Stanley was at least guilty of involuntary manslaughter, the Crown failed to include that option in the charges laid against him. It was then left to a jury having absolutely no Indigenous representative in its dozen to listen to Mr. Stanley’s lawyer then wend his way through an explanation of how a modern day pistol equipped with modern day ammunition could suddenly develop a case of “hang fire”, as though it were an 1850 scattergun loaded with partially dampened cartridges.

One has to wonder in what direction that pistol had been pointed mere milliseconds before the door behind which Colten Boushie sat, passively incapacitated, was opened and Mr. Stanley noted the damaged rifle on the floor of the cab.

My point in bringing back this tainted memory is that on August 11th, Debbie Baptiste, mother of Colten Boushie, in conjunction with FSIN officials once again called for a public inquiry into the circumstances that led to Colten’s death, thereby risking the reopening of the racial divide that gripped this province when we were first told that Colten Boushie had died after being shot while on Mr. Stanley’s Glenside farm.

At the moment, we are in a period of hiatus as the public finally is starting to come to terms with the significance of now just over 6,000 unmarked Indigenous children’s graves have been found on or near residential school lands. We are also starting to deal with, albeit with considerable foot-dragging from our provincial government, and addressing the 91 recommendations for action that came from the Truth and Reconciliation report dealing with the national inquiry into Murdered and Missing Indigenous Women and Girls.

It would be really nice if the people of Saskatchewan fully understood the levels of disdain and scorn that has been heaped upon Indigenous peoples in the last four centuries, a reality that tells us that there have been over 100 MILLION deaths of Aboriginal peoples during that time frame. It might also help if we could stop denying the violence buried within this nation’s history by including in our acknowledgements the realization that such brutality also has a “local” perspective. It could be in our provincial police forces mapping out the many regional burial sites testifying to the handiwork of individuals such as Saskatoon serial killer John Crawford and other others still uncaught as a result of indifferent investigation of well documented Indigenous tragedies. It could be why a fourteen-year-old Indigenous girl once gave grim meaning to Tisdale’s “Land of rape and honey” logo, long since removed from public view.

This is not a one-sided story of our citizens of immigrant extraction have to familiarize themselves; there exist a multiplicity of issues of conscience that Indigenous leaders must face, if we are to give our efforts at reconciliation any chance for success. Even Ms. Baptiste knows that there are decisions of doubt and even shame, as she contemplates the role those persons who accompanied Colten to the site of his eventual death, and how this betrayal of friendships can ever be healed.

Lastly, in moving on issues that the Idle No More Movement has long been asking its male leadership, when will they finally step forward to take responsibility for the proliferation of gangs that thrive under their weakened rule, pretending to be “protecting their own” from colonial-like abuse, when in reality the victims of their often violent actions are the people whom they profess to be protecting.

These tasks, I’m afraid, will have to wait until someone finally outlines how a public inquiry – a sentencing circle, in actuality – will be constructed so as to finally address our racial concerns head-on.

That’s a date for which we all should be planning.