R. v. Skead and Jack, 2015

R. v. Skead and Jack

Ontario Court of Justice

Kenora, Ontario

Friday, November 20, 2015

Court Information

Before: The Honourable Justice D. Gibson

Appearances:

• K. Wiersema, Counsel for the Crown
• J. Bilton, Counsel for Mr. Skead
• P. Joubert, Counsel for Mr. Jack

Proceedings

Opening Remarks

MR. BILTON: Your Honour, there are certainly a number of individuals in the body of the court today. I just thought it important to signal to Your Honour that in addition to Ms. Williamson, the author of the Gladue report for Mr. Skead, also present is the Justice Director for Grand Council Treaty Three, Arthur Humeniuk. He's in the body of the court.

THE COURT: Good morning.

MR. BILTON: There are also the aboriginal court workers from the Kenora courthouse present. In addition, a number of supporters are here. His mother, Mr. Skead's mother is in the body of the court as she was on the last date. I did speak to her briefly this morning, and as Your Honour is aware we now are experiencing winter.

THE COURT: Yes.

MR. BILTON: And she did advise me that for some people it was not possible as I understood it because of road conditions. But as you can see there are still a number of people in the body of the court here today. The second issue that I wanted to firm up Your Honour is that I did speak with Ms. Dewson this morning to confirm the pre-sentence detention. The custodial element of the submissions on the last date. And we certainly appreciate Your Honour's inquiry just to confirm exactly what the number was. And to be clear in hoping nothing was lost in translation, that on the last date, November 5, we had calculated 223.5 days on an enhanced basis. And then of course between that date and this date is 15 days, on an enhanced basis is 22 and a half. And Ms. Dewson and I have agreed that that totals 246 days.

THE COURT: Thank you. I appreciate that clarification.

MR. BILTON: Thank you Your Honour.

MR. JOUBERT: I should also explain...

THE COURT: Mr. Joubert.

MR. JOUBERT: ...Your Honour both John Morrison, Georgina Jack, and also their daughter Amanda are also present in court as well.

THE COURT: Good morning.

Sentencing Remarks

Opening Statement

THE COURT: Now before I proceed to sentencing, Mr. Jack is there anything you would like to say?

MR. JACK: No.

THE COURT: Mr. Skead is there anything you'd like to say?

MR. SKEAD: No.

THE COURT: All right. As I have communicated to both of you at different times in the course of this sentencing proceeding, I have found this process to be a struggle and I have explained in part to both of you at different times why that is. I would like to do that more fully today and I start by reflecting on the facts of this case. I was deeply troubled by the facts that I heard.

Facts of the Case

As you both know this matter was originally scheduled for trial and a resolution was reached on the day of the scheduled commencement of trial and facts were put before me at that time. And there were a number of aspects beyond the criminality of your conduct that struck me as unusual and troubling.

I was told that on Friday, October the 3rd, 2014, that a young man, who I assume from the facts of the case was a young white man, had invited several friends over to his residence for a house warming party. I was told that both of you were in a vehicle - Mr. Skead, I was told you were driving the vehicle. Mr. Jack, you were a passenger in that vehicle I was told - stopped and the inference I drew was that you did a kindness for someone who was walking and drove him to that party. It is not clear what the extent of the relationship was between the two of you and Dustin Jordans, the person you drove to the party.

But what I was led to believe was that after arriving at the party you were told that you were not welcome and you were asked to leave. In the facts that the Crown provided to me they acknowledged that the circumstances surrounding the events of the night in question are not crystal clear, at least in part it seems because of the amount of alcohol that many of the witnesses had consumed. But partly also because of the different perspectives of people at the party, as well as yourselves and your co-accused, who I understand in some cases provided their own description of what happened at the party.

What I can glean is that at the point where you were asked to leave the party that there may well have been some disrespectful comments made in your direction, there was an altercation that resulted in an assault, the two of you left the party, returned to Rat Portage, had conversations with two other individuals and returned to the party in their company and a confrontation ensued there and during the course of the confrontation, principally two individuals, Ian Lougheed and Patrick Fleming, became the subject of significant assaults.

Ultimately Mr. Fleming was taken to the Lake of the Woods District Hospital with serious head injuries and ultimately moved to the Health Sciences Centre in Winnipeg where medical records indicated that he had sustained multiple hematomas - hematomas are bruises on the top of the brain underneath the skull - contusions and lacerations to the face and scalp that required suturing and stapling. He also had serious head and facial injuries consisting of a skull fracture to the left temporal bone, subdural hemorrhaging - that is again bleeding on the top of the brain and underneath the skull - and multiple facial bone fractures. He was observed very closely for at least three days to monitor potential brain swelling. In short, this was a very serious episode.

I was troubled by the context of this episode and it was not clear to me how I would incorporate my view of the facts into a just sentence. Ultimately the matter was remanded for a considerable period of time for the preparation of two Gladue reports. There was a Gladue report prepared at Mr. Joubert's request for Mr. Jack by Cheryl Becker. There was a Gladue report prepared at Mr. Bilton's request by Ms. Williamson. I found both of these reports to be compelling reading. They outline not only your individual personal circumstances, but also illuminate the cultural background that informed and informs your lives and, in my view, impacted the events of the night of October 2014.

Legal Framework and Section 718.2

Against all of this background, the Criminal Code directs me, in Section 718.2"When considering what is a just sentence to consider 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."

The question that I have grappled with is in the context of this case on these facts, with these two gentlemen, from this background. What does that mean? How do I go about that task?

I am aware from my review of the Gladue reports that there is skepticism within your families concerning whether or not you can receive justice in this court and that skepticism is founded in a distrust that is amply explained in the Gladue reports. I indicated previously in relation to Mr. Skead's matter that I understood that the experience of Anishinaabe people in this part of the world has led many to conclude that their values, what they hold important, their perspectives, the way they see the world, is not reflected in the way that we do justice.

The highest court in this country has made it clear that we incarcerate too many Aboriginal people in this country, often for the wrong reasons, and they have directed trial courts to do better. The question I have asked myself is how can this court best acknowledge and honour the Aboriginal experience and perspective in its judgments while remaining true to the legal tradition that informs the Canadian court system.

Judicial Self-Reflection and Bias

In considering that I have thought deeply about my own limitations. In Mr. Skead's Gladue report at page 15 of 46, in the first full paragraph, there is a quote referencing Phil Fontaine, the National Chief of the Assembly of First Nations, who according to the quote points out, and I quote now:

"Racism in Canada today is for the most part a covert operation. Its central and most distinguishing characteristic is the vigor with which it is consistently denied. Ironically many thus argue that Canada's endeavours in the field of human rights, its strong stance against racism have only resulted in a more politically correct population who have learned to better conceal their prejudices. In effect the argument is that racism in Canada is not being eliminated, but rather is becoming more covert, more rational and perhaps more deeply embedded in our institutions."

I have used that quote as a mirror to some extent. I am aware that we all operate in a world where many of our beliefs and our values and our perspectives are part of the air that we breathe and we do not always have the broadest perspective on why we do things and that it is important to be as aware as possible of what is informing our actions and decisions.

As I challenged myself I paid particular attention to what has been described by Ms. Williamson in her Gladue report for Mr. Skead as the seven gifts. One of the seven gifts is respect. The report describes respect as that which comes when there is finally a clear understanding that there is an intricate relationship between all things animate and inanimate and that you are a part of the complexity and that you will always be even after death. To honour all creation is to have respect.

When I considered the facts in this case through the prism of the complexity described in that definition of respect, it seemed clear to me that what happened that October evening was in some ways a microcosm of what has been happening in this part of the world for over a hundred years.

Historical Context and Personal Reflection

I am not sure that my experience accords with the experience that Phil Fontaine describes. I do not take issue with the validity of his conclusions. But my experience has largely been that people are often unconscious of the history that they are living out and, though well intentioned, they repeat patterns that have been put into operation before they came along.

I am going to make this somewhat personal because I grew up here. My great grandfather, my father's father's father, came to Kenora when it was Rat Portage. He was one of the men who built the paper mill that was the largest industry in this city for the longest time. He settled here from Scotland via Australia via South Africa because they had just built a power dam in Kenora, in Rat Portage. That power dam at the headwaters of the Lake of the Woods changed the entire topography of Lake of the Woods. Many of the reefs in Lake of the Woods used to be islands in the days when the Anishinaabe lived exclusively on the Lake of the Woods. The Minnesota end of the Lake of the Woods was basically a big swamp.

When Treaty 3 was entered into I do not imagine that the Anishinaabe, who signed that treaty on behalf of their peoples, foresaw everything that exists today, nor do I think the settlers who signed that treaty expected us to be here like this. But things changed drastically in this part of the world when my grandfather's father arrived here.

Anishinaabe people were, very shortly after that, taken from their homes and schooled in the western way using an ideology that considered Anishinaabe people less than white people. The education system that was created for Anishinaabe people was designed to alter their relationship to themselves.

I want to make a few things plain. That description of the residential school system is not my personal opinion. On June 11th, 2008 the Canadian Prime Minister on behalf of the Government of Canada and all Canadians issued an apology in the House of Commons to Aboriginal peoples wherein he stated:

"Two primary objectives of the residential school system were to remove and isolate children from the influence of their homes, families, traditions and cultures and to assimilate them into the dominant culture. These objectives were based on the assumption Aboriginal cultures and spiritual beliefs were inferior and unequal. Indeed some saw it, as it was famously said, to kill the Indian in the child. Today we recognize that this policy of assimilation was wrong, has caused great harm and has no place in our country and that the consequences of the Indian residential schools policy were profoundly negative and that this policy has had lasting and damaging impact on Aboriginal culture, heritage, and language."

That is uncomfortable for some settlers to hear. There are those who take comfort from the idea that they were not personally present when those decisions were made. They do not feel implicated in those decisions and I think it is fair to say on some level perhaps, resent the idea that they are expected to, in their view, feel ashamed of things that were done in earlier generations.

I do not think it is necessary for individuals to necessarily carry shame. I am not sure that shame is necessarily a productive emotion. But it is necessary for all of us involved in the justice system to recognize that we who come after have a responsibility to recognize our history for what it is, to describe it clearly, to understand and accept the effects of what was done and to understand that all of us are born into a world that is waiting for us.

This building that we are in today predates the birth of all of us. And it is easy to understand that we have to navigate our way through this building based on decisions, design decisions, that were made before we were born. It is less easy for some to recognize that culture has a similar effect. We are born into a culture wherein we accept certain ways of seeing things, certain beliefs, certain values. They inform our decision making. They become part of our unconscious reflexes and many of them are waiting for us when we arrive. It is only through becoming aware of what that culture is that we can make choices going forward about what to accept and what to leave behind.

I was schooled in Kenora. I went to Beaver Brae when it was the only high school in Kenora. I played hockey on an outdoor rink at Cecilia Jeffrey at the location where the Treaty 3 offices now stand with kids from, we called it CJ. I went to school with Aboriginal students at a time when they were marginalized. That is the culture, that is the experience that all of us have walked into.

Application to the Incident

When the two of you were told that you were unwelcome at this housewarming party it does not take a lot of imagination to see the parallels. I can understand the anger fueled by a sense of disrespect that may well have fueled your actions that night. But it is also true that the level of violence that took place that night is not acceptable in any culture, using any set of values.

Regarding Mr. Jack's Gang Membership

Mr. Jack I was urged by the Crown yesterday to consider it an aggravating feature of your sentencing that you are an acknowledged member of the Native Syndicate. I recognize that there is nothing in the facts before me that suggests that your membership in that street gang played any role in what happened that night and it would be improper for me to sentence you as if it did. I recognize that your acknowledgement of your role with that organization was volunteered by you and the way I understand native street gangs, in this part of the world, is informed to some extent by the comments that I have just made.

It is understandable to me that young Aboriginal people who have experienced marginalization, abuse, racism at the hands of a culture which has settled not so long ago in this part of the world and completely transformed it from what it was when it was occupied by Anishinaabe people, I use the word "occupied" advisedly, that may be one of those examples of cultural bias. (We tend to occupy places, the western culture. The Anishinaabe view is that there is more of a symbiosis then I think what we often respect.)

It is understandable to me that young Aboriginal people growing up in that context would come to identify with groups that set themselves against the dominant culture as a way of expressing their refusal to participate in what they experience as an oppressive system. It is unfortunately also true that many people in native street gangs exploit that righteous anger and manipulate it into petty criminality and justify it with an explanation that it is a form of resistance.

In these circumstances I do not place any particular weight, Mr. Jack, on your admission. I am not of the view that it inspired your actions on the night in question beyond what I have acknowledged as the historical circumstances in which this assault took place.

Unconscious Patterns

I am not trying to suggest that the two of you on the night in question even completely understood the way in which the hostilities between you and those party goers parallel in some ways the tensions that have existed in this part of the world for a hundred years now. But that happens when we are unconscious. These things play out over and over and over again, fueled by old resentments. If we are ever to reconcile, there needs to be a greater level of consciousness on both sides of the divide.

Sentencing Principles

In assessing how to impose a fit sentence on you, Mr. Skead, and you, Mr. Jack, I have made my considerations against the background that I have just described. My task has been simplified, to some extent, by the fact that counsel reached a series of agreements prior to your guilty pleas, which I am obligated in law to accept, provided they are not outside of legally accepted norms. In my view the sentences that are being proposed for the two of you, that being 15 months for you Mr. Jack, and 13 months incarceration for you Mr. Skead, cannot be said to be outside of the legally accepted range of sentence.

My most difficult task is to assess how to credit you, if at all, for the time that you have served both in custody and outside of custody in different forms of house arrest.

Sentencing of Mr. Skead

Mr. Skead, you have a great deal to offer. You have, prior to the lengthy period of incarceration that you've been serving as a result of a breach of your undertaking, served a significant period of time of 24 hour house arrest, and done so in difficult circumstances. You have made what I take to be a sincere effort to rehabilitate yourself during that time. And I intend to give you full credit for that.

Your counsel drew my particular attention to one aspect of the Gladue report prepared on your behalf and I agree that it's a very significant comment. At page 41 of the report there's an indication that:

"Garrett wants to be helpful to his parents as they have their own sweat lodge. Right now Garrett feels he's not ready to enter Medowin society. Garrett is a pipe carrier, has his own eagle feathers, attends all spring and fall ceremonies, and at times attend a powwow. With all of his gifts he feels he's not ready to carry them."

I respect that feeling. I can understand how intimidating it may feel to you to step wholeheartedly into a tradition you're not sure that you can honour in the way that you want to.

But I do want to remind you that one of the seven gifts is bravery. Which is described as coming from an appreciation that you are terrified that you are not good enough and that others will find out. Bravery is to look at your inmost self and face that fact with integrity. Like all of us Mr. Skead, you are a powerful creator. What I want you to consider is that whether you step into the tradition or not you are creating. It can be a scary thing. But even those of us who sit on the sidelines and say we're not responsible for the creation of the Indian residential school system - I just played hockey there, I was a kid, I didn't know what was going on – once you know you have a responsibility. Once you become aware that what you do has an effect on everything around you, that in the same way the cultural legacy that we inherited is what we're living today, every single act that we do, even in the privacy of our own homes, is a legacy that we're leaving for the next generation. We can't avoid that responsibility.

Sentencing of Mr. Jack

Mr. Jack as I suggested to you at the end of the day yesterday, you seem to me to be a young man who has a foot in two different worlds. You also have a tremendous amount to offer and you are tapping into that. Your recent work history is very impressive. I understand why you are angry. I understand why you are easily triggered into violence. But I also understand that you are committed to your family and you are committed to a peaceable way of life.

Purpose of the Court

I know that among some people there is a feeling that the purpose of this court is to assign guilt and punish people. That is a perspective. I do not understand my role that way. Our job here, in my view, is to keep the peace, to ensure a balance and harmony in the community. When acts of violence like this take place it disturbs that balance. It creates a disharmony that has countless effects on individuals, on communities and my task here is to find a resolution that attempts to restore that balance and harmony to the extent that that is possible and that includes naming things.

As I have indicated, this level of violence is not acceptable, even if I understand what may have fueled your anger on that night even at a level that you yourselves may not have recognized. I need to balance that with the need to foster your rehabilitation, to send the appropriate messages to the community about how crimes of this sort will be handled and to send messages to both of you about what you can expect if these kinds of mistakes are made again. In my view the sentences that have been proposed by counsel make an effort to balance those factors.

Sentencing Orders

For Mr. Skead

Mr. Skead, I recognize that you have served a total of 246 days on an enhanced basis on a 1.5 in the traditional method. I have recognized the extended period of time that you have spent on 24 hour house arrest and I'm crediting you with a total of 11 months of pre-trial custody. And sentencing you to an additional 60 days going forward.

That will be followed by probation for two years. The terms will be that you keep the peace and be of good behaviour. That you report to a probation officer within three days of your release from custody and thereafter as they require. You will attend, participate in and complete any counselling as directed by your probation officer, and complete that counselling to their satisfaction. It's my recommendation that that counselling take place in accordance with the recommendations made in the Gladue report.

I'm going to order that you not communicate directly or indirectly with Ian Lougheed and Patrick Fleming and not be within 25 metres of where they live or their place of employment. I will make an order that you provide a sample of your DNA for the DNA databank.

Are you engaged in traditional pursuits at all Mr. Skead? Do you have firearms?

MR. SKEAD: No. No.

THE COURT: Do you go hunting?

MR. SKEAD: No. I don't go hunting, no.

THE COURT: We'll make it a term of your probation that you abstain absolutely from the possession of weapons as defined by the Criminal Code. I will make an exception if you are engaged in traditional harvesting. So in the event that as part of your efforts to reconnect with your tradition that you feel it advisable to participate in that way that will be an option that's available to you. But you're only to be in possession of firearms when you're on the land and not in the community. Do you understand?

MR. SKEAD: Yeah.

For Mr. Jack

THE COURT: Mr. Jack I am accepting the joint submission. I am recognizing that you have served a total of 94 days (counting today), which is 63 actual days and at an enhanced basis to 94.

Mr. Jack I am crediting you with one half day for every day that you served under house arrest until your conditions were amended in June and I am crediting you with one quarter of a day for each day that you served under modified curfew since June prior to your arrest for a total of eight months. You will serve a sentence of seven months going forward.

That will be followed by probation for two years on terms that you keep the peace and be of good behaviour; report to a probation officer within three days of your release from custody and thereafter as directed; you will not communicate directly or indirectly with Ian Lougheed or Patrick Fleming and not be within 25 metres of their residence or place of employment; you will participate and complete any counselling as directed by your probation officer to their satisfaction and I am recommending that that be done in accordance with the recommendations contained in your Gladue report.

I am also going to recommend that you serve your sentence at the Algoma Treatment and Remand Centre. The sentence may not be long enough for you to qualify for that program, but that is something that I recommend that you speak to the classification officer about at the jail. It is a program that is run out of Sault Ste. Marie. It is a treatment facility that is designed to address drug and alcohol and life skill type issues. It is a step up from the kind of rehabilitative programming that is often offered in the provincial correctional system Mr. Jack but the beds are hard to come by. So if you do wish to go there you will have to advocate for that with the classification officer. They will offer you any number of other options essentially to test your commitment to a treatment program. So you will have to overcome that by making it clear to them that that is what you want, if it is what you want.

Are you engaged in traditional pursuits? Do you have firearms?

MR. JACK: No.

THE COURT: Do you go hunting?

MR. JACK: No.

THE COURT: I will, during the term of your probation, prohibit you from possessing any weapons as defined by the Criminal Code of Canada. I will make an exception if you are engaged in traditional pursuits for when you are on the land and not in the community. Just to give you the option to do that.

With respect to the breach charges that each of you have entered pleas to, I will sentence you to 30 days concurrent on both counts. So that is a total of seven months going forward for you Mr. Jack, a total of 60 days going forward for you Mr. Skead.

Clarifications and DNA Orders

MR. BILTON: Yes, Your Honour. I take it from Mr. Jack's indication, the .5 credit, is Your Honour also giving the half day credit for Mr. Skead?

THE COURT: I built it in to the 11 months total.

MR. BILTON: Okay. Thank you.

MS. WIERSEMA: Your Honour I would ask, I didn't hear an order for DNA on Mr. Jack.

THE COURT: Yes. Mr. Jack, this is a primary designated offence and I will make an order that you provide a sample of your DNA for the DNA databank.

Closing Remarks

Now gentlemen I have attempted to explain my reasons for my sentence as fully as I could. I want you to understand that this court is interested in a reconciliation with Anishinaabe people. Our system is made up of individuals who are all doing what they think is right and change sometimes does not happen as fast as all of us would like.

I tell you frankly that I am concerned about conditions at the district jail in Kenora. I recognize that putting someone in a cage is of dubious utility when it comes to rehabilitating people. The probation office will have limited resources. I urge both of you to be proactive during your probation terms. If you leave it to the probation office to design something for your rehabilitation, you will get what they think you need. If you go to the probation office with a plan and tell them this is right for me, this is what I need based on my way of seeing the world, you are more likely to get access to the kind of resources that you want. So I urge you to be proactive.

Is there anything further counsel?

MS. WIERSEMA: If there's any outstanding charges, I ask the balance be withdrawn please.

THE COURT: Balance of charges will be withdrawn at the Crown's request. Thank you. We'll take a 15 minute recess.

Transcript Certification

Transcript Ordered: April 20, 2016

Transcript Completed: April 21, 2016

Ordering Party Notified: April 22, 2016

Certificate of Transcript

I, Sherri Fleming, certify that this document is a true and accurate transcript of the recording of R. v. G. Skead in the Ontario Court of Justice held at Kenora, Ontario taken from Recording No. 1511-CR1-20151120-092252-6-GIBSOND which has been certified on Form 1.

April 22, 2016

Sherri Fleming