Court File and Parties
Ontario Court of Justice
Date: 2017-05-09
Court File No.: Fort Frances 160143-00, 160225-00
Between:
Her Majesty the Queen
— and —
Scott Morrisseau
Before: Justice D.M Gibson
Heard on: March 7, 2017
Reasons for Judgment released on: May 9, 2017
Counsel
Jane Rodger — counsel for the Crown
Barbara Morgan — counsel for the accused Scott Morrisseau
Judgment
Gibson, J.:
Background and Facts
[1] Scott Morrisseau is a 53 year old Anishinabe man from the First Nation Territory of Couchiching. In February of 2016, he and Annette McPherson had been in a common law relationship for almost eight years but had been experiencing difficulties for some time. Beginning in September, 2015, they had agreed to continue sharing the house they had together in Couchiching but to live separate and apart.
[2] On the evening of February 27, 2016, Mr. Morrisseau was upset after he learned Ms. McPherson had started a new relationship and confronted her angrily when she returned home from work. They argued in the kitchen and as the argument became more heated, Mr. Morrisseau caused some damage to the kitchen countertop. He also grabbed a baseball bat and threatened to cause more damage in the house. Ultimately, he did not break anything else and did not directly threaten Ms. McPherson but she became understandably alarmed and called 911.
[3] Mr. Morrisseau left the residence before police arrived but was soon arrested and charged with mischief. He was released by the officer in charge after undertaking, among other things, that he would not to possess any weapons and not attend at the residence he shared with Ms. McPherson except for one occasion, with her consent, to retrieve his belongings until the matter was resolved.
[4] Days later Ms. McPherson told Mr. Morrisseau she wanted him to remove his things from the house on March 17th. When she returned home from work that day Mr. Morrisseau was still at the house and she found him in a very distressed state. He told her he wanted to kill himself and he wanted his son to get his belongings and life insurance. Ms. McPherson tried to talk him out of it as he retrieved a shotgun from a closet and loaded it. Mr. Morrisseau insisted Ms. McPherson leave the house and she refused, trying to take the gun away from him. Eventually, Mr. Morrisseau, after pleading with her to leave, grabbed Ms. McPherson and pushed her out of the house and barricaded himself inside.
[5] Ms. McPherson called 911 and the OPP Emergency Response Team, Crisis negotiators and Tactical Rescue Unit attended the scene. From approximately 10 pm until 1:30 am that night, Mr. Morrisseau was barricaded in the house while speaking to tactical team negotiators with the help of his lawyer. Eventually, he surrendered himself into police custody without further violence.
[6] As a result of these two incidents Mr. Morrisseau was charged with a number of offences and eventually pled guilty to one count of mischief, one count of possession of a weapon for a purpose dangerous to the public peace, one count of breaching his undertaking by possessing a weapon and one count of assault on Annette McPherson for pushing her out of the house before barricading himself inside.
[7] Initially, after reviewing the allegations and noting the accused had a prior conviction in 2013 for the careless use of a firearm for which he received a $300 fine, the Crown screened this matter for a global disposition of two years custody. They revised their position after Mr. Morrisseau entered his guilty pleas and reviewed the Gladue report prepared by Ms. Becker from Grand Council Treaty #3. With the benefit of more detailed information about his background and aboriginal circumstances, the Crown now submits a global sentence of six months custody followed by two years of probation would be a fit sentence.
[8] Ms. Morgan argues on behalf of Mr. Morrisseau that this Court ought to recognize the three days Mr. Morrisseau served in custody prior to his release following the March incident and otherwise suspend sentence and place him on probation for twelve to eighteen months.
[9] It is obvious from the Crown's decision to radically revise their perspective on disposition, as well as the continuing wide disparity in the positions of counsel, that a proper understanding and application of Gladue principles is central to arriving at a fit sentence in this case. For that reason, I intend to review that aspect of this matter in detail.
Background of the Accused
Personal and Family History
[10] Scott Morrisseau is a band member of the Couchiching First Nation located on Rainy Lake at the border between Canada and the United States, very near the Town of Fort Frances, Ontario.
[11] Before looking at Mr. Morrisseau's personal history and to put this sentencing in its proper context it is necessary, in my view, to say some brief things about the history that led to the creation of the present day community of Couchiching.
Historical Context: The Anishinabe and Colonization
[12] For thousands of years Anishinabe people lived on the lands between Lake Superior in the east and the Red River in the west. Prior to colonialization they were nomadic through this territory and the lands to the south in what is now Minnesota where the Ojibwa speaking people were known as Chippewa. Since records have been kept it has been recorded that they gathered near Couchiching falls in the spring for ceremonies, supported by the abundance of fish and wild rice there. They followed an annual cycle that involved hunting, fishing, and gathering and by the beginning of the 1800's they had adopted agriculture around the Lake of the Woods and Rainy River regions.
[13] Chief Ma-We-Do-Pe-Nais, the Chief spokesman for the Ojibway at the negotiation of Treaty #3 described his people's understanding of the land and their relationship to it in this way to the Queen's representative at the negotiations:
...All this is our property where you have come. We have understood you yesterday that Her Majesty has given you the same power and authority as she has, to act in this business; you said the Queen gave you her goodness, her charitableness in your hands. That is what we think, that the Great Spirit has planted us on this ground where we are, as you were where you came from. We think where we are our property. I will tell you what he said to us - when he planted us here; the rules that we should follow - us Indians. He has given us rules that we should follow to govern us rightly.
Treaty Research Report- Treaty Three (1873), Wayne E. Daugherty, Treaties and Historical Research Centre, Self-Government, Indian and Northern Affairs (Canada 1986) (p.31)
[14] The first Europeans to visit the area where the Anishinabe made their home were French fur traders. In 1717 they built the first fort on Rainy Lake in an effort to establish a trade route to the west and protect it from Sioux tribes to the south and west.
[15] Over the course of the next 150 years the Anishinabe people continued to live as they had always done with some agreeing to act as guides for the Coeur de bois and still others inter-marrying with the French traders. Because of its strategic location for the Europeans, being at the border with the United States and halfway between the Red River Settlement, at what is now Winnipeg, and Fort William on the north shore of Lake Superior, at what is now Thunder Bay, a fort was always maintained on Rainy Lake and eventually became known as Fort Frances.
[16] Beginning in the middle of the 19th century, dramatic changes were taking place in the lives of the Chippewa people to the south of Rainy River as they made agreements with the pre-civil war American government. Major treaties between the United States and various Chippewa nations had been negotiated and according to one historian:
These agreements appeared to have a positive impact on both parties. Americans, for instance, were busy logging the forests, mining copper, and building transportation systems in Minnesota as a result of the La Pointe Treaty of 1854. The Chippewa, for their part, found seasonal employment in these operations much of the year but returned to winter on their reservations where game was still plentiful. When they experienced bad weather and scarce game during the winter of 1869, however, these employment opportunities helped to limit their suffering.
Edmund Jefferson Danziger, The Chippewas of Lake Superior (Norman: University of Oklahoma Press, 1978) p. 94
[17] The Anishinabe in Rainy Lake were aware of these agreements and the effect they had on their cousins to the south and not all of the impacts were considered to be positive. It appears they understood very well that even a small number of white settlers would have a very significant impact on their way of life.
NAC RG1O Vol.254 File 541 The Indians . A Report by Simon Dawson to the Minister of Public Works.
[18] As events transpired the period just prior to and following Canadian Confederation would have a decisive impact on the Anishinabe people of the Rainy Lake region.
[19] At that time what is now Northwest Ontario and all points west were not yet part of Canada. The new Canadian government in Ottawa was concerned the United States would continue its expansion into the west and north and in 1870 it bought, through transfer, much of contemporary Alberta, Saskatchewan, Manitoba, northern Quebec, northern Ontario, the Northwest Territories and Nunavut from the Hudson's Bay Company.
According to the Truth and Reconciliation Report:
Canadian politicians intended to populate the newly acquired lands with settlers from Europe and Ontario. These settlers were expected to buy goods purchased in central Canada and ship their harvests by rail to western and eastern ports and then on to international markets. Setting the "Northwest" -as this territory came to be known- in this manner meant colonizing over 40,000 Indigenous people who lived there.
The Rupert's Land Order of 1870, which transferred much of the Northwest to Canadian control, required that "the claims of the Indian tribes to compensation for lands required for the purposes of settlement will be considered and settled in conformity with the equitable principles which have uniformly governed the British Crown in its dealings with the aboriginals." (p.51).
[20] In addition to the Canadian government's desire to fend off American expansionism there were at least two other reasons why the land belonging to the Anishinabe between Fort William and the Red River Settlement was important to the colonizers.
[21] First, to secure British Columbia's agreement to join Confederation the government had agreed to build a trans-Canadian rail line that would link central Canada to the Pacific Ocean coast. That rail line would have to pass through Anishinabe territory west of Lake Superior.
[22] Second, the colonization of the Northwest was not proceeding smoothly. In 1869, Louis Riel was leading the Red River Rebellion of Metis against the government's efforts to colonize the Red River settlements. In order to put down the rebellion, the government intended to send 100 militia men, known as the Wolseley Expedition, west from Ottawa toward the Red River settlements. To arrive there they to would need to pass through Anishinabe land.
[23] A great deal is known about the concerns and intentions of the government representatives who eventually entered into Treaty #3 with the Anishinabe in 1873 at the Northwest Angle of the Lake of the Woods from their correspondence kept at the National Archives.
[24] The government was concerned that the Metis of Red River might attempt to foster hostilities between the government and the Ojibway in Rainy Lake and sent a delegation in 1870 to negotiate a treaty. The importance of a treaty was stressed by a Captain of the Wolseley Expedition who wrote:
There is no doubt that a hundred determined men might have inflicted tremendous loss on the troops with comparative impunity; for, thoroughly acquainted with the vast networks of lakes, they could have fired on the boats as they passed through narrow channels, or blocked up the portages and done much mischief in a variety of ways, while to have attempted to pursue them through the woods and lakes would have been madness.
(Daugherty, Ibid, p.3-5).
[25] The government negotiator who met with the Ojibway at Fort Frances in the spring of 1870 was aware of the power of the people he was dealing with and wrote:
These people if ill-used or provoked would become a most serious bar to the settlement of the North West and could prevent any but strongly armed parties from going through their lands.
(Daugherty, p.6).
[26] In June 1870, the government's representative met with 1,500 Ojibway at Fort Frances and asked them to allow the troops of the Wolseley Expedition to pass through their lands. The Chief of the Ojibway delegation advised him that they had no intention of interfering with the Canadian troops but if they intended to build roads through the territory they expected to be compensated for the right-of-way. The Chief stated his demands and said:
For this we are willing to allow the Queen's subjects the right to pass through our lands, to build and run steamers, build canals and railroads and to take up sufficient land for buildings for Government use-but we will not allow farmers to settle on our lands. We want to see how the Red River Indians will be settled with and whether the soldiers will take away their lands - we will not take your presents, they are a bait and if we take them you will say we are bound to you.
(Daugherty, p.7).
[27] Ultimately, the Anishinabe were not paid for the right-of-way and instead, negotiations shifted to the settlement of a treaty. Both parties to the potential treaty appeared to understand that once a road was opened to general traffic and large numbers of settlers arrived in the region, the existing delicate balance of race relations would end. "In the interests of both," one negotiator wrote to Ottawa, 'the time has come when some provision should be made to meet the approaching change".
(Dawson, Ibid)
[28] Aware of the experience of the Chippewa in Minnesota, the Anishinabe, according to the Report of the Truth and Reconciliation Commission:
…were seeking agricultural supplies and training as well as relief during periods of epidemic or famine in a time of social and economic transition. They saw the Treaty process as establishing a reciprocal relationship that would be lasting. The goal was to gain the skills that would allow them to continue to control their own destinies and retain their culture and identity as Aboriginal people. (p. 53).
[29] During the negotiation of Treaty #3, Chief Ma-We-Do-Pe-Nais said:
I lay before you our opinions. Our hands are poor but our heads are rich, and it is riches that we ask so that we may be able to support our families as long as the sun rises and the water runs.
(Dawson, ibid)
[30] Ultimately, Treaty #3 took four years to negotiate. It had been expected to be the first treaty struck between Canada and the First Peoples when negotiations began in 1870 but the Anishinabe knew how much it would impact their future and how strategically important their land was to the long term viability of Canada as a country and they proceeded cautiously. The Treaty became an agreement to share the land and resources of the 55,000 square miles of Northwest Ontario and Manitoba between the Ojibway Nation, as represented by 28 First Nations, and Queen Victoria signed October 3, 1873 at Northwest Angle on Lake of the Woods. Chief Mikiseesis ("Little Eagle") signed on behalf of the Anishinabe who lived on the lands now assumed by the town of Fort Frances and what is now the Couchiching First Nation.
[31] A unique feature of Treaty #3 was the adhesion of the Metis in 1875. It was the Anishinabe themselves who asked that the Metis be included. During the negotiations of the main Treaty, the Anishinabe had been in counsel with the Metis in the area and ultimately it was agreed in 1875 that land would be set aside for those Metis who had taken Anishinabe wives and adopted Anishinabe traditions. Eventually, the land set aside for the Metis near Couchiching was merged with the land set aside for the Anishinabe to form what is now the Couchiching First Nation.
(Daugherty, ibid, p. 56).
[32] When Treaty #3 was signed none of the Anishinabe signatories agreed to surrender their rights of self-government and the treaty itself does not contemplate such an eventuality. It is noteworthy though that during its negotiation the Canadian government arranged for a magistrate to be appointed and stationed at Fort Frances to establish a presence in the region. They also arranged for the construction of a small stockade to ensure that the rulings of the new magistrate would be respected.
(Dawson, ibid)
[33] This decision today is being released very near the location ultimately chosen for the establishment of the seat of that magistrate and that stockade.
The Indian Act of 1876
[34] The first Indian Act was enacted in 1876 and immediately:
Canadian authorities argued that when Aboriginal people in the West signed the treaties, they had bargained away not only their lands, but also their powers over local affairs. Thus, the treaties were not what they seemed, nor indeed what the Indians had accepted in the 1871 and 1873 negotiations. By an act of the federal parliament, unilaterally conceived and drafted without Indian knowledge, Ottawa drastically altered the circumstances of Aboriginal life.
(Report of the Aboriginal Justice Inquiry of Manitoba, Vol. 1 (Manitoba Report), p. 63).
[35] By virtue of the terms of the Indian Act of 1876, as amended in 1881, Indian Agents, appointed by the federal government, took control of most of the daily affairs on First Nation communities:
In every aspect of life, from criminal law to education and religious expression, from hunting to agricultures, from voting to the use of lawyers, Aboriginal people ran into regulations that restricted their freedom. Traditional systems of government were replaced by a restricted and illusory form of democracy in which only adult men had a voice and a vote. All real power rested with the Indian agent who supervised voting, chaired the meetings, kept the official records, decided when, where and if chief and council would meet and controlled councils agenda.
(Manitoba Report, p. 64).
[36] By 1881 all Indian agents were automatically appointed as justices of the peace with full authority to conduct trials anywhere in the country involving Indians charged with violating the Indian Act and certain crimes under the Criminal Code.
(Manitoba Report p. 70).
[37] The Indian Act represented a radical shift in the way the Canadian government dealt with the Anishinabe. Within three years from the conclusion of Treaty #3 they went from being recognized as having independent political and territorial rights to being subject to the unilateral legislative supremacy of the Indian Act.
[38] While the Anishinabe acknowledged they were 'poor of hand', they believed they were 'rich of the head' and the evidence suggests that Aboriginal peoples regarded treaties as a tool to maintain cultural and political autonomy. The Canadian government on all the evidence was pursuing a different aim. Beginning as early as 1830 with the Colonial Office's endorsement of the so-called 'civilization policy' and continuing through the passage of the Indian Act the goal of colonialists was 'gradually reclaiming the Indians from a state of barbarism, and introducing amongst them the industrious and peaceful habits of civilized life'.
Sir George Murray, quoted in The Report of the Truth and Reconciliation Commission, p.58
[39] One of the principal mechanism by which assimilation was to be achieved was residential schooling. The federal government entered the field of residential schooling Aboriginal children at the same time it was colonizing Aboriginal lands in the so-called "Northwest". In 1883 Sir John A. McDonald told the House of Commons:
When the school is on the reserve the child lives with its parents, who are savages; he is surrounded by savages, and though he may learn to read and write his habits, and training and mode of thought are Indian. He is simply a savage who can read and write. It has been strongly pressed on myself, as the head of the Department, that Indian children should be withdrawn as much as possible from the paternal influences, and the only way to do that would be put them in central training industrial schools where they will acquire the habits and modes of thought of white men.
(Quoted in Report of the Truth and Reconciliation Commission, p. 2).
The Personal Circumstances of Scott Morrisseau
[40] Glenn Jourdain is the community historian for the Couchiching First Nation. Speaking to Ms. Becker, the author of Scott Morrisseau's Gladue Report, he told her that St. Marguerites Residential School was built in 1906 for the children of the people of the Couchiching First Nation. According to community records, Scott's maternal great-grandfather, William Morrisseau Jr. was among the first class at the school where he attended from 1906 to 1911.
[41] His maternal grandmother, Eva Morrisseau, attended the same school from 1933 to 1941.
[42] Scott's mother, Rose-Marie, entered the same school when she was four years old and stayed until she was 16 years old. Glenn Jourdain said, "I was in an old photograph of St. Marguerite's School, there must have been about 100 of us kids and adults in that photograph. The youngest child in the photograph was Rose Marie Morrisseau. She was so small she only came up to the knees of the Priest and the Mother Superior. She was really just a baby, about four years old". (Gladue Report, p.8).
[43] In talking about his mother's residential school experience, Scott Morrisseau said:
My Grandmother just left her there. She never went home for summer holidays or for Christmas break like the other kids did. Nobody came to visit her and spend the day with her on Sunday like the other families did. She just stayed there at the school and spent all her growing up years there alone. My Grandma Eva had a drinking problem. I don't know why it was but my Grandma Eva never liked my mother, I don't know why that was. People have told me that my Grandma was a mean person but I'd never seen it. Grandma never showed me her mean side.
I don't think my mother was a normal person when she got out of that school. My mother was a chronic alcoholic her whole life, she never beat it.
(Gladue Report, p. 6).
[44] Scott Morrisseau's mother's experience was not unique. According to Glenn Jourdain:
I was looking at the picture of all of us at St. Marguerite's and I realized that attending that school destroyed about 60 to 70% of them. There was one reason the school was there and that was to destroy us, that was the government's plan! There never should have been residential schools. Booze was used to cover the pain and anger about what happened at the school. There used to be so much anger. You could get angry and cry, shout or swear but you had to learn how to control your anger and forgive and look to reconciliation. I've been sober 42 years and I've had to work at it.
Scott has been impacted by residential school back to the fourth generation. The further back you go generationally, the greater the impacts on the succeeding generations. So Scott and his family has been severely impacted by the damaging effects of their attendance at Residential School.
(Gladue Report, p.9).
[45] Scott's father was a non-aboriginal man from Fort Frances who was not involved in his upbringing. According to him, "I don't know him, we didn't ever have any kind of relationship. I don't think he ever had a relationship with my mother either. I was just this little Indian kid from Couchiching." (Gladue Report, p.16).
[46] Because of his mother's severe and chronic alcoholism, Scott spent many years in foster care, temporary shelters, group homes and crisis centres. By his estimate he went through fifteen different foster placements, all with non-aboriginal families, and in each case his strongest desire was to return home. Unfortunately, when he was home, his mother was unable to parent him, often hitting him with hot wheel tracks and expecting him to care for his four siblings when he was as young as eight.
[47] In addition to being physically abused himself, he often witnessed his mother being assaulted herself by boyfriends as well as being sexually mistreated by them. Scott said:
My mom was living in Duluth. She was a shipper whore, which means she would party with all the foreign men that came into port in Superior. This one time she was passed out on one of the ships, when they realized it, they put her ashore in Green Bay, Wisconsin. Yeah, that was my mother and I loved her anyway. (Gladue Report, p.24.)
[48] Rose Marie Morrisseau died in 2004. Scott described her passing:
It was alcohol related. She was living with this old white guy and they used to party with Native people and someone substituted her bottle of vodka with rubbing alcohol and she drank it and died. Of course, there was no autopsy or investigation. It was just another drunken Indian who died. (Gladue Report, p.10.)
[49] When Scott was 17 and living in a foster home in St. Paul, Minnesota he met Barbara Gosselin, the future mother of his children. According to Scott:
Barbara lived a couple of blocks away from the foster home I was in. We used to hang out in the park after school. I was still in foster care and I was working in a bowling alley at the time. We got together and got a place of our own and my daughter Kathleen was born when I was about 19 years old.
[50] Scott's son William was born 6 years later when he was 26 years old. Scott was in a long term relationship with Barbara Gosselin for the next 23 years and they raised their two children in Maplewood, Minnesota. His two children are:
Kathleen Williams (Morrisseau) 32 and William Morrisseau 27. Kathleen is a trauma nurse in St. Paul, Minnesota and has two children; Myra two years old and Monroe three months old. William is single and he graduated from the U of MN in 2014 with his Bachelor's degree in Kinesiology with a specification in clinical movement along with four additional semesters of medical school credits. William is currently applying to various schools to continue his education and obtain his doctorate in physical therapy.
"I'm very proud of what my kids are up to," said Scott. "Barbara is a good woman and she kept the kids in line. I have a good relationship with both of my kids. I speak to them every day, certainly every other day for sure."
[51] Barb Gosselin, Scott's ex-partner and the mother of his children, provided information about the early years of their relationship together:
I met Scott when I was 16 and he was 17 years old. He lived in a foster home two blocks behind our house. When Scott and I got together, we both worked and we were able to work opposite shifts so we never had to get babysitters. When I was at work, Scott got the kids off to school and made sure everything with school was taken care of. It was the same thing after school with their activities. Scott always coached the kids with their sports activities, especially once Will became involved in organized hockey. My family helped out somewhat but we took care of most of it together.
Scott even helped my Mom. Scott did more for my Mom than my own family did. There are seven siblings in my family and Scott helped her out more than any of my siblings did. My family all liked Scott and even nowadays my family asks about Scott. How he's doing? What he's up to? They always tell me to be sure to tell him they said hello.
[52] Scott described his work experiences in his Gladue report:
"I went to College for two years for business management", Scott said, "It was hard for me because I got booted out of foster care, I was working and I had a child to take care of. I would be so tired I would fall asleep in the study lounge. I worked various jobs over the years; as a foreman in a warehouse, I spent 10 years as a steelworker for the Teamsters Union and as a foreman in a brewery. I've always had good jobs".
[53] When Scott separated from Barb he returned to Couchiching and eventually began a relationship with Annette McPherson. His son, Will, joined him later to pursue an opportunity to play junior hockey. Discussing his father, Will said:
"My dad is very supportive of my sister and I, not only in our education but in our sports as well. I played hockey and my sister played baseball and went to dance. Both my mom and dad were positive role models. They both had good jobs so they spoiled us with material things. I think my dad gave us so much because he had nothing when he was growing up, so he didn't want us to do without. There was never abuse in our family. My sister and I were always on a short leash from both my mom and dad. They are responsible for the character we have and the integrity we carry." (Gladue Report, p. 31).
[54] Scott and Annette were together for eight years and by Scott's account the relationship was positive for the first four or five years before accumulated stresses caused challenges prior to the index offences.
[55] Since the offences, Scott Morrisseau lost his employment with the Band and started counselling to help him cope with the end of the relationship and his personal issues. He has abided by a strict curfew and recently obtained a new employment opportunity at a local mine.
Gladue Analysis
[56] I have reviewed the details of Scott Morrisseau's aboriginal background in a great deal of detail for very specific reason. When the Supreme Court of Canada released its decision in Gladue in 1999 it said this about the problem of the over incarceration of aboriginal offenders:
These findings cry out for recognition of the magnitude and gravity of the problem, and for responses to alleviate it. The figures are stark and reflect what may be fairly termed a crisis in the Canadian justice system. (R v. Gladue [1999] I S. C.R, 688, para, 64.)
[57] The Court recognized that there are many complex factors that bear on the issue and that some of them are beyond the scope of the criminal justice system to address. But it also said:
What can and must be addressed though, is the limited role that sentencing judges will play in remedying injustice against Aboriginal peoples in Canada. Sentencing Judges are among those decision makers who have the power to influence the treatment of aboriginal offenders in the justice system. They determine most directly whether an Aboriginal offender will go to jail or whether other sentencing options may be employed which will play perhaps a stronger role in restoring a sense of balance to the offender, victim and community and in preventing future crime. (Gladue, para, 65.)
[58] Since then the Court has revisited the issue in their 2012 decision in R v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433. They stated there that any cautious optimism that their decision in Gladue might improve the problem of Aboriginal over representation in Canadian jails had been proven misplaced. They said:
In fact, statistics indicate that the over-representation and alienation of Aboriginal people in the criminal justice system has only worsened. (Ipeelee, para.62).
[59] While recognizing that their decision in Gladue could not be expected to reverse all the negative momentum that drives the disproportionate incarceration of Aboriginal people in Canada, the Court also noted that there appeared to be some fundamental misunderstandings and misapplications of Gladue that were impeding the positive impact it was meant to have had on the problem.
[60] In Ipeelee, the Court identified three areas of resistance to positive change. The first was the mistaken belief that sentencing is not an appropriate means of addressing over-representation. The second was a false belief that Gladue principles provide what is "essentially a race-based discount for Aboriginal offenders.". Finally, the Court recognized that some decision makers may feel "providing special treatment and lesser sentences to Aboriginal offenders is inherently unfair as it creates unjustified distinctions between offenders who are similarly situated, thus violating the principle of sentence purity." (Ipeelee, para.64.)
[61] The Court tried to address these misunderstandings. Specifically, they affirmed that S. 718.2 (e) of the Criminal Code is a remedial provision that was designed to address the issue of Aboriginal over incarceration. It also explicitly recognized that the unique history and experience of aboriginal people since colonization has created a situation where, in a broad range of circumstances, many aboriginal offenders may carry a diminished degree of moral culpability for their criminal conduct.
[62] Unfortunately, in my experience as a sentencing judge, even after the release of the Ipeelee decision, I still see challenges to the effective implementation of Gladue principles and I struggle to see positive change.
[63] The Court in Ipeelee emphasized that S. 718.2(e) of the Code "does more than affirm existing principles of sentencing, it calls upon Judges to use a different method of analysis in determining a fit sentence for Aboriginal offenders". (Ipeelee, para, 59,emphasis added). The Code, in particular, requires sentencing judges to "pay attention to the circumstances of Aboriginal offenders "because these circumstances are unique and different from those of non-Aboriginal offenders". (Gladue, para, 37).
[64] What then is the different method of analysis that considers the unique circumstances of Aboriginal persons? In my view, it starts with an understanding of what makes Aboriginal people and their circumstances unique.
Concept of Justice
[65] Rupert Ross is a retired Assistant Crown Attorney who worked for many years in the courts in Northwest Ontario. Over the course of a long, distinguished career he had the opportunity to observe closely the differences in the way Aboriginal and non-Aboriginal people relate to the concept of justice and he wrote extensively about it. In his book Dancing with a Ghost, he issued an important caution to those who would try to understand the difference in perspectives between Non-Aboriginal and Aboriginal people:
Until we realize that [Aboriginal People] are not simply 'primitive versions of us' but a people with a highly developed, formal, complex and wholly foreign set of cultural imperatives, we will continue to misinterpret their acts, misperceive their problems and then impose mistaken and potentially harmful 'remedies'. (Quoted in the Manitoba Report, p. 36.)
[66] The truth of this cannot be over-emphasized, in my view. It is also important when seeking to understand the Aboriginal world view to avoid both romanticization and stereotypes. As the Manitoba Report notes, "Aboriginal peoples do not adhere to a single life philosophy, religious belief or moral code. Indeed, there are and have been considerable differences among tribes". Having said that, the report also states:
Psychological and anthropological profiles of Ojibway, Dakota, Apache, Navajo, and Cheyanne subjects have identified recurring personality characteristics, which seem to be culturally induced and which are so unusual that they could be equated with "primary native values".
The seven traditional values of the Ojibway, or Anishinabe, are wisdom, love, respect, bravery, humility and truth. A study of the psychological and behavioural patterns of the Sioux identifies several central values for the Dakota people. Conformity with the group and harmony within it, concentration on the present ability to make personal decisions, reluctance to show emotions, reverence for nature even while using it and constant awareness of God. The four great virtues of the Dakota taught in the sun dance are bravery, generosity, fortitude and integrity. Apache beliefs and value can be stated as respect for the autonomy of the individual, non-interference, desire for harmony in inter-personal relationships, respect for individual freedom and cooperation and sharing.( Manitoba Report ,p.20-21 ).
[67] The Assembly of First Nations in its brief to the Royal Commission on Aboriginal People and Criminal Justice in Canada explained how these values are expressed in an Aboriginal system of Justice:
Even though First Nations do not adhere to a single world view or moral code, there are nonetheless commonalities in the approach of all First Nations to justice issues. A justice system from the perspective of First Nations is more than a set of rules or institutions to regulate individual conduct or to prescribe procedure to achieve justice in the abstract. 'Justice' refers instead to an aspect of the natural order in which everyone and everything stands in relation to each other. Actions of individuals reflect the natural harmony of the community and of the world itself. Justice must be a felt experience, not merely a thought. It must, therefore, be an internal experience, not an intrusive state of order, imposed from the outside and separate from one's experience of reality. ( Bridging the Cultural Divide, A Report on Aboriginal People and the Criminal Justice System in Canada , ("the Royal Commission Report") p. 3).
[68] Prior to colonization, Aboriginal people always had governments, laws and the means of resolving disputes within their communities. Over thousands of years they- developed vast, complicated inter-tribal trading systems that covered the continent and they developed relationships between and among the tribes that cemented political and commercial ties. ( Manitoba Report , p.18).
[69] The underlying philosophy in Aboriginal societies in dealing with crime was the resolution of disputes, the healing of wounds and the restoration of social harmony. It might mean an expression of regret for the injury done by the offender or by members of the offender's clan. It might mean the presentation of gifts or payment of some kind. It might even mean the forfeiture of the offender's life. But the matter was considered finished once the offence was recognized and dealt with by both the offender and the offended. Atonement and the restoration of harmony were the goals- not punishment. ( Manitoba Report , p.27).
[70] For a sense of how outside our usual conceptions of sentencing Aboriginal approaches could look, consider the following story told by Rupert Ross to the Manitoba Justice Inquiry:
In March 1987 the city of Whitehorse hosted the Third Annual Northern Conference. It was convened to examine the delivery and impact of justice services in remote Indian and Inuit communities. One of the sessions explored mediation techniques to see if they might be more appropriate than our adversarial courts. Three participants were selected to form a panel to mediate a fictitious dispute between a young lad and the owner of a store which had been broken into. One of the panel members was Charlie Fisher, an Elder from the Islington Reserve at Whitedog, and Ontario's first Native Justice of the Peace.
He began by getting rid of the chairs, then the long table which had separated the three panelists from the disputants. Everyone sat in a circle, as equals. He then required two further participants to act as Elders "representing" the two disputants. As he continued, it became clear that it was not only the physical format or cast of participants which differed, but also its process and its very function.
The boy and the store owner never spoke, not even to the panel. There was no discussion whatever about the break in itself, about the theft and damage, about how each party felt about the other, or about what each might do to set matters straight. Further, the panel would not impose restitution, punishment or any consequence at all. They would not even discuss the issue of consequences.
Once those in attendance understood what was NOT going to take place, there was only one question left: "why, then, is there a panel at all?"
Charlie Fisher then defined the purpose of the traditional forum. It was used to rid themselves of what he called "bad feelings". Each would be "counselled" by his representative Elder, privately, until his spirit was "cleansed" and made whole again. At convocations of the panel the representing Elder could signify that such "cleansing" had been achieved by touching the peace pipe. The panel would convene as often as necessary until both Elders so signified. At that point, the peace pipe could be lit and passed to all. As far as the community was concerned, that would be the end of the matter. Whether the two disputants privately arranged recompense of some sort was entirely up to them. Both had been "restored to the community and to themselves" the moment the pipe was passed. (Manitoba Report, p. 28).
Post-Colonialization
[71] After colonization, non-Aboriginal forms of dispute resolution were substituted for the ones described above and residential schools were used as a tool to undermine the shared values that kept it alive. As I described earlier, the motivation of those who conceived and implemented the Canadian Indian Residential School policy was explicitly racist and based on a belief that Aboriginal people were savages and their traditions barbaric. This is a stark indictment but it is necessary to speak the truth about this matter.
[72] It is important today, not for the purpose of assigning or apportioning guilt, because, to be clear, those who conceived and authorized those policies must bear the burden of history's judgment on their conscience. It is important because those of us who follow them as stewards of our public institutions must take up the responsibility to ameliorate the devastating consequences of their actions.
[73] Recently, there has been a great deal of discussion in this country about the legacy of Indian Residential schools. Some have argued the legacy is mixed. They contend it should be possible to both abhor the abuses many Aboriginal children suffered and also recognise that many Anishinabe people were poor and nomadic when the Treaties were signed and some learned valuable skills at residential school that helped them meet the challenges of a world that was rapidly changing.
[74] I don't doubt that many who advance this view are well intentioned and motivated by a desire to ensure a balanced historical assessment of the issue. Unfortunately, however, this argument misses the vital context I have gone to great lengths to explain.
[75] To be schooled in an environment where your culture, your values and your identity are judged and taught to be inferior is harmful to the human spirit. The damage those policies and that instruction did to Aboriginal people and their children echoes through generations to this day. It is for this reason that it is entirely appropriate that s. 718.2(e) of the Code be remedial.
[76] On June 11, 2008 the Government of Canada issued an apology that read in part:
The treatment of children in Indian Residential Schools is a sad chapter in our history. For more than a century, Indian Residential Schools separated over 150,000 Aboriginal children from their families and communities. In the 1870's, the federal government, partly in order to meet its obligation to educate Aboriginal children, began to play a role in the development and administration of these schools. Two primary objectives of the Residential Schools 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 sought, as it was infamously 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. The government now recognizes that the consequences of the Indian Residential Schools policy were profoundly negative and that this policy has had a lasting and damaging impact on Aboriginal culture, heritage and language. While some former students have spoken positively about their experiences at residential schools, these stories are far overshadowed by tragic accounts of the emotional, physical and sexual abuse and neglect of helpless children, and their separation from powerless families and communities.
The legacy of Indian Residential Schools has contributed to social problems that continue to exist in many communities today.
To the approximately 80,000 living former students, and all family members and communities, the Government of Canada now recognizes that it was wrong to forcibly remove children from their homes and we apologize for having done this. We now recognize that it was wrong to separate children from rich and vibrant cultures and traditions that it created a void in many lives and communities, and we apologize for having done this. We now recognize that, in separating children from their families, we undermined the ability of many to adequately parent their own children and sowed the seeds for generations to follow, and we apologize for having done this. We now recognize that, far too often these institutions gave rise to abuse or neglect and were inadequately controlled, and we apologize for failing to protect you. Not only did you suffer these abuses as children, but as you became parents, you were powerless to protect your own children from suffering the same experience, and for this we are sorry.
The burden of this experience has been on your shoulders for far too long. The burden is properly ours as a Government, and as a country. There is no place in Canada for the attitudes that inspired the Indian Residential Schools system to ever prevail again. You have been working on recovering from this experience for a long time and in a very real sense, we are now joining you on this journey. The Government of Canada sincerely apologizes and asks the forgiveness of the Aboriginal peoples of this country for failing them so profoundly.
(Statement of the Right Honourable Steven Harper, Prime Minister of Canada, June 11, 2008.)
[77] The Supreme Court in Ipeelee invites Judges to take judicial notice of all the factors I have described. (Ipeelee, para. 59). I have laid them out in exhaustive detail because I think it's just as important, if not more so, that counsel who appear before this court be alive and attentive to this background.
[78] We, in Northwest Ontario, all operate in an environment where the vast majority of people who appear in this court are Aboriginal. Counsel have to manage many cases and resources simply do not allow for each matter to receive the time and attention they demand. Many cases will resolve by way of joint submission and it is vital that when counsel are having resolution discussions they be working from a shared body of knowledge and understanding about Aboriginal circumstances here.
[79] There are very real dangers to failing to understand our history and our moment in time. It is easy with the benefit of hindsight to look back at the well intentioned people who got caught up in the implementation of damaging policies and to judge their failings. It is less easy to take stock of the current moment and assess what role we are playing and how our grandchildren will assess our contributions to justice.
[80] For many Aboriginal people and communities, the breakdown of families, the undermining of traditional values and the spiritual damage done has led to widespread dysfunction and chaotic, troubled lives. Recognizing this connection, even in people who are difficult to serve, is crucial because as the Court in Ipeelee observed Judges must ensure that systemic factors do not lead to discriminatory sentencing:
Socioeconomic factors such as employment status, level of education, family situation, etc., appear on the surface as neutral criteria. They are considered as such by the legal system. Yet they can conceal an extremely strong bias in the sentencing process. Convicted persons with steady employment and stability in their lives, or at least prospects of the same, are must less likely to be sent to jail for offences that are borderline imprisonment offences. The unemployed, transients, the poorly educated are all better candidates for imprisonment. When the social, political and economic aspects of our society place Aboriginal people disproportionately within the ranks of the latter, our society literally sentences more of them to jail. This is systemic discrimination.
( T. Quigley, "Some Issues in Sentencing of Aboriginal Offenders", in R. Gosse, J. Y. Henderson and R. Carter, eds., Continuing Poundmaker and Riel's Quest: Presentations Made at a Conference on Aboriginal Peoples and Justice (1994), 269, at pp. 275-76)
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. (Ipeelee, para. 67).
Restorative Approaches
[81] In my view, recognizing background factors and the way they may reduce the moral culpability of many Aboriginal offenders is only part of the "different method of analysis" to be used in determining a fit sentence. If it were the whole analysis it might justifiably be seen as an excuse for a race-based sentencing discount for Aboriginal offenders. The second part of the analysis is equally important and involves a careful re-assessment of the role of retributive justice in sentencing Aboriginal offenders.
[82] Too often, in my experience, sentencing discussions reduce to the question "what is the offence worth?" .This appears to me to be a function of a number of factors. One is a perceived lack of sentencing options. This perception often drives decision makers to see only a seeming binary choice between incarceration and probation.
[83] Second, all actors in the justice system recognize the need to measure consequences for offending behaviour. Unfortunately, the open secret in the justice system is that probation officers are mostly overworked and under resourced. The result, sadly, is to further reduce sentencing discussions to the question "jail or minor consequences?"
[84] Thinking like this is locked in a paradigm that badly needs re-evaluating. Ipeelee tells us, quoting the Aboriginal Justice Royal Commission that:
The "crushing failure" of the Canadian criminal justice system vis-à-vis Aboriginal peoples is due to "the fundamentally different world views of Aboriginal and non-Aboriginal people with respect to such elemental issues as the substantial content of justice and the process of achieving justice". The Gladue principles direct sentencing judges to abandon the presumption that all offenders and all communities share the same values when it comes to sentencing and to recognize that, given these fundamentally different world views, different or alternative sanctions may more effectively achieve the objectives of sentencing in a particular community". (Ipeelee, para. 74).
[85] The Court in Ipeelee stated very clearly that S. 718.2(e) of the Code was designed to "encourage sentencing judges to have recourse to a restorative approach to sentencing" (Ipeelee, para. 59). To address the problem of the over-incarceration of Aboriginal people, our court must expand our understanding of restorative justice principles because restorative approaches have always been more in keeping with Aboriginal conceptions of justice. The Manitoba Aboriginal Justice Report described part of that conception this way:
Because the purpose of law in Aboriginal society is to restore harmony within the community, not only the accused has to be considered. Other people who have been or might be affected by the offence, particularly the victim, have to be considered in the matter of 'sentencing' and disposition. (Manitoba Report ,p. 36).
[86] In my view, it is important to understand that restorative justice is not code for permissiveness or absence of consequences. In fact, from the Anishinabe perspective, a jail sentence is sometimes seen as an unwarranted avoidance of appropriate consequences. According to the Manitoba Aboriginal Justice Inquiry:
In the Ojibway concept of order, when a person is wronged it is understood that the wrongdoer must repair the order and harmony of the community by undoing the wrong. In most cases, the responsibility is placed on the wrongdoer to compensate the wronged person. This concept of order makes the individual responsible for the maintenance of harmony within the society. Restitution to the victim or victims is, therefore, a primary consideration.
The person wronged, bereaved or impoverished is entitled to some form of restitution. In the eyes of the community, sentencing the offender to incarceration or, worse still, placing him or her on probation, is tantamount to relieving the offender completely of any responsibility for a just restitution of the wrong. It is viewed by Aboriginal people as a total vindication of the wrongdoer and an abdication of duty by the justice system. (Manitoba Report , p.37)
[87] The challenge for non-Aboriginal courts is to craft dispositions that strike the right balance between restitution for the victim, reparations to the community and redirecting the offender's behaviour. Additionally, the offender may have dependants and Aboriginal people believe care has to be taken so that actions to control the offender do not bring hardship to others. Justice in Aboriginal societies is relationship centred and attempts to take into account the consequences of dispositions on individuals and the community, as well as on the offender. (Manitoba Report, p. 37).
[88] Too often, in my view, the concept of deterrence, both general and specific, is used to justify an exclusive focus on a punitive message. Punishments that are designed to deter offenders and send messages to 'potentially like-minded people', are often used as a justification for a jail sentence. This tends to be particularly the case in sentencings involving the breach of court orders.
[89] It seems to me to be especially ironic that those court orders are often made in the first place to encourage the rehabilitation of offenders and 'impose' structures on their disordered lives 'for their own good' and in the interest of protecting the public. Yet they most often seem to end in the jailing of Aboriginals who are struggling to cope with the fallout of histories like the one I have described here. At a certain point such an approach stops being only absurd and begins to look like systemic racism.
The Role of Elders
[90] Striking the right balance in sentencing Aboriginal offenders is particularly difficult without the assistance of Aboriginal elders. To understand why that is requires an appreciation for the roles of respect and shame in a restorative sentence.
[91] The concept of shame is very important in the Aboriginal conception of restorative justice. A report made by the Osnaburgh/Windigo Tribal Council Justice Review Committee to the Ontario Attorney General years ago includes this observation:
Crimes were seen as a hurt against a community of people, not against an abstract state. Community meetings of "calling-to-account' therefor played an important part in investigation, evaluation, sentencing and even through the shame they could inspire as punishment.
(Report of the Osnaburgh/Windigo Tribal Council Justice Review Committee, prepared for the Attorney General (Ontario) and Ministries responsible for Native Affairs and the Solicitor General (Ontario), July 1990).
[92] Shame will be most deeply felt in an environment where the opinion and approval of the community is respected. For Aboriginal people Elders have always occupied the center place that grounds the concept of right conduct. According to the Manitoba Aboriginal Justice Report:
Elders-both men and women- are the "teachers" and, in some cases, are the "healers"-that is, the "medicine people"- of the tribe. The role of elders within Aboriginal communities sometimes varied, but generally consisted of helping the people, individually and collectively, to gain knowledge of the history, traditions, customs, values and beliefs of the tribe, and to assist them to maintain their well-being and good health. They were respected for their wisdom and for their experience, and for the fact that, having lived a long life, they were able to advise the people on what to do in difficult situations, as a result of that experience….
Elders have long been considered the ones who bridge between the ancient traditions and beliefs of the people and the modern-day influences that come into play in the day-to-day lives of aboriginal men and women. This was so even in past times when there were only Aboriginal people on this continent. (Manitoba Report , p.19)
[93] When the Sandy Lake First Nation made an application to the Ontario government for assistance to increase the role of Elders in their community's fly-in court they described the importance of their traditional role:
The element of community respect must be instilled by the court in order for any meaningful changes in attitude (of the offender) to occur. The court does attempt to cause respect in a formal sense, however, the factors of deep seated respect are absent. Respect for Elders occurs over a lifetime of familiarity and trust in their wisdom. It is therefore expedient that the event be perceived as part of a community process and that the offender is not only before the court but before the community.
In earlier days the community practised public courts wherein a person was confronted in the presence of the whole community with his misbehaviour. This caused great shame because the community as a whole was respected by all. This shame and remorse laid the groundwork for the teaching that would occur…An important ethic…is the use of shame to teach and rehabilitate.
(Quoted in the Royal Commission Report on Aboriginal Justice, p.68)
[94] It should be obvious that a justice system alienated from Aboriginal people that responds to the symptoms of that alienation with harsh punitive actions will only lead to further alienation, loss of respect and ultimately, the need for ever greater repressive actions. It is a cycle that has to stop. Sadly, in our communities so many Aboriginal people have been incarcerated that that form of punishment is in danger of becoming less a source of shame for Aboriginal young people and more a rite of passage.
[95] So, despite the challenges, our system of justice must become more adept at formulating restorative dispositions. This will require all of us to be more flexible in our approach and avoid the paradigms that lock us into primarily punitive approaches to the sentencing. As I was once told by Darryl Mandamin, our Aboriginal Liaison Officer, our job is to bridge the Rule of Law and the Natural Law. Our highest court has set us that mandate and we on the front line of the justice system need to remember that it can only be effected by us.
New Opportunities
[96] I spoke earlier of how racist government policies damaged the spirit of Aboriginal peoples. In addition to the terrible harm done to them, those policies had another hidden cost. The arrogance of the law makers who formulated those policies blinded them to the richness of the traditions they sought to end and the unique wisdom they contained. Part of any honorable reconciliation with Aboriginal peoples, in my view, involves recognizing that wisdom and not repeating the mistakes of our predecessors.
[97] One of the geniuses of the British common law has been its ability to adapt and grow to meet changing circumstance as western society evolves. Our criminal law is a codification of that common law and as a Code it has provided an enormously effective structure for the administration of justice. But it seems to me that we still have a great deal to learn from the great wisdom traditions of the Aboriginal people.
[98] We have built a great machine for the delivery of justice but we should be careful not neglect the soul of the law. We are not an offender-processing system forever striving for ever greater efficiencies, we are also peacemakers. This should be most obvious in the sentencing of Aboriginal offenders but it is not exclusive to them.
[99] Increasingly, as we recognize that rates of incarceration for the general population hold steady and continue climb for Aboriginal people, even as crime rates fall, we are looking for alternative ways to do justice. Ironically, this has led policy makers to 'rediscover' the value in the Aboriginal justice traditions we once tried to eradicate. The Royal Commission described the situation this way:
Over the last decade, in some ways paralleling the Aboriginal justice inquiries, a series of major commissions and inquiries have addressed the directions that the reform of the criminal justice system should take. Large questions have been raised regarding Canada's heavy reliance on imprisonment compared to many other countries and about the need to redefine the purposes of the criminal justice system so that the traditional emphasis on retributive goals is balanced with restorative goals….[T]he development of new approaches to and new concepts of law in relation to alternative dispute resolution lead to the discovery and recognition of the indigenous approaches and conceptions of Canada's First Nations that date back centuries. (The Royal Commission , p.75)
[100] The Supreme Court of Canada, very clearly in Gladue, and again, with some frustration, in Ipeelee has directed us to bring peacemaking approaches into the criminal law. And it should be remembered that Section 718.2 of the Code reads:
A court that imposes a sentence shall also take into consideration the following principles:
(e) all available sanctions or options other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders (emphasis added)
This is entirely consistent with the finest traditions of our common law.
[101] To make effective use of these approaches will require counsel from the moment a proceeding begins to move beyond the determination of responsibility for the offence stage to consider carefully all the various interests and values that have been affected by the offending behaviour. This will obviously include the victim but it will also often include the victim's family, the offender's family, law enforcement and various elements of the wider community. As a system we must become accustomed to seeing both the obvious and the subtle ways offences interfere with the harmony of the community. We also need to recognise that disharmony continues to cause interference until harmony is re-established. It should be obvious that jailing an offender for reasons other than the immediate protection of public safety is a highly ineffective and very short term way of creating peace and order.
[102] Just as responsibility for making reparations belongs to the offender, each individual sentencing in many ways mirrors our country's attempts to make an honourable reconciliation with our nation's Aboriginal people. Our government's apology and the amendment of the Criminal Code to include s. 718.2(e) is part of that effort and the proper and effective use of s. 718.2(e) by this court ought to be seen as our contribution to the discharge of that responsibility.
[103] Where, as here, we lack the assistance of community Elders to help us identify all the energies disturbed by the offending behaviour and to craft a plan for how to heal them, we must be creative. I recognise community based resources are often limited and the safety and protection of the community is always a consideration as well as the need to rehabilitate offenders. It is our legal obligation, however, not allow ourselves to default to incarceration as a substitute for the exercise of imagination. Restorative justice requires us to identify the harm done, tailor a plan for the offender to make meaningful restitution and to get the help they need.
[104] Before closing my comments on this point, I want to make a direct appeal to our Federal government. We as a nation entered into Treaty arrangements with First Nations people in Treaty #3. We did so to avoid conflicts but also, frankly, to acquire their land at minimal expense at a time when doing so was vital to the country's future. We, as a nation, made promises to Aboriginal people and we have acknowledged and apologized for not fulfilling all of them. My request is for your assistance to do justice better where they are concerned. We are misdirecting valuable community resources to the incarceration of the poor and the mentally ill and the struggling that need to be directed to helping us achieve restorative outcomes and a more honourable reconciliation with Aboriginal people in Northwestern Ontario. There is still an opportunity to bridge the divide that diminishes us as a people but we need your help to build that bridge.
Disposition
[105] The offences committed by Scott Morrisseau took place in the context of an intimate partnership with Annette McPherson at a time when that relationship was breaking down. This is always a situation of special concern. Considering his history of being abandoned as a child, I have little doubt their separation triggered tremendous anxiety in him and had a direct role in his wrongdoing. I also have little doubt that his intimidating and reactive behaviour caused genuine fear in Ms. McPherson. It is reasonable to believe that fear would have stayed with her for some time because of her uncertainty about whether Mr. Morrisseau might continue or even escalate his unpredictable behaviour. I expect that with the passage of time and in the absence of any further issues those fears will have abated but they would be valid and real concerns.
[106] The facts are clear that at no time did Mr. Morrisseau ever turn his violence directly on Ms. McPherson. It is plain, however, that Mr. Morrisseau's threats to commit suicide in their home was almost certainly done to cause emotional harm to Ms. McPherson. That harm, too, is real and must be addressed. The knowledge that Mr. Morrisseau has already been receiving counselling for his personal issues and has not interfered with her new relationship goes some way toward mitigating that harm. As does the fact that Ms. McPherson has had exclusive use of the house they shared and the belongings they acquired together over the course of their eight year relationship since the incidents.
[107] Recognising that, Mr. Morrisseau still ought to make a written apology to Ms. McPherson in consultation with a community elder for his behaviour at the time of the two offences and provide a copy of that apology to his probation officer and the Court. Mr. Morrisseau has always been a good worker and he has found new employment. I consider it appropriate that he make a $1000 donation to the local women's shelter within nine months and provide proof that he has done so to his probation officer.
[108] I am concerned about Mr. Morrisseau's resort to a firearm during his contemplation of suicide. Not only was it intimidating to Ms. McPherson but it led directly to the intervention of the Emergency Response Team, something that would have been alarming to most of people in the small community in Couchiching. Ms. Morgan, on behalf of Mr. Morrisseau, has characterized the police response as an unfortunate overreaction. With respect, I don't agree. I expect that Ms. Morgan's view is coloured to an extent by her conversations with her client on the phone that night and her consequent belief that he meant no one but himself any harm. Possessing a firearm while unbalanced by a marital separation is always a potentially dangerous situation and the police were obligated to treat it as such. The fact that the community's peace was disturbed by the presence of police armed with assault weapons is something for which Mr. Morrisseau will need to take responsibility. Part of doing so will be my obligation under s.109 of the Code to prohibit him from possessing any firearms as defined for a period of 10 years. I will hear submissions on the lifting, temporarily or otherwise, of the Prohibition under s.113 in due course. I will also order that Mr. Morrisseau perform 100 hours of community service on the First Nation territory of Couchiching within 12 months as restitution for the harm done there.
[109] Mr. Morrisseau has carried a heavy burden throughout his life as a legacy of his family's residential schooling, a history that goes back four generations. He has carried that burden for the most part with fortitude and dignity. Importantly, he has raised two fine children and shielded them, to the extent he has been able, from the vast of the pain he experienced. He deserves respect for that.
[110] In his address to the Court and in the Gladue report prepared on his behalf, Mr. Morrisseau has spoken of the shame he feels for what he has done. His family and his community have seen him stumble in a very dramatic and public way. I do not underestimate the important corrective element of the weight of that shame. Speaking to Ms. Becker. Mr. Morrisseau said "right now I don't participate in Anishinabe ceremonies because I'm embarrassed by what I did and I'm laying low. Once I have these charges behind me, I would like to go to the Sweat Lodge and get purified and start over fresh". (Gladue Report, p.2).
[111] Mr. Morrisseau has agreed to attend the Trauma and Recovery Program at Enaahtig Healing Lodge and Learning Centre and take a course designed specifically to deal with the inter-generational impact of Residential School. I will make it a term of his probation that he attend and complete that program as well as continue with the counselling he has been receiving since the incident.
[112] In my view, the just sentence in this matter involves recognizing the days Mr. Morrisseau spent in custody immediately following the March incident and the strong message that sent to both Mr. Morrisseau and the community about the seriousness of his wrong doing. That time will be credited on the breach of undertaking count and an additional $100 fine will be imposed with 60 days to pay and 60 days to pay the Victim Fine Surcharge. There will be suspended sentences on the balance of the charges with probation for 12 months to reflect the fact he has been bound by restrictive conditions already for more than a year. In addition to the terms I have already mentioned he will not communicate with Annette McPherson or her new partner, directly or indirectly, except through legal counsel in any family proceeding and he will not attend their residence or be within 25 meters except as arranged through legal counsel.
Released: May 9, 2017
Signed: "Justice D. Gibson"