REASONS FOR SENTENCE
FRIDAY, JULY 31, 2015
O’NEILL, J. (Orally):
I’d like to thank the aboriginal peoples of this territory for welcoming me onto your lands. And I’d like to express that, in this country called Canada, we have a treaty relationship with your people. I am on the other side of a treaty and that my relationship with you in the treaty relationship is protected in the Constitution of Canada. The Constitution is the highest law of this country and I would like to apologize for the position that we find ourselves in today, specifically in Treaty 9 territory, for the manner by which things have turned out. There is oral understanding and written documentation of a dishonouring of a treaty relationship. I do not judge that today but I take into account a strong history and suggestion that the original possessors and owners of these lands and waters have grown poor on their own lands. That is an injustice. That’s where it all began and we are here today to deal with the matter of a member of Constance Lake First Nation. I will do so shortly.
We are only beginning to understand the absolute greatness, the absolute wonderment that the indigenous people bring to the lands and waters of this country and this territory as original possessors of lands and waters from the Creator. You people of Constance Lake Treaty 9 and the territory that we call Canada are always entitled to our respect and our thanks as all of us try to renew our treaty relationship. We cannot reverse the legacy of the residential school history. We cannot go backwards in time and make reversals of history where as they say in the Gladue report, aboriginal people suffered alienation from lands and waters, exclusion from lands and waters, disrespect, forced removals, treaty violations, treaty dishonourments and imposition into their communities of a colonialism that sought to take the beauty of their indigenousness out of the children for which the Creator placed them on these lands and waters. But we must go forward from here and make the changes. It begins with all of us from the smallest to the most powerful in this country. If we don’t go forward with changes, Treaty 9 people, Constance Lake people will continue to circle in the cycle of hopelessness, despair, a feeling of disrespect, poverty, alienation, substance abuse and cycle of other abuses.
In 2005, in a court decision called Mikisew Cree, Justice Binnie of the Supreme Court of Canada, wrote these two sentences in the opening two sentences of a long court case. “The fundamental purpose of the modern law of aboriginal treaty rights is the reconciliation of aboriginal peoples and non-aboriginal peoples and their respective claims, interests and ambitions.” And in the second sentence of the Mikisew court case, he wrote, “The management of these relationships takes place in the shadow of a long history of grievances and misunderstanding.” We must understand, all of us, that as per aboriginal and non-aboriginal peoples, the law demands that we work towards reconciliation. We must repair the treaty relationship. But it’s also clear to me in court today that while that work continues and must continue, that reconciliation also has to continue in our own communities and our places that we call home. It’s been too hard for the Constance Lake people. It’s been too long. It’s been too difficult but there is hope. There’s hope in the words of the apology of the Prime Minister of Canada. There’s hope in the words and works of Justice Murray Sinclair who released the report of the Truth and Reconciliation Commission, perhaps a month ago in Ottawa. There’s hope in the words of the most powerful judge in Canada, Chief Justice Beverley McLachlin, of the Supreme Court of Canada, who recognized and courageously stated that the aboriginal peoples of this country were fending off and subjected to a form of cultural genocide. And there’s hope because today, in Cochrane District court, in Treaty 9 territory, a judge of the Superior Court of Justice is signifying to all peoples in this courtroom but in particular the aboriginal peoples, his respect for them and their history, his acknowledgement of the treaty relationship, his acknowledgement of thanks for the sharing of the lands and the waters. And his hope that the promise of the Treaty of Niagara of 1764 will be fulfilled at the meeting place called the Crooked Place-Niagara - where there were exchanged Wampum belts and the covenant chain and the two row Wampum, thereby signifying the relationship of aboriginal peoples and the Crown in Canada. Hope is returning.
The sentence asked for today is fair for some, perhaps not fair enough, for others, perhaps it seems too long. Alcohol abuse, substance abuse, a feeling of no worth, a feeling of no respect for self, unemployment, poverty, young children, pressure and all the stresses that we’ve heard about, many and most of those things combined -bring us here today. The loss and the feelings of Harry are palpable and real as he said so eloquently. It’s hard to separate that first experience with the gun to his father’s head with other losses that he’s experienced and now the loss of his brother, the loss in the community, perhaps the tearing apart of families, the non-communication, searching for answers and help.
I have never been to jail. Not one single day. I have not sat behind iron bars in a concrete building for 607 days in consequence of an act that took less than 120 seconds. In some ways, the act was longer. The engagement of Bradley and his uncle started earlier, was interrupted and was resumed later but the final critical moments of the interaction, from what I gather, were certainly less than five minutes, if not 120 seconds, perhaps three minutes. Bradley will have to spend more time in a custodial facility as a result of those events but he came here with his lawyer and he acknowledged that he was prepared to do so.
Crown counsel and defence counsel submitted and outlined what would be a fair sentence in all the circumstances. I accept it as such. And in a moment, I will endorse the final papers as such along with requested additional orders as per request.
When I travel in your territories, I see the incredible beauty of your lands and waters but only as I age, have I come to see your greatest resource. Your greatest resource is beautiful. Your greatest resource is purely innocent. Your greatest resource usually runs and almost always laughs because your greatest resource are your children, Harry’s relatives and the young ones he knows, Bradley’s own children including one he has not met outside of a custodial facility. We know that the aboriginal children of Canada are coming onto their lands and waters at the greatest rate of reproduction of any group in Canada. That is the resource of the peoples and so, it is my wish and hope that the young children of Constance Lake, in particular, and the young children of the wider Treaty 9 territory in which I am working today, and the young children - aboriginal children - of the lands and waters we call Canada, grow into a future better than the future that their great, great, great grandparents had - their great, great, grandparents had - their great grandparents had or perhaps their parents had. There is hope. We cannot protect our lands and waters without the aboriginal peoples and the young peoples. We must be so thankful that there are an original peoples here with a world view of understanding, of sharing, protection and management.
Bradley, I’d like to acknowledge your plea of guilty to the Court today. I want to acknowledge the 607 days that you’ve been in Monteith and the further period of time that you will be asked to serve. When you return to your people, I want you to grow into a leader. They say that the black spruce and the pine tree that is buffeted and blowing in the wind grow strong roots. We lost Fabian. Harry and his people lost Fabian and many peoples were blown and buffeted and hurt in the blowing winds but there is a teaching that your roots and your strengths shall grow deeper. And so, Bradley when you return or if you choose to go where you wish to go upon freedom, let go of the heavy feelings. Seek out the reconciliation and forgiveness that all of us should be seeking out and take care of your family. Time to be served before release will pass long for you but in that period of time, it will pass. To Harry and the people of Constance Lake, those that have suffered the deep loss, please know that I would not be here today, in my own life’s journey, if I didn’t truly believe that there is hope. I’ll conclude my remarks in a short moment and sign the papers.
Someday, I am going to jump into my truck and I hope to come and visit the people of Constance Lake. It will take some time to organize this and it shouldn’t be soon. It should be put off for a while. I know I will see the young children running and laughing and there’ll be future leaders there too because your people and the young people understand that it is a circle. It is a circle of homes, a circle of interconnection, a circle of well-being and I know and I hope and I believe that the people of Constance Lake, Bradley, Harry and others are slowing but surely making strong that circle again.
It has been an honour, albeit a heavy responsibility, to have been asked to be in this place today. Thank you Crown counsel and defence counsel for your hard work in making this task just a little bit less onerous and difficult. Thanks for the words of all of you expressed through the lawyers, counsel and others, including Harry. Thanks for the respect of the community members and thank you for the creation of your most beautiful resource, your children.
I will accept the sentence on the basis of the words that I have spoken but also section 718.2e of the Criminal Code of Canada, the elements of the Gladue case of Canada, the history of the community of Constance Lake, Bradley and his young family and the difficulties now being experienced perhaps by the mother. I recognize the help the community has extended to Bradley’s children, the concept of the extended family community. Thank you for your assistance.
I take into account the sentencing principles, the Criminal Code of Canada, the court cases of this country, the period of incarceration of 607 days without any programming, specific treatment, opportunity for healing, opportunity to understand the significance of the great culture that the aboriginal peoples bring, even when they’re inside a place of concrete and steel. My hope is that Bradley will obtain some further schooling where he goes, some healing, provisions and services to connect him a little bit more with the teachings and his understandings. And that he’ll come back into the community a stronger person for whom there are now four children that will again turn to him for assistance. I charge Bradley with returning to the community stronger and focussed on his future and his family’s future. Harry, thank you for your words. I’ll have the indictment, Madam Clerk. It’s before me? July 31st, 2015, on hearing submissions and for reasons given, I’ll put after submissions, counsel, a joint submission. Mr. Bradley Bunting is sentenced as follows - counsel, Crown counsel, defence counsel assist with this: I think I will begin simply by saying I’m crediting him with two and a half – I’ll do it that way, crediting him with two and a half years of pre-trial custody. I hereby sentence him to a further term of incarceration, crediting Mr. Bunting with two and a half years (30 months) of pre-trial custody. I hereby sentence him to a further period of incarceration of - and 29 or 30 months?
MS. GRZELA: Twenty-nine.
MR. DUMAIS: Twenty-nine, Your Honour.
THE COURT: Twenty-nine months. Madam Clerk, Madam Crown counsel, I have your notes. I’ll just tally that off and then we’ll close off court. I think we’ll turn our attention to the request. A DNA, section 487.051 DNA order is herein made in Form 5.03. This is a primary designated offence and having regard to the circumstances and the extents of the offence, the relative unobtrusiveness of the DNA procedure and the importance of an DNA analysis I find, on the principle set out in the Court of Appeal case, R. v. Hendy, I conclude that it is appropriate that such an order be made. Number three, the return of the prohibition order? As 109 prohibition order, I’ll make the exception in a moment – prohibition order for 10 years. Is that – it’s 10 years, Crown counsel?
MS. GRZELA: Yes, sir.
THE COURT: Number four, may I have a Criminal Code of Canada, please? Someone want to pass that up to me? Thank you. Let’s take a look at 113. All right. One thirteen. Now, it’s the confident authority that can lift the prohibition order in a sense. I’m not certain that I’m the competent authority but – well, it would include a judge or justice. Counsel, any submissions on how you wish me to address this? I will be recognizing that for sustenance purposes, the Court should permit Mr. Bradley Bunting to operate a firearm for such purposes. Any choice, submission on that otherwise, I’ll draft...
MS. GRZELA: The Crown takes no position. It’s satisfied with the way the Court drafts it.
THE COURT: Pardon?
MS. GRZELA: We take no position. The Crown is satisfied with however Your Honour drafts it.
THE COURT: The – within prohibition order shall be lifted only at such times as Mr. Bunting may be - Mr. Dumais, what was he hunting for sustenance purposes? I mean this could include trapping and other things but I believe we are here talking about hunting for sustenance purposes...
MR. DUMAIS: Right.
THE COURT: ...in the use of a firearm? May be hunting for sustenance purposes within the traditional seasons – within the traditional seasons of hunting for sustenance as engaged in by the aboriginal peoples of the territory and traditional lands of the Constance Lake First Nation in accordance with s. 113 of the Criminal Code of Canada. Anything else in the endorsement before we close off the court?
MS. GRZELA: No, sir.
THE COURT: Have we covered...
MR. DUMAIS: That’s fine, Your Honour.
THE COURT: ...those points? I have signed the indictment. Madam Clerk, you’ll be obtaining some papers for me, of course, to prepare and sign.
...WHEREUPON OTHER MATTERS ARE SPOKEN TO
THE COURT: Thank you, sir, Harry, members of the community, Crown counsel, defence counsel, the accused. Court staff, thank you for your assistance and of course, the officers who provide the security and help we need in these cases. Thank you.
...WHEREUPON OTHER MATTERS ARE SPOKEN TO
COURT IS ADJOURNED