Intermittent sentence law unfair to Indigenous accused from remote areas: judge

TORONTO — The difficulty Indigenous people in isolated communities have in serving jail sentences intermittently violates their equality rights, a judge has ruled.

In his decision, Ontario court Judge David Gibson agreed the law discriminates against residents of in Pikangikum, about 225 kilometres north of Kenora, Ont. 

“Being deprived of the opportunity to serve a jail sentence intermittently because of their status as on-reserve band members of the Pikangikum First Nation constitutes the deprivation of a legal benefit,” Gibson concluded. “It also creates a distinction in law between themselves and other members of the general public.”

The case involved six mothers from the 3,800-strong fly-in community. All had pleaded guilty to drinking and driving, an offence which carries a 90-day minimum sentence.

Normally, people so convicted would be eligible to serve their time on weekends, something not feasible for those living on the isolated reserve hundreds of kilometres from the nearest district jail.

The six, Sherry Turtle, Audrey Turtle, Loretta Turtle, Cherilee Turtle, Rocelyn Moose and Tracy Strang, argued among other things the law violates their equality rights.

The prosecution countered they had not proven their claims. It also said it had made offers to accommodate them, rendering their case moot.

Gibson, however, found it necessary to rule.

“The issues underlying the applicants’ claims are of significant public importance beyond the individual circumstances of these defendants,” he said. “It is appropriate they be adjudicated in these proceedings.”

To do so, the court heard extensive evidence on the “total disruption” caused by colonization and the resulting rise in crime in Pikangikum — much of it related to devastating substance abuse. One accused has lost three siblings to suicide.

Gibson noted the crowded Kenora District Jail was built in 1926, almost all its inmates are Indigenous, and conditions can be brutal.

The ability to serve their mandatory jail sentence intermittently would greatly benefit the women and their families, Gibson said, but no one was able to point him to a single case where an on-reserve Pikangikum resident had been granted such a sentence.

“Removing mothers from their children for extended periods of time will undoubtedly exacerbate existing problems in this vulnerable and destabilized First Nation,” Gibson said.

As a result, he concluded the intermittent-sentencing provisions violate their equality rights, further finding the discrimination could not be justified.

With almost two decades of experience with Pikangikum, the judge wrestled with what sentences might be appropriate given the drinking scourge on the community. However, he urged the federal government to consult with its members.

Canada, he said, was “very clearly” neglecting its treaty obligations in Pikangikum, particularly in keeping it alcohol-free and in its duty to consult.

“Pikangikum’s integration into Canadian Confederation is a textbook example of the negative effects of colonialism on an isolated hunter-gatherer society,” Gibson said. “The people of Pikangikum were a healthy, self-sufficient band of families, who, in the lifetime of the current chief’s grandmother, became the suicide capital of the world.”

While the Crown belatedly announced it would pay to transport the defendants to and from Kenora, Gibson called the offer “questionable legal rope-a-dope.” Nevertheless, he accepted the government’s undertaking to ensure the defendants could serve intermittent sentences.

John Bilton, lawyer for the six women, called the ruling a “powerful call to action.”

This report by The Canadian Press was first published on Oct. 5, 2020.

Colin Perkel, The Canadian Press