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Before you judge, try imagining a different life

Many probably remember the news story about the horrific attack of a mother waiting to pick up her children outside of a daycare in Edmonton in July, 2021.
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Many probably remember the news story about the horrific attack of a mother waiting to pick up her children outside of a daycare in Edmonton in July, 2021.

The sentencing judge called the attack “vicious, random and unprovoked” — and it was.

It was reported the man had been using drugs and was experiencing hallucinations. He believed his daughter had been kidnapped two days before, and when he approached the victim, he believed she knew where his daughter was.

The man, a 31-year-old man from Montana First Nation, pleaded guilty and was sentenced to nine years, the maximum allowable penalty.

Some may consider the case fairly straightforward. The convicted was under the influence, but that doesn’t mitigate the seriousness of the crime.

While nothing can excuse the harm done to the victim and her family, I doubt those who followed the story know much about the offender’s background. The sentencing judge didn’t seem to consider it very important, but the Alberta Court of Appeal disagreed.

In the appeal court’s memorandum of decision that was filed last May, the justices called the man’s history “tragically typical.”

Under the Criminal Code of Canada, Aboriginal People have the right to “Gladue,” a sentencing principle which recognizes the inequities and systemic racism faced by Aboriginal people. A Gladue report includes recommendations about sentencing and information about the accused’s background.

The Supreme Court of Canada has ruled that failing to take (Aboriginal) circumstances into account would violate the fundamental principle of sentencing. (nwac.ca)

So, what factors do the courts see so often it considers them “tragically typical”?

The man lived with his mother until he was five. She used drugs and drank alcohol daily and was sometimes physically abusive towards him. He was placed in the foster care system away from his community, living in two group homes until he was 11.

He only saw his mother once a year while in care, and didn’t see his father until he was 10. When he was nine, the aunt he was close to was killed in a house fire.

Growing up he was bullied and ostracized, with no access to his culture. He was brought back to Montana First Nation when he was 12 to live with his father, who had served time for murder, and was violent and abusive at times.

He was eventually sent to live with his mother when he was 15. She continued to deal with addictions, and he dealt with poverty and not enough food. He was kicked out at 17.

Drug and alcohol use was prevalent all around him, and he began drinking and using marijuana.

In the years leading up the offence, he lost lost family members to suicide, murder, and overdose.

He then effectively lost his daughter when her mother decided to raise her elsewhere.

It was reportedly in response to these losses that he increased his alcohol and drug use, which previously he had been able to limit.

The defence had proposed three years; the Crown six. The Court of Appeal concluded the sentencing judge committed errors, stating sentencing must be proportionate to the gravity of the offence, but also the degree of responsibility of the offender.

Also, in cases involving Indigenous offenders, particular attention must be paid to understanding their circumstances.

“Vats of judicial ink have been spilled over the second foundational point. Still, Indigenous people continue to be vastly over-represented in the criminal justice system, and this over-representation continues to rise,” stated the document.

Taking in account his remorse, guilty plea and “meaningful Gladue experience,” the Court of Appeal reduced the sentence to four years minus time already served in pre-sentence custody.

Should sentences be reduced for violent offences when considering Gladue factors? That is a question I’m not qualified to answer, and as the justices stated, “vats of judicial ink” have been used to debate the issue.

In this “tragically typical” case however, I believe justice was served. One can’t help but feel empathy for the convicted man, although I wish all the supports and resources necessary for healing for the victim and her family.

I’ve sat with the family members of an Indigenous homicide victim who wondered why the perpetrator got so little time for taking their loved one away. I’ve often heard the justice system is “too soft” on offenders, and heard the opinion that removing the severity of the consequence won’t prevent re-offences.

However, if the background of this man is truly a “typical” example of what our Indigenous neighbours contend with — if that’s their reality, then those of us on the outside really have no clue and don’t have a right to judge.

With the court cases I’ve covered, I’m not trying to highlight only the negative about a section of society; I write them because I hope people will care. People are dying and the attitude seems to be it’s a “them” problem.

I hate to burst the privilege bubble, but if you live in Canada, you’re part of a Treaty.

The Native Women’s Association of Canada president Carol McBride released a statement on Nov. 2, reacting to, “Zinger Report Findings: Over Incarceration of Indigenous Women Is A Human Rights Travesty.”

Ivan Zinger is the Correctional Investigator of Canada.

“We are also frustrated with the inaction on the part of the federal government and the Correctional Service of Canada. Like Dr. Zinger, we say it is high time for the government to loosen the colonial controls that result in the marginalization, over-criminalization, and over-incarceration of Indigenous people,” said McBride.

“No country that considers itself to be a world leader in human rights would allow this injustice to continue. No Canadian should rest easy knowing that 50 per cent of federally incarcerated women are Indigenous. This is a horrific situation that demands an urgent response.”

Violent offences may be a murkier area to adjudicate, but what about non-indictable, and petty offences?

Entrepreneur and Indigenous relations consultant Derek Bruno recently gave an eye-opening talk in Maskwacis at an information session about Indigenous economic reconciliation.

Bruno gave the example of a single mother. She has no car insurance, because she’s on welfare, but she has kids to feed, so she drives anyways and gets a $2,000 ticket, which is a hole she will “never get out of.”

There’s no internet for the kids to do their school work with, and she has to lock the cupboards when she leaves the house because there are other people there who are hungry.

Just getting a driver’s licence is a challenge because you have to travel out of the community to a registry office, Bruno explained. And there’s often no person they know with a vehicle to teach them how to drive. There is also the issue of how to pay for it.

Those who have court dates they need to attend, but don’t have transportation, again get penalized instead of restorative justice, Bruno explained.

“The court house in Wetaskiwin nets $3 million in fees from my community each year.”

Bruno added systemic change is needed to “at least provide a pathway or she will always be part of a statistic.”

Bruno added Indigenous people are only starting to share their stories because it isn’t easy, and as a humble people, they tend to think someone always has it worse and “who are they to share?”

So what is the solution? The NWAC says Indigenous communities must be allowed to run their own justice and correctional systems.

“This transfer of authority should have taken place 10 years ago. The over-incarceration of Indigenous people in Canada is an outrageous and racist violation of human rights that must be corrected, starting today,” said McBride.

Until that happens, we can try having some compassion.

The Court of Appeal’s memorandum of decision said, “sentencing judges must try to understand what influenced an Indigenous offender to act in the way he did. It also includes assessing whether one’s instinctive reaction to that conduct would be the same, given the circumstances, if the offender were of a different race, culture, or background.

“This analysis involves empathy, imagination, and introspection, among other things. It imposes on the sentencing judge the difficult task of imagining a different life, and honestly asking how a person – not the world’s strongest or most resilient person – might be affected by such an experience.”

Next time you want to criticize the outcome of a court case you aren’t personally involved with, be aware you aren’t privy to all the details, and try “imagining a different life.”



Emily Jaycox

About the Author: Emily Jaycox

I’m Emily Jaycox, the editor of Ponoka News and the Bashaw Star. I’ve lived in Ponoka since 2015 and have over seven years of experience working as a journalist in central Alberta communities.
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