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In the matter of an application for a sentencing circle

by Kenneth Munson and Daniel Hatchen,

Judgement, Dec. 3, 2001, by Justice Eugene Scheibel

[1] On January 28, 2000, Kenneth Munson and Daniel Hatchen were on duty as police officers with the Saskatoon City Police Department. During the course of their duties, in the early hours of a bitter cold winter morning, they apprehended Darrell Night, handcuffed him, placed him in the back of the police car and then drove him to the outskirts of the city near the landfill where he was dropped off in a deserted area. He was left there to walk back in temperatures ranging from -22 to -25º Celcius wearing only light clothing. He had no hat, gloves or scarf.

[2] Darrell Night is an aborignal. He was charged with no offence. The police officers are not aboriginal and they were subsequently charged wth unlawful confinement of the complainant. After an acrimonious trial in which there were allegations of racism by Night against the police and by the police officers against Night, the accused were convicted by a jury of unlawful confinement.

[3] The facts surrounding the charges and conviction of Munson and Hatchen have produced a sharp division of feelings in the community. There have been demonstrations of protest by the aboriginal community and others in support of the police. It was a highly emotional trial. Darrell Night's feelings are summed up in his victim impct statement where he states, "Munson and Hatchen have given me a different perspective towards the police. I have no trust whatsovever towards policemen."

[4] Notwithstanding that most of the community has been affected by allegations of racism and feelings of mistrust, the accused, in a somewhat surprising and ironicl approach, now request a sentencing circle.

[5] In support of his proposal, counsel for Hatchen claims:

. . . The case has generated great interest in the aboriginal and white community. When the accused were arraigned, there were demonstrations by aboriginal persons. When the jury was selected, there were complaints from some aboriginal persons because an all-white jury was selected. If sentence is imposed in a normal manner, there will undoubtedly be criticism from some that the aboriginal commuity was denied input into the trial process and the sentencing process.

The whole community has been affected by the conviction of the police officers. Citizens, both aboriginal and white, are concerned because of the charges and the convictions of the officers. It is submitted that the input of all members of he community would be of assistance to the Court in this case.

[6] At the outset it must be stated that there is no provision in the Criminal Code for the use of sentencing circles. They evolved over time from the traditional sentencing hearing process with its wide scope and measure of informality and the need to focus on rehabilitation of the offender in the determination of a fit and proper sentence. The use of sentencing circles is now well established in Canada as an effective aid in the sentencing process in appropriate cases. Even though virtually all of the sentencing circles held to date involve aboriginal offenders, the law does not restrict the use of sentencing circles to situations where aboriginals have committed an offence.

[7] In R. v. Morin, [1995] 9 W.W.R. 696 (Sask. C.A.), Chief Justice Bayda, at p. 731 states:

. . . Where there is no prescribed minimum, then, depending on the offence, the Code provides a number of different kinds of sanctions: the accused can receive anything ranging from a small fine, to a probation order, to a suspended sentence, to a long term of imprisonment. In the case of an offence for which there is no prescribed minimm sentence a sentencing circle is, technically speaking possible in every case. Whether it would be appropriate to hold one is, of course, another matter.

[8] There is nothing, in law, which would prohibit Munson and Hatchen from applying for a sentencing circle. The issue then becomes "[w]hether it would be appropriate to hold one" given the facts and circumstances of this case.

[9] In making this determination the comments of Chief Justice Bayda in Morin at pp. 727-28 are helpful. He states:

. . .[T]wo mandatory crtieria must be present: the willingness of the offender and the existance and willingness of a community.

The two criteria when fleshed out produce two prerequisites which may be stated as follows: Before directing that a sentencing circle be held the judge, when considering all the evidence before him or her bearing upon that specific issue, must be satisfied that:

  1. There exists a community with the following attributes:
    1. the community is reasonably well defined by reason of the racial origin of its members, their religion or their culture or by geography of some other feature which distinguishes the community from other communities;
    2. the community recognizes the accused not only as a member but as one who has the kind of relationship with the community that ought to make him or her feel accountable to it for any criminal wrongdoing;
    3. the community supports the accused in his or her difficulty with the law and is prepared to accept the accused as a person who has the capacity, inclination, need and the sincerity to be restored (healed) in his or her relationship with the community and in his or her relationship with the victims of the wrongdoing;
    4. the community has sufficient healing or restorative resources to help the accused (and where necessary the other persons affected by the wrongdoing) in that restoration or healing.
  2. The accused:
    1. considers himself or herself a member of the community and as one who has the kind of relationship with it that makes him or her feel accountable to it for the wrongdoing;
    2. has the capacity, inclination need and sincerity to be restored (healed) in his or her relationship with the community and with the victims of the wrongdoing;
    3. has taken full responsibility for the wrongdoing;
    4. has pleaded guilty or in some other acceptable way has demonstrated the attributes described in (ii) and (iii);
    5. is prepared to accept and to carry out the decision of the community acting through its representatives at the sentencing circle respecting the measures the community deems appropriate for the restoration or healing.

[10] If the criteria discussed has been met the trial judge must decide whether a fit sentence for the accused is better arrived at by using the restorative healing approach referred to as sentencing circles or the ordinary approach. The sentence given in the first approach is likely to be less severe than the ordinary approach because that approach involves a healing component whereas this is often absent in the ordinary approach.

[11] In dealing with the request for a sentencing circle the issue of whether an accused has taken full responsibility for the wrongdoing or has pleaded guilty was addressed by the Saskatchewan Court of Appeal in R. v. Taylor, [1998] 7 W.W.R. 704 at 727-28

The second sub-issue is whether Mr. Taylor was genuinely remorseful and accepting of his responsibility for the offences committed by him. The Crown contends that the judge did not so find Mr. Taylor, and should therefore have refused a request for a sentencing circle. More particularly, the Crown contends that Mr. Taylor's pleading not guilty to all of the offences, maintaining his innocence under oath at the trial with respect to the sexual assault charge and reasserting his innocence when interviewed by the psychiatrist are all indicative of the opposite of remorse and an acceptance of responsibility for the offences.

...

In my respectful view, whether an accused pleads guilty or not guilty is relevant indeed. A guilty plea is usually a good measure of an accused's accepting responsibility for his wrongdoing and his sincerity to be restored in his relationship with the community and the victims of the wrongdoing. A "not guilty" plea does not necessarily preclude the holding of a sentencing circle but it does require the offender to demonstrate his remorse, sincerity and acceptance of responsibility in some other way. Failing such a demonstration the judge would be justified in refusing the request for a sentencing circle.
...

Had the sentencing circle participants not given the matter of Mr. Taylor's remorse, sincerity and acceptance of responsibility serious consideration and determined that indeed he was remorseful, sincere and accepting, I would have had no difficulty in finding the circle proceedings fatally flawed. . . .

[12] In this case the Crown opposes a sentencing circle. In its submission the Crown states, " . . . both accused pleaded not guilty and then testified under oath that they were not legally responsible for what happened to Mr. Night. Further, both accused have stated through their counsel they intend to appeal their conviction. . . ."

[13] The Crown contends that this demonstrates that neither accused accepts responsibility for their actions and therefore are not suitable candidates for a sentencing circle.

[14] In R. v. Joseyounen, [1995] 6 W. W. R. 438 at 442 ( Sask. P.C.), Fafard P.C.J. discussed the need for the accused to accept responsibility for his conduct. He put it this way:

Most of the time this first requirement will be met when the accused pleads guilty to an offence and requests that the court grant him a sentencing circle. What one is looking for here is that the accused regrets the conduct which led to the laying of the charge and calls upon the community to help him in changing his attitude and behavior. Of course, the strongest indication of remorse is a guilty plea. It would be difficult to discover genuine remorse in an individual who has pled "not guilty", had his trial, and after conviction says, "Now that you have found me guilty I am full of remorse and I want to mend my ways." It smacks of a "death bed repentance", especially where the accused has testified that his conduct was not wrongful.

[15] Except for a reference in the statement given by Munson to the Saskatoon City Police on February 7, 2000, prior to charges being laid, the issue of accepting responsibility for their actions has been ignored and continues to be ignored in the submissions on behald of the accused. Hatchen's statement indicates he is remorseful because he feels "real shame for the trouble this is going to cause the service and [his] fellow officers. There is no reference of remorse for what happened to Night. In any event, the statements were given to the police department and not to Night.

[16] On the one hand, the accused seek a sentencing circle with the restorative approach and with its healing components and on the other hand they deny responsibility for the crime in the face of overwhelming evidence of guilt, some of which comes from their own mouths.

[17] These two positions are completely irreconcilable. How does one take full responsibility for the wrongdoing and at the same time claim he did nothing wrong? How can a person have the capacity, inclination, need and sincerity to be resored or healed in his relationship with the community and with the victim and in the same breath say I did nothing wrong? If a person has done nothing wrong there is no need for reconciliation or healing and consequentially no need for a sentencing circle.

[18] In a recent article counsel for Munson, speaking on his client's behalf, is quoted as saying: "He was remorseful. If he was acquitted he would be remorseful. My position is no criminal offence occurred." Is this evidence of genuine remorse or is this merely some sort of conditional so-called "death-bed repentance" advanced only in the hope of obtaining the benefits of a sentencing circle? The answer appears self evident.

[19] In my opinion, given the position of the accused, and having regard to all of the facts, the request for a sentencing circle defies both reason and logic.

[20] There is nothing before me which indicates people from the aboriginal community are prepared to take part in the process. Without their participation the sentencing circle would be a meaningless exercise.

[21] If the Court ordered a sentencing circle without the co-operation of the aboriginals in the community, this may well exacerbate the problems in the community as a whole.

[22] The complainant has indicated he is not prepared to participate in a sentencing circle given the attitude of the accused. Who could fault him for his refusal to participate in what he sees as a sham, one lacking in sincerity, one lacking in true remorse and one where those who have inflicted the wrong accept no responsibility for their actions. In that situation what possible benefit could there be in holding a sentencing circle -- there can be no healing, only the re-opening of old wounds.

[23] Given the facts of this particular case I am of the view that a sentencing circle could only operate effectively with the full participation of the complainant. His refusal, which can certainly be justified, effectively puts an end to this process,

[24] There is a further issue which plays a crucial role in deciding whether to proceed with a sentencing circle. That is: Who is the community? Is there a community within the definition set out in Morin? A community as it relates to these issues cannot be made up of one segment, or one culture to the exclusion of others. In that situation there can be no community as it has been defined.

[25] I am satisfied it is not necessary for me to deal further with the issue of "the existence and willingness of a community" as discussed in Morin because I have concluded this application for a sentencing circle is fatally flawed and the application must be dismissed.

[26] Counsel may address the issue of sentencing in the ordinary way on a date to be fixed for the hearing.

Dec. 4, 2001 was set for counsel to address the bench. Sentencing will be Wed. Dec. 5, 2001 at 2 p.m.