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Weekend jail denied, reserve residency violates Charter. Now what?

Thursday, December 03, 2020 @ 1:47 PM | By Laurelly Dale


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Laurelly Dale
R. v. Turtle 2020 ONCJ 429 is another refreshing decision rendered by Justice David Gibson. It opens up the possibility of finally making intermittent sentences (weekend jail), available to on-reserve Aboriginal offenders. The case is also a win for the most vulnerable: young Aboriginal mothers otherwise facing jail in a remote Northern community. A s. 15 Charter violation was found that was not saved by s. 1. This is a logical judgment, but we are left asking where do we go from here? There are 2,267 First Nations reserves in Canada — will the Crown be flying all those serving intermittent sentences back and forth each weekend?

Turtle was the ideal case to run this argument. Here, it involved six Aboriginal females from Pikangikum First Nation, each facing a mandatory minimum jail sentence for impaired/over .80 convictions. Any sentence under 90 days opens up the possibility of being served intermittently — except if you live on a reserve. Here’s the reality: it’s impractical to pitch an intermittent sentence for on-reserve clients when the nearest jail is hundreds of kilometres from their community. Flying back and forth would cost tens of thousands of dollars. 

But for their Aboriginal residency, the defendants in Turtle would have had this option available to them. The court found that this was a denial of a legal benefit that was discriminatory, violating s. 15 of the Charter and not upheld by s. 1. According to Karen Seeley, counsel for defendants Cherilee Turtle and Tracy Strang, “the problem is that there is no remedy because the Crown agree to transport the clients — this rendered the issue moot. The question will be what does the Crown do next?”

Justice Gibson spent a great deal of time reviewing the history of Pikangikum First Nation. He is arguably one of the most qualified to write this judgment having spent nearly 30 years serving Pikangikum first as a defence lawyer and now judge. When he describes the rampant alcohol use and frequently quoted “world’s highest suicide rate,” he is doing so from a place of respect and empathy. Not only is this case meaningful because it shines a light on what it’s like to live, observe and work in Pikangikum, but also because it sets up a solution impacting the most vulnerable: women and children.

Turtle alters the criteria for intermittent sentences. Each of the defendants in Turtle has children. Rocelyn Moose has eight living children; Turtle has five, living in a household with 10 others; Strang has nine; and Cherilee Turtle has one. There is little doubt that these young children need their mother. It is critical that we minimize the time that these mothers are away from the household. Doing so will unquestionably benefit the growth of the next generation. 

While there may be some blanks to fill in regarding practical solutions, Seeley reflects that as a result of Turtle, “people are starting to take an actual look at the impact of decisions. It’s nice to say something is available, it’s another to see it actually in practice. [Turtle] looks at the hardships facing our clients. They never had the ability to get themselves to the jail.” Counsel reminded me that it’s not just a plane ride. A journey from PIkangikum to Kenora can be a day-long endeavour if there are plane issues, (of which I’ve experienced many), weather delays and vehicle breakdowns.   

Turtle establishes the foundation for a practical solution — we  just haven’t yet arrived. Now is the time for defence to use Turtle in cases where intermittent sentences are a valid option for on-reserve offenders.

Here, defendants Strang and Cherilee Turtle were scheduled for sentencing Dec. 21, 2020. Seeley on their behalf will be requesting a 30-day sentence to be served intermittently. A few more similar cases will shake out the practical solution. Will it be standard to issue temporary absence permits? Will the Crown fly them in and out each week? Or will defence file a s. 15 challenge for each case then argue for a conditional sentence order? Stay tuned ...

Laurelly Dale is a criminal defence lawyer with Dale Law. Contact her at ldale@dalelegalfirm.com.

Photo credit / Frankenvrij ISTOCKPHOTO.COM


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