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[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:
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. . . 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.
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[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:
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. . . 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. |
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[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:
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. . .[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:
| (i) |
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; |
| (ii) |
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; |
| (iii) |
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; |
| (iv) |
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:
| (i) |
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; |
| (ii) |
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; |
| (iii) |
has
taken full responsibility for the wrongdoing; |
| (iv) |
has
pleaded guilty or in some other acceptable way has demonstrated
the attributes described in (ii) and (iii); |
| (v) |
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. |
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. .continue text of judgement
index
to Saskatoon police stories |
Hatchen and Munson trial
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