Pubdate: Sun, 21 May 2006
Source: Edmonton Journal (CN AB)
Copyright: 2006 The Edmonton Journal
Contact:  http://www.canada.com/edmonton/edmontonjournal/
Details: http://www.mapinc.org/media/134
Author: David Staples, The Edmonton Journal
Bookmark: http://www.mapinc.org/racial.htm (Racial Issues)
Bookmark: http://www.mapinc.org/rehab.htm (Treatment)

BREAKING THE SHACKLES OF WHITE JUSTICE

Convinced that white-man's justice had become "a sausage factory" for 
aboriginal offenders, Judge Peter Ayotte sought the help of leaders 
on the Alexis reserve. They've created a much-admired, 
community-based model where the lives of aboriginal accused can be transformed

The accused men and women stood before Judge Peter Ayotte at the 
provincial court on the Alexis First Nation reserve, almost all of 
them striking the same pose: head down, slouched over, no eye contact.

To Ayotte, it looked like the accused weren't even paying attention 
to the proceedings, that they were resigned to accepting a jail 
sentence and putting in their time. At the same time, however, they 
were utterly unwilling to change their ways just because a white 
justice system was punishing them.

"Native people, in a lot of ways, are very passive," Ayotte says. 
"They will accept the system. But, silently, they won't. They'll say, 
'If you want to put me in jail, put me in jail. I'll get out again 
and go back to doing what I was doing.' "

Alexis probation officer Sandra Potts, a 46-year-old aboriginal, 
concurs. "Most times, even if they didn't do anything for the charge 
that they had, they wanted to plead guilty just to get it over with. 
People always felt in the white system, you're going to go to jail."

About 800 people live on the Alexis First Nation reserve, 80 
kilometres northwest of Edmonton. Provincial court has been held 
there since the 1970s, first in the band office, then in an old schoolhouse.

Through the 1980s, Ayotte headed out once a month to face the usual 
array of impaired drivers, spouse abusers, thieves and vandals. 
Almost all of them had committed their crimes when they were drunk or high.

"It was just the worst day of my life. I hated it," Ayotte says of 
those monthly trips to Alexis. "It was just a sausage factory. 
Numbers were just going through. There was no attempt to get at why 
the person had really done this, how a sentence might assist in 
keeping the guy from coming back.

"I'd go home at the end of the day thinking, 'Why am I doing this 
job? What a waste of time this is.' "

Fast-forward to 2006.

The provincial courthouse at Alexis is no longer misery for Ayotte 
and his fellow judges, Ray Bradley, Dan Paul and Hugh Fuller. 
Instead, it's one of the few courts in Canada successfully dealing, 
in both human and economic terms, with the huge number of aboriginal 
offenders in the justice system.

A combination of hard work from Alexis community leaders, guidance 
from Ayotte and Bradley, and a new legislative framework for dealing 
with aboriginal offenders has combined to make the Alexis court a 
place where many aboriginal offenders aren't just processed, they are 
transformed. The court process has become a catalyst for many of them 
to become law-abiding.

The Alexis program should be a model for all of Canada, says Ernie 
Walter, chief judge of the Alberta provincial court. "When you look 
at the successes, in terms of the community and recidivism, I don't 
think there's any court that can compare anywhere in this country with that."

Alexis is a typically troubled aboriginal reserve. Elders who lived 
there in the 1940s and '50s recall terrible poverty and hunger. In 
the 1960s, a new scourge hit, when the ban ended on aboriginals 
purchasing liquor at bars and liquor stores.

All hell broke loose, says 56-year-old Alexis elder Evelyn Potts.

"Let's say we're having a Halloween party for kids and we threw a 
whole bunch of candy in the middle, and the kids just go and grab it 
- -- that's how it was for our people when we were able to go into the 
bar. After that, it got bad. I grew up with all that garbage around 
me, that liquor."

The community had no electricity until the 1970s, no indoor plumbing 
until the 1980s. But as modern conveniences came in, so did modern 
drugs such as crystal meth and crack cocaine. "That's had a 
devastating effect on our people," Evelyn Potts says.

With the substance abuse and poverty came frustration, despair, 
criminality and an endless stream of young people from the Alexis 
reserve heading to jail. The same was happening in other aboriginal 
communities across Canada.

In the early 1990s, legislators tried to tackle the 
"over-representation" of aboriginal offenders in Canadian prisons. At 
that time in Alberta, aboriginals made up four per cent of the 
population, but 30 per cent of prisoners. The incarceration rate was 
comparable to that in other places with similar ethnic mixes such as 
Australia, where Aborigines make up 2.2 per cent of the general 
population and 20 per cent of inmates, and New Zealand, where Maoris 
are 14 per cent of the population and 38 per cent of inmates.

Right-wing critics have a straightforward explanation for the 
so-called aboriginal over-representation in prison: that aboriginal 
people simply commit more crimes and, as a natural consequence, they 
end up in jail more often than others.

But the experience of judges like Ayotte and Ray Bradley in Alexis 
suggested another possibility, that the problem with aboriginal 
people isn't an explosion of criminality as much as it is an 
explosion of social decay. On reserves, alcohol and drug abuse 
combined with mistrust and bitter resignation, resulting in many 
aboriginals needlessly going to jail.

And jail was no answer for aboriginal people, says Sandra Potts. "As 
a probation officer, I learned that what (aboriginal offenders) 
didn't know, they found out in jail and came out and used it. They 
learned to steal more effectively. They told me that themselves."

But how do you lower the percentage of aboriginal inmates, while 
discouraging crime?

In the 1990s, three significant legal landmarks paved the way for the 
Alexis experiment. First, in 1991, the Alberta government had Justice 
Allan Cawsey report on the origins of aboriginal crime.

Cawsey found that when young aboriginals committed an offence, they 
felt it was against the police or white society, not against their 
own community. He urged the police, courts and prisons to be more 
responsive to aboriginal needs.

"Systemic discrimination exists in the criminal justice system," he 
wrote. "There is no doubt that aboriginal people are over-represented 
in this system and that, at best, the equal application of the law 
has unequal results.

"Unless evidence is found to support the notion that Indian and Metis 
people are inherently more criminally inclined than non-aboriginal 
people, this imbalance must be redressed to bring about equitable 
results for aboriginal people."

While Cawsey pushed for reform of the existing system, some 
aboriginal leaders wanted a completely separate justice system. 
"There is a severe lack of confidence in the justice system among the 
Indian people," wrote aboriginal lawyer Tony Mandamin, who later 
became a provincial court judge.

After the Cawsey report came out, next to nothing changed, so in 1992 
Peter Ayotte decided to take up the issue on his own on the Alexis 
reserve. He arranged a meeting with the band council.

For the first part of the meeting, Ayotte was regaled with stories of 
all the wrongs whites had done and how an aboriginal justice system 
was the only answer. At last, Ayotte broke in.

"I said, 'I'm not here to undo the past. I'm here to look to the 
future. If there's something you want to do, fine. If you don't want 
to do anything, that is fine. But this isn't getting us anywhere.' "

If there was going to be change, it had to come from the community, 
Ayotte told the band council, which meant community members were 
going to have to take responsibility: "Right now, whitey comes to 
court and I make all the mistakes and I go home and you can get mad 
at me. But if you take part, then you're part of it, and when you 
make the mistakes, you don't go home, this is home. So you're going 
to have to deal with that."

In a later meeting with the Alexis elders, it was decided that if 
community leaders were going to play a role in judicial hearings, 
they first had to be educated about the law.

Ayotte had every Friday set aside as a reading day, so he started 
using that time to travel to Alexis to hold classes on the law. At 
first his students, mainly Alexis elders, struggled with many legal 
concepts. Things weren't made easier because of Ayotte's use of 
technical terms, Evelyn Potts says.

"Peter comes in and uses his lawyer language. That's why we didn't 
understand him."

Evelyn's husband, Thomas, a former band chief, became the leader of 
the aboriginals in Ayotte's class. His first task was to get Ayotte 
to simplify things for the elders, some of whom were illiterate.

"Thomas had dealt with white people, so it was no problem for him to 
get kind of nasty with them," Evelyn says. "He used to tell Peter, 
'You know what? This is the Indian reserve. These are Indian people 
you're talking to. So talk simple English because some of these 
people don't understand you.' "

Alexis elder Jean Alexis, 71, can't read or write, but was able to 
learn under Ayotte. "It wasn't easy. I tried to capture whatever I'd 
need for the people."

For the next five years, a core group of eight people attended each 
two-to-three-hour class. In the court itself, Ayotte started to 
explain to the audience why he was taking certain actions so that 
other people would start to understand legal procedures.

The elders asked if each court session could start with a traditional 
purification ceremony, a smudge where sweetgrass is burned and people 
immerse themselves in the smoke. Ayotte agreed.

On one recent court day, elder Jean Alexis told the court: "I burn 
this smudge and I'm going to say a prayer in my language. Whoever 
wants it can come and get it. If you don't want it, that's OK, too." 
A long line of peopl e, both aboriginal and white, formed to wash 
themselves in the smoke.

In 1996, the second legal landmark came. The federal government 
brought in a new law that pushed courts to think of jail terms as a 
last resort, particularly with aboriginal offenders. The new law 
allowed for conditional sentences, to be served in the community, 
with conditions placed on the convict.

This law was followed by the third landmark, a 1999 Supreme Court 
ruling that said the 1996 law was intended to address the 
over-representation of aboriginals in prison, which meant a jail term 
for an aboriginal offender might be less than one imposed on a 
non-aboriginal for the same offence. With the most serious cases, 
however, the court said it was unlikely there would be any difference 
in the sentence for an aboriginal or non-aboriginal offender.

The top court's interpretation of the law didn't sit well with 
everyone, including Tanis Fiss, director of the Centre for Aboriginal 
Policy Change and a Metis woman herself.

Fiss recently wrote that the courts should get rid of such 
preferential treatment of aboriginal offenders, who often have fellow 
aboriginals as their victims. "In an attempt to right past wrongs, 
Canadians have created policies that harm the very people they have 
been designed to benefit. By amending the Criminal Code in 1996, the 
federal government sent a message to aboriginals that breaking the 
law is no big deal."

But Ayotte says the changes to the federal law, with jail seen as a 
last resort, reflected aboriginal ideas about crime and punishment. 
"They've always approached the criminal law problem as a problem of 
healing rather than as a problem of punishment, whereas whites tend 
to look at it the other way around."

In the late 1990s, the Alexis elders and Ayotte took the first of two 
bold steps towards reform. The Alberta government had allowed for the 
formation of justice committees to assist judges in sentencing youths 
and finding alternative measures for them, such as counselling or 
community work. Ayotte decided to use a newly formed Alexis justice 
committee to help him deal with both adult and young offenders.

It was unclear whether those with criminal records would be allowed 
to sit on the justice committee. If they were barred, it would limit 
Ayotte's pool of potential committee members at Alexis. A number of 
the elders had criminal records. He wrote letters of recommendation 
for them. In the end, the Alexis justice committee was approved.

A new system was set up. Once an offender was charged, he would come 
before Ayotte, who would tell the offender that if he was willing to 
change his life, the court was willing to help. "It sounds corny and 
it is corny, but it works. People say, 'Holy smokes! Somebody 
actually gives a damn about me.' "

The offender would first go before the justice committee of 
aboriginal elders, which would set up a rehabilitation program 
entailing community labour, attending counselling with an elder, 
Alcoholics Anonymous meetings, and cultural activities such as sweat 
lodges, retreats and the sun dance. Next, Ayotte would sentence the 
offender, incorporating elements of the rehab program into the 
offender's probation requirements.

At first, the justice committee was intimidated at its 
responsibility, Evelyn Potts says. "We were scared, nervous. We felt 
we were getting lost in the jungle. But we did start meeting with 
some people. Our task was, first of all, to get them away from alcohol."

Committee members came to understand their limitations, Evelyn says, 
but they also realized they had valuable experience, based on their 
own painful life lessons with alcoholism and violence.

"We're not trained psychologists or therapists, but we're trained 
well enough to deal with our own people. We know where their 
downfalls are, and that's how we tried to guide them."

The elders never accept easy excuses from offenders. Instead, each of 
the 12-16 members of the committee grills the offender, digging deep.

"We work with why they drink, why they drown themselves in alcohol, 
why they cover up with drugs, why they numb themselves," Evelyn Potts 
says. "It's a healing journey."

"It was just like a big family getting together and helping other 
people," says Jean Alexis, the elder and committee member. "We pray 
for them and we talk to them."

But elders such as Alexis can also deliver a good tongue-lashing. "A 
guy came to us, he was beating his wife. I said to him, 'Do you love 
this woman?' He said, 'Yes.' I said, 'Well how come you're beating 
her? You don't love something and beat it up.' And the girl standing 
there is skin and bones. Besides, she's pregnant. 'What are you 
trying to prove?' After that, he didn't know what to say. I might 
have shut him up."

Alexis believes the tongue-lashing had a long-term positive effect. 
"He never came back."

Some of the elders, such as Alexis, are unforgiving when it comes to 
repeat offenders. "I said to Peter, 'I'm not going to talk to a 
person that I already talked to.' He told me, 'You can't give up that 
easy. These people need help.' But I wouldn't want to talk to (an 
offender) more than twice."

Impartiality is a key aspect of justice, and Ayotte made sure to 
teach justice committee members that if they couldn't be impartial 
regarding a particular case -- perhaps involving a friend or relative 
- -- they had to disqualify themselves from working on it. Chief Judge 
Walter says this instruction from Ayotte has been crucial in avoiding problems.

"Without that, you bet your life it would be a very big problem."

Another task for the committee is to recommend a sentence, in 
writing, to Ayotte. At first, committee members were reluctant to do 
this because they were miffed their recommendation could be 
overturned by Ayotte or another judge.

Ayotte told the committee there was no way around this, that he had 
to have the final say. But he added: "It's your chance to have an 
input and I wouldn't be going through this if I was going to ignore 
what you told me all the time."

When Ayotte knows a jail term is in order on an extremely serious 
case, he doesn't seek input from the justice committee. "If there is 
a really bad case with serious bodily harm, it doesn't matter what 
the justice committee says, the guy is going to jail. They understand that."

The justice committee itself has decided to take on no more sexual 
assault cases, after struggling with one in which the offender's 
mindset perplexed them, Evelyn Potts says. "We don't have the 
training to deal with sexual assault."

The second major aspect of the Alexis program is the judicial review 
of offenders on probation. No longer did offenders on probation 
report only to their parole officer. Instead, they had to keep in 
contact with the justice committee and appear in court, usually every 
few months, to check in with the judge.

If the offender wasn't following the requirements of his probation 
order and was back to drinking and causing trouble, the offender 
could be charged with breach of probation. Sometimes just laying the 
charge would get an offender back on track.

"We're the hammer," Ayotte says of himself and his fellow judges. "If 
the accused is not responding and is trying to use the system, we 
respond. There's no delay. A breach charge is laid, and you're gone 
(to jail). Sometimes just for 30 days, which will be enough to wake 
up some guys. But sometimes, if you think the guy will never wake up, 
that sentence will be a lot longer than 30 days."

On a recent day in the Alexis court, a handful of offenders came 
before Ayotte's colleague, Judge Hugh Fuller, for their judicial 
reviews. Fuller found most of them were doing well, in particular 
27-year-old Jonathan Letendre.

"If you were in grade school, you'd get a gold star," Fuller told 
Letendre. "You are doing excellent work."

Afterwards, Letendre said he preferred the new Alexis court system 
because it wasn't as harsh as off-reserve courts. His offence was an 
assault on his wife, he said. At a drinking party, she had pinched 
him, so he bit her in return.

He was thinking of fighting the charge, he said, because all the 
witnesses were drunk and his lawyer thought Letendre could beat it. 
But he decided he didn't want to lie in court about the incident, 
especially when he knew he would get a fair hearing and good advice 
from the justice committee.

Committee members impressed upon Letendre the importance of honesty, 
trust, forgiveness and love. "If you live your life by those four 
things, you would be on a smooth road," he now says.

Letendre has been sober for more than a year. He and his wife are 
together, he says, and she's pleased with how things are turning out. 
"I know she's proud of me. There's a lot of young men who wouldn't 
have owned up to the charge and been honest with themselves."

Ayotte, Bradley, Paul and Fuller have started to do judicial parole 
reviews in white communities as well. But not all of their colleagues 
approve of the work at Alexis.

"What the hell are you doing?" Bradley recalls one colleague asking 
him. "You guys aren't psychiatrists, or sociologists, or social 
workers, or probation officers. You are judges. This is not your job."

But Ayotte stuck to his position. "My argument is, 'Yeah, we are 
social workers. That's the whole point. Aren't we trying to protect 
the public by stopping these people from committing crimes, and this 
is part of it?' "

The key to the success of the program, Ayotte says, has been the 
dedication of the elders. At first, their work was strictly 
voluntary. They now get an honorarium of $50 per meeting. "We work 
them to death," Ayotte says.

Walter would like to see more money going for support services for 
the program. "Even though it is done at bargain-basement prices and 
cost, we have to look at getting a few more resources for it to keep moving."

As the program became established, it appeared to Ayotte, Bradley and 
the justice committee that it was succeeding. They heard of numerous 
success stories and saw there were fewer cases coming before them at Alexis.

In one review of their work, they looked at 64 cases, and found 34 
per cent of the offenders had cleaned up their act, 51 per cent had 
taken a few positive steps but still needed work, and 15 per cent 
were still on the wrong path. As Ayotte puts it: "We've had some 
spectacular failures and some spectacular successes."

The success of the Alexis program was confirmed in a July 2003 
provincial government report done by independent researchers Barbara 
Allen and BIM Larsson & Associates. "It is concluded that the Alexis 
Restorative Justice Model is successful. ... However, evidence of the 
success of this model is not readily available and the skeptics 
continue to question the process until they work within the community."

Some people on the reserve told Allen and Larsson that the system was 
too lenient. The critics wanted more people sent to jail. But, 
overall, the justice program worked as a deterrent, Allen and Larsson 
reported, because of a combination of compassion and guidance, which 
helped offenders break out of old criminal patterns. Offenders now 
understood how the court worked, viewed the justice system with more 
respect and felt their punishment was fair. For the first time, 
having admitted their wrongs to their own community, many offenders 
felt an onus on themselves to change.

Evelyn Potts has heard the "too lenient" critique from others on the reserve.

"They said, 'This committee, they let people get away.' Peter told us 
not to pay attention to it, that we're here to help our people. If 
(the critics) want to know what is happening, they can come and join 
in, rather than just sit there in the bush and talk."

The committee workload has been tiring, Evelyn says, but the success 
of the program has convinced her to stick with it, even after her 
husband, Thomas, died in January 2000. "It's up to us to straighten 
out our people, and some of us have to help. It is working. That's 
why I'm still here."

Ayotte also takes issue with the notion the Alexis system is too lenient.

"Judges and politicians fool themselves all the time. We talk about 
deterrence, that jail is a deterrent. But you know what? Jail is a 
deterrent to you and to me, because we have things to lose if we go to jail.

"Most of the people involved in the justice system have nothing to 
lose. They've got no property. They've got nothing. So jail is not a 
deterrent. But start giving them a life, and a reason to do things 
differently, then they have something to lose.

"I don't think we're soft on crime. ... If a guy doesn't commit a 
crime again, we're fighting crime."

For Ayotte, the surest sign the program is working comes from those 
at Alexis who used to have mistrust and animosity towards white justice.

"When I first met with this group, they wanted their own justice 
system. Now they don't. It is their court now."

For everyone involved, the best days are when an offender finishes 
his or her probation, and appears for their last review in court. 
Bradley started a practice where the judge and everyone else in court 
stands up out of respect for the offender's achievement.

At these final judicial reviews of probation, Ayotte and Bradley 
often hear from offenders that the Alexis program has made a 
tremendous difference in their lives. And those comments make a 
difference to the judges.

"They really make it worthwhile," Bradley says.
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