R v Pelletier: One day spent in prison is one day too many.

It was my birthday weekend and I moved to London, Ontario about a year earlier. It was my twenty-second birthday. The only reason I remember this because in the year prior (my twenty-first birthday) I was in Windsor, Ontario and I planned to visit Detroit, Michigan. Instead of celebrating in Detroit, I was homesick, calling home after a shift at one of the Windsor strip clubs. Before coming to Windsor, I moved to London, Ontario when I was twenty years old, with no family and no friends. I thought I would call Windsor home but after my time spent in Windsor, I decided to come back to London. I stayed in London, Ontario for approximately seven years.

But that weekend, on my twenty-second birthday, I was out on bail and I just finished working another shift at one of the London strip clubs. I was out on bail for some hefty offences. My lawyer, at the time, knew well enough that it would be difficult for me to abide by my conditions to not be around alcohol or in establishments that served alcohol—I worked in a place that served alcohol and by just being in my place of employment, I would could be in violation of my bail conditions. My lawyer did not know that I also struggled with drugs. I used a lot of cocaine. Among those other conditions, I had to refrain from using drugs and I had to return straight home if I was not working, especially if it was after a late shift.

Yet, on that evening of my birthday, I was alone and I was not allowed to be around one of the very people who I wanted to see—my then-boyfriend. I was also not allowed to return home; I had to stay in London, Ontario. I felt very alone and scared. Who could I turn to but the very person who initially called the police on me, after throwing me out of his condominium complex in nothing but a t-shirt (the police also kept me in a jail cell half naked while they watched on their closed-circuit televisions)?[1] So, I called him, that person I was not supposed to be around.

The next memory I have is being dragged into the local police service station. Literally, I was dragged by four police officers—one for each limb. I was very intoxicated. I had done drugs but those effects had worn off. I possibly still had drugs in my possession. After being arrested for violating bail conditions and the police tacking on more offences, I spent the a few days in the local detention centre on 24-hour suicide watch, a detention centre that is known for its inhumane conditions on the male-side of detention centre (much of the media remains silent on the female-side of the detention centre but this silence does not mean that the women have it better because they don’t). After receiving bail and after pleading guilty for violating bail conditions, my lawyer argued (to some extent) that I had served my time—I was alone, away from family, unable to return home and wanted to return home.

*****

Last night, I sat on a greyhound bus returning home from a workshop that I facilitated on decolonizing public legal education and discussing a project I started with two friends I met while in law school (www.btllaw21.com). When I saw the tweet about R v Pelletier and the discussion of humanity within the decision, I cringed.

At the beginning of that workshop, I asked participants to engage in a discussion about home, what home means to them, and how concepts of home erase Indigenous people from stories. The participants talked about actual erasure of Indigenous folks’ homes, destruction of Indigenous people’s territories, separation of Indigenous people’s from their homes or territories and displacement through creation of jurisdiction (i.e., creation of Canada and all of its colonial borders).

Justice Nakasturu’s sentencing decision allegedly represents “sending [Ms. Pelletier] home.”[2] For one day. Like me, Josephine had violated her bail conditions and had history of being violent[3]. In giving her one day, Justice Nakasturu relies on the Gladue sentencing principles.

Often when people talk about the sentencing decisions of Indigenous persons, they rarely talk about the fact that the very problem with the Gladue sentencing principles address the over-incarceration until after these people are in the system. Let’s keep writing those reports to address the over-incarceration of Indigenous people without addressing the very fallacy of the reports, right? I have previously written about Justice Nakatsuru’s decisions (R v Armitage) and made much of these similar comments.

The concern I have with this decision is the suggestion that it could be a potential model for the future. My hope for the future, oddly, is that we do not rely on the criminal justice system to address the over-incarceration of Indigenous persons.

When I first read the decision last night, I struggled to fight back the tears on the bus. I saw so many similarities in my own story, especially the reference to drug use, violent offences, and being forced to attend counselling taught by someone who was not a “good fit” (i.e., culturally or spiritually) and being in a new territory, of course, there would be instances of not finding a good fit in culturally relevant counselling as a form of sentencing—being displaced and being forced to move from your original home, nation, or territory is the essence of colonialism and part of Indigenous folks’ lived realities. Further, in an article addressing culturally relevant programs in prisons and Indigenous women in prisons, David Millward argues that Indigenous women are reluctant to participate in culturally irrelevant programming and suffer in terms of receiving higher security classifications (a security classification is a classification of prisoner: minimum-, medium- or maximum-security classification[4]).[5]  On culturally irrelevant programming, Justice Nakatsuru writes,

We do not live in a world of unlimited resources to help you.  Some program rules may be frustrating.  Even though good meaning people may want to help, nothing is perfect. For instance, I agree with you that as a Cree woman, being given an Ojibway Elder was not a good fit.  Even though you respected his teachings and spirituality. It did not work for you.

We do live in a world, however, that seems to have an unlimited number of resources (i.e., money and other resources) flowing into incarcerating folks, segregating folks away from their homes, their families, their cultures. It is quite confusing that a system says we have problem with sending Indigenous folks to prison but at the same time forces these same persons to engage in culturally irrelevant programming once sentenced or forces these same persons to only have access to cultural programing once sentenced and ignoring its relevancy to that person once sentenced (See my discussion on this second point in R v Armitage).

We also live in a world that relies on a system of incarceration to address the problems with incarceration. In Ms. Pelletier’s instance and many others like her—including my own experiences—one day spent in prison is one day too many.

We also live in a world where we uphold this system as the only possible response to crime in our communities and it is this system that continues to take notice of the over-incarceration of Indigenous folks but leaves this truth unquestioned. In other words, the system says Indigenous persons can access these supports once you plead guilty, once you are inside, and if you don’t accept the conditions upon which the supports are provided (i.e., culturally irrelevancy/relevancy), then those same persons must accept the consequences—more likely than not, increased incarceration or increased security classification.

You may call all of this a conundrum but it is the logic of the system. This is what happens when you deal with the over-incarceration of Indigenous persons, especially Indigenous women, in a system of incarceration and only during incarceration (aka sentencing).

My hope for the future is our communities, including the criminal justice community, will look deeply inward and reflect on how it perpetuates the very problems it says it seeks to resolve, including the over-incarceration of Indigenous folks. More importantly, however, my hope for the future is when I do not have to read my own story in sentencing decisions and when I do not have to read how another justice takes notice of the over-incarceration of Indigenous folks but leaves the very foundation of the system of incarceration undisputed.

One day…

 

[1] I have previously written about this experience, “I was honest with ­police about my work and the fact that I ­sometimes did drugs. I didn’t think I’d be charged with assault.”

[2] http://canlii.ca/t/gvb4b#par29

[3] http://canlii.ca/t/gvb4b#par6

[4] Corrections and Conditional Release Regulations, SOR/92-620, s 18(a)-(c) [CCRR].

[5] Milward, “Sweating It Out: Facilitating Corrections and Parole in Canada through Aboriginal Spiritual Healing” (2011) 29 Windsor YB Access to Just 27 [Milward, “Aboriginal Healing”] at 36.

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