Alien justice.

William Taylor was given plenty of time to think about what he'd done. The 28-year-old Cree man stood in the Saskatchewan Court of Queen's Bench to learn his fate. He had been convicted of sexually assaulting a 22-year-old woman, a crime that would usually have brought a sentence of at least three years in prison. Instead, Mr. Justice James Milliken banished Mr. Taylor to live alone on a remote island for one year.

The judge was following the recommendation of a Native sentencing circle. Both Mr. Taylor and his victim took part in the traditional gathering that lasted eight hours. In his judgment, Justice Milliken wrote: "The aboriginal community in the Lac La Ronge area clearly feels sentencing their members to jail does not help their members change their ways...I am of the opinion that an attempt should be made to find an alternative to just sending persons to jail."

For 12 months, William Taylor had to maintain himself using traditional Cree methods of hunting, trapping, and fishing. He was not allowed firearms and maintained a safety link by two-way radio to the Lac La Ronge community. Lillian Sanderson, director of the Piwapan Women's Centre, said of Mr. Taylor: "He's accepted [the sentence], and he's trying to be responsible for what he's done." She pointed out that banishment is a traditional method of dealing with offenders in aboriginal communities. It was dropped when the European concept of justice was imposed on Native people.

The Lac La Ronge sentencing circle hopes that what worked for Frank Brown will work for William Taylor. At 14, Frank Brown was convicted of the violent beating and robbery of a bootlegger. In 1978, a judge accepted the wishes of the Heiltsuk First Nation and banished the teenager for eight months. He survived on an uninhabited island and hour's canoe paddle from his home in Bella Bella, on B.C.'s central coast. The wilderness experience changed his life, and Mr. Brown has become a leading member of his community and a major force in rebuilding the Heiltsuk culture. He says that, "The judicial system has no choice but to explore some options, because the system is not working, not just for Native people, but for all peoples in all walks of life."

The European system of justice works against Native people in many ways. At the sharp end of the process is the police officer. Relations between police and Natives are almost universally bad, symbolized by the case of J.J. Harper. In the early hours of a March morning in 1988, Mr. Harper was walking home in Winnipeg. A police officer stopped him and demanded identification. Mr. Harper, who had committed no crime and was under no legal obligation to talk to the constable, refused to cooperate. There was a scuffle and minutes later Mr. Harper was dead with a police bullet in his chest. After a quick investigation and an inquest, the officer was cleared of any wrongdoing. But, there is not a Native person in the land who believes that justice was done in the case of J.J. Harper. A judge who investigated the case noted that Winnipeg's Native people had an "utter distrust" of the city's police.

That lack of trust carries into the court system. In many northern communities, justice is dispensed by a travelling court. Officials fly into the reserve in the morning, deal with an often-overloaded docket of cases and are gone by the supper hour. One judge in Northern Quebec, after hearing 186 cases in a single week, called the travelling court system "a mockery" and "a circus."

Upon conviction for minor offences, most people get a choice -- pay a fine or go to jail. Poverty has sent most Native people to prison because they couldn't afford the fine option. And, poverty hits them a second time when the justice system is finished with them. When they are released from custody after serving their sentence, many Native people are penniless. They cannot afford the airfare to return to their isolated northern reserves. They end up living rough in cities such as Thompson, Manitoba, often committing more crimes in order to survive.

But, there's an even more fundamental conflict between Canada's justice system and the lives of Native people. The European system of justice is based on finding out who is to blame for a crime, and then punishing that person. These ideas are completely foreign to Native traditions. The Native approach was to find a way of bringing the victim and offender together in peace, with the aim of cleansing their spirits and restoring harmony to the community. A strong Native belief was that an offender hurts an entire community, not just an individual victim. As a result, the entire community should be involved in dispensing justice. Offenders soon realize they are in danger of losing their place in the community if they continue to break the law. In Native society, that is the ultimate punishment.

Crown prosecutor Rupert Ross writes about this in his book, Dancing With a Ghost -- Exploring Indian Reality. Entire villages, Mr. Ross reports, including the victim and the accused, might gather to discuss a problem. The emphasis is on what might be done about a problem if it crops up in the future. The details of the actual dispute are not discussed; no blame is fixed and no punishment is handed out. Everybody is free to talk about how to restore the community to a state of harmony if such an incident were to occur. Native justice is most concerned with repairing the community not in punishing an individual. One Native elder quoted by Mr. Ross says of the European system: "We know you have a legal system. We're just not sure you have a justice system."

In recent years, several federal and provincial inquiries have come to the conclusion that the European system doesn't work well for Native people. Most suggest that aboriginal people should be involved in their own criminal justice system.

Today, more and more reserves are gaining full control of policing powers. The Mohawks of Kahnawake, Quebec, and the Louis Bull band in Alberta are just two examples. By late 1994, there were 22 Native-administered police services in Canada.

In 1992, the Ontario Ministry of the Attorney-General set up an aboriginal community council in Toronto. Except for those facing the most serious charges, Natives can be diverted out of the court system. At the community council, the emphasis is on healing rather than punishment. Offenders may be ordered to pay for damaging property. They may be made to do community work with a Native organization. And, they may be required to have counselling and training.

A community council meeting starts with a sweetgrass ceremony and prayers. Natives can speak about their lives in a supportive environment. For most, the healing can't begin until they acknowledge the pain of broken lives. Jackie Jocko-Alton is a member of a community council. "A lot of them will break down as they are telling their story," she says, "as we are asking them questions, especially about their family. They often show emotions that they have been bottling up for a very long time." Native courts also have a more intimate knowledge of the personalities involved in a case. Such a court might decide that the best way to deal with a young offender is to remand him into the custody of an uncle rather than lock him up in a prison. Juveniles might be sent for counselling by elders instead of punishing them by putting them into a cell.

The situation is improving even for those doing time in federal prisons. At the Regina Correctional Centre, among others, Native inmates have been allowed to hold sweetgrass and sweat lodge ceremonies. One prisoner said such traditional healing, "gives me the strength to go on, because there were times when I thought about suicide."

Of course, law and order enthusiasts don't like these approaches. They see them as being soft on criminals and cling to the belief that harsh punishment will make an offender think twice before breaking the law again.

But, it doesn't seem to work that way. Native people in Canada are jailed in shockingly high numbers. Almost 40% of the people in Manitoba's jails in 1991 were Native, yet they represent only 12% of the province's population. Prince Albert, Saskatchewan has three prisons. The federal penitentiary has a population that is half Native. In the provincial correctional centre, 75% of the inmates are Native. And, 85% of the prisoners in the women's jail are Native. Indian or Metis people make up just 10% of Saskatchewan's population. Figures are similar in other provinces.

Obviously, the European system doesn't deter many Native people from committing crimes. Maybe it's time to listen to what the Native elders have been saying and try more sentences like the one handed out to William Taylor.

SUGGESTED ACTIVITIES:

1. In 1988, Chief Louis Stevenson made the following comments to the Manitoba Aboriginal Justice Inquiry. "The offender is not born in the Indian -- the Indian is born into a system which offends. In a free and democratic society, this system has to be 'just' for everyone. It was 'just' for the probation officers, because it gave them a livelihood. It was 'just' for the police officers because it gave them a sense of duty to lock up Indian people. It was 'just' for officers of the Crown, so they would close their files after another Indian was incarcerated. It was 'just' for the personnel of the jails...The justice system thrives in this country, and the commodity that provides the fuel is Indian people." Discuss these statements.

2. Indian justice may differ from that laid down in our Criminal Code. Elders, for example, might sentence a wife beater to banishment. Apart from observing Canada's Charter of Rights and Freedoms, would you put any limits on Native justice? Suggest possible examples of tribal justice and discuss.

3. In Davis Inlet, Labrador, five children died in a house fire while their parents were out drinking. The Canadian justice system seeks to punish the parents for their failure to provide proper care. The Innu say a prison term would serve no purpose, they say the incident is a social problem which the whole community must address, Discuss these conflicting views.

RELATED ARTICLE FACT FILE:

Crees are taught that it is impolite to look someone directly in the eye, but white police officers regard such behaviour as an indication of guilt.