Just another "bad" Indian?

Christopher Pauchay, the Saskatchewan man who left his two young children to freeze to death on a native reserve in 2008, begins a three-year penitentiary term this month. That makes him a “criminal” under Canadian law, subject to all the sanctions that come with this label. But to a small group of people close to him, and to a growing number of Canadians who believe in restorative justice, Pauchay is less a criminal than a victim—a man in need of healing, not hard time.

Prison, they believe, may only criminalize Pauchay further. And a prison term won’t do anything to repair the physical and emotional scars that his homicidal carelessness left on the Yellow Quill First Nation. That healing work will have to wait at least until Pauchay is released. "How,” asked elder Howard Walker, “can we begin a community healing if we are apart from one another – if he's not here with us?"

A select group of two dozen neighbors—in a sense, a jury of Pauchay’s peers—believed in their hearts that they had a a better, more remedial alternative to prison. They were turned away because, some critics say, our justice system is myopic when it comes to aboriginal culture. We are fixated on punishment rather than restoring.

This is not an easy position to advance. What Pauchay did on the weekend of Jan. 27, 2008, was repugnant on so many levels. After an evening of heavy drinking, Pauchay, the only parent at home, carried his two young children—Kaydance, 3, and Santana, 1—outside in freezing winter weather. We still don’t know why. The children were dressed only in shirts and diapers.

Pauchay says he remembers nothing else. He was found incoherent and nearly frozen to death on a neighbor’s doorstep. Early afternoon the next day, from his hospital bed, he asked about his daughters. A few hours later, searchers found Santana’s body in the snow. They found Kaydance 16 hours later, also frozen.

Pauchay is an alcoholic. He has 51 prior criminal convictions. Before sentencing him, Provincial Court Judge Robin Morgan said the accused lacked “insight” into the reasons for his anti-social behavior. He is clearly not a model citizen. And he’s not wise to the ways of the non-aboriginal world. He told the judge that even though he was in a drunken stupor when he lost his children in the -50C degree night, their death was an “accident.” And he compounded the mistake by telling the judge that “jail isn’t the place for me.”

These statements may not be “insightful,” to a judge’s ear, but they are very likely true. Nobody doubted that Pauchay loved his kids and that he had absolutely no intention of harming them. And prison probably won’t cure his addictions. (Addiction programs in prison are voluntary.) But under our justice system, Pauchay’s kind of truth-telling didn’t help his cause. Judges and juries would rather hear remorse and some earnest self-recrimination. We like to believe that even addicts make free choices between right and wrong, for which they must be held accountable. But Pauchay didn't buy into that, and it cost him.

In the end, with everything stacked against him, and facing a malevolent white population, Pauchay considered himself lucky to get three years. He could have gotten seven.

Some say he shouldn’t have gotten a day.

Simon Fraser University Criminologist Liz Elliott told me the three-year sentence was counter-productive and short-sighted, catering to a “macho politics of longer, tougher stiffer sentences.” (Disclosure: Neither Elliott or I attended Pauchay’s trial, or the sentencing.)

In a kinder, more compassionate universe, Pauchay would have been handed over to his neighbors, as they requested. He would have undergone treatment under their care, and been required to work with tribal elders to counsel young natives tempted by drugs and alcohol.

That was the recommendation of a Yellow Quill sentencing circle—a form of restorative justice in which friends, family and tribal elders come together to help “heal” one of their own. After all, Pauchay was a product of a seriously troubled community, riven by unemployment, alcoholism, and a host of other problems.

So the people of Yellow Quill suggested a life sentence of healing and counselling, under their watchful eyes. Pauchay, they said, had already been punished enough. In the words of Yellow Quill Chief Larry Cashene: “The moment Christopher woke up (after his children’s death) was the moment he started his sentence.”

They spoke of forgiveness, rather than punishment. The judge thanked them. And he sent Pauchay to prison anyway.

“It was a slap in the face,” George Peequaquat, one of Christopher’s neighbors, said of the three-year sentence. “They said, we’re going to let you go through the motions, but we’ve already made our decision.”

The Yellow Quill natives, and Pauchay’s lawyer, Ron Piche, have to choose their words carefully. Judges in Canada don’t take kindly to criticism. But the general feeling is that Pauchay was condemned as much by the force of popular feeling among the non-aboriginal community, as by his negligence.

Even before the trial started, Provincial Justice Minister Don Morgan told the Saskatchewan legislature that it would be “highly troubling” if someone with Pauchay’s record received anything less than a prison term.

With that kind of political interjection, it’s hardly surprising that the feeling among Saskatchewan’s non-aboriginal community took on a vigilante tone. The CBC website received more than 800 comments about the story of his sentencing, many of them of the “throw-away-the-key” variety. Some of the comments were borderline lynch-mob.
(http://www.cbc.ca/canada/saskatchewan/story/2009/03/06/sk-pauchay-sentence.html)
Canadians, it seems, are fiercely wedded to their concepts of retributive justice. “No more chances,” was one typical remark. “Protect the rest of us from him.”

But some commentators watching the news from a distance took a different line. In Carcross, Yukon, Harold Gatensby, a long-time proponent of aboriginal justice, labelled the judge’s decision an act of “interference.”

“The struggles going on in the native community that were generated by the Queen’s Law, will not be fixed by it,” he told me. “The community will (fix the struggles.) These are our children, not the government’s.”

In an email, the criminologist Liz Elliott said a prison sentence may provide immediate public gratification. But what happens down the road? “When Christopher Pauchay is released from prison," she said, " with all of the new problems he will have to contend with, it is highly unlikely that anyone from the court will be there to help him and the Yellow Quill community with his reintegration, or with the obvious meaningful changes that need to occur for that community to become healthy.”

She said the annual cost of $80,000 to keep Pauchay behind bars would be much better spent on alleviating the conditions in native communities like Yellow Quill, a hamlet of 120 families who live in conditions that you find in some Third World countries.

THE GET-TOUGH FALLACY

Critics of our existing justice system say that the people demanding longer, harsher sentences are ignoring an important fact: Tough justice doesn’t make for safer communities. Even a two-time Commissioner of Correctional Services, Ole Ingstrup. admitted that the deterrent value of more and longer prison sentences was almost non-existent. Ingstrup retired in 2000, criticized for his “liberal” views regarding incarceration and his embrace of the idea of restorative justice.

Nevertheless, we as a society remain locked in the belief that the answer to reducing crime is to throw more people behind bars for longer periods. In Saskatchewan, natives make up a tenth of the general population, but more than two-thirds of the prison population. That’s a shocking statistic—it says as much about the failure of “white” justice as it does about aboriginal criminality. And more than half of those inmates go back into prison within four years of their release. We are creating an entire criminalized culture.

In his book American Furies, journalist Sasha Abramsky focuses on the US penal system, but some of his most damning conclusions apply equally well to Canada. “Can a country’s democratic institutions survive,” he asks, “when the primary emotion underlying so much of its social policy . . . is revenge?”

Other critics of the justice system say that by advocating tougher sentences, we are worshipping at the “church of payback” with little concern about how the conditions in our institutions affect inmates.

The French philosopher, Michel Foucault, author of Discipline and Punish: The Birth of a Prison, said the state needs prisons because it’s the best way “to insert the power to punish more deeply into the social body.” Prisons are places where the “civil servants of moral orthopedics” can better perform “experiments” on men and women. Their inability to rehabilitate doesn’t matter. The prisons are monuments to the state’s monopoly on power, warehouses of human failure, and even though they don’t “help” inmates, they help us, the grateful voters, to sleep a little easier, at least for a while. Says Liz Elliott: “Punishment is for everybody else.”

THE HISTORY OF CIRCLES

Sentencing circles aren’t that new. In fact, they’ve been a part of Canadian law since 1996. That’s when the government began funding the circles as part of an Aboriginal Justice Strategy. And that’s when the Supreme Court of Canada spoke positively about the “notions of community-based sanction and restorative justice.”

Other voices echoed that sentiment. The Law Commission of Canada, for one, took aboriginal culture into consideration when it acknowledged in 1999 that under the existing Criminal Code “crime is objectified and abstracted from the social context in which it took place.” In other words, crime is of the community, and may be dealt with in and by the community.

Indeed, preferential sentencing is in the Criminal Code. Section 718.2(e) says that "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders."

And Judge Barry Stuart, a vocal proponent of aboriginal-sensitive justice who has conducted hundreds of sentencing circles, said that circle sentencing and other community justice processes “do spectacularly better than formal justice agencies.”

So why, then, are native Canadians like Pauchay, so needing of restorative help, still thrown into prison? Because judges still have the final word of punishment, because paternalism is still entrenched in law, as it is in most of the institutions that touch on aboriginal life.

Rupert Ross is an Ontario prosecutor who has made a life study of the aboriginal way of justice. In his highly-regarded book Returning to the Teachings, Ross says we do an injustice to law-breakers, native or otherwise, when he deal with them strictly as “offenders.”

Ross argues from the perspective of 21 years of court duty in the remote First Nations of northwestern Ontario. There he found social traumatization that was so severe, and so pervasive, that he came to believe that the criminal justice system as we know it may actually be an obstacle to community healing. He blames the legacy of the residential schools and other forms of colonization for the alcoholism, violence and sexual abuse in native communities. He won't comment on the Pauchay case, but he believes that the corrosive effect of colonization is transmitted through generations. (Or as Murray Ironchild expressed it: "We didn't commit a sin, but it was passed through us . . . by the priests and the Indian agents.")

“I don’t know how to lock up and torture only the ‘offender-parts’ of people,” Ross writes, “while comforting the hurt parts, teaching the curious parts, nourishing the starved parts, unearthing the hidden parts, emboldening the cautious parts, and inspiring the dreaming parts.

“I worry that whatever I do to the offender-part will make it harder still to touch and encourage all the others, much less restore balances between them.”

Balancing all the parts of Christopher Pauchay, the damaged parts and those still intact, will require a mix of compassion, firmness, continuity, trust and love.

Those are things he won’t find in the nation’s prisons. But he may find them in his community. As a nation, we’ve already taken the first tentative steps towards a system of justice that meets aboriginal needs, a system that’s humane enough to see that Pauchay is a victim, as much as wrong-doer. Why undermine those strategies now?