Court hands out jail sentence

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Two of the three men convicted of defrauding the Saulteaux First Nation of money from its Treaty Land Entitlement (TLE) trust funds will be going to jail after all.

Archie Moccasin and Mervin Night went to trial in the spring of 2005 and were convicted of criminal breach of trust. The two were sentenced to two years less a day to be served in the community and ordered to make restitution. Moccasin was ordered to repay $150,000 and Night $175,000. They were also ordered to perform community service.

The Crown subsequently appealed the sentence handed to the two men, claiming they should have to serve jail time for their crime. The case came before the Saskatchewan Court of Appeal on Jan. 12. The written reasons for the court's decision on the matter were released on Jan. 20, overturning the original sentence and imposing a three-year jail sentence for each of the men.

"The offences committed by the respondents are significant. They betrayed the trust reposed in them and squandered the funds paid to honour important historical obligations and to provide enduring benefits to the Saulteaux First Nation. These circumstances warrant sanctions which clearly denounce the respondents' actions and which will deter similar kinds of illegal behaviour," the judgement, written by Justice R.G. Richards in concurrence with Justices W.J. Vancise and M.A. Gerwing, read.

At the time the money was taken from the TLE trust funds, Moccasin was a trustee of the trust funds and Night was the band councillor responsible for the TLE portfolio. A third person, Gabriel Gopher, who was chief of Saulteaux First Nation at the time the money was taken from the trust funds, was also found guilty and sentenced to two years less a day to be served in the community, but that sentence was not subject to the appeal as Gopher is appealing his conviction.

The original trial found all three men guilty of making a number of illegal payments of TLE trust funds to themselves, their family members and their friends from April 1, 1997 to Dec. 31, 1998. The exact amount of money involved in these payments isn't known, but it's believed the three men received $1 million in TLE trust funds during that time period.

In making its decision, the Court of Appeal ruled the initial sentence was inappropriate for the crime committed and didn't do enough to denounce their conduct or deter others from committing similar crimes.

The ruling also stated that the judge in the original trial put too much emphasis on S. 718.2(e) of the Criminal Code, which requires sentencing judges to consider the circumstances of an Aboriginal offender that may have contributed to their decision to commit the crime and to consider all alternatives, including those that do not include serving time in jail, when sentencing Aboriginal offenders.

"In considering s. 718.2(e), the sentencing judge emphasized that there were other Saulteaux First Nation leaders who had misused government funds and that two other people involved in the TLE regime had been charged with misuse of TLE funds. He saw all this as part of the 'Aboriginal context' within which the offences had occurred and, as a result, concluded he could not judge the respondents in this case by standards applicable in the larger society. As a consequence, he imposed shorter jail terms on the respondents than would have been the case if they had not been Aboriginal," the Court of Appeal ruling states.

The written reasons go on to suggest that the reasoning used by the sentencing judge "tends to create a self-reinforcing spiral through which the presence of criminal activity becomes a factor mitigating against strong sentences to punish that activity" and "runs the risk of perpetuating an unfortunate stereotype and of doing a disservice to Aboriginal people who expect no less of their leaders by way of honesty and fiscal integrity then does anyone else."

Because both Night and Moccasin have already served five moths of their previous sentence under strict house arrest, the amount of prison time each much serve will be reduced by that amount of time, meaning each must serve 31 months in jail.