Inmate gets to keep bundle

Page 1

When inmate Phillip Bearshirt was transferred to the Edmonton Remand Centre he was denied the right to keep his prayer bundle. Unhappy about what he considered an infringement of his rights, he took the matter to court.

Following a two and on-one- hour appearance on January 20 before Provincial Court Judge J.B. Dea, a favourable ruling was handed down. It is the first known case of its kind in any Alberta court and could, therefore, set precedent for future cases, should they arise.

Bearshirt was represented by Calgary lawyer Karen Gainer, who told "Windspeaker" that she is also handling another case in which Bearshirt is lodging a lawsuit against the police and the Remand Centre for an alleged beating in Calgary.

In arguing Bearshirt's right to possess his prayer bundle, Gainer pointed to the fact that he had been allowed to have it while he was held at the Edmonton Institution, which is maximum security. She further explained that Bearshirt is an Indian "following his religion" and that "the bundle contains sacred items..all of which he uses to pray with...on a daily basis."

To strengthen her client's case, Gainer mentioned that Gary Neault, Bearshirt's spiritual advisor, maintains that "these bundles have been allowed to be held by Natives in prison."

The crown, represented by Gary McCuaig, objected to Bearshirt's application to possess the bundle on the basis that "some items might pose a security risk" - a necklace with elk teeth and pieces of cloth, the latter being an item that could be used as an instrument for choking someone.

In presenting Bearshirt's case, Gainer called upon Neault as a witness with certain expertise in matters of Native religion and spirituality.

Neault impressed upon the court that the items which constitute the bundle "are only to be used by that person...are like his bible...and not a threat to anyone other than misunderstanding or lack of knowledge." He also testified that "anger is not a part of this bundle, violence is not a part of this bundle...there's nothing in her that has anything offensive...it is very sacred. To offend the bundle through misuse of its intended purpose would cause suffering to him or his family, said Neault.

On behalf of the Crown, McCuaid called Larry Badger, a Native corrections officer, to the stand and asked "are there any items you have concern about?"

Badger replied that the pieces of cloth and leather thongs used as hair ties could pose a security risk, as could a necklace that might be used as a "knuckle duster."

The thrust of the Crown was mainly that certain objects of the bundle could be used as weapons against other inmates, correctional staff of even the inmate (Bearshirt) himself. McCuaig added that such a potential existed in light of the fact that Bearshirt has a past history of violence and assault charges.

When called to the stand to give testimony, Bearshirt stated that he was on a spiritual fast "because part of me has been taken away from me. I'm willing to die for

it (the bundle)."

In summing up the case for Bearshirt, Gainer stressed that:

1. her client had been allowed to have his bundle in both Calgary and Edmonton Institutions.

2. her client was not asking for anything new or different;

3. there is no evidence as to why he should not have his bundle other than speculation,

4. that "bundles" have been in institutions for 15 years and there is no evidence of misuse,

5. there is no evidence of Bearshirt's religiousness, and

6. that disallowing the bundle is contrary to the Canadian Charter of Rights and Freedoms.

McCuaig, in his summation for the Crown, argued that sometimes rights are subject to other people's rights. In other words, Bearshirt's rights were of a lesser priority for security reasons. He further alluded to Bearshirt's past history of violence and assault, but even this line of talk was shut down when the judge asked, "couldn't his shirt be used as a weapon?"

In the final analysis, Judge Dea ruledin favour of Bearshirt's application to keep his bundle. Dea said that any situation which "deprives Bearshirt of his bundle offends his rights."

In accordance with the Charter, Sections 2A and 27 guarantee individuals religious and cultural freedoms. Section 27, for example, states that "this charger shall be interpreted in a manner consistent with the preservation and enhancement of the multi-cultural heritage of Canadians."

Dea also made a directive that "no undue difficulties will be encountered by the authorities in allowing Bearshirt to have the bundle."

Bearshirt and Gainer were visibly pleased with the decision rendered by the court. Gainer said the feels "very good" about the outcome and that it would be folly for the Crown to appeal. They would only be working against themselves, she said, because it would give more publicity to like situations, and the initial decision of the court would be difficult to turn around. Both Gainer and Neault expressed their sentiments that the Remand Centre was simply nit-picking and trying to give Bearshirt a hard time.