Justice system or 'just-us' system

Page 5

Birke Stonefish held a copy of the August Windspeaker up against the glass in the visitors' cubicle at the Edmonton Remand Centre. The front-page story about the sentence imposed on Ontario Provincial Police Acting-Sgt. Kenneth Deane was dotted with marks made by a yellow highlighter, each mark represented a section that outraged the Aboriginal prisoner.

"Is this justice?" he asked.

That's a question that was asked by Aboriginal people all across the country when Judge Hugh Fraser pronounced sentence on July 3.

Deane was sentenced to serve 180 hours of community service after he was convicted of criminal negligence causing the death of Chippewa land claim activist Dudley George. The provincial police officer shot and killed the Aboriginal man during a confrontation at Ipperwash Provincial Park, near Sarnia, Ont., in 1995. When he handed down the conviction, the judge ruled that Deane and several of his fellow officers lied to police and civilian investigators and then lied to the court in an attempt to escape punishment. Deane is still working for the OPP and is appealing the conviction. The Crown prosecutor has appealed the sentence, saying it is too light.

Stonefish, 45, was serving 'dead time' in the Edmonton correctional facility when he read the details of Deane's sentence. He was awaiting a chance to appeal his own convictions on charges of possession of a handgun and assault with a weapon. In June, a Court of Queen's Bench judge handed him an 18 month sentence, despite letters written to the judge on his behalf by several influential people in the reserve community where he had taken up residence. They all explained that Stonefish was performing a vital service to the community by teaching young people how to avoid living lives like his. Because the charges of which he was convicted involved the use of a firearm, the law requires that he serve at least half of the original sentence. If he cannot successfully appeal, he will spend close to a year in jail.

He was so angered when he read the news story because, unlike Deane, Stonefish isn't allowed to remain free to continue working and living among his friends and loved ones despite the fact that he has finally found his place in society and is doing important work. That makes him wonder, he said, because unlike Deane, Stonefish isn't a convicted killer.

The Aboriginal prisoner can't help but wonder if his race has anything to do with the fact that he's in jail for merely pointing an unloaded gun while a non-Aboriginal police officer who killed a man is walking around free.

End of the beginning:

In April 1995, Birke Stonefish was drinking in the bar at the Klondike Hotel in west Edmonton. Another man in the bar was upset by the attention a woman was paying to him. That other man, much bigger and heavier than Stonefish, told him they were going to fight. They went into the washroom where Stonefish pointed a revolver at his adversary.

"We were both really drunk. He was so much bigger than me I knew he was going to beat the hell out of me," he recalled. "I was scared and I had this gun somebody gave me. But it was unloaded. I never did ever own any bullets for it."

The gun scared off the other man and Stonefish was able to return to his table in the bar. Shortly after, the police arrived and placed him under arrest.

For the next eight months he sat in the city's remand centre, pondering his wasted life and the recent discovery that he had throat cancer. Things looked bad. His doctors told him the only treatment for his condition was the surgical removal of his voice box. When he made bail on Dec. 17, 1995 he headed to the Swan River First Nation, a couple of hours north of the Alberta capital.

There he experienced a re-birth. If he'd become a born-again Christian, he believes, the judge might have considered the many letters that influential people wrote on his behalf. Instead, it was his Native culture and traditions that he re-discovered. He believs that culture wasn't accorded the same kind of respect.

Stonefish admits he wasted most of his first 40 years, wandering lost in an alcoholic haze. He admits that he has a lengthy criminal record that grew out of his troubles with the bottle. He'd managed to maintain sobriety for almost a year before his cancer was discovered in the autumn of 1994. That shock brought on another bout of drinking and that led him to the Klondike Hotel that night.

In early 1996, after making bail on the assault with a weapon charge, Stonefish looked deeply within himself. He was quite sick and looking death in the face. He skipped a court date because he didn't want to die in jail.

"I've wasted half my life with this jail game," he said. "I was lost. What saved me was I found my culture."

Ironically, the supposedly terminal illness he was forced to deal with was the spark that turned Stonefish's life around.

"I sought the aid and support of Native Elders and medicine people for a cure for my cancer,' he said. "This is the time when I became fully involved in re-discovering my Native roots, culture and spirituality. I found something to run to instead of something to run from."

In January 1997, Stonefish travelled to meet a teacher and medicine man from South Dakota who was visiting Saskatchewan. He said that after two days of taking traditional herbs and medicines and several sweat lodge ceremonies with the medicine man, his cancer disappeared.

Skeptics at this point might think that this is all just another con's story to gain sympathy and avoid punishment. Stonefish knows that. All he can say is that the same doctors who diagnosed his illness now tell him it's gone.

As he regained his strength, he continued to search for knowledge about his heritage. Eventually, he passed on some of what he had learned and, to his surprise, found that young people were willing to listen to him. Local officials noticed the impact he was having on the young people in the community and offeredhim a job as a counsellor at the youth centre.

Even as he savored his new role in life he was haunted by the awareness that he was a fugitive from the law because of that missed court date. One day last spring his vehicle became stuck and a forestry officer helped him. The officer also ran a check on his license plate and discovered the outstanding arrest warrant. He was arrested shortly afterwards.

Still welcome

The people of Swan River First Nation were quick to come to his assistance after his arrest.

"Birke practices his Native culture and makes himself available to our members for counselling and traditional Native spiritual ceremonies," Swan River Chief Dustin Twin wrote in a letter that was submitted to the court before sentencing. "It would be detrimental to the Swan River First Nation members if Birke is unable to continue counselling or sharing his knowledge, especially with the children and youth in our community."

"Every First Nation should have a person such as Birke to teach their band members, especially the youths, the ways of our ancestors," wrote band councillor Charlie Chalifoux. "His knowledge and willingness to share his wisdom will allow First Nations people to continue and take pride in their Native heritage."

"He has held traditional sweats which he has openly invited all members of the community to attend," wrote senior band official Hughie Chalifoux. "This has proven to be a spiritual revival for the Swan River First Nation community.

"Birke's situation has obviously stemmed from troubles of his past. This situation is not to be taken lightheartedly," he added. "But we intend to invite Birke back to our community despite the outcome."

Stonefish is touched by the support. He appears most concerned that serving close to a year in jail means he won't be there for any young person in trouble.

"I'm not saying I'm innocent," he said. "I'm guilty of pointing that gun but I've found my place in society. In this community and in surroundingreserves I'm a very well-respected man."

He said he'd like to have the benefit of the kind of conditional sentence that allowed Deane to stay out of jail.

Step system

Alberta judges, like those in most jurisdictions in Canada, use the step system when imposing sentences. It's not complicated: the longer your record, the harsher the sentence you will receive.

Birke Stonefish had compiled a long list of charges and convictions during his years of drinking. That plus his use of a handgun meant he was going to get some serious time when he answered the charges.

He feels his lawyer and the judge didn't take the time to read over the letters from the band council members and others.

After a lifetime of living on the street, dealing with police and the courts, he feels that Aboriginal people are just thrown into the meat grinder and chewed up with little regard for their culture or the cultural displacement that many have experienced.

Reading about the Ontario police officer's conditional sentence prompted him to appeal his sentence, but he's running into difficulty. He wanted to obtain a legal aid lawyer to prepare his defence but legal aid turned him down. He managed to file a notice of appeal by himself and that is scheduled to be heard in October. He has also appealed legal aid's decision to not provide him with the money for a lawyer for that appeal.

"This criminal justice system is theoretically based on moral truth and justice for all," he said. "Unfortunately, this is not true for poor Native people who are all stereotyped as lazy, stupid, drunken Indians with no place in the mainstream of society."

His experience behind bars suggests to him that rehabilitation is not a priority for those who work in the correctional system.

"Penal institutions across Canada have become systematic thriving monetary businesses employing thousands of people," he said. "This system is geared to punish, humiliate and degrade a person just so thousands of people can collect