The request for a sentencing circle by two Saskatoon police officers convicted of dropping a Native man off on the city's outskirts on a frigid winter's night was harshly rejected by a provincial court judge on Dec. 3.
Four days after making that determination, Mr. Justice Schiebel rejected the officers' application for a conditional sentence and imposed an eight-month jail term on both men.
In the Dec. 7 sentencing decision, the judge stated that sentencing guidelines required him to take note of any aggravating factors that might call for a sentence closer to the maximum.
"There is no doubt there are strong suspicions that race played a part in this offence. However, suspicion is not evidence and since the Crown has failed to prove beyond a reasonable doubt that race played a role, I am unable to consider whether or not race was an aggravating circumstance," he wrote. "Therefore under Section 718.2 [of the Criminal Code] the only aggravating circumstance that can be considered by the court is 'evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim.'"
The judge then ruled that it was clear to him that the officers had "abused their position of trust to a high degree."
"The actions of the accused are so reprehensible that the court must denounce the unlawful conduct in the strongest terms," he added.
Dan Hatchen, 40, and Ken Munson, 44, convicted of taking Darrell Night on what has become known as a starlight cruise, claimed they should be allowed access to a sentencing circle rather than be given a conventional sentence for their criminal convictions.
In his ruling, the judge noted that the established legal criteria for the granting of a sentencing circle includes the requirements that the accused accept responsibility, that all disputed issues be resolved prior to the circle and that the victim agrees to participate.
"[The judge] ruled in answer to these individuals', these common criminals' application for a sentencing or a healing circle, on Dec. 3 that a sentencing circle was inappropriate in this particular instance and as such he was not prepared to order one," Donald Worme, Night's lawyer, told Windspeaker.
Worme said Justice Schiebel described the application as "confused and ironic" given that the defendants had applied for a change of venue early in the proceeding, then pled not guilty and conducted what Worme called a tough, aggressive, difficult defence.
"Difficult as far as the victim was concerned, attacking him, calling him everything from a belligerent drunk to a welfare recipient to a racist," Worme explained.
The lawyer said the judge was not impressed by the officers' application for a sentencing circle.
"He did describe their not guilty plea and their antics throughout, including the application as being, 'death-bed repentance.'" Worme added.
Federation of Saskatchewan Indian Nations Vice-chief Lawrence Joseph said, "Justice Schiebel did the right things for the right reasons."
The officers' lawyers argued that allowing their clients access to the alternative Native justice process was an equality issue. Joseph said they were misinformed, at best.
"The issue is not whether non-Aboriginal people can participate in and benefit from First Nations traditions, the issue is whether or not these two men met the criteria for a circle. The judge agreed with the First Nations community that they did not," he said. "Judge Schiebel has not allowed these two defendants and their lawyers to make a mockery out of First Nations traditions."
Worme said his client had a high level of respect for police officers prior to the night of the offences, but he has lost that respect because of the actions of the officers that night and during the prosecution.
"Mr. Night was very clear that he would not participate given the absolute lack of appreciation of restorative justice principles," the lawyer said.
An apology to the victim early n the process may have changed the outcome, but Worme said Munson and Hatchen apologized only to their former employer and colleagues-they were fired by the Saskatoon chief of police within hours of their convictions-but waited until after the Dec. 3 ruling to apologize to the victim.
Night has instructed his lawyers to proceed with a civil action. He is claiming $2 million in damages.
Worme said other investigations related to starlight cruises, that could lead to charges against other police officers, are still in progress.
"There is upcoming in January the Wegner inquest. And then we are anxiously awaiting the decision of the Saskatchewan Department of Justice relative to the 1990 freezing death of the young man, Neil Stonechild," he said.
The lawyer said statements made by the Saskatoon police chief when he fired Munson and Hatchen, that the police service could now put the issue to rest, was naive or worse.
"Any kind of cursory or summary statement that the problem is dealt with with the firing of Hatchen and Munson is wishful thinking at best," he said.