Lack of a prison shows inequities in North justice

Indigenous man has nowhere to serve weekend DUI sentence

Adilemma arose last year when Christopher Black, an Indigenous man who lives in a remote northern Ontario community, was ordered to serve his impaired driving sentence on weekends: Where to serve it? There is no jail in Pikangikum, an isolated fly-in First Nations community. The nearest correctional facility is in Kenora, 225 kilometres away, which would make what is known as an intermittent sentence practically impossible.

There is, however, an OPP detachment with cells in Pikangikum, and so Ontario Court Justice Gethin Edward ruled that Black should serve his sentence there.

Months later, the OPP has won in its bid to prevent Black from doing his time in their detachment, having successfully argued before a higher court judge that the facility is not considered a correctional institution under provincial law.

“In this case, it was simply not reasonable or appropriate to order Mr. Black to serve his intermittent sentence at the detachment, which is not a correctional institution and does not have appropriate accommodation for the purpose of an intermittent sentence,” Superior Court Justice John Fregeau, who sits in Kenora, wrote in a ruling released last week. “There are many cases where community-based sanctions are available and appropriate, but this is not one of them.”

Fregeau sent Black’s case back down to the lower court for sentencing. An OPP spokesperson said the provincial police force accepts the ruling “and maintains complete confidence in the courts.”

The issue in Black’s case has highlighted the disparities between northern and southern justice in Ontario, which Edward, the lower court judge who normally sits in Brantford, pointed out in his original sentencing decision last year. “If southern accused get to serve intermittent sentences to keep jobs, then isn’t it high time that northern accused should be entitled to intermittent sentences to preserve jobs?” Edward asked in court last year.

“And if there aren’t facilities available, then shouldn’t it be the time that there were facilities available to allow individuals to serve on an intermittent sen- tence basis? I just don’t think that we’re treating people from the north fairly.”

The Criminal Code allows for sentences below 90 days to be served intermittently; in Black’s case, he was sentenced to 60 days.

The 30-year-old man’s sentencing heard that he is volunteering with the police in a project designed to build relationships between officers and the community, and employed at Pikangikum Health Authority as a solvent abuse worker as well as with a youth forestry initiative.

Edward noted that if Black had to spend his entire sentence far away in Kenora or elsewhere, he would likely lose his job and it could damage all the progress he’s made in his community following his arrest.

“We all take drinking and driving seriously, no question, but this young man did all the things we want people to do when he was charged,” Mary Bird, area director of Nishnawbe-Aski Legal Services, an intervener in the Superior Court case, said. “He went to treatment, he got a job. Both of those things are very hard to do in remote communities, and he managed to do that.”

The Superior Court ruling overturning Edward was disappointing to Nishnawbe-Aski Legal Services, a legal-aid funded organization whose mandate includes addressing access to justice issues for Nishnawbe-Aski Nation (NAN) territory in northern Ontario.

“Justice Edward was acting lawfully in administering his sentence that is available to all other citizens of Canada not residing in a remote community,” Bird said.