BREAKING THE SHACKLES OF WHITE JUSTICE

Convinced that white-man's justice had become "a sausage factory" for
aboriginal offenders, Judge Peter Ayotte sought the help of leaders
on the Alexis reserve. They've created a much-admired,
community-based model where the lives of aboriginal accused can be transformed

The accused men and women stood before Judge Peter Ayotte at the
provincial court on the Alexis First Nation reserve, almost all of
them striking the same pose: head down, slouched over, no eye contact.

To Ayotte, it looked like the accused weren't even paying attention
to the proceedings, that they were resigned to accepting a jail
sentence and putting in their time. At the same time, however, they
were utterly unwilling to change their ways just because a white
justice system was punishing them.

"Native people, in a lot of ways, are very passive," Ayotte says.
"They will accept the system. But, silently, they won't. They'll say,
'If you want to put me in jail, put me in jail. I'll get out again
and go back to doing what I was doing.' "

Alexis probation officer Sandra Potts, a 46-year-old aboriginal,
concurs. "Most times, even if they didn't do anything for the charge
that they had, they wanted to plead guilty just to get it over with.
People always felt in the white system, you're going to go to jail."

About 800 people live on the Alexis First Nation reserve, 80
kilometres northwest of Edmonton. Provincial court has been held
there since the 1970s, first in the band office, then in an old schoolhouse.

Through the 1980s, Ayotte headed out once a month to face the usual
array of impaired drivers, spouse abusers, thieves and vandals.
Almost all of them had committed their crimes when they were drunk or high.

"It was just the worst day of my life. I hated it," Ayotte says of
those monthly trips to Alexis. "It was just a sausage factory.
Numbers were just going through. There was no attempt to get at why
the person had really done this, how a sentence might assist in
keeping the guy from coming back.

"I'd go home at the end of the day thinking, 'Why am I doing this
job? What a waste of time this is.' "

Fast-forward to 2006.

The provincial courthouse at Alexis is no longer misery for Ayotte
and his fellow judges, Ray Bradley, Dan Paul and Hugh Fuller.
Instead, it's one of the few courts in Canada successfully dealing,
in both human and economic terms, with the huge number of aboriginal
offenders in the justice system.

A combination of hard work from Alexis community leaders, guidance
from Ayotte and Bradley, and a new legislative framework for dealing
with aboriginal offenders has combined to make the Alexis court a
place where many aboriginal offenders aren't just processed, they are
transformed. The court process has become a catalyst for many of them
to become law-abiding.

The Alexis program should be a model for all of Canada, says Ernie
Walter, chief judge of the Alberta provincial court. "When you look
at the successes, in terms of the community and recidivism, I don't
think there's any court that can compare anywhere in this country with that."

Alexis is a typically troubled aboriginal reserve. Elders who lived
there in the 1940s and '50s recall terrible poverty and hunger. In
the 1960s, a new scourge hit, when the ban ended on aboriginals
purchasing liquor at bars and liquor stores.

All hell broke loose, says 56-year-old Alexis elder Evelyn Potts.

"Let's say we're having a Halloween party for kids and we threw a
whole bunch of candy in the middle, and the kids just go and grab it
- -- that's how it was for our people when we were able to go into the
bar. After that, it got bad. I grew up with all that garbage around
me, that liquor."

The community had no electricity until the 1970s, no indoor plumbing
until the 1980s. But as modern conveniences came in, so did modern
drugs such as crystal meth and crack cocaine. "That's had a
devastating effect on our people," Evelyn Potts says.

With the substance abuse and poverty came frustration, despair,
criminality and an endless stream of young people from the Alexis
reserve heading to jail. The same was happening in other aboriginal
communities across Canada.

In the early 1990s, legislators tried to tackle the
"over-representation" of aboriginal offenders in Canadian prisons. At
that time in Alberta, aboriginals made up four per cent of the
population, but 30 per cent of prisoners. The incarceration rate was
comparable to that in other places with similar ethnic mixes such as
Australia, where Aborigines make up 2.2 per cent of the general
population and 20 per cent of inmates, and New Zealand, where Maoris
are 14 per cent of the population and 38 per cent of inmates.

Right-wing critics have a straightforward explanation for the
so-called aboriginal over-representation in prison: that aboriginal
people simply commit more crimes and, as a natural consequence, they
end up in jail more often than others.

But the experience of judges like Ayotte and Ray Bradley in Alexis
suggested another possibility, that the problem with aboriginal
people isn't an explosion of criminality as much as it is an
explosion of social decay. On reserves, alcohol and drug abuse
combined with mistrust and bitter resignation, resulting in many
aboriginals needlessly going to jail.

And jail was no answer for aboriginal people, says Sandra Potts. "As
a probation officer, I learned that what (aboriginal offenders)
didn't know, they found out in jail and came out and used it. They
learned to steal more effectively. They told me that themselves."

But how do you lower the percentage of aboriginal inmates, while
discouraging crime?

In the 1990s, three significant legal landmarks paved the way for the
Alexis experiment. First, in 1991, the Alberta government had Justice
Allan Cawsey report on the origins of aboriginal crime.

Cawsey found that when young aboriginals committed an offence, they
felt it was against the police or white society, not against their
own community. He urged the police, courts and prisons to be more
responsive to aboriginal needs.

"Systemic discrimination exists in the criminal justice system," he
wrote. "There is no doubt that aboriginal people are over-represented
in this system and that, at best, the equal application of the law
has unequal results.

"Unless evidence is found to support the notion that Indian and Metis
people are inherently more criminally inclined than non-aboriginal
people, this imbalance must be redressed to bring about equitable
results for aboriginal people."

While Cawsey pushed for reform of the existing system, some
aboriginal leaders wanted a completely separate justice system.
"There is a severe lack of confidence in the justice system among the
Indian people," wrote aboriginal lawyer Tony Mandamin, who later
became a provincial court judge.

After the Cawsey report came out, next to nothing changed, so in 1992
Peter Ayotte decided to take up the issue on his own on the Alexis
reserve. He arranged a meeting with the band council.

For the first part of the meeting, Ayotte was regaled with stories of
all the wrongs whites had done and how an aboriginal justice system
was the only answer. At last, Ayotte broke in.

"I said, 'I'm not here to undo the past. I'm here to look to the
future. If there's something you want to do, fine. If you don't want
to do anything, that is fine. But this isn't getting us anywhere.' "

If there was going to be change, it had to come from the community,
Ayotte told the band council, which meant community members were
going to have to take responsibility: "Right now, whitey comes to
court and I make all the mistakes and I go home and you can get mad
at me. But if you take part, then you're part of it, and when you
make the mistakes, you don't go home, this is home. So you're going
to have to deal with that."

In a later meeting with the Alexis elders, it was decided that if
community leaders were going to play a role in judicial hearings,
they first had to be educated about the law.

Ayotte had every Friday set aside as a reading day, so he started
using that time to travel to Alexis to hold classes on the law. At
first his students, mainly Alexis elders, struggled with many legal
concepts. Things weren't made easier because of Ayotte's use of
technical terms, Evelyn Potts says.

"Peter comes in and uses his lawyer language. That's why we didn't
understand him."

Evelyn's husband, Thomas, a former band chief, became the leader of
the aboriginals in Ayotte's class. His first task was to get Ayotte
to simplify things for the elders, some of whom were illiterate.

"Thomas had dealt with white people, so it was no problem for him to
get kind of nasty with them," Evelyn says. "He used to tell Peter,
'You know what? This is the Indian reserve. These are Indian people
you're talking to. So talk simple English because some of these
people don't understand you.' "

Alexis elder Jean Alexis, 71, can't read or write, but was able to
learn under Ayotte. "It wasn't easy. I tried to capture whatever I'd
need for the people."

For the next five years, a core group of eight people attended each
two-to-three-hour class. In the court itself, Ayotte started to
explain to the audience why he was taking certain actions so that
other people would start to understand legal procedures.

The elders asked if each court session could start with a traditional
purification ceremony, a smudge where sweetgrass is burned and people
immerse themselves in the smoke. Ayotte agreed.

On one recent court day, elder Jean Alexis told the court: "I burn
this smudge and I'm going to say a prayer in my language. Whoever
wants it can come and get it. If you don't want it, that's OK, too."
A long line of peopl e, both aboriginal and white, formed to wash
themselves in the smoke.

In 1996, the second legal landmark came. The federal government
brought in a new law that pushed courts to think of jail terms as a
last resort, particularly with aboriginal offenders. The new law
allowed for conditional sentences, to be served in the community,
with conditions placed on the convict.

This law was followed by the third landmark, a 1999 Supreme Court
ruling that said the 1996 law was intended to address the
over-representation of aboriginals in prison, which meant a jail term
for an aboriginal offender might be less than one imposed on a
non-aboriginal for the same offence. With the most serious cases,
however, the court said it was unlikely there would be any difference
in the sentence for an aboriginal or non-aboriginal offender.

The top court's interpretation of the law didn't sit well with
everyone, including Tanis Fiss, director of the Centre for Aboriginal
Policy Change and a Metis woman herself.

Fiss recently wrote that the courts should get rid of such
preferential treatment of aboriginal offenders, who often have fellow
aboriginals as their victims. "In an attempt to right past wrongs,
Canadians have created policies that harm the very people they have
been designed to benefit. By amending the Criminal Code in 1996, the
federal government sent a message to aboriginals that breaking the
law is no big deal."

But Ayotte says the changes to the federal law, with jail seen as a
last resort, reflected aboriginal ideas about crime and punishment.
"They've always approached the criminal law problem as a problem of
healing rather than as a problem of punishment, whereas whites tend
to look at it the other way around."

In the late 1990s, the Alexis elders and Ayotte took the first of two
bold steps towards reform. The Alberta government had allowed for the
formation of justice committees to assist judges in sentencing youths
and finding alternative measures for them, such as counselling or
community work. Ayotte decided to use a newly formed Alexis justice
committee to help him deal with both adult and young offenders.

It was unclear whether those with criminal records would be allowed
to sit on the justice committee. If they were barred, it would limit
Ayotte's pool of potential committee members at Alexis. A number of
the elders had criminal records. He wrote letters of recommendation
for them. In the end, the Alexis justice committee was approved.

A new system was set up. Once an offender was charged, he would come
before Ayotte, who would tell the offender that if he was willing to
change his life, the court was willing to help. "It sounds corny and
it is corny, but it works. People say, 'Holy smokes! Somebody
actually gives a damn about me.' "

The offender would first go before the justice committee of
aboriginal elders, which would set up a rehabilitation program
entailing community labour, attending counselling with an elder,
Alcoholics Anonymous meetings, and cultural activities such as sweat
lodges, retreats and the sun dance. Next, Ayotte would sentence the
offender, incorporating elements of the rehab program into the
offender's probation requirements.

At first, the justice committee was intimidated at its
responsibility, Evelyn Potts says. "We were scared, nervous. We felt
we were getting lost in the jungle. But we did start meeting with
some people. Our task was, first of all, to get them away from alcohol."

Committee members came to understand their limitations, Evelyn says,
but they also realized they had valuable experience, based on their
own painful life lessons with alcoholism and violence.

"We're not trained psychologists or therapists, but we're trained
well enough to deal with our own people. We know where their
downfalls are, and that's how we tried to guide them."

The elders never accept easy excuses from offenders. Instead, each of
the 12-16 members of the committee grills the offender, digging deep.

"We work with why they drink, why they drown themselves in alcohol,
why they cover up with drugs, why they numb themselves," Evelyn Potts
says. "It's a healing journey."

"It was just like a big family getting together and helping other
people," says Jean Alexis, the elder and committee member. "We pray
for them and we talk to them."

But elders such as Alexis can also deliver a good tongue-lashing. "A
guy came to us, he was beating his wife. I said to him, 'Do you love
this woman?' He said, 'Yes.' I said, 'Well how come you're beating
her? You don't love something and beat it up.' And the girl standing
there is skin and bones. Besides, she's pregnant. 'What are you
trying to prove?' After that, he didn't know what to say. I might
have shut him up."

Alexis believes the tongue-lashing had a long-term positive effect.
"He never came back."

Some of the elders, such as Alexis, are unforgiving when it comes to
repeat offenders. "I said to Peter, 'I'm not going to talk to a
person that I already talked to.' He told me, 'You can't give up that
easy. These people need help.' But I wouldn't want to talk to (an
offender) more than twice."

Impartiality is a key aspect of justice, and Ayotte made sure to
teach justice committee members that if they couldn't be impartial
regarding a particular case -- perhaps involving a friend or relative
- -- they had to disqualify themselves from working on it. Chief Judge
Walter says this instruction from Ayotte has been crucial in avoiding problems.

"Without that, you bet your life it would be a very big problem."

Another task for the committee is to recommend a sentence, in
writing, to Ayotte. At first, committee members were reluctant to do
this because they were miffed their recommendation could be
overturned by Ayotte or another judge.

Ayotte told the committee there was no way around this, that he had
to have the final say. But he added: "It's your chance to have an
input and I wouldn't be going through this if I was going to ignore
what you told me all the time."

When Ayotte knows a jail term is in order on an extremely serious
case, he doesn't seek input from the justice committee. "If there is
a really bad case with serious bodily harm, it doesn't matter what
the justice committee says, the guy is going to jail. They understand that."

The justice committee itself has decided to take on no more sexual
assault cases, after struggling with one in which the offender's
mindset perplexed them, Evelyn Potts says. "We don't have the
training to deal with sexual assault."

The second major aspect of the Alexis program is the judicial review
of offenders on probation. No longer did offenders on probation
report only to their parole officer. Instead, they had to keep in
contact with the justice committee and appear in court, usually every
few months, to check in with the judge.

If the offender wasn't following the requirements of his probation
order and was back to drinking and causing trouble, the offender
could be charged with breach of probation. Sometimes just laying the
charge would get an offender back on track.

"We're the hammer," Ayotte says of himself and his fellow judges. "If
the accused is not responding and is trying to use the system, we
respond. There's no delay. A breach charge is laid, and you're gone
(to jail). Sometimes just for 30 days, which will be enough to wake
up some guys. But sometimes, if you think the guy will never wake up,
that sentence will be a lot longer than 30 days."

On a recent day in the Alexis court, a handful of offenders came
before Ayotte's colleague, Judge Hugh Fuller, for their judicial
reviews. Fuller found most of them were doing well, in particular
27-year-old Jonathan Letendre.

"If you were in grade school, you'd get a gold star," Fuller told
Letendre. "You are doing excellent work."

Afterwards, Letendre said he preferred the new Alexis court system
because it wasn't as harsh as off-reserve courts. His offence was an
assault on his wife, he said. At a drinking party, she had pinched
him, so he bit her in return.

He was thinking of fighting the charge, he said, because all the
witnesses were drunk and his lawyer thought Letendre could beat it.
But he decided he didn't want to lie in court about the incident,
especially when he knew he would get a fair hearing and good advice
from the justice committee.

Committee members impressed upon Letendre the importance of honesty,
trust, forgiveness and love. "If you live your life by those four
things, you would be on a smooth road," he now says.

Letendre has been sober for more than a year. He and his wife are
together, he says, and she's pleased with how things are turning out.
"I know she's proud of me. There's a lot of young men who wouldn't
have owned up to the charge and been honest with themselves."

Ayotte, Bradley, Paul and Fuller have started to do judicial parole
reviews in white communities as well. But not all of their colleagues
approve of the work at Alexis.

"What the hell are you doing?" Bradley recalls one colleague asking
him. "You guys aren't psychiatrists, or sociologists, or social
workers, or probation officers. You are judges. This is not your job."

But Ayotte stuck to his position. "My argument is, 'Yeah, we are
social workers. That's the whole point. Aren't we trying to protect
the public by stopping these people from committing crimes, and this
is part of it?' "

The key to the success of the program, Ayotte says, has been the
dedication of the elders. At first, their work was strictly
voluntary. They now get an honorarium of $50 per meeting. "We work
them to death," Ayotte says.

Walter would like to see more money going for support services for
the program. "Even though it is done at bargain-basement prices and
cost, we have to look at getting a few more resources for it to keep moving."

As the program became established, it appeared to Ayotte, Bradley and
the justice committee that it was succeeding. They heard of numerous
success stories and saw there were fewer cases coming before them at Alexis.

In one review of their work, they looked at 64 cases, and found 34
per cent of the offenders had cleaned up their act, 51 per cent had
taken a few positive steps but still needed work, and 15 per cent
were still on the wrong path. As Ayotte puts it: "We've had some
spectacular failures and some spectacular successes."

The success of the Alexis program was confirmed in a July 2003
provincial government report done by independent researchers Barbara
Allen and BIM Larsson & Associates. "It is concluded that the Alexis
Restorative Justice Model is successful. ... However, evidence of the
success of this model is not readily available and the skeptics
continue to question the process until they work within the community."

Some people on the reserve told Allen and Larsson that the system was
too lenient. The critics wanted more people sent to jail. But,
overall, the justice program worked as a deterrent, Allen and Larsson
reported, because of a combination of compassion and guidance, which
helped offenders break out of old criminal patterns. Offenders now
understood how the court worked, viewed the justice system with more
respect and felt their punishment was fair. For the first time,
having admitted their wrongs to their own community, many offenders
felt an onus on themselves to change.

Evelyn Potts has heard the "too lenient" critique from others on the reserve.

"They said, 'This committee, they let people get away.' Peter told us
not to pay attention to it, that we're here to help our people. If
(the critics) want to know what is happening, they can come and join
in, rather than just sit there in the bush and talk."

The committee workload has been tiring, Evelyn says, but the success
of the program has convinced her to stick with it, even after her
husband, Thomas, died in January 2000. "It's up to us to straighten
out our people, and some of us have to help. It is working. That's
why I'm still here."

Ayotte also takes issue with the notion the Alexis system is too lenient.

"Judges and politicians fool themselves all the time. We talk about
deterrence, that jail is a deterrent. But you know what? Jail is a
deterrent to you and to me, because we have things to lose if we go to jail.

"Most of the people involved in the justice system have nothing to
lose. They've got no property. They've got nothing. So jail is not a
deterrent. But start giving them a life, and a reason to do things
differently, then they have something to lose.

"I don't think we're soft on crime. ... If a guy doesn't commit a
crime again, we're fighting crime."

For Ayotte, the surest sign the program is working comes from those
at Alexis who used to have mistrust and animosity towards white justice.

"When I first met with this group, they wanted their own justice
system. Now they don't. It is their court now."

For everyone involved, the best days are when an offender finishes
his or her probation, and appears for their last review in court.
Bradley started a practice where the judge and everyone else in court
stands up out of respect for the offender's achievement.

At these final judicial reviews of probation, Ayotte and Bradley
often hear from offenders that the Alexis program has made a
tremendous difference in their lives. And those comments make a
difference to the judges.

"They really make it worthwhile," Bradley says.