R v Monkman, 2021 ABQB 648

Court of Queen’s Bench of Alberta Citation: R v Monkman, 2021 ABQB 648 Date: 20210817 Docket: 190664417Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Carlene Monkman Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the victim must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice K.

Feth _______________________________________________________ [ 1 ] Carlene Monkman, having been convicted by a jury of sexual assault, brings a Charter application during sentencing to challenge the constitutionality of s 742.1(f)(iii) of the Criminal Code of Canada, RSC 1985, c C-46 . That subsection prohibits a conditional sentence for any sexual assault offence prosecuted by way of indictment. [ 2 ] For the Charter voir dire , Mr.

Monkman asks the Court to receive testimony from two Indigenous Elders by way of a “sharing circle.” The witnesses are described as traditional Knowledge Keepers and their anticipated evidence will address: North American Indigenous practices; traditional medicine and healing; and the values of ceremony, culture and community in assisting

individuals affected by the historical factors identified in R v Gladue, [1999] SCR 688, [Gladue] and R v Ipeelee, 2012SCC 13 [Ipeelee]. Oral history will be included. The parties disagree on whether the Elders’ evidence includes expert testimony andopinion engaging the notice requirements under s 657.3 of the Criminal Code. That dispute is the subject of a separate ruling. [3] Mr. Monkman argues that the richest conveyance of the Elders’ knowledge will be accomplished through a sharing circleattended by them, the Court, counsel and Mr.

Monkman. [4] The Crown opposes for procedural and substantive reasons, including limits imposed on the Crown’s ability to cross-examine the witnesses and a concern that Mr. Monkman is attempting to utilize a “sentencing circle” without the participation of thevictim.

Guiding principles [5] The person asserting a Charter remedy carries the burden of advancing evidence that a constitutional right or freedom hasbeen infringed or denied, and must demonstrate a violation of the Charter on a balance of probabilities: R v Collins, [1987] 1 SCR 265 at277, . [6] The procedure to be followed on a Charter application is within the discretion of the trial judge: R v Kutynec (1992), 70CCC (3d) 289, (Ont CA). The discretion should be guided by the overarching objective of adjudicative fairness: R vWard, 2007 ABQB 344 at para 59 [Ward].

The receipt of evidence during a Charter voir dire need not slavishly adhere to formalprocedural rules: Ward at para 60. [7] As the Charter application arises during the sentencing of an Indigenous person, I have been asked to consider otherprinciples that might influence the determination of the appropriate process. [8] The rules of evidence are considerably relaxed for sentencing purposes: R v Spotted Eagle, 2021 ABCA 26 at para 25[Spotted Eagle].

Section 724 of the Criminal Code permits a sentencing judge to “accept as proved any information disclosed at the trialor at the sentencing proceedings and any facts agreed on by the prosecutor and the offender.” [9] In Spotted Eagle, at para 25, the Alberta Court of Appeal elaborated: The sentencing judge is entitled to draw inferences from the evidence and information presented... sentencing judges often rely onunchallenged submissions by counsel, hearsay statements, “judicial notice” of and “judicial experience” with recurring circumstances, aswell as evidence from experts.

That is particularly true with respect to systemic conditions underlying the Gladue/Ipeelee factors, which... are largely incapable of formal proof... [10] Conventional rules of evidence are applied flexibly in the context of Aboriginal right trials under s 35(1) of the ConstitutionAct, 1982 given the inherent difficulty of proving rights based on pre-contact activities and the ultimate objective of reconciliation:Mitchell v MNR, 2001 SCC 33 at para 29-34 [Mitchell]; R v Van der Peet (1996), 200 NR 1, (SCC); Delgamuukw vBritish Columbia, [1997] 3 SCR 1010, .

That flexible approach applies to both the admissibility and the weight givento oral history testimony. [11] Oral histories are admissible evidence where “they are both useful and reasonably reliable, subject always to the exclusionarydiscretion of the trial judge”: Mitchell at para 31.

Further, in assessing the reliability of oral history, the Court may consider whether thewitness represents “a reasonably reliable source of the particular people’s history” and inquire about “the witness’s ability to know andtestify to orally transmitted aboriginal traditions and history”: Mitchell at para 33. [12] Even in the context of the “special nature of aboriginal claims,” the Supreme Court of Canada in Mitchell at para 38 cautionedagainst an overly generous approach to oral history: “While evidence adduced in support of aboriginal claims must not be undervalued,neither should it be interpreted or weighed in a manner that fundamentally contravenes the principles of evidence law...” See also:Canada v Benoit, 2003 FCA 236 at paras 23-25.

Nevertheless, the rules of evidence are not cast in stone and should be animated by“broad, flexible principles applied purposively to promote truth-finding and fairness”: Mitchell at para 30. That flexibility is not uniqueto Aboriginal right claims. [13] Restorative justice is a developing principle in Canadian criminal jurisprudence. It encourages the Court to focus on healingand the restoration of the offender to his place in the community, rather than punishment, and to repairing the harm suffered by theindividual victim and by the community as a whole: Gladue at paras 43, 70-72, 93; s 718.2(

e) of the Criminal Code. [14] Utilizing a restorative approach to sentencing, in appropriate circumstances, is encouraged for Indigenous offenders: Gladueat para 50; R v Wells, 2000 SCC 10 at para 49; R v Jacko, 2010 ONCA 452 at para 64; Ipeelee at paras 59-60. [15] A sentencing circle is a community-based process, conducted collaboratively between an Indigenous community and thesentencing court, by which community members, the victim and the offender try to develop a consensual sentencing plan orrecommendations for the sentencing judge grounded in restorative justice principles.

Sentencing circles are not prescribed by theCriminal Code, but they are increasingly utilized by Canadian courts to assist with the sentencing of Indigenous offenders: R v Morin(1995), 134 Sask R 120, (Sask CA) [Morin]; R v Munson, 2003 SKCA 28; R v Morris, 2004 BCCA 305 at para 25;R v Kirby Offshore Marine Operating LLC, 2019 BCPC 185 at para 9; R v Gloade, 2019 NSPC 55 at para 79; R v Lariviere, 2021ABQB 432 at paras 25-26. [16] The goals of the sentencing circle include: a. Promoting healing for the affected parties;

b. Affording an opportunity for the offender to make amends; c. Empowering victims, community members, families and offenders with a voice and allowing them to share responsibility in findingconstructive solutions; d. Addressing the underlying cause of the offender’s criminal behaviour; e. Building a sense of community and the capacity for resolving conflict; f. Promoting a sense of shared community values.

See: R v SR, 2020 BCPC 227 at para 31. [17] The sentencing circle concept is derived from the Indigenous tradition of the talking circle or sharing circle. [18] No formal rules have been adopted under the Criminal Code for the use of sharing or sentencing circles to receive evidence orinformation, although the Yukon Court of Appeal encouraged the creation of rules long ago: R v Johnson (1994), 31 CR (4th) 262, (Y CA) at paras 30, 98. Sharing Circle [19] The circle influences how many Indigenous people view the world. All things are thought to be connected and balance relieson this connection.

The circle recognizes natural cycles including the paths of the sun and the moon, the seasons and the journey frombirth to death. [20] A sharing or talking circle typically allows each participant to be heard.

A facilitator initiates discussion and passes a talkingpiece to each participant who, in turn, speaks or declines to speak. [21] Common features of a sharing circle include: • Whoever is holding the talking piece is encouraged to speak freely; • Listeners are expected to remain silent and not to interrupt or display reactions to the speaker’s comments and feelings; • Listeners are encouraged not to be judgmental within the circle; • Speakers are asked to be respectful of each person’s time; • Questions may be posed, but answers await each participant’s turn while holding the talking piece. [22] Mr.

Monkman proposes a modified sharing circle in which any questioning of the Elders will be confined to the circle,including questions from the Crown and the Court. As the sentencing judge I am asked to participate, but not to control the admissibilityof anything said by the Elders. The Elders purportedly do not want their knowledge subjected to “critical evaluation.” They wish to sharetheir knowledge without judgment. [23] According to the Gladue report provided in this case, Mr. Monkman is a member of the Ebb and Flow First Nation located inwestern Manitoba, but was not raised there. He grew up in Winnipeg.

He lived in Alberta for several years preceding the offence. No oneelse from the Ebb and Flow First Nation is expected to participate in the circle. The two Elders are not from that community. [24] The victim refuses to participate in the sharing circle. Analysis [25] The Court is receptive to changes in process that advance reconciliation with Canada’s Indigenous peoples.

Conventionalprocedures can be modified, even in a Charter application, where adjudicative fairness is preserved. [26] This Charter application arises in the context of a sentencing proceeding, but the substantive application remains a challengeto a legislative decision made by Parliament. The constitutional validity of a statutory provision is implicated. The evidence should bepresented to the Court through a method that reasonably ensures its reliability, relevance and admissibility for the intended purpose andrespects trial efficiency.

The relaxed evidentiary practices for sentencing generally do not apply presumptively to the Charter voir dire. [27] In assessing whether a modified procedure should be utilized, the Court reviews the advantages to adjudicative fairness andweighs them against the resulting disadvantages.

Adjudicative fairness includes, but is not limited to, the Court’s truth-seeking functionand trial efficiency. [28] The Court already accepts various accommodations for witnesses such as: testifying by audioconference or videoconference,commission evidence for witnesses who cannot attend on the hearing day, testifying behind a screen or with the assistance of a supportperson, providing evidence thorough a report or affidavit, assistance from an interpreter, and the Court travelling to remote locations tohear evidence from immobile witnesses.

However, the party seeking the accommodation usually bears some onus to justify the change. [29] Mr. Monkman provides little justification for the use of a sharing circle. The presentation of the Elders’ evidence willsupposedly be richest in this format, but both Elders are experienced communicators who have presented in a variety of settings. Nothing

about the conventional witness stand is expected to be intimidating or restrictive. A normal direct examination can elicit their testimony. To the extent that some flexibility in their narration is requested, reasonable accommodations can be granted by the Court. [ 30 ] Mr. Monkman’s counsel advises that the two Elders often present to audiences as a “team” and that a joint presentation will allow them to provide their shared experience. However, nothing indicates that they cannot testify separately or that their presentations would be compromised by discrete narratives.

Indeed, the operation of a sharing circle contemplates that each participant speaks independently. [ 31 ] The Crown raises concerns about the impact of a sharing circle on truth-seeking and trial efficiency. [ 32 ] When hearing evidence from a witness testifying before the Court, two guarantees are fundamental, barring exceptional circumstances:

a) the witness testifies under a promise to tell the truth that binds the conscience; and

b) the testimony is subject to cross- examination so that the assertions can be tested. Cross-examination is a “faithful friend in the pursuit of justice and an indispensable ally in the search for truth”: R v Lyttle , 2004 SCC 5 at para 1 . [ 33 ] Mr. Monkman proposes that the Elders testify by swearing over an eagle feather. The Crown takes no issue with that approach and the Court permits this practice. [ 34 ] The Crown objects, however, to the impact of the sharing circle format on cross-examination. Questioning will be constrained. Other members of the circle may intervene to answer.

The other Elder will be present and may learn in advance about the Crown’s lines of questioning. Since the Elders will both be present in the circle, the evidence of one Elder might influence or contaminate that of the other causing difficulty as the Crown seeks to differentiate between the two witnesses. [ 35 ] I agree that by honouring the traditions of the sharing circle, the Crown’s ability to effectively cross-examine the witness will be substantially curtailed. Neither the Crown nor the Court is expected to accept the evidence of any witness without critical evaluation.

To concede otherwise offends the proper administration of justice. [ 36 ] The Crown also seeks to explore the qualifications of the Elders to offer oral history evidence and opinions about the Ojibway culture, which is the heritage of the Ebb and Flow First Nation. These Elders have upbringings in Plains Cree and Métis communities, respectively. While they are respected members of the Indigenous community, the limits of their knowledge and the relevance to Ojibway traditions and practices might require delineation. [ 37 ] Another concern is the potential impact on hearing efficiency.

The custom within a sharing circle is that the speaker is not disrupted. Comments and feelings are not constrained. However, in a Charter voir dire , the Crown might want to object to irrelevant or inadmissible aspects of an Elder’s testimony. Counsel might want to argue about the relevance or admissibility of the evidence before the speaker continues. A ruling from the Court might be required before the speaker resumes. [ 38 ] If the traditions of the talking circle are followed, irrelevant and inadmissible evidence will not be excluded at the first opportunity.

Consequently, substantial irrelevant, inadmissible and even prejudicial evidence might come before the Court and elongate the proceeding. Relevance or admissibility could be addressed later, but counsels’ arguments might become complicated and lengthy. The Court’s rulings might demand greater detail and time. I conclude that a material risk exists that the hearing will be substantially prolonged by such an approach. [ 39 ] Any resulting delay does a disservice to the offender and the victim. Both are entitled to a timely determination of sentence so that they may move forward with their lives.

Public confidence in the administration of justice is compromised if the sentencing process is needlessly complex and slow. [ 40 ] Concerns also arise about this modified process being ill-defined. For example, the sentencing judge’s role is not clearly described, including whether the judge will initiate and moderate the discussion, limit the discussion in some fashion, and hear from counsel outside the circle about objections. As another example, Mr. Monkman’s role is not addressed. [ 41 ] No jurisprudence was placed before me about eliciting evidence for a Charter voir dire through a sharing circle.

Nonetheless, some guidance can be taken from the caselaw dealing with a sentencing circle, given its origins in the sharing circle. [ 42 ] In Morin , at para 8 , the Saskatchewan Court of Appeal endorsed several criteria to be considered when assessing whether a sentencing circle is proper for a particular case, some of which are: a. The victim is willing to participate and has been subjected to no coercion or pressure in so agreeing; b. The Indigenous community to which the offender is connected supports and participates in the circle; c.

The offender must have deep roots in the community in which the circle is held and from which the participants are drawn; and d. Disputed facts have been resolved in advance. [ 43 ] The participation of the victim and the offender’s Indigenous community promotes restorative justice. However, the proposed sharing circle does not engage collaboration with any Indigenous community (apart from the presence of the two Elders) or the victim. [ 44 ] Mr.

Monkman argues that their participation is not required for the collection of evidence in the Charter voir dire since that inquiry is not grounded in restorative principles. I agree. However, in making his concession, Mr. Monkman implicitly acknowledges that restorative justice is not a justification for modifying the voir dire procedures. [ 45 ] In Morin , a sentencing circle was not viewed as a means for gathering disputed evidence. A talking circle assumes honest and candid discussion by the participants. The format does not lend itself to contests testing the reliability and accuracy of the participants’

statements. The limited description of the Elders’ anticipated evidence suggests the Crown will take issue with some of the contents. [ 46 ] I conclude that the proposed process likely imposes disadvantages to adjudicative fairness that outweigh any potential advantages. Accordingly, while respectful of the sentiment underlying the request and Indigenous traditions, I decline to allow the Elders’ testimony to be received through a sharing circle. [ 47 ] I offer a final observation about applications to modify the procedures for receiving evidence, especially where cultural traditions are involved.

Before me, concerns surfaced about the lack of specificity in the proposal. The proposal should clearly describe the intended procedure, any alterations to the role of the judge, and the essential features of the cultural tradition. The benefits to adjudicative fairness, including the receipt of reliable, relevant and admissible evidence and the advancement of trial efficiency, should be explained, along with any proposed steps to mitigate the disadvantages. Given the importance of both a formal promise to tell the truth and cross-examination, any restriction on either safeguard should be expressly addressed.

Sufficient notice should be given to the other party and to the Court such that the cultural tradition can be explored and understood. [ 48 ] In sum, this Charter voir dire will follow conventional procedures, subject to other requests for accommodation that might arise. Heard on the 16 th day of August, 2021. Dated at the City of Edmonton, Alberta this 17 th day of August, 2021. K.S. Feth J.C.Q.B.A. Appearances: Donna Spaner for the Crown Marshall Hopkins for the Accused