Her Majesty the Queen - v. -, 2010 SKPC 182

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2010 SKPC 182 Date: December 30, 2010 Information: 24340756 Location: North Battleford _____________________________________________________________________________ Between: Her Majesty the Queen - and - Alphonse Peter Moosomin and Eldon Edward Starchief Appearing: Robin Ritter For the Crown Don McKinnon For the Accused, Alphonse Moosomin Monte Migneault For the Accused, Eldon Starchief JUDGMENT V.H. MEEKMA , J INTRODUCTION [ 1 ] The accused have pled guilty to the following charge of criminal breach of trust:

Between January 1, 2002 and December 31, 2002 at or near Mosquito First Nation, Cando District Saskatchewan did being a trustee appointed under the provisions of the Mosquito Treaty Land Entitlement Agreement and being required to disburse funds for the purpose of land acquisition for the benefit of the members of the Mosquito First Nation pursuant to the terms of the Mosquito Treaty Land Entitlement Agreement did convert, with intent to defraud, monies held in trust to a use not authorized by the trust contrary to

Section 336 of the Criminal Code . [ 2 ] They were elected trustees of their First Nation’s Treaty Land Entitlement (“TLE”) Trust who participated in the conversion of trust monies to benefit themselves and others. They have asked for conditional sentences of eighteen months and the Crown has asked for thirty months in custody. The analysis to arrive at a fit sentence requires consideration of the sentencing provisions of the Criminal Code , the Gladue factors, the effect of the offence and sentence on the community, and other sentences imposed for similar offences in similar circumstances.

FACTS [ 3 ] The offenders are members of the Mosquito, Grizzly Bear’s Head, Lean Man First Nation. They were elected as two of the five trustees to administer the TLE trust and held office during 2002, the year covered by the criminal investigation. [ 4 ] The trust funds were to be used to purchase 20,096 acres of land for the First Nation to satisfy treaty obligations, referred to as “Shortfall Acres”. The trust fund was depleted far short of “Shortfall Acres” being achieved.

In 2002 specifically, 1.2 million dollars was drawn from the trust, $343,000.00 of which was spent on purchasing 2,566 acres of land and $766,000.00 on “expenses”, of which $513,000.00 was given to the five trustees and $253,000.00 to other individuals. [ 5 ] Monies were spent on many unauthorized expenses, contrary to the trust agreement. Excessive meetings of the trustees were held, many outside of the First Nation, some outside of Saskatchewan. Personal contracts for services, such as fencing, were awarded to the trustees.

Money was paid to 141 persons listed as “elders”, only one of whom was old enough to qualify as an elder under the terms of the agreement; many were not even on the band register. The trustees themselves were overpaid for valid expenses, such as travel and telephone, received money for invalid reasons, and at times for no reason at all.

Fictitious land descriptions were attached to paperwork to justify expenses paid to the trustees. [ 6 ] In 2002, Alphonse Moosomin received $105,000.00, comprised of: ∙ $78,300 in per diems, which at the per diem rate of $300.00 per day would compensate him for 261 days, even though there are only 249 working days in a year. Mr.

Moosomin agrees that he only worked two or three days a week; ∙ $14,700.00 for site visits, for which only actual expenses were to be reimbursed pursuant to the agreement; ∙ $600.00 for travel; ∙ $6,500.00 for telephone, which also were to be actual expenses under the agreement, but set by the band at $300.00 per month, which even then would total only $3,600.00; ∙ $3,600.00 for workshops; ∙ $1,300.00 for other.

[ 7 ] In 2002, Eldon Starchief received $136,500.00 comprised of: ∙ $79,200.00 for per diems (264 days at $300.00); ∙ $14,700.00 for site visits; ∙ $600.00 for travel; ∙ $6,000.00 telephone; ∙ $3,600.00 for workshops; ∙ $32,400.00 for other, which his counsel says could be fencing. [ 8 ] Mr. Starchief says he took money because others took it. He would give one-half of what he received back to the other trustees. He claims that when he was elected, he thought he would be fencing and making other improvements.

He did not know what a trustee was supposed to do, or that what he was doing was criminal, but acknowledges that he was reckless. His signature was photocopied on some orders to pay and he was intimidated into signing others. He does admit that he cashed the cheques. Mr. Moosomin also claims that he would give money to other people, but acknowledges that he received too much money for what he did. Others would give him papers to sign and he would sign them. PERSONAL CIRCUMSTANCES OF THE OFFENDERS Eldon Starchief [ 9 ] Mr. Starchief is 54 years of age. He had eight full siblings and two half siblings.

His parents separated when he was a youth and he and two half sisters moved to Biggar with his mother while his siblings who stayed with his father attended Residential School. As a result, he was never able to form a strong bond with his brothers and sisters. After separation, he had no contact with his biological father. When his mother and her boyfriend drank, he would stay with an aunt. She was a positive role model, but he had no father figure in his life. [ 10 ] At 13, Mr.

Starchief left Biggar to live, first with his paternal grandparents and, after a year, with his maternal grandparents, all on Mosquito First Nation. His paternal grandparents were stable and supportive and eventually he returned to reside with them until age 19, when he left for Alberta in order to learn the carpentry trade. [ 11 ] Mr. Starchief has one child of a previous relationship and five children with his current partner of thirty years. He has a Grade 10 education and works in construction, earning $1,200.00 bi-weekly.

He admitted to the probation officer that the offences were financially motivated. [ 12 ] His criminal record includes no property crimes or other crimes of dishonesty. Most are driving offences and assaults. His last offence was a .08 in 1991. [ 13 ] The Pre-sentence Report suggests that Mr. Starchief does not take full responsibility for the offence, telling the probation officer that he did not benefit from the money withdrawn and he was forced into his position as trustee.

[ 14 ] Mr. Starchief read the following prepared statement to the Court at his sentencing hearing: I would first like to apologize to the members of the Mosquito First Nation for both my action and lack of action. I became involved with the Treaty Land Entitlement or TLE in August of 2001, when I was elected as the Off-Reserve Trustee by the First Nation’s members. At that time I did not know what the TLE was, or what a Trustee did. I have a grade 10 education and have worked most of my life making an honest living as a tradesperson.

I have never been involved in politics, but I was asked to become a Trustee, which I had 90% of Band member votes. I did not read the TLE agreements, and I don’t think I would have understood the agreements if I had. I didn’t understand that the main purpose for the TLE money was to purchase land for the First Nation. After becoming a Trustee, I found out that the Trustees were using TLE money for other purposes. I was told by other Trustees that this was how things were done and that the expenses were “on- going”. As Trustees, we were allowed to pay ourselves and others for visiting and inspecting land.

We paid members of the First Nation for being Elders. I have been told by my lawyer that all these expenses could have been valid under the TLE agreements. Many of the contract cheques that were made out to me were cashed and distributed to the other Trustee members, which in my mind was wrong. I thought I would hire off-reserve band members. I signed Order to Pay but I did not add other names to be paid out. Gerald Bird was the main Trustee who intimidated me into signing many of the Order to Pay. Sometimes I was told to sign blank Orders to Pay. The beneficiaries of the Orders to Pay were added afterwards.

I knew that what they were doing was wrong and I was too weak to stand up to him. I did inform some community members what was going on. I did not benefit from all the cheques that were made out in my name. Many of the cheques that were made out to me, for Contract Work, were cashed and distributed equally to the other Trustees and Councilors because they wanted to work. Many members of the First Nation were aware of what was happening with the TLE. Instead of trying to blow the whistle on what was happening, they had their hands out. That is a big problem with our people these days.

They think they are entitled to money for being quiet. I don’t want to be like that, I was to contribute to society. I want to work, so I can pay back the TLE money that I did not earn. I believe that all the TLE Trustees are guilty of offences. However, I believe that there are different levels of guilt to the Trustees and that should be taken into consideration for sentencing. I would ask Your Honour to consider the fact that I had no experience in being a Trustee. I became a Trustee after the miss-use of TLE funds had already begun, approximately 8 years before.

I started the TLE process believing that the Trustees were not committing illegal acts. In my heart, I knew that what we were doing was not right, but I was told by more experienced Trustees that this was the way things were done. If we are going to make things better for our people in the future we need stronger leaders who do not act in their own interests. First Nations leaders need to act for the good of their people. Many of the large amount of cheques that we made out to me was for Fencing and Renovating of farm houses. The trustees would equally get a cut.

I understand that the criminal offence I have pled guilty to normally comes with jail time. However, I would ask Your Honour to consider a sentence that can be served in the community. I am not a danger to the community. I would like the opportunity to pay back the community by working a number of community service hours, and making restitution payments while serving my sentence in the community. I wish I had never accepted the role of Trustee. I am ashamed and deeply sorry for not standing up for what is right. I was elected by the members of Mosquito First Nation to act in the best interests of the Band.

I tried my best to do what was right as a TLE Trustee. I deserve to be dealt with by the Courts and will accept the consequences as Your Honour feels is just. Eldon Starchief “ Eldon Starchief” [ 15 ] Through counsel, Mr. Starchief offered to pay back $20,000.00 in restitution over two years. [ 16 ] Under the heading “Gladue Factors” the Pre-sentence Report reads: Eldon said he is a treaty member of the Mosquito First Nations who grew up on in both rural and First Nations community. Eldon said

he was not subjected to any abuse growing up but witnessed abuse in his community. Eldon said his family’s financial situation was always acceptable. Eldon added there was always food in the fridge. Eldon said there were times he cut firewood to earn extra money. Eldon admits when he first moved to Biggar he was met with racism. Later, Eldon reports because he was athletic people accepted him. Eldon said his past experience of racism does not affect him now. Eldon reports a number of his sibling were separated from the family as they were made to attend a residential school.

Eldon reports this had a negative effect on him. Eldon reports he felt forced to leave his home while living in Brooks, Alberta because he needed to learn skills to remain employable. Thus he had to move to a new place at seventeen (17) years of age.

Eldon said because his siblings were taken from the family he was never able to form a strong bond with his siblings. [ 17 ] I would also include his experiences as a youth with family breakdown, separation and disruption, his parents’ alcohol usage, his lack of parental support and the need to change residences as a youth under this heading as well. [ 18 ] He is rated a medium risk to re-offend in the Pre-sentence Report. Alphonse Moosomin [ 19 ] Mr. Moosomin is 61 years of age. He has four siblings and was raised by both parents until he left home at age 16.

He witnessed domestic violence and substance abuse at home. He was also physically abused by his father. He left home to work in Alberta at 16 and returned six months later when his mother died. [ 20 ] He had six children with his first partner whom he raised alone after they separated. He has been married to his current partner since 1992 and together they are raising his 10 year old grandson. When his daughter and granddaughter were killed in a motor vehicle accident he felt it was because of his wrongdoings as trustee of the TLE. [ 21 ] He was an elder, medicine man and lodgekeeper.

He suffers from diabetes, a heart condition, hypertension and severe leg and back pain. He has been sober now for six years. His dated criminal record consists of a rape in 1977, a .08 in 1985, an assault in 1987, and an assault causing bodily harm against his current wife in 2000 for which he received a conditional sentence and completed the Alternatives to Violence Program (according to his wife, with successful result). [ 22 ] He has completed Grade 10 and some Grade 11 and 12 credits. He told the probation officer that he has been retired for ten years.

Previous employment included Native Program Counsellor at the Saskatoon Correctional Centre, Social Development Worker at the Red Pheasant First Nation, and Medical Co-ordinator and Land Trustee for Mosquito First Nation. [ 23 ] Under the heading “Gladue Factors” his Pre-sentence Report reads: Alphonse is a first nation’s person currently residing in North Battleford, Saskatchewan. Alphonse did not attend a residential school. Alphonse reports he was well provided for and did attend school regularly as a child.

Alphonse reports witnessing domestic violence and substance abuse in the family home and suffered from emotional and physical abuse by the hands of his father. Alphonse states he has never experienced racism. [ 24 ] To that could be added leaving home at 16 to find employment in Alberta, the early death of his mother, raising his six children as a single parent, his previous issues with alcohol, the loss of his daughter and granddaughter in a motor vehicle accident resulting in guardianship of his young grandson, and the current health issues of himself and his wife. [ 25 ] Mr.

Moosomin’s wife has health issues which were raised in a letter and medical report submitted to the Court. She injured her shoulder and while she awaits surgery, Mr. Moosomin must perform all of the household chores and run the errands.

[ 26 ] The Pre-sentence Report lists his current income as $663.00 per month. He believes restitution would be a hardship for his family and that his health prevents him from completing community service hours, although the author of the report suggests that arrangements can be made to accommodate these issues. He is assessed at a low risk to re-offend.

VICTIM IMPACT STATEMENTS AND COMMUNITY RESPONSE [ 27 ] Having received only one Victim Impact Statement and that being from the whistleblower and former TLE trustee who now lives in fear of retaliation, I asked that the community be canvassed for further Victim Impact Statements. The Chief is still awaiting trial for a related charge so a response from the Band Council was unlikely. Thanks to the efforts of Victim Services, the Court has now received seven further Victim Impact Statements as well as one from Indian and Northern Affairs Canada.

In addition, I received a petition apparently prepared and circulated by the offenders themselves, and signed by 79 members of their First Nation. [ 28 ] The following are some of the comments in the Victim Impact Statements: “The house that my children and I live in is infested with mice and it is causing health concerns. The problem will escalate when there is no housing finances to even renovate. I am not the only one effected by the behaviour of the individuals, all band members in regards to housing, education, land promised to our people has been taken from our generation and also to come.

Our band members will suffer to years to come which they will never be the future we hope for our, elders, children and members that deserve better life of housing, land and education. I feel for the children, their future has been stolen from them.” . . . . “We the Band will never recover! Because of greed!” “My six children are the ones who are going to pay for their wrongdoings.

They will have no education, because of after graduating they will have no money for post-secondary.” . . . . “The land was meant for our children and our future generation of Mosquito.” . . . . “There is a lot of homeless people on Mosquito First Nation. Most of these people came to North Battleford to find a place to live, this should not happen. These people misused the money by buying trucks, cars, motor homes, take holidays or put it in their pockets. The stuff they bought out of this money stolen should be given back to the community.

This money was meant for the people of Mosquito First Nation.” . . . . “I am a Band Member of the Mosquito, Grizzly Bear’s Head, Lean Man First Nations and am doing a victim impact statement. The amount of money that was wasted by the ELECTED TRUSTEES of the Mosquito, Grizzly Bear’s Head, Lean Man First Nation TLE will have a long, and difficult effect on the First Nation as a whole. In order to finish off the TLE process of purchasing lands the First

Nation will have to borrow the money. To date the First Nation still has to purchase approx. 6000 acres of land. With no money left in the trust there are still the taxes to be paid, other fees that need to be paid. I feel that what the ELECTED TRUSTEE did is a gross misconduct to the First Nations as a whole. The ELECTED TRUSTEES had more power over the trust monies than the Chief and Council. . . . Letting the people know that there is no extra money to help them due to loan payments will be difficult on the people, but that will be the price that they will have to pay, due to the trustees foolishness.

There was no audit of the TLE since 2003, and we are in the process of catching it up but without the proper documentation it will be difficult to do.” . . . . “I ain’t worried about my future, but I worry about my kids future, their kids future! And now we may lose what we/band should have bought!” “The elders live in poverty. They live in houses full of mould and broken windows, doors etc.” “I myself have tried to get into post-secondary but was told no money for education.” “My sons were registering for soccer in the summer.

We paid for their registration ’cause the Band had no money for recreation.” “We own our own home and live in poverty because we can’t get a house on our reserve.” [ 29 ] Some of the complaints refer to the abuses of other trustees and some to the lack of funds available for necessaries for First Nation Members such as housing and education, which were not legitimate TLE trust expenses, however, availability for such necessaries in the future will be impacted by the depletion of the trust monies by these offenders and the other trustees. [ 30 ] The following is a particularly heartwrenching account of one family’s hardships and brings to mind the circumstances of the Stoney people described in Judge John Reilly’s book, Bad Medicine, Rocky Mountain Books, 2010: “I’ve been taking care of my dad, nephew, also three of my children.

My father can’t hear or see too well, kept my nephew since my mother passed away. The trailer that I am leaving [sic] in has mould, windows leak and is very cold in winter. It was cold I had to install a chimney out of my pocket and buy a wood stove. I have been keeping my three children at the trailer since they were babies. The kids were always sick when they were little infants, always took them to see the doctor. The doctor used to question me “why are these kids always coughing all the time?”. It hurted me to see my kids this way. I did apply for a new house every year, never got a house yet.

I used to bring home Nebulizer, for the kids to breathe into, their health and my health is not the greatest living in old trailer. My spouse had left because we could not get a house. I’ve been asking for renovations to fix my door also the roof, I did not get anywhere with them. The trailer that I am living in was my mother’s home before, her health deteriorated with mould house lessen her life. I am single parent, sober for six years don’t do drugs or alcohol since my mother passed away. The leadership would give themselves housing and the other people that were requesting for homes were forgotten. . . .

This money should have been used properly by training their people in renovations of housing to build more roads for housing.” [ 31 ] Other Victim Impact Statements also refer to the extreme poverty and lack of opportunity and make allegations of vote-buying and corruption on the part of Chief and Council.

Balanced with references to that sad state of affairs is the suggestion in one Victim Impact Statement that this has already happened (i.e., what is done is done) and suggests the following restorative approach: “I feel that even though this has already happened; that in exchange of jail sentence both Alphonse Moosomin and Eldon Starchief should

give back to the reserve in ways that the band would benefit. Such as building a youth centre for our youth, or barns for band members who need it. Even re-building fences within the reserve, or building a rodeo ground or pow wow ground. Some of these are things we had in the past, but for whatever reasons they are no longer available on our reserve. This is something that the Band would benefit as a whole.

Not only would it bring interest back onto the reserve, this is giving back to our youth.” [ 32 ] The Petition signed by 79 band members and the Pre-amble signed by the offenders reads as follows: To: Mosquito First Nation Members Re: Alphonse Moosomin and Eldon Starchief We are deeply in remorse as we are writing this letter and we humbly ask you to read through it and it is up to you as a band member if you agree with this statement to sign this petition or not.

As all Mosquito people have already known of our issue concerning the TLE funds that were mishandled and Eldon and I have took responsibility and that is why we plead guilty. When we were voted by you members in the committee we did not know we were being used as “Yes-men and sign whatever paper or cheques that was handed to us and some we know were checks for honorariums for our meetings. Eldon and I are nice people and we hope everybody agrees with us and when we go to Mosquito we don’t try to make trouble or bad mouth people. We visit and try and help out whoever we can in our own special way.

Thank you Alphonse Moosomin “ Alphonse Moosomin #249 ” Eldon Starchief “ Eldon Starchief 314# ” “We as band members believe that Alphonse Moosomin and Eldon Starchief should not receive any jail term sentence or restitution because we believe that other trustees of TLE before them who acted in the same as they have (but no one came forward to charge them) will not receive any judgment as a jail term or restitution.

We would though agree to see House Arrest and/or Community Services in the community for Alphonse Moosomin and Eldon Starchief.” [ 33 ] Some of the Victim Impact Statements make suggestions for sentencing as well: “Home arrest, bracelet, will not do! ‘Set an example’ and in the future, they will know, cause the next time it will be more harsh.” “Just let the individuals know that stealing from your own people gets nowhere for anyone, we will all suffer from the choices that were made.”

“By them contributing back to the Band in ways that our youth and Band members would benefit from is a good way of repaying backwhat was lost in more ways than one.” “The stuff they bought out of this money stolen should be given back to the community. This money was meant for the people ofMosquito First Nation.” ANALYSIS [34]

Section 722 of the Criminal Code provides as follows: 722(1) For the purpose of determining the sentence to be imposed on an offender or whether the offender should be discharged pursuantto

section 730 in respect of any offence, the court shall consider any statement that may have been prepared in accordance withsubsection (2) of a victim of the offence describing the harm done to, or loss suffered by, the victim arising from the commission of theoffence.

(2) A statement referred to in subsection (1) must be (

a) prepared in writing in the form and in accordance with the procedures established by a program designated for that purpose by thelieutenant governor in council of the province in which the court is exercising its jurisdiction; and (

b) filed with the court.

(2.1) The court shall, on the request of a victim, permit the victim to read a statement prepared and filed in accordance with subsection(2), or to present the statement in any other manner that the court considers appropriate.

(3) Whether or not a statement has been prepared and filed in accordance with subsection (2), the court may consider any other evidenceconcerning any victim of the offence for the purpose of determining the sentence to be imposed on the offender or whether the offendershould be discharged under

section 730.

(4) For the purpose of this

section and

section 722.2, “victim”, in relation to an offence, (

a) means a person to whom harm was done or who suffered physical or emotional loss as a result of the commission of the offence; and (

b) where the person described in paragraph (

a) is dead, ill or otherwise incapable of making a statement referred to in subsection (1),includes the spouse or common-law partner or any relative of that person, anyone who has in law or fact the custody of that person or isresponsible for the care or support of that person or any dependant of that person. [35] Those portions of the Victim Impact Statements which criticize the offenders and others not before the Court and recommendpunishment do not comply with s. 722. Defence counsel agreed to the statements being filed and read by the Court.

The Petition alsodoes not comply with s. 722 and the filing of such a document with sentencing recommendations is unorthodox. However, casesinterpreting s. 718.2(

e) of the Criminal Code suggest that the Court consider the circumstances and needs of the community in arrivingat an appropriate sentence, especially when applying the restorative justice approach (see R. v. Gladue, (SCC), [1999]1 S.C.R. 688 at paras. 71 and 81; R. v. Wells, 2000 SCC 10 , [2000] 1 S.C.R. 207 at para. 51). “The community” is one of thesurrounding circumstances of the offender to be taken into account under s. 718.2(e) (Wells, para. 41). Sentencing circles are an exampleof when the judge can properly take into account the views of members of the community, albeit in the context of a structured

discussion. [ 36 ] The relevant sentencing sections of the Criminal Code are as follows: Purpose and Principles of Sentencing Purpose 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or in the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. Fundamental Principle 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Other Sentencing Principles 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation or any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or

(

v) evidence that the offence was a terrorism offence shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, withparticular attention to the circumstances of aboriginal offenders. [37] In Gladue and Wells, the Supreme Court provided direction for judges in applying s. 718.2(e).

Gladue lists backgroundfactors related to the causation of crime by aboriginal offenders at para. 67: [67] Years of dislocation and economic development have translated, for many aboriginal peoples, into low incomes, highunemployment, lack of opportunities and options, lack or irrelevance of education, substance abuse, loneliness, and communityfragmentation.

Most, if not all, of these factors have been experienced by the offenders before the Court. [38] At para. 69, the Court in Gladue states: [69] . . . the judge who is called upon to sentence an aboriginal offender must give attention to the unique background and systemicfactors which may have played a

part in bringing the particular offender before the courts. In cases where such factors have played asignificant role, it is incumbent upon the sentencing judge to consider these factors in evaluating whether imprisonment would actuallyserve to deter, or to denounce crime in a sense that would be meaningful to the community of which the offender is a member.

In manyinstances, more restorative sentencing principles will gain primary relevance precisely because the prevention of crime as well asindividual and social healing cannot occur through other means. [39] Since the Court must consider whether incarceration would deter and denunciate the crime in the community, the communityview is a relevant consideration, although the reasons for a recommendation may be more relevant than the recommendation itself, andvice versa. [40] In the event the Court determines that incarceration is appropriate, the length of the term can be reduced because of theGladue factors.

Gladue, para. 79, states: [79] Yet, even where an offence is considered serious, the length of the term of imprisonment must be considered. In somecircumstances the length of the sentence of an aboriginal offender may be less and in others the same as that of any other offender.

Generally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment foraboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing. [41] The circumstances of an aboriginal offender and his community were factors considered in lowering a sentence formanslaughter in R. v. Jack, 2008 BCCA 437 , [2008] B.C.J. No. 2078, 2008 B.C.C.A. 437.

In Jack, there was no evidence of adirect relationship between the Gladue factors and the accused, yet those factors were found to have relevance generically and withrespect to his possible rehabilitation (para. 30).

[ 42 ] In para. 45 of Jack , the Court quotes from the sentencing judge: [45] The Gladue report stressed the importance of community and family. The judge took this into account. He stated in para. 51: [51] What remains to be achieved is to find some way in which these young people and the community as a whole, including all of the families who have been victimized in this case, can move forward in reconciliation with a commitment against further violence. I cannot impose such reconciliation upon anyone. That must come from within the community itself and be guided by all who have been affected by this tragedy.

But I can impose sentences which will encourage the spirit of reconciliation. In my view, such sentences are those that will enable these young people to return to their community in a timely way under the sort of constructive guidance that will encourage such reconciliation.

In my view, that approach was consonant with the direction of the Supreme Court in Gladue . [ 43 ] In its conclusion, the Court in Jack states at paras. 64 - 66 : [64] The specific effect on the offender of systemic problems is a factor that may mitigate the severity of a sentence, but the absence of a specific link does not abrogate the need to take into account the fact the offender is aboriginal.

Also relevant to the inquiry are the relationship of the aboriginal to his or her community and the effect of the offence and sentence on that community as an aboriginal community. [65] In this case, the sentencing judge correctly identified denunciation and general deterrence as essential. He properly took into account Mr. Jack’s aboriginal status and the significant efforts he had undertaken on the path to rehabilitation.

That path included the involvement of members of his aboriginal community and the process of healing in that community. [66] The judge was fully cognizant of the seriousness of the offence and the predominant role Mr. Jack played in it. Ranges of sentences are guides, not prescriptions. This must be so particularly for the offence of manslaughter. While the sentence here is at the low end, it must be placed into the context of the circumstances of Mr.

Jack and his community. [ 44 ] The reason which the members of the community signing the Petition give for not ordering jail terms or restitution for Starchief and Moosomin is that other trustees coming before these accused committed the same offences but were not charged and will therefore pay no penalty. That someone else committed the same offence with impunity is not a mitigating factor. A reasonable response to such a perceived injustice would be to report the other offenders to the authorities as well so that they might also be charged. [ 45 ] In R. v. Archie Moccasin and R. v.

Mervin Night , 2006 SKCA 5 , the Saskatchewan Court of Appeal was clear that it is an error for the Court to consider any pattern or history of illegality in the activities of the First Nation as a factor to be taken into account under s. 718.2 (e). The Court of Appeal overruled the sentencing judge who had considered that as part of the “aboriginal context”, stating at paras. 34 - 37: [34] In my respectful view, this line of reasoning is incorrect.

First, the sentencing judge should not have seen any pattern or history of illegality in the activities of the Saulteaux First Nation leadership as a factor to be taken into account under s. 718.2(

e) of the Code . Simply put, any such pattern of conduct is not the kind of systemic and background factor referred to in Gladue . In that case, the Supreme Court stated as follows at para. 67: The background factors which figure prominently in the causation of crime by aboriginal offenders are by now well known. Years of dislocation and economic development have translated, for many aboriginal peoples, into low incomes, high unemployment, lack of

opportunities and options, lack or irrelevance of education, substance abuse, loneliness, and community fragmentation. These and other factors contribute to a higher incidence of crime and incarceration. [35] In other words, the so-called Gladue factors comprehend the root socio-economic circumstances which play a

part in bringing an offender into contact with the criminal justice system. They do not include criminal activity itself, rather, relate to the environmental factors which give rise to criminal activity. See: R. v. Laliberte, [2004] 4 W.W.R. 491 at para. 69. [36] I am also concerned that the logic of the sentencing judge’s reasoning yields inappropriate results. That is so because it tends to create a self-reinforcing spiral through which the presence of criminal activity becomes a factor mitigating against strong sentences to punish that activity.

For example, the trial judge’s approach seems to suggest the sentence of an aboriginal offender charged with aggravated assault would be moderated on the basis of Gladue if assaults were common on his reserve and suggests, by way of further illustration, that an offender charged with robbery would have her sentence adjusted if a culture of robberies had taken hold in a community. This cannot be what Parliament intended. Sentencing judges must give careful consideration to the fundamental socio- economic circumstances which play a

part in bringing an aboriginal offender to court. But these factors do not include the very criminal activity in which the offender has become involved. [37] Moreover, although it was clearly not his intention, in my respectful view the approach taken by the sentencing judge runs the risk of perpetuating an unfortunate stereotype and of doing a disservice to aboriginal people who expect no less of their leaders by way of honesty and fiscal integrity then [sic] does anyone else. At the same time, it also casts a shadow over aboriginal leaders who discharge their responsibilities honestly.

I am very reluctant to endorse an approach to sentencing which, in effect, sends a message that aboriginal people should expect less of their leaders than should non-aboriginals when it comes to honesty and integrity in public office. [ 46 ] The Court goes on to refer to the observation in Gladue that the more serious the offence, the more likely the terms of imprisonment for aboriginals and non-aboriginals will be close or the same, and notes that criminal breach of trust by a public official in a position of leadership and authority is the sort of serious offence where, as a general rule, one would expect no particular difference in the length of prison term, and states at para. 39: [39]. . .

No community, aboriginal or non-aboriginal, can succeed and move forward unless its members have faith that public affairs are conducted honestly and in accordance with the law. The significance and nature of the offences at issue in this case and the overriding need to clearly denounce them and to deter similar offences, tends to leave little room to give effect to the unique circumstances of aboriginal offenders. [ 47 ] These pronouncements leave little doubt as to how the Court is to approach the sentencing of aboriginal offenders in similar breach of trust cases.

The appropriate factors for us to consider pursuant to Gladue are those such as poverty, racism, substance abuse, and family dysfunction, which contributed to the offending behaviour. Nor is the previous misuse of trust funds a circumstance which can mitigate sentence aside from the Gladue considerations: [44] As explained above, the respondents were leaders of their community and they understood the historic significance of the TLE process.

The fact that other individuals were prepared to participate in plundering the TLE trust funds did not relieve the respondents of their responsibilities and, in my opinion, is not a mitigating consideration of any consequence. [ 48 ] Moccasin and Night , as well as the later decision in R. v. Gopher , 2006 SKCA 86 provides us with clear and significant guidance. The crime was the same (criminal breach of trust), and the trust fund converted was the TLE for their First Nation. The Court of Appeal set aside conditional sentences for all three offenders.

In applying those decisions to the case at bar, the Court must give careful consideration as to how the Court of Appeal addressed the circumstances of the offenders before it and whether there were factors which distinguished the offenders or their circumstances from those before this Court. [ 49 ] Defence relied on the sentence received by Celina Wuttunee, another of the Saulteaux First Nation TLE offenders, who in the context of a guilty plea and joint submission received a conditional sentence of eighteen months (unreported oral decision of Kaiser PCJ at North Battleford, Saskatchewan delivered September 26, 2003).

AVAILABILITY OF A CONDITIONAL SENTENCE

[50]

Section 742.1 of the Criminal Code provides: 742.1 If a person is convicted of an offence, other than a serious personal injury offence as defined in

section 752, a terrorism offence ora criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more oran offence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years andis satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistentwith the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervisingthe offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’scompliance with the conditions imposed under

section 742.3. [51] The first consideration is whether the sentence falls under the maximum allowed of two years less one day. I am satisfied thatrequirement is met. [52] There are distinguishing facts and circumstances from Gopher, Moccasin and Night which would reduce the sentences to anon-penitentiary term: ∙ Gopher, Night and Moccasin defrauded their First Nation of TLE funds exceeding 1 million dollars between the three of them. One million dollars was paid directly to themselves, and further hundreds of thousands of dollars was paid to their families and friends.

These amounts far exceed what was converted by Moosomin and Starchief; ∙ Gopher, Night and Moccasin were convicted after trial; Moosomin and Starchief pleaded guilty; (in referring to the issue of paritywith Celina Wuttunee, the Court of Appeal in Moccasin and Night noted that her circumstances were different in that she pled guilty, co-operated with the Crown, had no signing authority and held a less responsible position); ∙ No Gladue issues were disclosed by Moccasin or Gopher, and Night had overcome those in his early childhood and completedthree years of university; ∙ Gopher was Chief of the Saulteaux First Nation, Moccasin was a council member as well as TLE trustee, and Night was a councilmember who held the TLE portfolio; ∙ Gopher used his position to threaten others with removal if they did not comply with his request (Gopher para. 18); ∙ Gopher, as Chief, was the original signatory of the TLE agreement; ∙ Gopher showed no remorse and felt his actions were not criminal. [53] A review of sentences for similar offences in other cases further supports a non-penitentiary term.

In oral reasons delivered inR. v. Simon, September 19, 2008, (Sask. Q.B.) Mr. Justice Allbright after guilty plea imposed a sentence of eighteen months’imprisonment for three counts of theft by a financial advisor from three dementia victims involving numerous transactions totalling$176,000.00 over a period of five years and eight months. The accused also owed many other people for which he was not charged.

The Court noted Simon’s difficulty with substance abuse as semi-mitigating, but also that the breach of trust in Simon was at a very highlevel due to the vulnerability of the victims (pp. 39 and 40 of the transcript). [54] The Court in Simon relied on R. v. Harding (2006), 2006 SKCA 118 , 213 C.C.C. (3d) 543 (Sask. C.A.) where thefinancial secretary of a union embezzled $329,000.00 over five years and received a sentence of eighteen months. All of the funds were

taken for his own use. [55] In both of these cases, the accused were in positions of trust. It was found that a conditional sentence order was notappropriate due to the nature and scale of the offences, as well as deterrence and denunciation. The Court of Appeal in Harding stated: [21] The courts in this and other Canadian jurisdictions have long treated this as serious aggravating factor in cases featuring frauds ofthis nature, committed in circumstances of this kind. Examples include R. v. Moccasin and R. v. Night (2006), 2006 SKCA 5 ,205 C.C.C. (3d) 1 sub nom. R. v. Gopher (Sask. C.A.); R. v.

Gopher, 2006 SKCA 86, 70 W.C.B. (2d) 645; R. v. McTighe (2005), 2005ABCA 30 , 193 C.C.C. (3d) 522 (Alta. C.A.); and R. v. Pierce (1997), (ON CA), 114 C.C.C. (3d) 23 (Ont.C.A.).

Indeed, these cases and those to which they refer suggest that the abuse of a position of trust in the context of frauds of this natureand scale commonly calls for a period of incarceration in the absence of exceptional circumstances. [56] The Court in Harding concluded that an eighteen month sentence falls within the range of sentences generally imposed inthose circumstances (Harding para. 28). [57] These decisions involve substantial funds taken by persons in positions of trust which were very serious offences with graveconsequences for the victims.

I see no reason to impose higher sentences on Moosomin and Starchief than those in Harding and Simon. Harding took substantially more money for his own use than did Moosomin and Starchief. The victims in Simon were in extremelyvulnerable circumstances and the thefts totalled $176,000.00. The amounts in Moccasin, Night and Gopher were much higher. [58] I am satisfied that a sentence of less than a penitentiary term is appropriate, which meets the first requirement of s. 742.1. Aswell, a conditional sentence order would not endanger the community, based on the risk assessments in the Pre-sentence Reports.

However, a conditional sentence would not be consistent with the purposes and principles of sentencing as set out in ss. 718 through718.2. As the Court in Harding pointed out, there must be exceptional circumstances before a conditional sentence order will beappropriate for such a serious breach of trust.

Deterrence and denunciation are the primary considerations. [59] The Wuttunee decision can be distinguished: She had no signing authority, she held a less responsible position, and thesentence was based on a joint submission. [60] The aggravating factors in this case are the breach of trust and the significant harm done to their First Nation, both now and inthe future.

By abusing their positions, they have inflicted additional poverty and suffering on their people which will delay theireconomic development and recovery from the abuses suffered in the past. [61] Mitigating are the guilty pleas, in cases which are lengthy and costly to prosecute, the remorse expressed, and in the case ofMoosomin, his failing health and that of his wife, as well as the family responsibilities of both offenders. [62] In addition, there are the Gladue issues and the requirements of s. 718.2(e).

These offenders are aboriginal and have beenaffected by poverty, lack of education, displacement from their community, family breakdown, alcohol abuse, and placement of familymembers in residential schools. These factors are to be considered not only in determining whether a conditional sentence order isappropriate, but also the length of sentence, as referred to in Gladue and as was done in R. v. Jack, upheld by the British Columbia Courtof Appeal. The systemic and background factors which contributed to the offender coming before the Court are relevant.

The Courtmust consider what is relevant to the community, the understanding of criminal sanctions in the community, and the relationship betweenthe offender and the community (Gladue paras. 77 and 80). [63] The Petition filed shows community support, although the reasons given may be inappropriate. There is considerable merit inimposing a sentence which would facilitate some manner of reparation to the victims by means of restitution and community service,both to compensate the victims and support reconciliation. LENGTH OF SENTENCE

[ 64 ] I have concluded that for an offender without the impact of the Gladue factors in this case, based on comparable decisions, a sentence of eighteen months would be appropriate. After careful consideration of the Gladue issues as mentioned which Starchief and Moosomin have faced in their lives and have contributed to their offending and coming before the Court, I conclude that a sentence of twelve months is appropriate.

As the Court of Appeal directed in Moccasin and Night , I have not considered any pattern or history of illegality in the activities of the Mosquito First Nation leadership as a factor under s. 718.2(e). The only relevance is that, to the extent it may have permeated local politics over the years, it will have contributed to the poverty and hopelessness for these offenders as members of the community. Breach of trust by their predecessors is partly responsible for their socio-economic circumstances.

That it may have been an accepted practice by some does not justify or diminish the blameworthiness of what they did, but it has contributed to the other factors which are proper considerations, just as these crimes will contribute to the suffering and higher incidence of crime and incarceration for future generations. [ 65 ] I have arrived at the twelve month sentence after considering all the factors and circumstances of the offence and the offenders, the sentencing provisions of the Criminal Code , and the cases mentioned applying these provisions.

I recommend that they be allowed to serve it in the Battleford’s Correctional Centre which will allow them to continue to work or perform community service in the community while serving their sentences, as well as provide emotional and financial support to their families.

Following release from custody, they are to serve two years of probation on the statutory terms as well as reporting to the probation officer forthwith upon release and thereafter as directed, and each is to perform 240 hours of community service work as directed by and to the satisfaction of the probation officer, preferably on his First Nation. Neither is to hold any position of trust of any kind where he has access to public funds or signing authority for such funds while on probation.

RESTITUTION [ 66 ] In arriving at an appropriate amount for restitution, I note that in the cases of Gopher, Night and Moccasin , orders for far less than the sums converted were made, and those amounts were upheld by the Court of Appeal. I recognize that the offences committed by Starchief and Moosomin include not only the funds which they kept for themselves, but also much larger amounts which were unlawfully distributed to others with their participation. Some of the monies they themselves received were also legitimate. [ 67 ] In R. v.

Germain, 2010 SKPC 144 , Gray J. imposed a restitution order in the full amount for an offender who defrauded SIGA of over one million dollars, although the defence argued inability to pay. The Court noted that the means to pay is not determinative of whether a compensation order is made and it would not be conducive to rehabilitation to put the victim to the expense of obtaining civil judgment, particularly when the amount is not in dispute (paras. 14 and 16). [ 68 ] These offenders continue to live in poverty considering their current incomes and family responsibilities.

The hardship of repaying the money will be shared by their families, just as they no doubt shared the benefits of the offences. [ 69 ] Starchief has offered to re-pay $20,000.00 over two years even though his resources to do so are limited, considering his income and family responsibilities. Over time, I believe that he could re-pay more. Although ability to pay is not a consideration as it is when restitution forms part of a Probation Order or conditional sentence, the amount must be realistic and manageable if the offender is to be encouraged to make the commitment to pay, and follow through.

The order should also provide for re-payment of as much of the loss as possible for the benefit of the victims. In this case, the money is sorely needed, and repayment of a substantial sum, with some degree of sacrifice on the part of the offender, will help to heal the wounds in the community. After considering all of these factors, I have concluded that the sum of $50,000.00 is reasonable. [ 70 ] With respect to Moosomin, his resources are much more limited. His ill health will prevent him from most physical work and he is also the caregiver to his wife and supports her and his grandchild.

However, both offenders are fairly equal in culpability, perhaps Moosomin even more so because of his position as an elder in the community and his higher level of education. I will order the same amount of restitution for him to pay, again considering all factors including reparation to the victims and redeeming himself in the community. It is a reasonable amount and he is not yet elderly, at 61 years of age.

He has worked at non-physical jobs in the past and hopefully will pay back at least a portion of the $50,000.00 over time. [ 71 ] There will be an order that each offender pay restitution in the amount of $50,000.00 for the benefit of the Mosquito First

[ 71 ] There will be an order that each offender pay restitution in the amount of $50,000.00 for the benefit of the Mosquito First Nation Treaty Land Entitlement Fund pursuant to s. 738 of the Criminal Code . VICTIM SURCHARGE [ 72 ] In addition, Mr. Starchief will pay a victim surcharge of $100.00 on or before December 31, 2011. As Mr. Moosomin is unemployed, his surcharge is waived due to financial hardship. ___________________________ V.H. Meekma, J