Pauchay unfit for sentencing circle
By John Gormley, Special to The StarPhoenixJanuary 9, 2009
Source: Pauchay unfit for sentencing circle (external - login to view)
Used hundreds of times in Saskatchewan since the early 1990s, sentencing circles are often helpful. But sometimes a high-profile case involving them triggers an important public debate.
And so it is with Christopher Pauchay, the young Yellow Quill First Nation father who decided, while drunk a year ago, to wander outside his home in the midst of a blizzard dragging along his small daughters, Kaydance, 3, and 16-month-old Santana, both clad only in diapers and T-shirts.
Charged after the little girls froze to death, Pauchay pleaded guilty to criminal negligence.
Sentencing circles are part of the restorative justice movement and have their roots in indigenous tribal traditions of the community coming together to resolve conflict.
There isn't much conclusive empirical research available on how many of these circles are convened in Saskatchewan or their long-term benefit in reducing an accused's likelihood of re-offending.
But anecdotally, we hear of sentencing circles that help an accused person and their community come to terms with the corrosive effects of family dysfunction and substance abuse. And it's sometimes a step toward change, progress and reconciliation.
Other times, not so.
These circles feature as many as several dozen people sitting in a circle: The accused and victim, their families, elders, police officers, local community justice officials, the judge, lawyers and experts who have had experience with the accused.
All participants are considered equals. They make the sentencing decision as a group and, according to one paper on the subject, the judge "approves the recommendation and does not devise" it.
It is important to remember the judge ultimately passes sentence and can use the sentencing circle for assistance. Its decision can be disregarded by the judge.
Strong supporters of sentencing circles and restorative justice see no room for punishment or the long-established -- though increasingly quaint -- sentencing principle of retribution.
Even reinforcing the sentencing principles of denunciation and deterrence by using punishment is glibly dismissed.
Punishment is often viewed as a holdover from bygone centuries where all offences were crimes against the king, hence the Crown punishes bad behaviour.
Restorative justice, on the other hand, is extolled for ignoring punishment but still reinforcing accountability while promoting healing and purging anger.
In Pauchay's case, there is plenty of anger. Provincial court Judge Barry Morgan was required by law to apply several criteria before ordering a sentencing circle.
Some of the criteria were straightforward -- the accused and elders agreeing to participate, Pauchay having roots in the community and any facts in dispute being resolved.
But two criteria were not so clear. One requires the victim be willing to participate. Obviously, the unfortunate little girls are gone.
Their mother, Pauchay's common-law wife who was fighting with him that fateful night and away drinking with friends, says she will not attend the circle but suggests so-called surrogate victims or family members.
And the most pertinent criterion -- and in this case most contentious -- requires the case to be one where "a court is willing to take a calculated risk and depart from the usual range of sentencing."
In a carefully reasoned analysis over five pages, the judge decided this criterion was met and he granted Pauchay a sentencing circle.
There are many reasons a sentencing circle could have been dispensed with.
In his entire life on the Yellow Quill First Nation, save for one year away, how much support, intervention, guidance and strength did Pauchay actually get from his community?
How much was offered? How much did he ask for? Clearly, not enough to save the lives of two vulnerable children.
And how much support will Pauchay receive in future as part of his healing?
How much insight and understanding into his crime and his underlying behaviour does Pauchay possess -- particularly when in a recent interview he refers to the deaths as "an accident" and admits that he still "struggles with alcohol."
With 51 prior convictions, including many for failing to comply with court orders, how willing is Pauchay to not just engage in a genuine dialogue but also to abide by whatever his community comes up with?
How able is Pauchay to speak to his circle frankly, honestly and with mutual respect and a plea for forgiveness and atonement for a crime so heinous?
And on forgiveness, does it mean anything that Pauchay states: "I don't believe in punishment. Forgiveness is better than anything else. Punishment doesn't do nothing."
Generally, a person who causes harm shouldn't be dictating terms. A genuine, remorseful -- and restorative -- exercise should see Pauchay asking for forgiveness and being willing to accept the results of his actions, including treatment, punishment or whatever consequences arise.
And given the consensus that sentencing circles result in sentences different from the norm, it's not surprising Pauchay expressed relief at the decision to grant him a sentencing circle, particularly when many community members have repeatedly expressed the view he's suffered enough.
And these are the same community members -- presumably to be involved in the sentencing circle -- who unsuccessfully asked the judge to close the circle to the media, preventing the public from seeing the process.
Justice done in daylight with scrutiny is a central tenet of our legal system.
Hopefully so is someone standing up for two little girls whose lives were so desperately cut short.
Gormley can be heard Monday to Friday at 8:30 a.m. to 12:30 p.m. on NewsTalk 650
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