In a practice slowly becoming more common in Alberta, a Ponoka defence lawyer was successful in having the sentence reduced for his client at the Ponoka Court of Justice on March 13, in part due to sentencing circles.
On Nov. 10, 2023, Shanise Rowan Yellowbird, a resident of Pigeon Lake, pleaded guilty to assault of a peace officer, resisting a peace officer and failure or refusal to provide a breath sample.
The court heard that on July 25, 2023, Yellowbird had been driving in or near Ponoka when she was stopped by peace officers.
When she was asked to blow in a breathalyzer, she became upset and ran towards one of the officers.
She was taken to the ground, and in the process, she kicked her foot out, striking a constable.
The Crown and the defence made a joint application to have the previously entered guilty pleas struck due to the penalties having a “significantly disproportionate” impact on the defendant’s life.
Both counsellors stated they were unaware of the personal circumstances that led to the incident, and the work Rowan Yellowbird had done to make amends, until it came out at several sentencing circles.
“Sentencing circles” are Indigenous restorative justice hearings that focus on mending relationships. They can include members of the community and representatives of the criminal justice system.
Crown prosecutor Christina da Rosa said Rowan Yellowbird’s son had been a victim of a stabbing. He almost lost his life and she had “negative interactions with police” during the incident.
In April 2022, Rowan Yellowbird’s son, then 16, had been fighting with another teen at Pigeon Lake Regional School when he was stabbed.
He was airlifted by STARS. He was in a coma for two days, and still suffers from the injuries he sustained.
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While Rowan Yellowbird had been doing quite well before the incident, she began drinking in reaction to the event, said de Rosa.
Since the offence, Rowan Yellowbird has participated in four sentencing circles that included multiple members of the RCMP and STARS. One officer submitted a letter of support for her.
The licence suspension presented a hardship for Rowan Yellowbird because she is currently attending post-secondary and her son still requires medical care and there are specialist appointments they need to travel for, the court heard.
da Rose said if the Crown had all the personal information, even without the knowledge of the event that led to the offence, the Crown wouldn’t have proceeded as they did.
“On that basis, in the interest of justice, the Crown is seeking that the guilty pleas be struck,” said de Rosa.
Defence lawyer Craig Paterson stated the mandatory minimum penalties for the charges (three to five years’ driver’s licence suspension and a $2,500 fine) would have been disproportionate to the offence.
The Honourable Justice W.A. Andreassen said he was satisfied the criteria for being uniformed had been met and struck the pleas.
The defence then entered a new guilty plea for resisting a peace officer.
Patterson said they had no issue with that charge, as the officer was just doing his duties and Rowan Yellowbird was remorseful for what happened.
Given the amount of work Rowan Yellowbird had done and the harm done to the community as well as “extreme personal circumstances” and her remorse, de Rosa recommended a lower fine of $300.
The court heard Rowan Yellowbird is doing very well in school and wanted to go into environmental science after graduating in May. She currently has class four days a week, but is only able to attend once a week because of not having a licence.
Andreassen allowed Samson Community Wellness cultural connector Kirk Buffalo to speak to the court on behalf of Yellowbird.
Buffalo said Indigenous peoples now have the ability to write down their laws which have been passed down orally, and are hoping to bring the value of forgiveness into the court system, to bring a sense of justice and healing.
He said that the Truth and Reconciliation call to action Section 42 states when sentencing Indigenous offenders, courts must commit to recognizing Aboriginal laws and their culture and ceremonies as treatment.
“We do have a judicial system that can work with society, and hopefully find a common goal,” said Buffalo.
“This is an opportunity to assist the courts in addressing First Nations.”
According to Buffalo, Rowan Yellowbird has participated in sweats as well as the sentencing circles, and continues to take part in her culture, including singing at a sun dance later that afternoon.
Andreassen said those that are educated in the justice system and the Indigenous justice system have the same goal.
“I’d like to think that, fundamentally, they’re not that different,” said Andreassen.
When asked Yellowbird said she hadn’t yet apologized directly the the officer involved, but she had attempted to. She also stated she still had some fear of the officer.
Andreassen recognized her apology before the court, and added while he didn’t want to cause her any regression, direct apologies can be more meaningful.
The judge handed down a $300 fine, to be paid by Sept. 30, 2024, or two days in jail if Yellowbird should default. He advised her to consider her options as there may be opportunities for her to work off the fine through community service.
According to Paterson, Rowan Yellowbird should able to get her licence back soon as the charges had been vacated.
Buffalo said he “couldn’t complain” at the result, and was glad there was at least there was a coming together of understanding between the parties.
“The precedent that was set was to take Aboriginal culture into consideration,” said Paterson in an interview after court was adjourned.
While this was the first case he had worked on where counsel asked sentencing circles to be considered, they are working to expand the initiative in central Alberta and Rocky Mountain House where there are higher Indigenous populations, he said.
“One of the things missing in the criminal court of Canada in terms of basis for sentencing … that’s big in the Aboriginal Nation is forgiveness, so this was an attempt to start that process and put that cultural element of forgiveness into the Criminal Code and have that considered to be a sentencing addition,” he said.
“(Rowan Yellowbird’s) done a lot of work — cognitively, psychologically, culturally — and to not have that taken into consideration is a tragedy simply because of the fact that it doesn’t empower her. She knows what she did wrong, which is why she’s pleading guilty. She’s taking responsibility for her actions.”
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