On Dec. 3, 2002, a provincial court judge harshly rejected a request for a sentencing circle by two Saskatoon police officers convicted of dropping off a Native man on the city's outskirts on a frigid winter's night.
Four days after making that determination, Justice Schiebel rejected the officers' application for a conditional sentence and imposed an eight-month jail term on both men.
In the Dec. 7 sentencing decision, the judge stated that sentencing guidelines required him to take note of any aggravating factors that might call for a sentence closer to the maximum.
“There is no doubt there are strong suspicions that race played a part in this offence. However, suspicion is not evidence and since the Crown has failed to prove beyond a reasonable doubt that race played a role, I am unable to consider whether or not race was an aggravating circumstance," he wrote.
"Therefore under Section 718.2 [of the Criminal Code] the only aggravating circumstance that can be considered by the court is 'evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim’."
The judge then ruled that it was clear to him that the officers had "abused their position of trust to a high degree."
"The actions of the accused are so reprehensible that the court must denounce the unlawful conduct in the strongest terms," he added.
Dan Hatchen, 40, and Ken Munson, 44, convicted of taking Darrell Night on what has become known as a starlight cruise, claimed they should be allowed access to a sentencing circle rather than be given a conventional sentence for their criminal convictions.
In his ruling, the judge noted that the established legal criteria for the granting of a sentencing circle includes the requirements that the accused accept responsibility, that all disputed issues be resolved prior to the circle and that the victim agrees to participate.
"[The judge] ruled in answer to these individuals', these common criminals' application for a sentencing or a healing circle, on Dec. 3 that a sentencing circle was inappropriate in this particular instance and as such he was not prepared to order one," said Donald Worme, Night's lawyer.
Worme said Justice Schiebel described the application as "confused and ironic" given that the defendants had applied for a change of venue early in the proceeding, then pled not guilty and conducted what Worme called a tough, aggressive, difficult defence.
"Difficult as far as the victim was concerned, attacking him, calling him everything from a belligerent drunk to a welfare recipient to a racist," Worme explained.
The lawyer said the judge was not impressed by the officers' application for a sentencing circle.
"He did describe their not guilty plea and their antics throughout, including the application, as being 'death-bed repentance.'" Worme added.
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