Restorative justice in the balance Discretionary sentencing powers are sadly — often tragically — underused when it comes to Indigenous offenders, charge legal and rehabilitation professionals By: Dean Pritchard Posted: 7:00 PM CDT Friday, Mar. 17, 2023 Last Modified: 1:37 PM CDT Saturday, Mar. 18, 2023 Updates

In the 20 months since he was arrested on a handful of weapon and drug charges, Ethan Wildcat appeared to be doing everything right to turn his young, troubled life around.

Released on bail to live at Morberg House, a 12-bed residential recovery facility in St. Boniface, the then-19-year-old Indigenous man embraced the idea there was a world for him beyond gangs, guns and drugs.

“He was the youngest person I ever had at Morberg House,” said executive director Marion Willis, one of Wildcat’s loudest champions. “I was really nervous about taking individuals who were quite so young just because of how structured our program is and the care plans we develop. I really wondered if someone so young could fit into our program.”

Withdrawn and mistrusting when he first arrived, Wildcat “transformed” once he realized he was in a safe place, Willis said.

“Ethan just changed, everything about him changed,” she said. “It was like he became this bright light, he was a sponge. He really responded well to all the nurturing and support that he got here. He really began to believe that people believed in him. He didn’t believe in himself.”

Wildcat’s support team were so impressed with his progress that they developed a case plan that included a recommendation he be sentenced to two years house arrest, during which time he would continue to live and continue programming at Morberg House.

“That our team would go to such lengths as this to make such a compelling plea is unusual,” Willis wrote in a case plan report written six months after Wildcat’s arrival at Morberg House and provided to court for Wildcat’s sentencing. “But we’ve come to know Ethan Wildcat and have done considerable work to understand his background and the events of his childhood that have shaped his life. Ethan Wildcat needs all of us to give to him now, the help he should have received growing up.”

But those hopes for a better life were dashed Nov. 9, when instead of a conditional sentence served in the community, a provincial court judge sentenced him to three years in prison, a sentence that Willis charges flies in the face of any notion of restorative justice or reconciliation.

“His whole life just came together and you just knew if we could hang on to him now… that the next two years would be the years that would sustain everything that was built up to this point,” Willis said. “And then when we went to court, the judge took it all away from him — everything. It was appalling to me.”

Wildcat’s case highlights how the courts continue to fail Indigenous offenders, Willis said, particularly young males at a turning point for whom a prison term can mean an irreversible slide into ever more serious criminality and gang involvement.

“If you think about where we are headed with the drug crisis in the city, you really do need to look at ways of doing things differently or you are going to have to build a lot more prisons,” Willis said. “This is yet another example that recidivism starts in the courtroom, with the decisions that are made in that courtroom, by judges who ought to have known better… To me it’s racist; there’s a stunning level of ignorance attached to this and it’s not fair.”

A side-by-side comparison of Wildcat’s case and that of another man, this one white and from a middle-class background, with a prior criminal record, who was also released on bail to Morberg House and sentenced by the same judge, shows just how differently the courts treat Indigenous offenders, Willis argued.

Regan Breemersch, 28, pleaded guilty to possession of prohibited weapons and related offences after admitting to letting a friend stash over 30 firearms, several of them loaded, in his garage, April 18, 2020.

Court heard at a sentencing hearing last August that Breemersch was in the grip of a methamphetamine addiction at the time and thought he was doing his friend a favour.

Defence lawyer Jonathan Pinx said Breemersch was sleeping when his friend dropped the weapons off and had no idea there would be so many.

“He (Breemersch) didn’t understand the consequences. He understands how wrong it was… It was being under the influence of meth that made these things seem normal at the time.”–Lawyer Jonathan Pinx

“He was honestly shocked by the number of firearms,” Pinx told provincial court Judge Rachel Rusen. “He was surprised by what he saw and he started to panic.”

Breemersch was moving the weapons from the garage to his basement just hours later when police turned up and arrested him.

“He didn’t understand the consequences,” Pinx said. “He understands how wrong it was… It was being under the influence of meth that made these things seem normal at the time.”

Released on bail, Breemersch participated in residential treatment programs at Morberg House and the Aurora Treatment and Recovery Centre, started to rebuild family relationships his drug use had left in ruins, and became a role model for others in treatment, court was told.

“I could see for the first time the destruction I had caused and the people I had hurt,” Breemersch told Rusen. “I never want to hurt anyone like that again.”

Prosecutors urged Rusen to sentence Breemersch to 3½ years in prison, while Pinx argued a two-year conditional sentence served in the community was appropriate, given the “exceptional circumstances” of the case, specifically Breemersch’s efforts to “completely turn his life around.”

“In my view, long-term protection of the public would be better served having this accused serve his sentence in the community. The circumstances of Mr. Breemersch’s post-offence conduct are in my view exceptional.”–Judge Rachel Rusen

Exceptional circumstances are a sentencing consideration that takes into account circumstances unique to an individual accused that would serve to reduce what would otherwise be an appropriate sentence.

Rusen agreed to the defence recommendation and in a lengthy oral decision delivered Aug. 26 lauded Breemersch’s efforts to rehabilitate himself.

“There is evidence that not only has Mr. Breemersch taken concrete steps to change his life, he has changed it — he has done all that society would want him to do,” Rusen said.

“Accordingly, in the circumstances of this accused, I am satisfied there are exceptional circumstances such that a sentence of less than usual is justified,” she said. “In my view, long-term protection of the public would be better served having this accused serve his sentence in the community. The circumstances of Mr. Breemersch’s post-offence conduct are in my view exceptional.”

Wildcat was arrested in March 2021 following a firearm incident at a Winnipeg home. When time came for sentencing, prosecutors sought a four-year prison sentence, the defence a conditional sentence served in the community.

Wildcat pleaded guilty to three counts of possession of an unauthorized firearm without a licence, one count of possession for the purpose of trafficking and three counts of failing to comply with court orders.

Wildcat was living with his girlfriend, her mother and her brother when, according to a version of events recounted by Rusen at sentencing, he started drinking and making suicidal comments, believing his girlfriend had been cheating on him.

At some point his girlfriend’s brother handed Wildcat a loaded shotgun. As Wildcat became more agitated, the brother tried to disarm him and during a resulting struggle a shot was accidentally fired into a closet door.

There were 13 people in the house, including children and the infant son of Wildcat and his girlfriend, but no one was injured.

Wildcat’s girlfriend called police as Wildcat, still armed with the shotgun, and his girlfriend’s brother fled the house. Wildcat stashed the shotgun under a sheet of cardboard near a garbage dumpster. Police arrested Wildcat a short time later and found him in possession of 48 grams of cocaine, 27 grams of marijuana and two shotgun shells.

Police executed a search warrant for his home and seized a sawed-off rifle and another firearm and ammunition that he admitted belonged to him. Taken into custody, Wildcat admitted to dealing drugs for money and to support his own drug habit.

Wildcat was released on bail but returned to custody a month later after breaching a court-ordered curfew. He was released again and then rearrested June 12, 2020, after he was caught drinking and breaching his curfew. The Crown agreed to his release on bail, this time to the custody of Morberg House, where he remained until his sentencing last November.

“He (Wildcat) felt really good about the work he did and he would say to me: ‘Wow, I can’t believe that used to be me.’”–Marion Willis

Wildcat was raised by a maternal aunt on Alberta’s Ermineskin Cree Nation, and had an upbringing blighted by poverty, hunger, escalating drug and alcohol abuse, and exposure to domestic abuse and gang violence, according to both his case plan and a pre-sentence report provided to court.

While at Morberg House, Wildcat underwent intensive counselling to address his childhood trauma, resumed his education, and worked with elders to reconnect with his culture.

By the time of his sentencing, Wildcat had spent more than a year working with Morberg House’s Street Links homeless outreach program, and of his own volition, began setting aside a portion of each paycheque for child support, Willis said.

“He felt really good about the work he did and he would say to me: ‘Wow, I can’t believe that used to be me,’” she said.

“Ethan was born into a life and family worn by years of violence and addictions… He succeeded beyond everyone’s expectations.”

In his pre-sentence report, Wildcat said the support he received at Morberg House “made me want to put in the work to do better.”

But unlike Breemersch, Wildcat’s efforts to rehabilitate himself did not rise to the level of exceptional circumstances, Rusen ruled.

“It is mitigating that he has pleaded guilty and taken responsibility for these charges,” Rusen said at Wildcat’s Nov. 9 sentencing hearing. “He was forthright in the preparation of his pre-sentence report. I also recognize his significant Gladue factors and his strong rehabilitation efforts now that he’s at Morberg House.”

Gladue refers to a Supreme Court of Canada decision requiring sentencing judges to consider relevant systemic and background factors, such as residential school involvement and the impact of colonialism, when sentencing Indigenous offenders.

Wildcat “is a young man. There is hope for him,” Rusen said. “The work Mr. Wildcat has done at Morberg House is commendable and significant. But it is expected that individuals with addictions who engage in criminal acts will take steps to address their addictions.”

Rusen said aggravating factors in the case, including the number of firearms seized, one of which was discarded loaded and “could have been found by anyone,” and the number of people in the house at the time of the shooting, supported the imposition of a prison sentence.

“Ethan Wildcat is the poster kid for exceptional circumstances, he is the poster kid for a restorative justice decision under Gladue.”–Marion Willis

“The law is clear that exceptional circumstances are to be found only in the rarest and clearest of cases,” Rusen said. “This is not that case. Mr. Wildcat is well on his way and I don’t want to take that away from him. But he has not fully and completely turned his life around since his arrest. Notwithstanding the Gladue factors and rehabilitative post-offence measures, his moral blameworthiness remains high. The combination of drugs and guns is a concern for the safety of society.”

Rusen’s ruling “contradicts everything the Gladue decision was about,” Willis said, noting a Gladue report prepared for court and Rusen when delivering her ruling referenced incorrect information, including where Wildcat was raised and his relationship to the people in the house where the shooting took place.

“Ethan Wildcat is the poster kid for exceptional circumstances, he is the poster kid for a restorative justice decision under Gladue,” Willis said.

“Any hope that Ethan had has been extinguished,” she said. “He had to learn a whole new normal, and he embraced that. And to have that all taken away from him? They sentenced him basically to hood life for the rest of his life.”

Wildcat’s Gladue factors and the intense work he did to rehabilitate himself make him a clear candidate for an exceptional circumstances argument, said lawyer Tony Kavanagh, who represented Wildcat at sentencing. “It is an amazing shift from basically being a kid who grew up with violence, shootings at his house, a drug-dealing family, domestic violence, abused as a kid,” Kavanagh said. “What he did in those two years is amazing. It’s even more amazing when you look at the Gladue circumstances.”

Bentley Dubois, one of several elders and mentors who worked with Wildcat, said he saw a profound change in him during his time at Morberg House.

“All of the work that he did was minimized and discarded by the judge who presided over his case,” said Dubois, who has been working with Indigenous offenders for more than four decades. “It’s really frustrating to see that happen, because it’s like this person did not get it, the way they minimized this programming tells me they have no clue about what is involved in actually doing some healing and addressing recidivism.”

Wildcat immersed himself in Indigenous culture, including sun dance and sweat lodge ceremonies and drum circles, and for the first time had the support of positive role models, Dubois said.

“I’ve been doing this kind of work for a very long time and the most impactful positive change agent that I’ve seen with men, especially Indigenous men, is when they start to embrace the culture and spirituality, and that is what he was doing,” he said. “He was at that stage where he was really starting to make some personal commitments about the lifestyle.

“That’s the really frustrating part: to see him make all this effort and have it all taken away from him.”

Courts have discretionary powers in sentencing, but they are rarely used to the benefit of Indigenous people, said Melissa Serbin, a former Crown prosecutor now working in private practice with Cochrane Saxberg, an Indigenous law firm.

“What we continue to see is that there seems to be differential and disproportionate outcomes for Indigenous people as opposed to their non-Indigenous counterparts in all facets of the justice system,” Serbin said.

“We can look back at every report that has been issued and see that this is a constant, this idea of subjective decision making constantly seems to work against Indigenous people.”–Lawyer Melissa Serbin

Looking at the strides Wildcat made on bail, there appears to be no reason to deny him a sentence similar to the one Breemersch received, Serbin said.

“It appears that the concept of parity, or similar sentences for similar accused in similar circumstances wasn’t applied,” Serbin. “But this happens, and it is something that has happened throughout the history of our system. We can look back at every report that has been issued and see that this is a constant, this idea of subjective decision making constantly seems to work against Indigenous people.”

Serbin said courts need to look at Indigenous offenders through a different cultural lens and change their idea of what “success” looks like. The rehabilitative efforts of an Indigenous offender with a background of deprivation can be much more difficult than the efforts of someone from a background of comparative advantage.

“When you see someone who is non-Indigenous succeed in a way that maybe your friends or family would succeed, or aligns with the values of the cultural system you grew up in, it makes more sense than if you see someone who grew up in gangs or the North End who is making huge strides in the community,” Serbin said. “It doesn’t compute in the same way.”

So, what’s to be done? It comes down to education, Serbin said.

“I think we really need to do more training on the history of Indigenous people in Canada, on Gladue and what Gladue means, instead of just looking at it as a list of deficits and applying it in that regard,” she said. “As soon as people can embrace and truly understand the history of legislation and how it has worked against Indigenous people and how there has always been a disconnect with our justice system… then we will be able to apply Gladue in a way that might address our over-incarceration issue or these disparities.”

A notice of appeal was filed on Wildcat’s behalf earlier this year, but he recently abandoned it, feeling his case is hopeless, Willis said.

“He feels so betrayed, and that even for it to be appealed, time is not his friend,” Willis said. “Maybe he could get released and bailed to Morberg House to wait for the appeal, but in his mind, he’ll just lose, because that’s what life is like for him.”

dean.pritchard@freepress.mb.ca

Dean Pritchard
Courts reporter

Someone once said a journalist is just a reporter in a good suit. Dean Pritchard doesn’t own a good suit. But he knows a good lawsuit.

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