After a candelight vigil of friends and supporters outside the Surrey Pre-trial Centre, R v. Pena et al (XO43758 New Westminster Registry) commenced at 10:00 am. Defendants OJ Pitawanakwat, Shelagh Franklin and Wolverine, all self-represented, reminded the judge once more of the court's lack of jurisdiction. They further reminced Judge Bruce Josephson of his still unfulfilled commitment to supply his reasons for judgment on the dismissal of both the colour of right defence and the jurisdictional challenge. Josephson responded that he would not entertain either issue being raised again and that these were now matters for appeal.
Defendants Pitawanakwat and Wolverine again urged the court to pass sentence so that appeals could be filed. OJ quipped to Josephson: "I am anxious to get on with my appeal, to get my sentence, whether it's an absolute discharge or time served." There was no response.
OJ reminded the court he was entitled to "a trial without delay, and that includes the sentencing."
Wolverine asked Josephson "Why are you dragging this out and holding up an appeal? Is it because the Queen will be in Canada on the 24th of June?" He called for demonstrations "to demand justice" and to "put the Queen on notice for what this system is doing to our people - and all for greed."
He appealed to international observers "to get the word out that they haven't dealt with the law here. The law's been thrown out! I believe I've been here long enough - maybe it's the colour of my skin that's keeping me in here... I want either to be sentenced today, or to be let go, instead of waiting around for that happy prosecutor over there. So what's it gonna be?"
Judge Josephson replied that sentencing should of course proceed as quickly as possible but that "a number of defendants seek a reasonable delay" for their counsel to prepare submissions on sentencing. He said there are many important considerations which are common to all accused, that all accused are entitled to be heard before he decided on these isssues and that roceeding before these submissions might mean longer sentences for Mr. Pitawanakwat and Mr. Ignace.
Josephson ruled that the Crown will proceed with sentencing recommendations on June 20, 1997. Defence submissions are scheduled to begin July 10th, with Mr. Tate and Mr. Rankin scheduled for July 22.
Manuel Azevedo then spoke to his motion requesting a "sentencing circle." He also mentioned he would be seeking "constitutional relief," but did not elaborate. Defendants Percy Rosette, Mary Pena, Suniva Bronson and Glenn Deneault have indicated their desire to participate in the circle. Others are reported to be considering it.
An interesting indication of outside support emerged when Azevedo noted "I expect your lordship will continue to be inundated with letters." [Keep them coming to us! - S.I.S.I.S.]
Azevedo admitted that "case law has not dealt with the legal basis and it has not been litigated whether it constitutes an aboriginal right under Section 35 of the Constitution Act 1982." He pointed out that granting of the circle "was an exercise of your lordship's discretion." Defendants Deneault and Rosette, said Azevedo, had canvassed elders, bands and the Okanagan-Shuswap confederacy and claimed that the concept "had wide support among the elders." Azevedo said he had contacted retired Judge Cunliffe Barnet who had offered his services as a "friend of the court" and suggested in turn that "the Prince George court worker had experience so it would go smoothly."
Azevedo portrayed the sentencing circle as "restorative" rather than "retributive" - but again noted that regarding sentencing: "The ultimate decision is in your lordship's hands. Your lordship is not bound by any recommendations the circle may make.
"This trial is a historic case... sentencing should not be rushed... a political case whether this court recognized it or not. Although your lordship denied their application for jurisdiction... the sentencing circle would be one way to recognize the contributions of aboriginal people to the criminal justice system... and that aboriginal people have something positive to contribute." Yet those defendants who have remained true to the original jurisdictional challenge have all rejected the sentencing circle themselves, and found the concept so odious they had left the courtroom.
By this time, reactions from other traditionalists in the public gallery suggested that this "traditional native sentencing circle" as practiced by the BC courts was neither native nor traditional - but rather the same old BC BS.
By the time Azevedo suggested that the police sniper who had attempted to shoot dead an unarmed defendant in an agreed upon 'no shoot zone' "may wish to shake hands" with his intended victim, or that the sentencing circle "offered hope to repair relations between the accused and the communities... an opportunity to change their lifestyles," many in the gallery were visible disgusted. Azevedo concluded that there was "everything to be gained by holding the sentencing circle, and nothing to lose." "For who?" asked a voice in the gallery.
When asked for a time line, Azevedo responded "this practically could not occur until September."
The Crown will file its written response to this motion by Friday, June 13th.
A rally followed outside the Surrey Courthouse. Defendant Flo Sampson, a Shuswap elder and wife to political prisoner Wolverine, thanked "each and every one who is supporting us" and told the crowd "we're taking this stand for our future generations...for the little ones that are here."
"This land is ours," she said, "but we can make it a better place for all."
Lil'Wat traditionalist Lahalus (Loretta Pascal) said, "What we want and what Wolverine wants is to deal with the law. They're not dealing with it, and I'm getting pissed off." She urged people to push for a public inquiry and a third party tribunal.
Mohawk speaker Splitting the Sky, true to his name, told the crowd that "we're getting very sick of seeing our brothers and sisters validating institutions that are designed to criminalize and oppress us... We must never think we have to get on our knees and kiss the enemy's ass."
"The freedom call around the world has to be: free the Wolverine, free OJ, free the land for the children!"
Wolverine advised S.I.S.I.S. that he was cautioned by prison staff about "inciting a riot" when he raised his fist in acknowledgement of the crowd of supporters drumming and singing below his prison window. Prison staff have threatened to move him to another location from which he could not see his supporters outside.