National Post

Wednesday, January 06, 1999

Woman cites Metis heritage as reason for light sentence
One of several cases: New legislation lets judges consider native background

Stewart Bell
National Post

A Vancouver woman convicted of manslaughter in the stabbing death of her common-law husband plans to argue at her sentencing hearing that she should not go to prison, in part because she is a Metis.

When Deanna Emard appears in court next Monday, her lawyer and supporters will urge the court to invoke recent federal legislation that instructs judges to take into consideration an offender's aboriginal background when handing down sentences.

"I'm going to ask the court to consider it as a mitigating circumstance," said Peter Wilson, her lawyer. "I think it's something the court is going to have to take into consideration because my client is an aboriginal offender and that's the specific reference that's contained within the [criminal] code."

The Vancouver Metis Association also plans to make an argument in court. "She is really a good person," said Paul Stevenson, the association president. "There would be absolutely no benefit to Canada for her to be incarcerated."

The new law is designed to keep natives out of jail by giving sentencing judges the leeway to consider their background, and the systemic problems faced by the nation's aboriginal people.

Emard is one of a growing number of convicts making use of the law to try avoid jail time for serious crimes.

The first test case for the law went to the Supreme Court of Canada last month. Jamie Gladue, convicted of manslaughter and sent to prison for three years for killing her husband with a knife to the chest, argued in an appeal to the court that she should have received a lighter sentence because of her "Indianness."

Another case to be heard by the Supreme Court involves James Warren Wells, an Albertan convicted of sexually-assaulting an 18-year-old while she lay unconscious in her bed. He is appealing his 20-month sentence on the grounds the judge did not give sufficient weight to his aboriginal heritage.

Parliament enacted the new law as part of a sweeping sentencing reform package in 1996. The reforms were intended to take the pressure off Canada's bulging prison system, in part by reducing the disproportionate number of aboriginal people behind bars.

David Daubney, general counsel and co-ordinator of the sentence reform team at the Justice Department in Ottawa, said it's not enough for convicts to say they should get off easy because they are aboriginal. Rather there must be evidence a person has been subjected to the barriers commonly faced by natives, such as poverty, substance abuse, physical or sexual abuse, or residential school experience.

Federal officials are awaiting two high court rulings that will determine how broadly the law is interpreted by the bench. One

involves Gladue, convicted of manslaughter in the 1995 stabbing death of her husband. The B.C. Supreme Court rejected her argument that her Indian status should be a consideration in her sentence, because she did not live on a reserve.

The B.C. Court of Appeal rejected the notion there was a distinction between on-reserve and off-reserve natives, but still found her native ancestry irrelevant to the sentence. The high court heard the case Dec. 10. It has not yet ruled on the matter.

Emard was 26 when her 39-year-old partner, Wilfred Shorsen, was stabbed to death with a kitchen knife on Jan. 26,

1997. She was charged with manslaughter the next day. But Mr. Stevenson said that since then she has worked hard to clean up her life.

"In the two years that she's been before the courts she's taken her drug and alcohol counselling, she's been active in our pre-school, and active in our community affairs," the Metis leader said.

"So we'll be asking the court . . . that she be released to us, to her community where she has good family support."

Just like other aboriginal people, Metis "have been held back," he said. "We were also in the residential schools and orphanages, our children were taken from us and adopted out and sold. So this is really important that the justice system recognize where we're coming from."

Reached at her home in Vancouver, Emard was reluctant to talk about the case, saying she wanted to keep a low profile. "I want to get on with my life," she said.

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