Roger writing the LAWmag

The Good and the Bad: Judge Stuart's R. v. Moses Legacy

Twenty-six year old Philip Moses was the genesis behind the decision. It was his dumb decision to approach a police officer holding a baseball bat.

The police officer drew his revolver, retreated to his vehicle, and later arrested Moses, charging him with use of a weapon for the purposes of committing an assault.

Moses was a member of a First Nations family; but not just any family. he was raised amid alcohol abuse and poverty. From the age of 10, he was in and out of foster homes, group homes and juvenile centers. He later alleged that he had also been physically and sexually abused.

By the time he was brought before Judge Barry Stuart of the Yukon Territorial Court, he had a six-year-old son whom he rarely saw.

Moses had a long criminal record. He could have received a lengthy prison sentence which would have bought him a one-way ticket out of the Northwest Territories and straight into a federal penitentiary.

Lucky for Moses, Stuart had an epiphany, writing a judgment which is so unique in being both remarkable in one way, and yet controversial in another. Some might call it both naïve and a great disservice to contemporary criminal justice. Others might call it cutting-edge and the legitimate use of features of aboriginal law.

Totem poleFirst, it refreshingly comments on our justice system in a way never spoken of by a sitting judge:

"In any decision-making process, power, control, the overall atmosphere and dynamics are significantly influenced by the physical setting, and especially by the places accorded to participants. Those who wish to create a particular atmosphere, or especially to manipulate a decision-making process to their advantage, have from time immemorial astutely controlled the physical setting of the decision-making forum. Among the great predator groups in the animal kingdom, often the place secured by each member in the site they rest or hunt, significantly influences their ability to control group decisions. In the criminal justice process (arguably one of contemporary society's great predators) the physical arrangement in a courtroom profoundly affects who participates and how they participate. The organization of the courtroom influences the content, scope and importance of information provided to the court. The rules governing the court hearing reinforce the allocation of power and influence fostered by the physical setting.

"The combined effect of the rules and the courtroom arrangements entrench the adversarial nature of the process. The judge, defence and Crown counsel, fortified by their prominent places in the courtroom and by the rules, own and control the process and no one in a courtroom can have any doubt about that.

"The foreboding courtroom setting discourages meaningful participation beyond lawyers and judges. The judge presiding on high, robed to emphasize his authoritative dominance, armed with the power to control the process, is rarely challenged. Lawyers, by their deference, and by standing when addressing the judge, reinforce to the community the judge's pivotal importance. All of this combines to encourage the community to believe judges uniquely and exclusively possess the wisdom and resources to develop a just and viable result. They are so grievously wrong."

Sentencing Circle

The judgment in R v Moses, which should be read by all law students, is unique in another way.

Judge Stuart makes a poignant case for sentencing circles, also known as consultation circles.

Unfortunately, the use of sentencing circles appears to be a privilege reserved only for aboriginals. White folk need not apply.

It is a clear advantage for an aboriginal offender to defer to a sentencing circle. Their community peers, as Judge Stuart points out, rarely understand or value "white man's justice". For the aboriginal spirit, a criminal offense is not just that of the offender. It belongs to the community.

That philosophy can be counter-productive.

Aboriginal interest groups note that a sentencing circle has no binding effect. It merely produces a recommendation on sentence to the presiding judge.

That may be so but if sentencing circles are what aboriginal law proponents make them out to be, they should be part and parcel of the criminal justice system for every Canadian, regardless of creed, colour or culture.

Judge Stuart's arguments were impressive:

"Whatever their intentions, circuit counsel can never know Philip as well as his family or others within his community. Nor can any counsel fully reflect the offender's pain, suffering, or desperate search for help. Equally, the anger, resentment and hostility of many offenders is rarely expressed, as competent counsel manage to ensure a properly contrite, dutiful face masks any burning feelings which may, if revealed, provoke a harsher sentence. Consequently, the court sentences in blissful ignorance, missing the opportunity to constructively appreciate perceptions and feelings that may perpetually frustrate rehabilitative plans."

Philip Moses did not seem to qualify for a sentencing circle given the crime and his antecedents. But by the time he was before Judge Stuart, the well-intentioned judge was ready to blame the State for what appeared to be Mr. Stuart's choices:

"Philip began his criminal record as an adult in 1982 with two minor offences. A decade later Philip had amassed a criminal record comprising 43 offences, over eight years of jail sentences, and numerous probation orders. In the past three years his criminal behaviour has significantly intensified (27 offences). The state, despite spending at least a quarter of a million dollars on Philip in the past 10 years, has worsened his chances for rehabilitation and lessened public security."

Stuart, after the sentencing circle, sentenced Moses to a very soft sentence: a two-year suspended sentence. This, for a repeat offender with eight years of jail behind him and a rap sheet with some 43 offences, for approaching a police officer with a baseball bat.

Whatever Happened to Philip Moses?

Judge Stuart is now retired. He co-wrote Peacemaking Circles further expounding his views on sentencing circles.

Private and academic cottage industries, supporting a parallel aboriginal justice system, have since sprouted.

One would not wish to ever forget his wise remarks on the Canadian courtroom.

As for Stuart's advocacy of sentencing circles and the deflection of criminal accountability for qualified offenders, inquiring minds want to know: whatever happened to Philip Moses?

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Posted in Crime and Criminal Law, Human Rights
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