Two new agreements have just come into effect that will allow Kahnawa’kehró:non to resolve legal matters locally rather than at the courthouse in Longueuil, the Mohawk Council of Kahnawake (MCK) announced this week.
One will allow prosecutors at the Longueuil court to transfer certain criminal cases back to Skén:nen Aonsón:ton for resolution. The other protocol will allow for the negotiation of youth protection cases to happen in the community. Both agreements took years of negotiation to achieve.
“That is a way to take back some of our jurisdiction over our people,” said MCK chief Tonya Perron, who leads the justice portfolio and worked toward securing the deals. “These are the small steps to the long-term plan of asserting our jurisdiction completely over our people, our territory, and our matters.”
To become peaceful again
The first agreement will allow prosecutors to refer certain criminal cases back to Skén:nen Aonsón:ton for resolution. If the process is fruitful, the prosecutor can then recommend charges be dismissed.
Skén:nen Aonsón:ton, which translates to “become peaceful again,” has been running its restorative justice programs in the community since 2000.
“This (agreement) has been in the works for a couple of years. We’ve had discussions back and forth, and we’re all very pleased that we’ve actually concluded the agreement,” said Kevin Fleischer, the commissioner of justice services in the community.
“I’m a big believer that Kahnawake should resolve its issues within the community using practices that are reflective of our customs and traditions whenever possible. We should be handling things internally within the community, and this agreement allows us to do so with these files that otherwise would have been decided by the courts.”
Skén:nen Aonsón:ton provides a space for Kahnawa’kehró:non to resolve their conflicts outside of the Kahnawake court or those under other jurisdictions. According to Kahnawake’s Justice Act, it should function, when appropriate, as the first entry point to justice. It is not intended for resolving serious crimes.
“Through the restorative justice process, offenders take responsibility for their actions, gain a better understanding of the harm they have caused, and are provided the opportunity to make amends,” explained Kara Paul, the alternative justice coordinator at Skén:nen Aonsón:ton. “They are also encouraged to develop strategies to address their needs as they move towards reparation and healing.”
The office, which just moved to the Old Malone Highway across from the Poissant and Deer funeral home, offers mediation services, peace-making circles, as well as restorative justice forums, where all parties involved are invited to take part in the process.
Only some criminal cases can be sent to Skén:nen Aonsón:ton. Those facing serious criminal charges won’t be eligible under the new agreement, Fleischer said. Firearm-related charges, sexual assault, aggravated assault, offenses against public order, and criminal charges that stipulate minimum sentences, will stay within the jurisdiction of the Longueuil courthouse. However those charged with offenses like mischief, fraud under $5,000, issuing threats, breaking and entering, simple assault, as well as certain thefts, could be eligible.
Whether a case gets referred ultimately rests on the prosecutor. “The prosecutors in Longueuil will evaluate the file to see if it’s something that can benefit from alternative measures,” Fleischer explained.
Skén:nen Aonsón:ton also has a say in the matter, he said.
“The accused person has to take responsibility for what they’ve done,” Fleischer added. “If someone has attempted to go through Skén:nen in the past, but didn’t respect the process, that’s another criteria that would be taken into account. Or if they’ve gone through Skén:nen before, but didn’t complete the program, or didn’t take it seriously.”
Cases that fail to be resolved at Skén:nen Aonsón:ton will be referred back to the courthouse. Fleischer said they’ll be continuing to work closely alongside Quebec’s Director of Criminal and Penal Prosecutions (DCPP) to ensure everything runs smoothly and that tweaks can be made when necessary.
Negotiating youth settlement cases
Typically, families have had to go out to the Longueuil court for the mediation of youth protection cases alongside a judge – but now judges have the permission to come to Kahnawake instead.
“It’s already an existing service, but we’re trying to make it easier for community members to access,” explained Derek Montour, the executive director for Kahnawake Shakotiia’takehnhas Community Services (KSCS), which has jurisdiction over local youth protection cases.
When youth protection cases reach the Longueuil court, at times the judge may recommend the family take part in what’s called a settlement conference. It’s a process that involves the family working alongside KSCS to reach an agreement over how to resolve the issues that led to their case being brought to court in the first place. Rather than the judge taking a unilateral decision on the best course of action, all parties are involved in reaching a resolution, Montour explained.
“That is where the judge meets with the family, in a separate room, but in a less adversarial role. The judge becomes a mediator, in essence,” he said. “It’s much more in line with our cultural traditions and practices, rather than some judge externally having to take a decision. Here we’re able to work among ourselves.”
The settlement conferences will be held in the Kahnawake Office Complex, where new soundproof walls have been installed to provide confidentiality for the sensitive discussions that will take place there.
“We’re actually creating justice within our own community, and ideally we can even create processes where these kinds of things are done without even having to go to the court at all,” Montrour added. “To me that’s fundamental, that we determine for ourselves how to settle our own challenges.”
This article was originally published in print on Friday, September 29, in issue 32.39 of The Eastern Door.
Miriam Lafontaine is a reporter with the Eastern Door. Her work has appeared in Le Devoir, CBC Montreal, CBC New Brunswick as well as the Toronto Star.
