Case of Shaldon Wabason, who fought and won peace bond attempt, raises concerns involving Indigenous people

CBC News: A man from an Ojibway First Nation in northwestern Ontario says Crown lawyers wrongfully tried to impose unnecessarily strict conditions on his release from jail.

Shaldon Wabason, who’s from Whitesand First Nation, and his lawyers say prosecutors in Thunder Bay attempted to use a little-known legal tool — a peace bond application under Sec. 810.2 of the Criminal Code — to impose those restrictions, despite the fact he had already served his full sentence in 2021.

In March 2023, Wabason arrived at the Thunder Bay Courthouse for what he hoped would be the final time dealing with the justice system, after a decade of fighting for fair judicial proceedings. The attempt to place a peace bond on him was dropped. But now, the case has lawyers and corrections researchers questioning whether provincial attorneys general are using the legal tool disproportionately on Indigenous people. They’re also calling for answers and transparency from Ontario Attorney General Doug Downey.

Wabason, 31, and his lawyers say they’re coming forward now to raise awareness about Sec. 810.2 and its possible repercussions.

Shaldon’s journey is not only a story about Shaldon, but it’s a story of the way Indigenous people are treated by the criminal justice system compared to the way white people are treated.- Devin Bains, lawyer for Shaldon Wabason

In 2015, Wabason was wrongfully convicted of break and enter and manslaughter in the 2011 death of Thunder Bay resident Robert Topping and sentenced to 10 years in jail. He successfully appealed the decision and the sentence, and later pleaded guilty in 2019 to criminal negligence causing death.

Wabason also fought in 2014 to have a representative jury, arguing the jury roll in Thunder Bay doesn’t adequately represent First Nations people living on reserve. “Shaldon’s position always was that he never entered the house … that the most he did was kick down a door and not know anything about what happened inside. There was very powerful evidence to show that he was 100 per cent correct,” said lawyer Devin Bains, who represented Wabason for most of the past 10 years.

In 2020, Wabason was denied parole and had to serve the remainder of his sentence, Bains said. 

Notably, a second Indigenous man charged in the same 2011 death also had to serve his entire sentence. However, a white man convicted of the most serious offence related to the murder of Topping was released on parole and bail multiple times over the last few years, despite having committed a number of additional serious offences.

“Shaldon’s journey is not only a story about Shaldon, but it’s a story of the way Indigenous people are treated by the criminal justice system compared to the way white people are treated,” Bains said.

What a Sec. 810.2 peace bond is all about

Just two days before Wabason’s sentence was about to end in February 2021 and he was to be released, he was served with a Criminal Code Sec. 810.2 application filed by a Thunder Bay police officer who identified him as “a potential risk to the public,” Bains said. The legal tool allows a person to request a peace bond in court, if they reasonably fear a dangerous person will seriously injure another person, said Mary Campbell, a retired director general of a federal unit that focused on law reform. Campbell also led a team that created the 810.2 peace bond application in the 1990s.

A peace bond is a court order that lays conditions — such as a curfew, restrictions from owning firearms or requirements to stay a certain distance from some people — on someone to keep the peace. “It’s a pretty heavy tool with a legitimate concern behind it,” Campbell said. “There are people out in the community who clearly pose a threat, but a lot depends on how it’s used and the conditions imposed.” 

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To keep the use of 810.2 peace bonds in check, Campbell said it requires provincial attorneys general to sign off on them. But there is little public data or evidence about how these peace bonds have been used over the past 30 years, she said. Refusing to enter into a peace bond could result in a one-year jail sentence, Campbell said. If someone has a previous offence and they refuse to enter a peace bond, they could be sentenced for up to two years. Breaching peace bond conditions could result in further penalties, including incarceration of up to four years, she said.

The conditions for Wabason’s release were very strict, Bains said, but more importantly, they symbolized he was “too dangerous to be free.”

Peace bonds a ‘slippery slope’ to life in prison

If Wabason had agreed to the 810.2 peace bond, he would have been agreeing that he was dangerous to society, which Bains said is the first step to being labelled a dangerous offender — which carries an indeterminate jail sentence. “The minute you’re on those [810.2] conditions, you are on a slippery slope that threatens to take away your freedom for the rest of your life,” Bains said.

WATCH | Lawyer explains why Shaldon Wabason fought the 810.2 peace bond application:

To see the above video click pin the following link:

https://www.cbc.ca/news/canada/thunder-bay/wabason-section-8102-peace-bond-applications-1.6820804

The lawyer for Shaldon Wabason, Devin Bains, says his client fought the Criminal Code Section 810.2 peace bond application because he found it dehumanizing to be seen as a danger to the community. Instead, Wabason fought the peace bond application and was released on bail in 2021 while the legal process was taking place.

In March, a lawyer with the provincial Crown dropped the 810.2 application, saying “it is no longer in the public interest for us to advance this prosecution.” However, other Indigenous offenders often feel they can’t fight such applications because “they’re desperate to get out [of jail],” Bains said.

Apparent pattern of more bonds on Indigenous people

During that March hearing, lawyer Jonathan Rudin presented data from Legal Aid Ontario that showed a concerning pattern — 810.2 peace bond applications being disproportionately brought against Indigenous people. Rudin also represents Wabason as co-counsel with Bains.

Rudin shared the data with CBC News. It shows that in the last 10 years, Legal Aid Ontario (LAO) helped 83 people in the province fight 810.2 applications. That doesn’t include the number of people who entered the peace bond without fighting the conditions, which happens often, Rudin said.

Roughly 35 per cent of the people who received legal assistance to fight those peace bond applications were Indigenous, according to the LAO data. That’s significantly higher than the proportion of Indigenous people —about 20 to 25 per cent — who receive financial assistance from the LAO, Rudin said.

WATCH | Rudin explains his concerns over use of Sec. 810.2 peace bond applications:

To see the above video click pin the following link:

https://www.cbc.ca/news/canada/thunder-bay/wabason-section-8102-peace-bond-applications-1.6820804

Indigenous people make up just four per cent of the total Canadian population, but represent nearly 30 per cent of the total number of people in federal custody, according to a 2019 report from Statistics Canada. “Indigenous people get the sharpest end of the justice and correctional stick. They get the most punishment, they are the most overrepresented all through the system … and it doesn’t help make for safer communities,” Rudin said.

Howard Sapers, who previously served as the federal correctional investigator from 2004 to 2016, agreed with Rudin’s assessment. In 1999, the Supreme Court recognized Indigenous people were overrepresented in Canadian jails, in large part because of systemic racism that sees Indigenous people treated differently by the justice system. 

The Gladue ruling called for sentencing judges to consider the influence of factors like residential schools, the Sixties Scoop and the child welfare system on Indigenous offenders, in an effort to decrease the disproportionate number of Indigenous people in custody.

But in the more than 20 years since, Sapers said, it’s only become worse. “If there’s been any change, it’s that it’s become more dramatic,” he said.

To turn this tide, Sapers said, decades of commissions, investigations and academic research have offered possible solutions — chief among them is empowering Indigenous communities to control their own justice systems. But Canada needs to do a complete review at how it administers and structures the justice system, Sapers added, including the overuse of pretrial custody and large numbers of people on remand.

“Seven or eight out of 10 people who will sleep in a jail cell tonight have not been convicted of anything, and what we know about those jail populations is that they are overwhelmingly Indigenous.”

Seven or eight out of 10 people who will sleep in a jail cell tonight have not been convicted of anything.- Howard Sapers, former federal correctional investigator

Rudin called on Ontario’s attorney general to conduct a serious review of how 810.2 peace bond applications are being used, and if Gladue principles are employed to evaluate the proposed applications. If the province used Gladue principles when reviewing Wabason’s case, Rudin said he believes they would have determined the 810.2 application was unnecessary, saving the justice system time, money and resources, and allowing “Wabason to move on with his life without this hanging over his head for many years.”

CBC News requested an interview with Downey, but did not receive a response.

A statement from the Ministry of the Attorney General said the power to approve 810.2 peace bond applications has been delegated to the deputy director of high-risk offenders, the director of Crown law office (criminal) and the assistant deputy attorney general (criminal law division).

The ministry could not answer questions about how many 810.2 applications are filed, and said they do not track the ethnicity of people subject to the applications, according to the statement.

ABOUT THE AUTHOR

Logan Turner, Journalist

Logan Turner has been working as a journalist for CBC News, based in Thunder Bay, since graduating from journalism school at UBC in 2020. Born and raised along the north shore of Lake Superior in Robinson-Superior Treaty Territory, Logan covers a range of stories focused on health, justice, Indigenous communities, racism and the environment. You can reach him at logan.turner@cbc.ca.